Dismissal of Constitutional Challenge against CCSS Law and RegulationsRechazo de acción de inconstitucionalidad contra artículos de la Ley y Reglamentos de la CCSS

**Review of the Document** **Exp: 21-022962-0007-CO** **Res. No. 2025005942** **CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE.** San José, at nine hours twenty minutes on the twenty-sixth of February, two thousand twenty-five.

An action of unconstitutionality filed by Nombre35477, of legal age, married once, with identity card no. CED16242, against Articles 3, second and fourth paragraphs, and 23 of the Constitutive Law of the Caja Costarricense de Seguro Social; 1, 2, and 3 of the Regulation for the Affiliation of Independent Workers of the Board of Directors of the Caja Costarricense de Seguro Social; and—by connection—the Regulation to Verify Compliance with Employer and Independent Worker Obligations of the Board of Directors of the Caja Costarricense de Seguro Social.

**Whereas:** 1.- By a brief incorporated into the Management System of this Court on November 11, 2021, it is requested that Articles 3, second and fourth paragraphs, and 23 of the Constitutive Law of the Caja Costarricense de Seguro Social be declared unconstitutional; Articles 1, 2, and 3 of the Regulation for the Affiliation of Independent Workers of the Board of Directors of the Caja Costarricense de Seguro Social; and—by connection—the Regulation to Verify Compliance with Employer and Independent Worker Obligations of the Board of Directors of the Caja Costarricense de Seguro Social, the latter insofar as it refers to independent workers, for violating the freedom of enterprise, the right to work, legal certainty, equality before the law, the principle of tax law reservation, reasonableness and proportionality, and the inviolability of private property. It refers as the underlying matter to the case file known under case no. 1246-2020-00015, through which the coercive collection of a series of allegedly omitted sums is sought, corresponding to the payment of the Independent Worker Insurance. It states that, within that administrative file, the Inspection Directorate of the Caja Costarricense de Seguro Social issued Inspection Report no. 1246-00015-2020-1, dated May 14, 2020, by means of which an obligation to pay the Independent Worker Insurance was determined against her, for the sum of twelve million two hundred eighty-one thousand one hundred five colones with zero céntimos (¢12,281,105.00). On January 11, 2021, she filed a motion for revocation with an appeal in subsidy against the aforementioned inspection report. On April 23, 2021, the Inspection Directorate of the Caja Costarricense de Seguro Social notified her of resolution no. 1246-00174-2021-R, adopted at 8:00 a.m. on February 9, 2021, by means of which the motion for revocation was rejected and the appeal was elevated to the Financial Management of the institution, where it is in the phase of exhausting the administrative channel. Regarding the alleged violation of the principle of legal certainty and tax law reservation, she points out, among other things, that, despite the fact that the CCSS is the governing institution in matters of Social Security, and despite the fact that it certainly has administrative and functional autonomy protected by the constitutional text itself; this does not authorize it to exercise tax powers, without the recourse and referral—at least—to general postulates that the legal text must provide, it must determine core aspects of the tax, such as the taxable event (hecho generador), the active and passive subject, as well as the temporal, spatial, actuarial, financial, and mathematical parameters, so that the institution's authorities may set or modify the corresponding quotas. And it is that the legal and regulatory norms currently in force enshrine excessively broad and generic attributions to the Board of Directors of the CCSS; which generates significant constitutional friction, precisely because we are in tax matters, where the norms must be as bounded and restricted as possible, to prevent the interpreter from attributing to himself—to the detriment of the taxpayer—powers not foreseen or that exceed the central (hard) core of the fundamental right. In this same sense, the wording of Article 3 of the Constitutive Law of the Caja Costarricense de Seguro Social incurs in these shortcomings—specifically in its second and fourth paragraphs:

“Article 3.- The coverages of Social Insurance—and entry into the same—are mandatory for all manual and intellectual workers who receive a salary or wage. The amount of the quotas that must be paid under this law shall be calculated on the total of the remunerations that under any denomination are paid, by reason of or derived from the employer-worker relationship.

The Board of Directors shall set the date on which the Social Insurance for independent workers will come into effect and the conditions of this insurance; however, all those independent workers who voluntarily wish to insure themselves before the Social Insurance comes into effect generally for that sector, may do so through the corresponding application to the Caja Costarricense de Seguro Social, which, for such purposes, shall issue the pertinent regulations. Independent workers shall be exempt from payment of the employer quota. The possibility of re-entry of those independent workers who had voluntarily affiliated under the second paragraph of this article, and who subsequently disaffiliated, shall be regulated by the Caja.

The Board of Directors is authorized to take measures aimed at contributing to medical care for the indigent, in occupational risks and accidents, and in the preventive medicine campaign.

The Caja shall determine, by regulation, the requirements for entry into each protection regime, as well as the benefits and conditions under which they will be granted. (…)”. (The highlighted and underlined text does not belong to the original).

She indicates that it is neither possible nor constitutional—as mentioned in the second paragraph of the cited norm—to simply indicate that the Board of Directors has the power to define the conditions of the independent worker insurance. The doctrine and the jurisprudence of this very Constitutional Chamber have been consistent on the point that obligations related to social security constitute a type of tax obligations called "parafiscal contributions." Parafiscal contributions share, along with other taxes, their characteristics of generality and coerciveness, in the sense that their fulfillment is not voluntary or optional for the taxpayer; however, the destinations of these contributions are generally directed toward a specific end, so that—in general—they are not taxes administered or collected by the central apparatus of the State. At this level of assessment, for example, international doctrine has expressed itself in the following way: “Therefore, all obligations arising from a legal imposition of the State whose revenues do not form part of the public budget and are destined for parallel treasuries receive the name of parafiscal contributions. From another perspective, given their growing proliferation, it is noteworthy that in recent years there has been a doctrinal development that considers the presence of certain formal aspects that enclose all other taxes, i.e., compliance with tax principles: generality, legality, and progressivity. Thus, these are taxes established by authority of law that are charged to the members of a specific economic or social sector or group destined to finance an activity that interests the same group or sector for the benefit of all contributors, the administration of the resources may be carried out by public, semi-public, or private bodies” (Cf. Nombre35478. Tributos vinculados y parafiscalidad, in Dirección1964 (coord.). "Del Derecho de la Hacienda Pública al Derecho Tributario" (2011). 2nd ed. Bogotá, Colombia: Nombre35524, p. 581). This very Constitutional Chamber had the opportunity to express itself, in judgment 2018-13658, on the characterization of Social Security quotas as a "parafiscal contribution." Thus, there can be no doubt in doctrine that Social Security quotas and contributions have a tax nature, although they are certainly not taxes. Their tax character is perceived in some of their characteristics; such as, for example, their coerciveness, the circumstance of being imposed by an organ of the Public Administration, and the consideration that their destination is directed toward the satisfaction of collective needs, specifically, for the coverage of the Social Security regime. This is concretized, for the Costa Rican Social Security system, in the payment of mandatory, periodic, and coercively enforceable quotas, to which employers and workers are obligated. The requirement of these quotas as one of the main sources of financing for the system is already perceived in the first paragraph of Article 3 of this legal norm. Based on the foregoing, and it being clear that the quotas are the contributions of employers and workers through which the parafiscal contribution is concretized; it follows as a consequence that, by virtue of the principle of legal reservation (reserva de ley) governing tax matters, the same quotas must be established and predefined by the legislator, and not by administrative dependencies of the Executive Branch or autonomous institutions. And it is that, in development of the often-referenced principle of legal reservation (reserva de ley) in tax matters, Article 5 of the Code of Tax Norms and Procedures imposes that only the law and not an agreement or a regulation issued by an administrative body can create, modify, or suppress taxes, define the taxable event (hecho generador) of the tax obligation, establish the rates of the taxes and their calculation bases, and indicate the passive subject of the tax obligation. None of which is fulfilled in the specific case, because both the core elements of the Independent Worker Insurance, such as its taxable event (hecho generador), the methodology for calculating the rates and the taxable base, the passive subject; in short, all the substantial aspects of the tax, are defined by a collegial body of an autonomous institution of the State, and not by formal law. The reproach of unconstitutionality for violation of the principle of legal reservation (reserva de ley) that is alleged, lies in the fact that the entire discipline of the Independent Worker Insurance quotas is regulated in the Regulation for the Affiliation of Independent Workers; that is to say, in an infra-legal normative provision, the quantum and practically all the conditions of the parafiscal contributions to social security that the administered must pay are established. And the accusation of unconstitutionality of Article 3 of the Constitutive Law of the CCSS rests, in turn, on the point that this legal norm attempts to legitimize or validate an excessive and, therefore, unreasonable and disproportionate normative referral; the foregoing, with the confessed purpose that it is the Board of Directors of the CCSS that defines all the elements of this tax, which represents a violation of the constitutional doctrine embodied in the General Law of Public Administration, in the understanding that the essential competencies of public organs and entities shall be inalienable, non-transferable, and imprescriptible. But, furthermore, this means in practice that the legislator is renouncing in advance the exercise of absolutely all competence for setting or regulating the aforementioned quotas, which not only represents a legislative technique violative of the principle of equality (because for salaried workers, standards are indeed set from the law itself), but also a violation of the principles of legal certainty and of legal reservation (reserva de ley), because—in breach of the rules of Articles 9 and 121 subsection 13) of the Political Constitution—, the Legislative Power is delegating to the CCSS the definition of absolutely all the conditions concerning the regulation of the Independent Worker Insurance. Likewise, she points out that the fourth paragraph of the aforementioned Article 3 of the Constitutive Law of the CCSS is unconstitutional not because certain competencies or attributions are granted to the Board of Directors of the CCSS; but, rather, because no limit or condition whatsoever is established from the legal text for said administrative body to carry out the task of determining parafiscal contributions to social security, since the norm does not impose any clear temporal or substantial criterion on the CCSS for it to carry out the task of issuing the corresponding regulations. She states that the principle of legal reservation (reserva de ley) is also violated, because there is no legal definition of what an "independent worker" is. The only normative enunciation that even tangentially refers to the scope of coverage of the CCSS's action is the Regulation for the Affiliation of Independent Workers, which—nonetheless—is openly disproportionate, by inadmissibly extending the framework of this insurance to "any productive activity generating income." She states that the fact of being able to define what exactly is and is not an independent worker would allow understanding an element of the tax as important as the passive subject of the tax obligation, in such a way that the patent lack of definition of what an independent worker is, ultimately, inappropriately attributes to the CCSS a series of powers that this entity is not conferred, as they belong exclusively to the legislator. She argues that the Board of Directors of the CCSS acts without any clear or standardized parameter in the norm, to issue the successive regulatory norms with which it regulates the issue of the affiliation of independent workers. For example, no precise or unambiguous technical rules are known that determine how this setting must be carried out, and this is clearly exemplified in the fact that the quota for independent workers has been increasing percentage-wise over time, from about 10% in 2005, to about 22% currently, as an average of all contribution levels. A situation that involves an affront against the terms of Article 34 of the Political Constitution, since, with these extreme variations in the various contribution scales, it causes the individual not to know what to expect in their economic planning and in their relations with the organs of public power. After referring to the jurisprudence of this Court in relation to the principle of equality, she points out that the contested norms are unconstitutional, since, by not establishing express limitations or conditions on the CCSS, they allow the latter to make determinations of the Independent Worker Insurance quotas in an unequal manner, if compared to the employer-worker quotas. In this way, the legal norm challenged as unconstitutional is contrary to the principle of equality before the law in tax matters, because it allows the Board of Directors of the CCSS to incur in discriminatory treatment such as that which it finally determines through its resolutions and agreements, given that there is no objective and truly verifiable pattern of differentiation that allows explaining the reason why independent workers must contribute at higher percentage scales than salaried workers. That is to say, given the same manifestation of economic capacity by salaried workers and independent workers, the contribution amounts established by the authorities of the Caja Costarricense de Seguro Social are different. Therefore, the contravention of numeral 33 of the Political Constitution arises at the moment in which the institution's regulatory norms apply two different yardsticks, one for employees or workers who receive a salary or wage and another for independent workers; and this distinction is made without there being an objective parameter of differentiation, since discrimination or differentiation cannot be made between the nature of the work or the functions that some or others carry out, given that both carry out productive activities equally. Both salaried and independent workers make their intellect and their manual activity available for the beneficial transformation of their environment and their surroundings. She also warns that, contrary to the aforementioned principle of equality before the law, is the fact that for independent workers, the regulation is attributed entirely to the Board of Directors; while, on the contrary, for salaried workers, the regulation is dictated by the legal norm itself. Thus, in the opinion of the plaintiff, it is unreasonable and contrary to the aforementioned principle of equality that the independent worker—who does not have an economic structure to support them, but assumes all the risks and burdens of the exercise of their own activity—has to contribute more—in terms of the quota and the percentage—than a salaried worker. The latter, conversely, assumes no risk from the organization of the company, and only has to contribute their labor to the system of production factors. She indicates that they are clearly two different types of workers, but what cannot happen is that there are regulatory norms that do not recognize the conditions and the very nature of the work carried out by independent workers, because in this way, the differences that exist between one and the other would simultaneously be ignored. She considers that it was incumbent upon the same law to set a minimum contribution that respects the particularity of the situation of the independent worker. The way in which the CCSS treats—unjustifiably—salaried and independent workers in a differentiated manner can be visualized in the regulation of Article 33 of the Regulation for Disability, Old Age, and Death Insurance. She argues that the very wording of that article introduces an undue distinction, inasmuch as the contribution amounts are diametrically different between salaried workers and independent workers, without there being an objective and measurable criterion that justifies such a differentiated treatment when the same objective is pursued. And it is that the purpose to which the different social security regimes tend is, ultimately, to provide health services and the possibility of access to a pension to all citizens, under equal conditions for all, for which reason it is in no way justified why the norm establishes such a differentiated treatment for the contributions of independent workers—compared to the legal situation of salaried workers—when the idea is to guarantee elementary conditions for the population's access—under equal conditions—to health and social security services. In relation to Article 23 of the Constitutive Law of the CCSS, she points out that this clearly determines that the cost of the medical services to be provided to the insured shall be the determining criterion for defining the amount of the respective contributions. From the foregoing, it is then evident that there is no reasonable basis for making such large differences in the contribution percentage corresponding to salaried workers and that of independent workers; given that, for example, the degree of utilization of medical services is presumably comparable between salaried and independent workers. Thus, there is no reason whatsoever to maintain that the group of independent workers requires health services or pension benefits in a greater proportion than salaried workers, nor vice versa. Thus, at least from the initial provision contained in the cited norm, the contribution of salaried workers—to provide resources to the IVM Regime—shall be on 4.50% of their salary income; meanwhile, and conversely, the contribution of independent workers is established at 10.25% on their corresponding monthly income. This differentiation is completely devoid of a reasonable and objective basis for differentiation, so much so that in none of the normative texts regulating the contributions on the income of workers is the reason, or the justifiable cause for this divergence, explained, which compels one to brand it as unconstitutional. And it is that, with determinations such as those adopted in this regard by the CCSS, a differentiation is entrenched that finds no justification in the legal norm itself, nor in the reality or social context inherent to the application of the norm, because nothing justifies that a set of activities that are ultimately comparable—and whose only difference lies solely in the acting subject of the same—is taxed under different legal treatment, and by imposing differentiated tax burdens. Therefore, she requests the unconstitutionality of Articles 3, second and fourth paragraphs of the Constitutive Law of the Caja Costarricense de Seguro Social, 1 and 2 of the Regulation for the Affiliation of Independent Workers of the CCSS, and—by connection—the Regulation to Verify Compliance with Employer and Independent Worker Obligations; given that these norms do not guarantee or ensure, in the most appropriate manner, the principle of equality before the law. She indicates that, in the present case, the norms accused of being unconstitutional also break the basic standards of the principle of proportionality (necessity, suitability, and proportionality in the strict sense), which have been designed and expounded by the jurisprudence. The foregoing, because to solve a problem certainly worthy of the promptest attention of the State and—in particular—of the Caja Costarricense de Seguro Social, measures are taken that are extremely burdensome and completely injurious to the constitutional rights of all independent workers. She acknowledges that the finances of the Sickness and Maternity Regime and, mainly, of the Disability, Old Age, and Death Regime are experiencing a difficult moment, and that this warrants taking the necessary measures to guarantee the future sustainability of the system. However, these needs cannot be taken as a free pass or carte blanche to threaten the constitutional rights of the citizenry, or to impose the payment of contributions that may harm the economic capacity of the taxpayers. Furthermore, she emphasizes that—as has been argued on the occasion of the previous grounds of unconstitutionality—the impositions made on independent workers are percentage-wise higher than those demanded of salaried workers, which is exacerbated, because in the case of self-employed workers, there is no employer, the percentages that the workers and the State must assume are comparatively higher (the latter, to try to compensate for the overall contribution percentage, with that which applies in the case of workers who receive a salary). Therefore, she indicates that the contested norms do not satisfy the criteria or sub-principles of necessity and suitability that form part of the more generic principle of proportionality. This is manifested in the fact that, from among a range of possible measures that would allow solving the shortcomings and weaknesses of the pension regimes administered by the CCSS; the Board of Directors of the Caja de Seguro Social inadmissibly takes a set of extremely burdensome and arbitrary measures that grant an abusive exercise of public competencies to the institution's own administrative bodies and, in particular, to the Inspection Directorate, which translates into the tax burdens imposed on independent workers becoming truly confiscatory. The foregoing, because the percentage quantum of the imposed quotas effectively diverts a significant percentage of the net income of each of the passive subjects obligated to contribute to the sustainability of these regimes. Thus, tolerating or admitting as a possible conclusion the constitutionality of a series of administrative norms that have been verified as so burdensome for the rights of the administered and of all those subjects of law who receive any type of income would be equivalent to allowing or admitting—even implicitly—that cracks or loopholes be opened for the exercise of levels of arbitrariness in the actions of the State's administrative bodies. It is not possible to admit that it is an administrative body of the State that attributes to itself competencies of a tax nature, without the intermediation of political control and the debate characteristic of parliamentary bodies, and without any subjection to material, temporal, or spatial limitations. The Board of Directors does not even have those alleged prerogatives to modify the contribution amounts that independent workers must pay delimited by law; so much so, that it can even define modifications to its own agreements at any time and as many times as it considers necessary. She indicates that it is unreasonable and disproportionate that there is no definition of what exactly the figure of the "Independent Worker" comprises. Article 1 of the Regulation for the Affiliation of Independent Workers—a norm here alleged as unconstitutional—indicates that the obligations to contribute to the Independent Worker Insurance are erected on income received from work and even “from any income-generating activity”; which gives rise for the autonomous institution governing social security to potentially overstep, considering that absolutely all private activity that imagination can conceive must be subject to this type of contributions, which is unreasonable, since the effects of such a level of generality and normative imprecision have already been seen. The CCSS has initiated administrative proceedings against persons who only receive passive income, such as renting movable or immovable property, investigations have even been opened against persons who are part of boards of directors and representation of commercial companies, or who receive interest on bank certificates and other assets deposited in financial institutions, all of which is simply due to the fact that there is no norm that defines what it is to "work" independently. Following the thesis outlined by the CCSS, one would easily arrive at the absurdity that even any property disposal in favor of another would make the latter a case of interest for the CCSS and would also be subject matter of the Independent Worker Insurance; the foregoing, because they would fall within the extremely broad framework of "income-generating activity" provided for in Article 1 of the Regulation for the Affiliation of Independent Workers. It has not been defined which profiles or activities would eventually allow the CCSS to consider that those activities are independent work, especially since there is no definition of a set of tasks and means to develop them that, in a permanent and voluntary manner, are carried out to generate income. This lack of definition becomes contrary to the principles of reasonableness and proportionality, as it could become a source of potential abuses against the administered. She states that the norms adduced contravene the principles of security, legal reservation (reserva de ley), equality before the law, inviolability of citizens' private property, and reasonableness and proportionality. She requests that the unconstitutionality be declared of Article 3, second and fourth paragraphs, and 23 of Law No. 17, "Constitutive Law of the Caja Costarricense del Seguro Social," of October 22, 1943, Articles 1, 2, and 3 of the "Regulation for the Affiliation of Independent Workers," approved by article 21 of session no. 7877, of the Board of Directors of the Caja Costarricense de Seguro Social, held on August 5, 2004; and by connection, the "Regulation to Verify Compliance with Employer and Independent Worker Obligations," approved by article 30 of session no. 8051, of the Board of Directors of the Caja Costarricense de Seguro Social, held on April 27, 2006, insofar as the latter refers to the regulation of the alleged obligations of independent workers.

2.- By resolution at 2:37 p.m. on November 19, 2021, the Financial Manager of the Caja Costarricense de Seguro Social was requested to send to this Court a certified copy of the case file corresponding to case no. 1246-2020-00015, which indicates that the appeal filed by Nombre35479, in their capacity as special legal representative of the petitioner here, against the resolution at 2:00 p.m. on May 14, 2020, called Inspection Report no. 1246-00015-2020-I, is pending resolution.

3.- On December 1, 2021, the Financial Management of the Caja Costarricense de Seguro Social sent to this Court the certified copy of the case file corresponding to case no. 1246-2020-00015.

4.- By filing on January 5, 2021, Magistrate Jorge Isaac Solano Aguilar raised his recusal from hearing this proceeding, by virtue of the fact that he also holds the status of independent worker.

5.- By resolution at 7:48 a.m. on January 6, 2022, the president of this Chamber accepted the recusal raised by substitute magistrate Jorge Isaac Solano Aguilar.

6.- According to random selection 9659, carried out by the Presidency of the Court, substitute magistrate José Roberto Garita Navarro was designated to substitute magistrate Jorge Isaac Solano Aguilar.

7.- By resolution no. 2022-11626, at 9:20 a.m. on May 25, 2022, the Majority of this Court ordered the outright dismissal of the action regarding the challenge to article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, to ordinance 3 of the Reglamento para la Afiliación de Trabajadores Independientes, and to the alleged violation of the right to work, freedom of enterprise, and inviolability of private property. As for the rest, the processing of this action was suspended until the one being processed before this Chamber under case file no. 18-004106-0007-CO was resolved.

8.- By judgment no. 2024-03228 at 12:17 p.m. on February 7, 2024, this Court resolved the unconstitutionality action no. 18-004106-0007-CO, with the following operative part: “The action is dismissed. Magistrate Cruz Castro records additional reasons. Magistrate Rueda Leal records particular reasons.” 9.- By resolution at 12:13 p.m. on February 18, 2025, the president of this Chamber set aside the appointment of substitute magistrate José Roberto Garita Navarro and declared Magistrate Hess Herrera enabled to hear this unconstitutionality action.

10.- Article 9 of the Ley de la Jurisdicción Constitucional empowers the Chamber to dismiss outright or on the merits, at any time, even from its presentation, any proceeding that comes before it that proves to be manifestly inadmissible, or when it considers that there are sufficient elements of judgment to dismiss it, or that it constitutes the simple reiteration or reproduction of a previous, identical or similar proceeding that was dismissed.

Drafted by Magistrate Castillo Víquez; and,

Considering:

I.- Preliminary issue. It is noted beforehand that this Court, by resolution no. 2022-11626, at 9:20 a.m. on May 25, 2022, the Majority of this Court ordered the outright dismissal of the action regarding the challenge to article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, to ordinance 3 of the Reglamento para la Afiliación de Trabajadores Independientes, and to the alleged violation of the right to work, freedom of enterprise, and inviolability of private property. As for the rest, the processing of this action was suspended until the one being processed before this Chamber under case file no. 18-004106-0007-CO was resolved. Therefore, this Court's pronouncement will be limited solely to the alleged unconstitutionality of article 3, second and fourth paragraphs, of the Ley Constitutiva de la Caja Costarricense de Seguro Social and ordinances 1 and 2 of the Reglamento para la Afiliación de Trabajadores Independientes, for the violation of the principles of legal certainty (seguridad jurídica) and legal reserve in tax matters, equality before the law, and reasonableness and proportionality.

II.- On standing. The petitioner is deemed to have standing (legitimación) to bring this action, based on article 75, paragraph 1, of the Ley de la Jurisdicción Constitucional, since they indicated as the underlying matter the administrative procedure processed in case file no. 1246-2020-00015, which indicates that the appeal filed by the petitioner here, before the Gerencia Financiera of the CCSS, within which they invoked the unconstitutionality of the norms challenged here, is pending resolution.

III.- Object of this action. The petitioner brings this unconstitutionality action against article 3, second and fourth paragraphs, of the Ley Constitutiva de la Caja Costarricense de Seguro Social and ordinances 1 and 2 of the Reglamento para la Afiliación de Trabajadores Independientes, for the violation of the principles of legal certainty (seguridad jurídica) and legal reserve in tax matters, equality before the law, and reasonableness and proportionality.

IV.- On the procedure. This action was suspended pending the resolution of unconstitutionality action number 18-004106-0007-CO, in which the constitutionality of the second paragraph of article 3 of the Ley Constitutiva de la CCSS, no. 17 of October 22, 1943, and its amendments, was questioned, as well as articles 1 and 2 of the Reglamento para la Afiliación de los Trabajadores Independientes of the CCSS, no. 7877 of August 5, 2004. Said unconstitutionality action was resolved by judgment no. 2024-03228 at 12:17 p.m. on February 7, 2024, which ordered the following:

“Por tanto:

The action is dismissed. Magistrate Cruz Castro records additional reasons. Magistrate Rueda Leal records particular reasons.” Given that, in the case at hand, similar grievances of constitutionality were alleged against the norms challenged here, this action is hereby dismissed on the merits based on the considerations set forth in the aforementioned judgment, as indicated below.

V.- On the alleged violation of the challenged norms to the principle of legal reserve (reserva de ley) and legal certainty (seguridad jurídica). The petitioner argues that, by virtue of the principle of legal reserve that governs tax matters, the quotas that the CCSS imposes on the independent worker are parafiscal contributions and, as such, must be established and predefined by the legislator, not by administrative departments of the Executive Branch or autonomous institutions. None of which is fulfilled in the specific case, because both the core elements of the Independent Worker Insurance, such as its taxable event (hecho generador), the methodology for calculating rates and the taxable base, the passive subject; in short, all the substantial aspects of the tax, are defined by a collegiate body of an autonomous institution of the State, and not by formal law, in accordance with article 3 of the Ley Constitutiva de la CCSS and the challenged regulation, which not only violates the principle of legal reserve, but also that of legal certainty.

As already indicated, in relation to this provision and the argument invoked by the petitioner here, this Chamber, in judgment no. 2024-03228 at 12:17 p.m. on February 7, 2024, in what is pertinent, ordered the following:

“XI.- On the constitutionality of the challenged regulations. The alleged violation of the principle of legal reserve. The questions of constitutionality regarding the principle of legal reserve being raised in this action have already been subject to discussion by this Court on previous occasions, and in all of them, the Chamber has concluded that what is adduced regarding the violation of the principle of legal reserve falls short of damaging the Law of the Constitution, based precisely on the high degree of autonomy held by the CCSS, which is a highly relevant reason to justify that decision.

In that sense, the jurisprudence of this Court is reiterated, recognizing that, precisely because of the degree of autonomy granted to it by the Constituent, the institution has broad regulatory power to be exercised in matters within its competence, which —as has been stated— was entrusted to it by the Political Constitution itself, a power with which the principle of legal reserve is not violated and, therefore, neither is the Law of the Constitution —see judgment number 2010-5893, reiterated in judgment number 2022-23208; additionally, judgments numbers 2003-2355, 2001-9580, 2001-9734, 2001-546, 2002-4881, 7393-98, 1059-94, 3853-93 and 3403-94, among others, may be consulted—.

This Chamber, based on the provisions of article 73 of the Constitution, indicated in judgment number 2001-009734, reiterated in number 2003-002355, in what is pertinent:

‘III.- ON THE COMPETENCE OF THE CAJA COSTARRICENSE DEL SEGURO SOCIAL. By virtue of the provisions of article 73 of the Political Constitution, the Caja Costarricense del Seguro Social is responsible for "the administration and government of the social insurances," a competence that is developed in article 3 of the Ley Constitutiva de la Caja Costarricense del Seguro Social, number 17 of October twenty-second, nineteen hundred forty-three, so that its Board of Directors has full authority to establish, via regulation, the scope of the benefits proper to social insurances, both in terms of defining conditions and benefits, as well as the entry requirements for each protection regime. Likewise, article 23 of the same Law establishes as one of the parameters to be considered in this definition, the actuarial studies and calculations, in order to maintain the system's sustainability. From the foregoing, it is clear that the Caja Costarricense del Seguro Social has full competence to issue norms like those challenged, as they respond to the constitutional mandate of article 73, since they refer to an aspect of the organization and administration of social insurances.’ —emphasis added— Thus, the regulatory power in matters of independent workers exercised by the Caja through its Board of Directors falls within the powers of administration and government that, in social security matters, have been granted to it in the second paragraph of article 73 of the Political Constitution and, therefore, is consistent with the Law of the Constitution; this regulatory power should not be confused with that established in article 140, subsections 3) and 18), of the Political Constitution, by which the Executive Branch is granted the authority to issue the organization and service regulations of the Administration. It must be borne in mind that, precisely because of the autonomy enjoyed by the CCSS examined supra, the Executive Branch cannot regulate matters relating to the administration and government of social insurances, because that is a matter reserved for the Caja, which has full independence and autonomy to regulate and manage it, as was granted and recognized by the Political Constitution itself.

From this perspective, matters relating to the mandatory insurance of independent workers and the quotas they must pay are a matter proper to the exercise of those attributions and a legitimate mechanism that does not violate the Law of the Constitution, particularly the principle of legal reserve; rather, it is aimed at enabling the Caja to fulfill the purpose constitutionally entrusted to it, without it being necessary for this to be established by a law emanating from the Legislative Assembly. In this regard, in judgment number 2008-017304, this Chamber expressly ordered:

‘VI.- INDEPENDENT WORKERS INSURANCE. Contrary to the petitioner's opinion, this Court has found no reason to exclude independent worker insurance —and even non-contributory regimes— from the regulatory powers of the CAJA COSTARRICENSE DE SEGURO SOCIAL. On this matter, it ruled in judgment No. 2000-02571, at 2:38 p.m. on March 22, 2000:

"Regarding the appellant's argument that the challenged norm exceeds the limits of regulatory power and that the regulated matter cannot be contained in an autonomous regulation, the Chamber agrees with the Procuraduría General de la República, in the sense that article 10 of the Reglamento de Seguro Voluntario is not unconstitutional for that reason. The Ley Orgánica de la Caja Costarricense de Seguro Social provides in its article 3, paragraph 5, that the Caja shall determine, by regulation, the entry requirements for each protection regime, as well as the benefits and conditions under which they shall be granted. Article 14, subsection f), confers upon the Board of Directors the authority to issue regulations for the functioning of the institution, and numeral 23 indicates that the Board of Directors is the competent body to determine quotas and benefits in accordance with the cost of services, according to actuarial calculations. This Chamber has referred to such attributions in vote No. 3403-94 at 3:42 p.m. on June 15, 1994, and in No. 7393-98 at 9:45 a.m. on October 16, 1998, it declared that norm 23 of the Ley Constitutiva de la Caja is in accordance with the Political Constitution, given that the attributions it confers upon the Board of Directors do not imply delegation of the exercise of functions of the Legislative Power, but are based on article 73 of the Constitution. That norm entrusts the government and administration of social insurances to the Caja, and therefore it is competent to issue autonomous regulations such as that of voluntary insurance. Consequently, it is not verified that the Regulation containing the challenged provision violates article 140, subsection 3) of the Political Constitution." As is evident from the cited judgment, the point raised by the petitioner is not new. This Court has already ruled on the matter and there is no reason to change its criteria. To exclude independent worker insurance, there must be some characteristic of these that distinguishes them from other insurances. The petitioner argued that the difference lies in the fact that it restricts freedom of commerce. However, this Court does not consider such an argument to be acceptable. In the first place, the norm does not prevent engaging in a lucrative activity, but rather imposes a charge on it, just as the mandatory contribution to their employees' insurance constitutes a charge for employers. Consequently, the first reason of unconstitutionality is not admissible." In accordance with what was indicated in the previous precedents, the CCSS is empowered to issue the regulations for the insurances under its administration, without the exercise of that power implying, by itself, any violation of constitutional order in general, much less of the principle of legal reserve, in particular. This was recognized in judgment of this Chamber, number 2022-23208, when it defined that:

"By virtue of this, the Chamber does not deem the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes to be unconstitutional, under the argument put forward by the petitioner —principle of legal reserve— such that the action must be dismissed in this regard, since the CCSS is the entity responsible for the administration of social security and is endowed with maximum autonomy for that purpose, therefore it has full competence to establish, via regulation, the scope of the benefits proper to social security, so that it can define the conditions, benefits, and entry requirements for each protection regime (…).” —the highlighting is not from the original— Thus, the fact that the challenged norms allow the CCSS and specifically its Board of Directors to establish the conditions, requirements, and quotas applicable to independent workers does not imply an excess of the limits of regulatory power, since, as has been pointed out, the Caja has the power to determine, by regulation, the entry requirements for each protection regime, as well as the benefits and conditions under which they shall be granted and, in that sense, article 14, subsection f) of its Ley Constitutiva, confers upon the Board of Directors the authority to issue regulations for the functioning of the institution, while numeral 23 of the same Law indicates that the Board of Directors is the competent body to determine quotas and benefits in accordance with the cost of services, according to actuarial calculations.

As is evident from the previous transcriptions, the Chamber has referred to such attributions and has declared that norm 23 of the Ley Constitutiva de la Caja is in accordance with the Political Constitution in the sense that the attributions it confers upon the Board of Directors do not imply delegation of the exercise of functions of the Legislative Power, but are based on article 73 of the Political Constitution, which entrusts the government and administration of social insurances to that institution and, therefore, it is competent to issue autonomous regulations —such as the one relating to the affiliation and quotas of independent workers—, without thereby violating the provisions of article 140, subsection 3) of the Political Constitution —see in a similar sense, judgments numbers 2000-2571 and 2008-17304—. Consequently, this argument must be dismissed as no violation of the principle of legal reserve is constituted.” Likewise, given that the petitioner here also invokes the parafiscal nature of the mandatory contribution imposed on independent workers, it is appropriate to cite what was ordered in that same judgment in this regard:

“…XVI.- On the arguments regarding the parafiscal nature of the quotas paid to social security. According to the petitioner, social security contributions are conceived as taxes insofar as they belong to the category of parafiscal contributions, therefore, for their application, the principles that apply to taxes must be observed, such as legal reserve, economic capacity, and tax equality, being that, in the case of the Caja Costarricense de Seguro Social, its Board of Directors is authorized —by paragraph 2 of article 3 of the Ley Constitutiva de la Caja that is being challenged— to create that parafiscal contribution without compliance with the indicated principles, thereby violating the Law of the Constitution.

Beyond what has already been set forth in this judgment regarding the non-affectation of the principle of legal reserve, at this point, it is interesting to note that the Chamber has analyzed this issue of parafiscal nature in several pronouncements in which it has expressly recognized that social security quotas are parafiscal contributions, but of constitutional origin. Thus, in judgment number 2018-13658 —reiterated, among many others, by judgments numbers 2019-9190, 2021-2161, 2021-23611, 2021-27052 and 2023-3593—, the Chamber expressly stated that:

"The question of parafiscal contributions —in this case, contributions to social security— has provoked no small controversy in the doctrinal and jurisprudential sphere. Regarding the constitutional legal controversy before us, from the perspective of this Chamber, two theses are plausible. The first, which considers that since it is a tax —see in this regard judgment 2006-009568 of this Court—, its structural elements —taxable event, rate, calculation base, active and passive subject, etc.— must inevitably be defined by formal Law; this latter consequence has not been validated by the Constitutional Chamber. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality would be violated, especially considering that some find the origin of Parliament and democracy in the struggle of English barons to seize tax power —there is no democracy without Parliament, nor the latter without the Opposition—. In short, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court —see, among others, judgments numbers 1994-003819 and 1998-007393—, is the one that considers that we are not in the presence of a parafiscal contribution and, consequently, the principle of tax legality should not be applied. 'The payment of the quota or contribution, as the case may be, is not a tax, as stated in previous paragraphs, but the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the contributors themselves…'.

According to the most authoritative doctrine in tax matters, parafiscal contributions are a tax, as they contain the material elements of obligatoriness —the duty to pay them by those who fall under the assumption of the creating norm—, of singularity because it affects a specific and unique social or economic group, and of sectoral allocation because what is collected through this mandatory payment is used for the exclusive benefit of the group that paid the tax. We are, then, before the exercise of a power of imperium of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law —tributum sine legge—.

Now then, in the case of employer-worker quotas destined for the support of social security —sickness and maternity insurance and disability, old age, and death insurance—, our legal system has a singularity. Indeed, numeral 73 of the Constitution is the one that creates the parafiscal contribution by ordering a mandatory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies that the law may determine. Following that, the constitutional text establishes that the administration and government of those social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, in what is pertinent, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of social insurances for purposes other than those that motivated their creation. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent, with which, from the perspective of this Court, the maxim that there can be no taxation without representation —no taxation without representation— is fulfilled. In other words, in the case before us, adherence to the principles that govern the exercise of tax power is satisfactorily met, since a representative, plural body, exercising the maximum power in a democratic and social state of law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle we must overcome relates to setting the amount of the quota to be paid by employers and workers. In this regard, article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social establishes that quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in accordance with the respective actuarial calculations. The workers' contribution can never be greater than their employers' contribution, except in cases of exception that the Regulation indicates, based on actuarial recommendations, to give greater benefits to the former and to obtain a fairer distribution of the burdens of mandatory social insurance. Viewed in this way, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, the Board of Directors of the Caja Costarricense de Seguro Social is imposed with objective parameters when determining the amount of the quota —the cost of the services it provides and the respective actuarial calculations—, such that the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Judge of the Contentious-Administrative jurisdiction. This same logic follows the Código de Normas y Procedimientos Tributarios in its numeral 5, in relation to fees, as it allows varying their amount by way of Regulation so that their purpose is fulfilled in a more suitable manner, after intervention of the body that by law is responsible for regulating the tariffs of Public services.

Recapitulating, as the parafiscal contribution was created by the original Constituent, the principle of tax legality is amply fulfilled, on the one hand, and by the legislator setting objective parameters for determining the amount of the quota of the parafiscal contribution, that principle is also respected" —emphasis added— In the same vein, the aforementioned judgment 2021-23611, refers profusely and absolutely clearly to the relationship between the autonomy regime of the Caja Costarricense de Seguro Social, the principle of legal reserve, and the power of the institution to set social security quotas —including, of course, that relating to independent workers—, without this representing or implying the constitutional violations adduced in this action, such that for the purposes of a comprehensive conclusion on all these aspects, it is especially illustrative to expressly cite what was developed in said judgment 2021-23611. This judgment states that:

"V.- The Caja Costarricense de Seguro Social, its autonomy, and social security. In relation to numerals 73 and 74, located in the single chapter of Title V 'Social Rights and Guarantees' of our Magna Carta, constitutional jurisprudence has extensively developed their content and implications regarding the autonomy of the CCSS in matters relating to the administration and government of social insurances.

Thus, in judgment no. 2001-10545 at 2:58 p.m. on October 17, 2001, it was ordered:

"II.- On the merits. The autonomy of the Caja Costarricense de Seguro Social. —The second paragraph of article 73 of the Political Constitution establishes 'The Administration and government of social insurances shall be in charge of an autonomous institution, called Caja Costarricense de Seguro Social'. Regarding the scope of what that norm establishes, the Chamber has stated on repeated occasions that the autonomy of the Caja is not subject to limits in matters of government. On this topic, analyzed in judgment 6256-94 at nine o'clock on October twenty-fifth, nineteen hundred ninety-four, it was expressed:

"III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.— The Asamblea Nacional Constituyente, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, basically following the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the 1943 modifications to the 1949 Constitution. However, for the purposes of the consultation, the participations of Constituent Nombre35480 on the topic are suggestive. From page 34 of Volume III of the Acts of the Asamblea Nacional Constituyente, the following is transcribed: 'Furthermore, the Caja, sooner or later, would have to assume the risk of unemployment, which will resolve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable thing is to leave things as they are, giving the Caja full autonomy to make it independent from the Executive Branch'; and on page 36 idem, it is added: 'In that sense, the most appropriate is to maintain the wording of article 63, which is good at least for the trial period. Anything that signifies limiting Social Security resources will undoubtedly be an inexplicable setback'. When the article was approved, a second paragraph was included that literally stated: 'The administration and government of social insurances shall be in charge of an autonomous institution', a text that was later amended by Law No. 2737 of May 12, 1961, resulting today as follows: 'The administration and government of social insurances shall be in charge of an autonomous institution, called Caja Costarricense de Seguro Social'. In conclusion, the constituent attributed the administration and government of social insurances to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it itself has granted it and sharing the general principles derived from its condition as a decentralized entity.

Other judgments of this Chamber that allude to the issue of the autonomy of the Caja Costarricense de Seguro Social are the following: 0236-94 at 9 hours 57 minutes on January fourteenth; 3403-94 at 15 hours 42 minutes on July 7th; 6471-94 at 9 hours with 39 minutes on November 4th, all from the year 1994).

In a decision subsequent to these, the Court stated:

"IV.- Article 73 of our Political Constitution establishes the existence of social insurance, which is regulated by a system of mandatory contribution from the State, employers, and workers, with the aim of protecting them against the risks of illness, maternity, disability, old age, and death. The Caja Costarricense de Seguro Social is the autonomous entity responsible for administering this type of insurance, with the autonomy that allows it to have its own initiative in its affairs, as well as to execute its tasks and fulfill its legal obligations, setting goals and the means to achieve them. It thus guarantees the establishment of social security and its nature, decrees the purpose of social insurance, and regulates the destination of the respective funds. Social security was born to protect the worker and their family, as the human beings they are, and is provided from conception to death, seeking health and aiding in unforeseen misfortunes such as disability and death, as well as in states of vulnerability due to their own condition, such as old age, pension, and retirement." (Judgment 004636-98 of 15 hours 57 minutes on June 30, 1998) "…it is permissible for the different establishments of the Caja, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures for its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over private interests." (Judgment 03065-98 of 18 hours 18 minutes on May 6, 1998) "…the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution for the Caja is not subject to limits in matters of government, as this court has reiterated in previous judgments (see for example: 3403-94, 6256-94, 6524-94, among others). The constituent power expressly instituted an entity charged with the administration of social security, endowed with maximum autonomy for the performance of its important function; which is why the reform to constitutional numeral 188 that instituted administrative direction did not modify its legal regime." (Judgment 07379-99 at 10 hours and 36 minutes on September 24, 1999) Upon analyzing what was alleged by the petitioner, the Court considers that – indeed – the content of Transitory Provision IV of Ley 6577 is harmful to the governmental autonomy conferred upon the Caja Costarricense de Seguro Social by the second paragraph of Article 73 of the Political Constitution, since by providing for the mandatory closure of the pensioner service within a specific timeframe – or even if it had provided otherwise – it is evident that it invades the powers that, by virtue of governmental autonomy, are attributed to said institution, this being understood as the capacity to carry out its legal mission without subordination to another entity, to self-direct, self-govern, and dictate its own objectives and organize itself in the manner it deems convenient for the fulfillment of the purpose for which it was created." For its part, vote no. 2002-06384 of 15:27 hours on June 26, 2002, stated:

"VIII.- Subsection b) of Article 2 of the Law Creating the Budgetary Authority. Considerations of the Constitutional Court. In relation to autonomous institutions, the Court ruled in favor of the faculty of the Budgetary Authority to formulate directives for decentralized institutions, but interpreted this faculty in a restrictive manner. Based on Article 188 of the Political Constitution, this Court considered in judgment No. 3309-94 that the faculty of the Budgetary Authority is constitutional as long as:

“… it remains in the field of the design and subsequent execution of general policy directives, but not, of course, to the extent that its application interferes in the concrete execution of those directives. The general nature of this function means that the Budgetary Authority cannot, within its competence, give concrete orders or subject the specific acts of execution that are part of the administrative autonomy of those entities to approval.” If in the case of autonomous institutions in general the faculty must be interpreted restrictively, in the case of the Caja Costarricense de Seguro Social the faculty is totally unconstitutional. The Caja Costarricense de Seguro Social enjoys, as stated in judgment No. 3403-94, “a degree of autonomy distinct from and superior to that defined in general terms in Article 188.” This higher degree of autonomy derives from Article 73 of the Political Constitution. In judgment No. 6256-94, it was stated:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of mandatory tripartite contributions from the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, distinct from and superior to that defined generally in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes other than their mission. As seen in the preceding considerandos, the Asamblea Nacional Constituyente chose to leave things, regarding this institution, as they were in the Constitution of 1871, ‘with full autonomy to thereby make it independent from the Executive Branch’." By virtue of this full autonomy, any provision that obliges the Caja Costarricense de Seguro Social to comply with directives on the administration of the resources under its management is unconstitutional. Subsection b) of Article 2 of the Law Creating the Budgetary Authority suffers from that defect and, therefore, is declared unconstitutional only insofar as it refers to the Caja Costarricense de Seguro Social.

(…)

XIII.- On Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social. Considerations of the Constitutional Court. On this point, this Court disagrees with the petitioner's thesis. Although they are correct that constitutionally the Caja is prohibited from allocating funds to purposes other than those imposed by the Constitution itself, Article 41 does not indicate such a thing. A clear distinction must be made between the norm itself and the application it may have been given in specific cases. As such, Article 41 is directed at the investment of reserves; this is how this Court understands it, and a provision of this nature is not unconstitutional. To interpret otherwise would be to force the Caja to keep resources idle that could, otherwise, generate resources to strengthen the fund itself. Another aspect is the possibility that the Caja may have used that article to invest funds, supposedly idle, when it falls far short of fulfilling its purposes. If so, there is the possibility of challenging the specific actions that exceed the limits established by that same Article 41 through the legality appeal channel. There is also the possibility of evaluating the personal responsibility of those who did not adjust their decisions to the norm, as they are obliged to interpret that Article 41 harmoniously with constitutional Article 73. In summary, Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social is not unconstitutional, as long as it refers to idle funds and not to funds necessary to satisfy the objectives constitutionally assigned to that institution." Judgment no. 2003-03483 of 14:05 hours on May 2, 2003, ordered:

"On the social security regime. Article 73 of the Political Constitution, interpreted harmoniously with Article 50 idem, enshrines the Right to Social Security. The Court has repeatedly indicated that this right implies that public authorities will maintain a public social security regime for all citizens at the highest level, in a way that guarantees assistance and provides sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, with a mandatory nature. The objective scope assumes the principle of generality, in that it protects situations of need, not to the extent that they have been foreseen and insured beforehand, but as they actually occur. Furthermore, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management is to be public, under the responsibility of the State, represented by the Caja Costarricense de Seguro Social, and the financing will respond to the cardinal principle of social solidarity, as it is based on the mandatory and tripartite contributions made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are universality, generality, sufficiency of protection, and social solidarity." Also, what was decided in judgment no. 201007788 of 14:59 hours on April 28, 2010, must be transcribed:

"III.- On the merits. (...) To resolve the present action of unconstitutionality, it is necessary to take into consideration the precedents on the autonomy of the Caja Costarricense de Seguro Social. By judgment No. 1994-06256 of nine hours on October twenty-fifth, nineteen hundred ninety-four, the Court establishes the following:

“Although it is not the subject of the consultation, for the purposes of the conclusion reached by the Court, it is necessary, at least, to point out some general guidelines of what administrative decentralization implies in our constitutional regime. There exist in our legal system three forms of autonomy: a) administrative, which is the legal possibility for an entity to carry out its legal mission by itself without subordination to another entity, known in doctrine as the capacity for self-administration; b) political, which is the capacity for political self-direction, self-government, for the entity to dictate its own objectives to itself; and, c) organizational, which is the capacity for self-organization, excluding all legislative power. In the first two cases, autonomy is vis-à-vis the Executive Branch, and in the third, also vis-à-vis the Legislative Branch. Organizational autonomy is characteristic of universities as derived from Article 84 of the Political Constitution and therefore alien to the purposes of this consultation. The other two degrees of autonomy derive from Political Autonomy, the content of which will be specific to the law (foundational act) that creates the entity. The decentralized entity created by ordinary law is subordinate to its content and involves the legislative power to modify it and even extinguish it; but since decentralization implies that the entity is entitled to all the powers of the administrative head, this means that its legal personality encompasses the totality of administrative powers necessary to achieve its mission independently. Autonomy usually includes the powers to formulate plans or set the entity's purposes and goals, to establish the internal mechanisms of functional and financial planning through budgets, and finally, the exercise of autonomous regulatory power. These general lines on autonomy are directed at administrative decentralization created by ordinary law.” Furthermore, the Court indicated that:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of mandatory tripartite contributions from the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, distinct from and superior to that defined generally in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes other than their mission. As seen in the preceding considerandos, the Asamblea Nacional Constituyente chose to leave things, regarding this institution, as they were in the Constitution of 1871, ‘with full autonomy to thereby make it independent from the Executive Branch.’” The Court maintains the same position with judgment No. 2003-02355, insofar as it establishes that:

“… it is concluded that the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution for the Caja is not subject to limits in matters of government, as this court has reiterated in previous judgments (see for example: 2001-7605, 6256-94, among others). The Caja is, definitively, the entity responsible for the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the above, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits inherent to social security via regulation, so that it can define the conditions, benefits, and entry requirements for each protection regime, based on actuarial studies, in order not to break the system.” The Court must consider the question of whether the regulation effectively implies a reversion of the decentralization that operates from the Political Constitution, or what is the same, an interference (sic) with the capacity of the Caja Costarricense de Seguro Social to administer and govern social insurance. The minutes of the Asamblea Nacional Constituyente justify the formation of autonomous entities with the criterion of specialization of state functions, to organize the State and increase its administrative efficiency; therefore, it is not legitimate to depart from that end, and consequently, it must give a pro-active response to public interests in matters that are vital for the human being and socially important. The administrative and governmental autonomy that the Political Constitution grants to the Caja Costarricense de Seguro Social is circumscribed to social insurance, to what is indicated in paragraph 1 of Article 73 of the Political Constitution, as well as to what is recognized by the Law (Article 1). Notwithstanding institutional autonomy, it is not an insurmountable limit; according to precedents, legislation can be enacted on other matters different from the indicated competence, complying, of course, with the guarantee established in Article 190 of the Political Constitution, which establishes a prior hearing for the Institution in case the provisions of a bill affect it, but that is not the issue to be analyzed in the unconstitutionality claim.” Likewise, judgment no. 2018013658 of 9:15 hours on August 22, 2018, held:

"I.- ON ARTICLE 23 OF THE CONSTITUTIVE LAW OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL. In the sub lite, the main reproach of the petitioner is directed against Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, insofar as it establishes that: 'The quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in accordance with the respective actuarial calculations. The contribution of the workers shall never be greater than the contribution of their employers, except for the cases of exception that the Regulation, based on actuarial recommendations, indicates to give greater benefits to the former, and to obtain a more just distribution of the burdens of mandatory social insurance.' The petitioner essentially alleges that said numeral infringes upon Article 121, subsection 13), of the Political Constitution, by asserting that the challenged norm confers upon the Caja Costarricense de Seguro Social a tax or imposition power in violation of the cited constitutional provision.

The issue of parafiscal contributions – in this case, contributions to social security – has provoked considerable controversy in the doctrinal and jurisprudential sphere. Regarding the constitutional legal controversy at hand, from the perspective of this Court, two theses are plausible. The first, which considers that as it is a tax – see judgment 2006-009568 of this Court – inevitably its structural elements – taxable event, rate, calculation basis, active and passive subject, etc. – must be defined by formal Law; this latter consequence has not been validated by the Constitutional Court. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality would be violated, especially considering that some find the origin of Parliament and democracy in the struggle of the English barons to gain tax authority – there is no democracy without Parliament, nor the latter without the Opposition. In short, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court – see, among others, judgments numbers 1994-003819 and 1998-007393 –, is that which considers that we are not in the presence of a parafiscal contribution and, consequently, the principle of tax legality should not be applied. 'The payment of the quota or contribution, as the case may be, is not a tax, as stated in preceding paragraphs, but the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the taxpayers themselves ...'.

According to the most authoritative doctrine on tax matters, parafiscal contributions are a tax, as they contain the material elements of obligatoriness – the duty to pay them for those who fall under the premise of the creating norm –, of singularity because it affects a specific and unique social or economic group, and of sectoral allocation because what is collected through this mandatory provision is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a sovereign power of the State that imposes pecuniary provisions for the fulfillment of social or economic ends. Ergo, they can only be created through formal Law – tributum sine legge.

Now, in the case of worker-employer quotas intended for the maintenance of social security – health and maternity insurance and disability, old age, and death insurance – our legal system has a singularity. Indeed, constitutional numeral 73 is what creates the parafiscal contribution by providing for a mandatory contribution from the State, employers, and workers, in order to protect them against the cited risks and other contingencies determined by law. Immediately thereafter, the constitutional text establishes that the administration and government of those social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, of relevance here, the constitutional norm imposes the prohibition on transferring or using the funds and reserves of social insurance for purposes other than those that motivated their creation. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent power, thus, from the perspective of this Court, the maxim that there can be no taxation without representation is fulfilled. In other words, in the case at hand, adherence to the principles governing the exercise of the tax power is satisfactorily met, given that a representative, plural body, exercising the maximum power in a democratic and social State of Law, such as the exercise of constituent power, determined sovereignly and democratically to create the parafiscal contribution.

A second obstacle we must overcome relates to setting the amount of the quota to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social stipulates that the quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in accordance with the respective actuarial calculations. The contribution of the workers can never be greater than the contribution of their employers, except for the cases of exception that the Regulation, based on actuarial recommendations, indicates to grant greater benefits to the former, and to obtain a more just distribution of the burdens of mandatory social insurance. Seen in this light, this Court concludes that the principle of tax legality is not violated, for the elementary reason that, through formal Law, the Board of Directors of the Caja Costarricense de Seguro Social is imposed with objective parameters when determining the amount of the quota – the cost of the services it provides and the respective actuarial calculations –, so the legislator set for the collegiate administrative body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Judge of the Contencioso Administrativo. This same logic is followed by the Código de Normas y Procedimientos Tributarios in its numeral 5, in relation to rates, as it allows varying their amount via Regulations so that their purpose is fulfilled in a more suitable manner, upon prior intervention by the body legally responsible for regulating the rates of public services.

Recapitulating, as the parafiscal contribution was created by the original Constituent power, the principle of tax legality is amply fulfilled, on the one hand, and by the legislator setting objective parameters to determine the amount of the parafiscal contribution quota, that principle is also respected.

II.- Nor can it be interpreted that Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social violates, per se, constitutional Article 177, in the terms set forth by the petitioner, since said numeral, far from preventing the Caja Costarricense de Seguro Social from setting – in the exercise of its powers, derived from constitutional ordinal 73 – the quotas paid by employers and workers, imposes, on the contrary, the obligation to create sufficient revenues in favor of that institution, in order to achieve the universalization of social insurance and duly guarantee the payment of the State's contribution as such and as an employer. Ergo, the petition of unconstitutionality must be rejected on the merits, regarding the cited ordinal 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, as is hereby done." In addition, judgment no. 2018019511 of 21:45 hours on November 23, 2018, reads:

"Given the constitutional rank of the CCSS itself, it is necessary to analyze the budgetary norms pertaining to it. The Court underscores that the Constitution itself establishes – within the budgetary norms – a specific regime for the CCSS, as regulated by the third paragraph of numeral 177 of the Political Constitution:

'In order to achieve the universalization of social insurance and duly guarantee the payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to the insufficiency of those revenues, the State shall assume it, for which purpose the Executive Branch must include in its next Budget proposal the respective allocation determined as necessary by the cited Institution to cover the totality of the State's quotas.' Likewise, the Constitution provides, in its Article 73, an additional guarantee for the funds and reserves of social insurance, by establishing:

'(…)

The funds and reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation. (…)' The importance of these texts lies in the fact that the Political Constitution is a norm of direct application, as this Court has held on multiple occasions (verbigracia, judgments nos. 2016-017376 of 11:41 hours on November 23, 2016, and 2015-006787 of 15:45 hours on May 12, 2015). That is, the fact that the Constitution is the parameter against which other norms are measured, or that its precepts are developed in infra-constitutional norms, does not subtract from or inhibit the full, direct, prevailing, and immediate application of certain constitutional postulates.

With this in mind, the Court observes that the aforementioned Article 177 guarantees that the State will ensure that the CCSS has sufficient revenues for the fulfillment of the assigned constitutional duties. Therefore, the Executive Branch is compelled by the Fundamental Law itself to budget sufficient revenues for that insuring entity to cover its needs. In case of not doing so, the same norm defines the corrective mechanism, given that it obliges the Executive Branch to cover the resulting deficit in the following period. Although that norm omits to assign a specific percentage of the budget to the mentioned entity, unlike the Judiciary and public education, the truth is that it does impose an express and determinable constitutional mandate.

This first constitutional safeguard must be read in conjunction with the second transcribed guarantee, established in numeral 73. The third paragraph of that norm prevents any fund or reserve of social insurance from being used for objectives different from the reason for its creation.

Such norms entail, on the one hand, the obligation of the State to provide sufficient revenues for the CCSS (Article 177) and, on the other, the impossibility of using the resources from one insurance for different purposes (numeral 73). This means that, in the case of insurance with tripartite contributions, such as health and maternity (challenged by the consultants), all the resources of said fund are covered by constitutional protection, making their affectation impossible through the proposed fiscal measures.

As explained, the aforementioned guarantees are of direct and prevailing application with respect to the CCSS. Thus, although the challenged norms provide only two exceptions (the resources of the Régimen de Invalidez, Vejez y Muerte and the Régimen No Contributivo), the truth is that the constitutional impossibility of transferring or using the funds of the health and maternity insurance constitutes an exception stemming from our Magna Carta, in defense of the governmental autonomy of the CCSS and the appropriate use of the resources of said insurance.

The direct application of the Political Constitution with respect to the CCSS is not new to the Constitutional Court:

'VI.- THE SPECIFIC CASE.- The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of mandatory tripartite contributions from the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, distinct from and superior to that defined generally in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes other than their mission. As seen in the preceding considerandos, the Asamblea Nacional Constituyente chose to leave things, regarding this institution, as they were in the Constitution of 1871, 'with full autonomy to thereby make it independent from the Executive Branch.' Now, as stated, among the characteristic notes of autonomous institutions, budgetary autonomy is undoubtedly included (see the intervention in the Asamblea Nacional Constituyente of Nombre35481 in considerando II).- The inclusion of the necessary budget allocations for the State to pay its contributions to the Caja Costarricense de Seguro Social form part of the ordinary resources created in the same constitutional Article 73, such that it is not possible for the Asamblea Legislativa to include and approve them in an ordinary or extraordinary budget of the Republic, with the definition, at the same time, of the corresponding expenditure, thereby substituting the faculties granted by the Constitution to the Caja Costarricense de Seguro Social itself, without violating Articles 73 and 188 of the Political Constitution and the principles indicated herein.' In the case of ordinary resources, only the institution, in accordance with its own organization, can freely exercise its constitutional autonomy (definition of the grounds of legality with opportunity and discretion) through the entity's budgets, which must be approved and audited by the Contraloría General de la República. That is to say, it is the Political Constitution itself that has defined which are the own and ordinary financial resources of the Caja Costarricense de Seguro Social, by indicating that they are composed of the compulsory contributions that the State, employers, and workers must pay, funds that are administered and governed by the institution itself. Different is the case of extraordinary contributions from the State or from third parties in favor of social insurance, which may indeed carry, because they are donations, contributions, or participations (liberalities in the end), the specific purposes to which those special resources are directed, such as the construction of a hospital, a clinic, or the purchase of specialized equipment. But in the case of ordinary resources, the legislator cannot substitute the head of the institution in defining spending priorities, because doing so is part of the essence of the exercise of the entity's autonomy, according to the characteristics, principles, and notes that have been set forth here. All of this leads us to the conclusion that the budget transfers that were consulted are unconstitutional, as they violate articles 73, 188, and 189 of the Political Constitution." (Judgment No. 6256-94 of 9:00 a.m. on October 25, 1994. The underlining is added)".

In the same direction, it is noted in judgment No. 2020010608 of 2:00 p.m. on June 10, 2020:

"A.- The jurisprudence on the social State of Law, the Caja Costarricense de Seguro Social, and welfare rights. This Court has said much about the social State of Law, especially related to the rights that the human person has regarding essential services provided by the State, such as those related to the rights to health, to a pension, among others, provided by the Caja Costarricense de Seguro Social. These topics have been addressed with the content of Article 50, Constitutional, which establishes:

"The State shall seek the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth." In this formula, the Constituent established the basic general principle of the social State of Law that will later be reinforced with other provisions that establish, specifically, the way in which the Costa Rican State materializes this principle transversally among the different social sectors.

In Judgment of this Chamber No. 2005-11132 of 8:49 a.m. on August 26, 2005, it was stated that:

"… the State shall seek the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth, which together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in article 74 ibidem, determines the very essence of the political and social system that we have chosen for our country and that defines it as a social State of Law (see judgment number 1441-92 of three forty-five p.m. on June two, nineteen ninety-two). In that sense, this Constitutional Court also expressed itself as follows:

"One of the basic connotations of the Costa Rican State and, in general, of every "social" State of Law, is the intervention -ever more frequent- of the rulers to provide solutions to social problems.- The Political Constitution itself obliges the State to participate actively, not only in production processes (Article 50), but also in those related to the development of fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantee a dignified and useful existence for society."- (Judgment No. 5058-98 of two twenty p.m. on October fourteen, nineteen ninety-three)".

Similarly, by Judgment of this Chamber No. 2005-13205 of 3:13 p.m. on September 27, 2005, this Chamber ordered that:

"III.- On the social State of Law, Equality, and Human Dignity. The social State of Law, a fundamental element of our constitutional order, entails an orientation of our political regime toward social solidarity, that is, toward equity in societal relationships, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discrimination. In that sense, constitutional numeral 74 explicitly establishes the duty to seek a permanent policy of national solidarity based on the Christian principle of social justice, which makes it a constitutional value of the first order (see judgment number 2170-93 of 10:12 a.m. on May 21, 1993). Consequently, based on the social State of Law, our Political Constitution contemplates a set of welfare rights related to the protection of the family, workers, vulnerable sectors of the population, education, the environment, and Nation's assets such as cultural heritage. This duty to comply according to the guidelines of the social State of Law is not constrained to the Administration, but extends to the entire national community, as it is a fundamental rule of civic coexistence in our political system. In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of Law. Specifically concerning constitutionality control, the Principle of the social State of Law is useful as a parameter of normative validity, a hermeneutical criterion, and an integrating functional instrument of the legal system".

On the other hand, Judgment No. 2003-09880 of 11:10 a.m. on September 12, 2003, established that:

"As an element inherent to the Social and Democratic State of Law, Social Security stands as a standard of the same, being that it is founded on the principle of social solidarity, and is complemented by the right to equality and the principle of human dignity, as a welfare right that it is. Within our Political Constitution, the social insurance regime, despite being a universal regime and of access to all inhabitants of the Republic, starts from the fundamental premise for its economic support of tripartite contribution, that is, State, employer, and workers. Article 73 constitutional establishes that social insurance is created for the benefit of manual and intellectual workers, regulated by the system of compulsory contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law determines. As can be observed, the Constitution itself, with the aim of establishing a financing mechanism for social security in favor of active and retired workers, establishes a system of compulsory tripartite contribution, from which it is concluded that those workers or pensioners who regularly contribute to the regime will have access to social security services, at no additional cost, in accordance with what is established in the Constitution".

Among the manifestations of state intervention is social security, one of the most palpable being the pay-as-you-go pension regime, through which persons who are retired or pensioned, upon meeting the regime's requirements, receive economic benefits when they have had to leave productive activities, whether due to old age or disability. In these cases, the end of a worker's productivity cycle has arrived, they stop receiving the respective income for the work performed, and it is when the principle of social solidarity begins, to provide the benefits proper to the pension, which, if they did not occur, would not allow them to continue fending for themselves -themselves and their dependents-, and would fall into social and economic risk. In this way, in a pay-as-you-go social security system, a fund is formed with a mandatory contribution from workers, employers, and the State, in accordance with article 73, Constitutional. On this topic, it is important to highlight that when the system was challenged on the grounds that it was a tax obligation, the Constitutional Chamber dismissed that argument. Precisely, in Judgment No. 2018-13658 of 9:15 a.m. on August 22, 2018, which will be partially transcribed, the Chamber reviewed the jurisprudence on the legal nature of the quotas and benefits, which it identified as a parafiscal contribution to deliver those contributions, in development of article 23 of the Constitutive Law of the Caja Costarricense de Seguridad Social. The Chamber established that:

"[...] According to the most authoritative doctrine in tax matters, parafiscal contributions are a tribute, because they contain the material elements of obligatoriness -the duty to pay them by those who fall under the assumption of the creating norm-, of singularity because it affects a particular and unique social or economic group, and sectoral destination because what is collected through this obligatory payment is used for the exclusive benefit of the group that paid the tribute. We are, then, before the exercise of a power of imperium of the State that imposes pecuniary payments for the fulfillment of social or economic ends. Ergo, they can only be created through a formal Law -tributum sine legge-.

Now then, in the case of employer-worker quotas destined for the support of social security -sickness and maternity insurance and disability, old age, and death insurance-, our legal system has a singularity. Indeed, it is that constitutional numeral 73 is the one that creates the parafiscal contribution by providing for a compulsory contribution from the State, employers, and workers, in order to protect them against the cited risks and other contingencies that the law determines. Immediately, the constitutional text establishes that the administration and government of those social insurance correspond to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, in what is relevant, the constitutional norm imposes the prohibition of transferring or using for purposes other than those that motivated their creation, the funds and reserves of social insurance. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent, whereby, from the perspective of this Court, the maxim that there can be no imposition without representation -no taxation without representation- is fulfilled. In other words, in the case before us, adherence to the principles that govern the exercise of the tax power is satisfactorily fulfilled, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, determined sovereignly and democratically to create the parafiscal contribution.

A second obstacle that we must overcome is related to setting the amount of the quota to be paid by employers and workers. In this regard, article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social dictates that the quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution can never be greater than their employers' contribution, except in cases of exception that the Regulation may indicate to give greater benefits to the former and to obtain a more just distribution of the burdens of compulsory social insurance, based on actuarial recommendations. Viewed thus, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, the Board of Directors of the Caja Costarricense de Seguro Social is imposed objective parameters when determining the quota amount -the cost of the services it provides and the respective actuarial calculations-, so the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to general principles of Law and are controllable through the Contentious-Administrative Judge. This same logic follows the Código de Normas y Procedimientos Tributarios in its numeral 5, in relation to fees, since it allows varying their amount by way of Regulation so that their purpose is fulfilled in a more suitable manner, after intervention of the body that by law is in charge of regulating the rates of Public services.

To recapitulate, since the parafiscal contribution was created by the original Constituent, the principle of tax legality is amply fulfilled, on the one hand, and by the legislator setting objective parameters to determine the quota amount of the parafiscal contribution, that principle is also respected.

II.- Nor can it be interpreted that article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social infringes, per se, article 177 constitutional, in the terms expressed by the plaintiff, because said numeral, far from preventing the Caja Costarricense de Seguro Social from setting -in the exercise of its powers, derived from constitutional ordinal 73- the quotas paid by employers and workers, imposes, on the contrary, the obligation to create in favor of that institution sufficient revenues, in order to achieve the universalization of social insurance and guarantee, fully, the payment of the State's contribution as such and as an employer".

Thus, as the precedent clearly indicates, the powers of the Board of Directors of the Caja Costarricense de Seguridad Social are to establish mandatory quotas for Employers and Workers, and the State's contribution, with objective parameters, such as the costs of services and actuarial studies to maintain the benefits that the Constituent granted under its competence.

As part of the basis for article 9°, of session 8856, held on July 28, 2016, in which the Board of Directors of the Caja Costarricense de Seguro Social takes several measures, such as the elimination of the early pension option, and it was agreed to reform the Reglamento del Seguro de Invalidez, Vejez y Muerte, it was indicated -among other things- that:

"[...] 2 There is a significant percentage of pensioners for whom, without the application of any type of early retirement, the calculation of the pension amount - with the application of the formula- results lower than the minimum pension amount, being that due to the existence of minimum protections, they must be raised to the minimum pension amount. Such a situation costs the pension fund around 54 billion colones per year.

[...]

5. Even though the Long-Term Actuarial Valuations, prepared by the Dirección Actuarial y Económica, locate the financial sustainability of the IVM Regime in time horizons ranging between one and two decades -depending on the scenario- there are conjunctural situations and short-term pressures that the Seguro de Invalidez, Vejez y Muerte is facing, and that are greatly reflected in cash flow and in the use of interest for the payment of the year-end bonus. Given that situation, it is convenient to inject new resources by accelerating the magnitude of the contribution premium.

[...]

C. That, based on the foregoing, it was recommended to eliminate early retirement with reduction and also so that in all those cases where the overall pension amount generated with the application of the current calculation formula results lower than the minimum pension amount, the State, in its subsidiary capacity, provide the difference.

D. That in accordance with what was recommended above, it is that in article 31° of Session No. 8803, held on October 1, 2015, the Board of Directors ordered –among other aspects- the following:

"… the Board of Directors, as will be recorded below, AGREES:

• 1)Early Retirement: eliminate [...]
• 2)State Subsidy: accept what is proposed regarding the establishment of a State subsidy with respect to the minimum pension, for which purpose the Gerencia de Pensiones is instructed, in coordination with the Dirección Jurídica and the Dirección Actuarial y Económica, to make the adjustments that proceed to the Reglamento del Seguro de Invalidez, Vejez y Muerte.

(...)".

Having said the foregoing, which serves as the reason for the reform of the Regulation, it is important to highlight that, within a social State of Law, like ours, there are certain unavoidable obligations of the State, which, due to the political and legal direction that this concept contains, conditions the other constitutional bodies to act in a certain sense within an economic reality, as is well made clear in Judgment No. 2018-19511 of 9:45 p.m. on November 23, 2018, which:

"…In this context, a harmonious interpretation of the principle of budget balance and the social State of Law is of special importance. The Chamber warns that, for a social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there must inexorably be a balance between welfare rights and state economic solvency, since the former depend on the material possibilities brought about by the latter, while the purpose of the latter is to strengthen the development of a solidarity-based political system, one in which the least favored strata of society find protection of their human dignity and their right to progress. Put another way, the "ideal" social State of Law is the "possible" social State of Law, against which one precisely acts when the principle of budget balance is violated, since, in the medium term, that seriously risks or completely prevents obtaining the necessary resources to sustain a "real" social State of Law, one that the most vulnerable can truly and effectively enjoy. Watching, then, that one does not end up falling into a failed or paper Constitution, where constitutional welfare rights cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its powers allows it.

It must be warned, however, that all constitutional principles, values, and precepts must be observed in any circumstances, which the constitutional jurisdiction permanently has the responsibility to watch over. Now, on the occasion of the exercise of weighing or optimization that the constitutional judge carries out to resolve some collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of what has been expressed: the non-observance of the principle of budget balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and emphasize its real implementation for the sake of the principle of the social State of Law. The observation of the Programa del Estado de la Nación is insisted upon: "This [referring to the structural imbalance in public finances] has put in check the future of the social welfare State built throughout the second half of the 20th century, since its financing and the efficiency of its spending are insufficient." Justly, the hermeneutics of the general principles to resolve the sub examine, such as that of budget balance and that of the social State of Law, cannot be detached from the parameters of constitutional relevance that are inferred from the consulted measures and the abundant technical references to the economic conjuncture, which are fundamental elements to rule out arbitrary or unreasonable action".

Now then, it is true that the judgment outlines the State's obligation to bind itself to the economic and social reality, which implies that the State cannot deny the existence of the economic realities that the State is going through, but also the pension systems for all the social sectors to which the constitutional provision is directed. In this sense, upon establishing a general jurisprudential theoretical framework for these rights, it is important to recognize that there is a strong mandate, from the Political Constitution, when it establishes the existence of legal mechanisms to demand the payment of premiums for social insurance, in addition to the way to determine them.

B.- On the principle of social solidarity and the Caja Costarricense de Seguro Social. The Chamber had the opportunity to review the constitutionality of the maximum caps granted by the contributory system of social security in Costa Rica, on the part of a professional sector that contributes to the regime. Among other grounds to dismiss the action, the principle of social solidarity was pointed out, which in a social State of Law acts transversally throughout the entire society.

By Judgment No. 2013-06638 of 4:00 p.m. on May 15, 2013, this Chamber ruled as follows:

"B.- The principle of social solidarity. The main multiplying agent of the distribution of wealth in the social State of Law lies in this principle, which in our country resides especially from the mandates contained in articles 1, 50, 73, and 74 of the Political Constitution. Through the entire administrative framework (centralized and decentralized) and distribution of the Powers of the State, an attempt must be made to eradicate the most imperative social inequalities; it implies that state activity has the need to bind itself reasonably with the administered person who has greater needs and must satisfy the most pressing demands with the State's powers of imperium, even to impose itself in very qualified circumstances against the will of the governed, but which allows -the State- to establish mechanisms that make society a more just and stable place. With this principle, social equity is promoted, which consists of the obligation of those who have more to help those who have less. It is inspired, consequently, by a duty-to-be of society or the community, to provide support to those who do not have sufficient means of subsistence or who are at social and economic risk, and where society steps forward through the State or the mechanisms it creates, to satisfy the need of persons who fall into social and economic risk: for this reason, it promotes greater justice and equity. As social security is born from human need, all of this entails a sacrifice by the better-off sectors in favor of the most dispossessed, which is precisely the spirit of what is regulated in articles 1, 50, 73, and 74 of the Political Constitution (because they are those who have or had access to education, to better personal and social conditions, and who by reason of such benefits would be expected to have a conduct tending to favor those with less luck, etc.). Precisely, social security systems promote the fight against extreme poverty for the most disadvantaged, it becomes then a system of economic and social distribution that must be recognized as inherently entailing the sacrifice of certain better-advantaged social groups of society, but which contributes greatly to security and social peace. Well stated by Name35482: "An empty stomach is not a good political advisor", and that must be the principal concern of the State when it exists in the lowest social strata of Costa Rican society".

It is important to bring up the case, since the constitutionality of the contribution and the benefit received from the compulsory tripartite contribution established by article 73 of the Political Constitution was questioned, in which employers, workers, and the State mandatorily contribute to a pension fund, and which redistributes the quotas from those who contribute more to those who have less. Although it is not proportional for either extreme (maximum and minimum), it is with the former that a greater sacrifice is evidenced, justified in the principle of social solidarity in favor of those who contributed less to the system for belonging to the lower social stratum. In this way, the social security system must seek mechanisms that compensate differences from a minimum in order to raise benefits to an amount that ensures the survival of all individuals. In the above-cited judgment, the Chamber is clear in stating that:

"It must not be lost sight of the fact that it is sustained in a basic social protection regime, or what is the same, the international obligation is with the establishment as well as the maintenance of a social floor. It is thus, being a basic coverage system, it encompasses a horizontal dimension of the system that demands minimum levels of protection to achieve or maintain the universality of that protection (even to sustain an elevation of levels for those who do not have them, according to the principle of social solidarity), but which, without a doubt, must recognize progressivity in the protection regimes, that is, in their vertical dimension, where these must be in tune with the international guidelines and obligations that our country has accepted before the ILO. From the reports, it is clear that a very sensitive contraction in the regime would occur, due to the dynamics and pressures that the pension fund or reserve must face".

In conclusion, the maximum cap and the minimum amount are technically interrelated, so that they need, as referents, the most recent actuarial calculations, so that they allow financial sustainability and the soundness of the fund. It is clear that the former depends on the latter to give validity to the second; and that, as technical criteria of actuarial mathematics, they would be subject to periodic review according to the behavior of the reserve. In the case before us, Report No. DAE-735-17 of October 02, 2017, established:

"It is worth mentioning that although internally within the Seguro de Invalidez, Vejez y Muerte, solidarity manifests itself in multiple ways, one of the most significant being the risk of death and disability. The existence of a maximum cap allows reinforcing the pension amount of those who receive less; however, the number of people at the maximum pension is significantly reduced, since they barely represent 1%, so it is not sustainable to think that the contributions of high-income earners -maximum pension- finance the total solidarity for low-income earners".

Hence, the need to decree an increase in mandatory contributions is confirmed, and the importance of recognizing the competence of the Board of Directors of the Caja Costarricense de Seguro Social to decree the increase of the State's compulsory contribution.

Name5650.- The prerogatives of the Executive Branch in the preparation of the national budget and the specialization of the Caja Costarricense de Seguro Social in the social insurance regime. The Executive Branch has, in the formation of the Republic's budget, certain prerogatives that constitutionally authorize it to preserve the financial order of the State, be it in its revenues and expenditures, which are powers that the Minister of Finance claims to oppose executing the agreement of the Board of Directors of the Caja Costarricense de Seguro Social, contained in article 9°, of session No. 8856, as well as the claims deduced in this unconstitutionality action. The implications of that agreement entail the expenditure of fifty-six billion colones annually on the National Budget, money that would imply greater indebtedness for the Costa Rican State, since a difficult fiscal situation is recognized. Despite its opposition manifested in official letters DM-2293-2015 of December 10, 2015, and DM-0129-2016 of January 26, 2016, and because it considers that there was no endorsement from the Ministry of Finance, nor attention to the pertinence of a national dialogue to endow the State with new revenues with which it could meet the obligation. In this sense, the report of the Procuraduría General de la República, which constitutes an advisor to this Constitutional Chamber, concludes that, despite the noted historical fiscal problem, the lack of liquidity, the lack of consultation on the part of the Caja; and, in addition, the absence at that time of the generation of fresh resources on the part of the Legislative Assembly, the Caja Costarricense de Seguro Social has no limit other than the technical criteria to agree on a decreed increase.

That is, the criterion of the Office of the Attorney General of the Republic (Procuraduría General de la República) is that, despite the claimed prerogatives of the Executive Branch, these cannot be opposed to the administrative and governmental autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguros Social) in the matter of social insurance, especially when its actions are based on mathematical-actuarial criteria.

This Chamber agrees with the Office of the Attorney General of the Republic, but especially because, although the Executive Branch finds in Articles 176, 177, and 179 of the Political Constitution the powers of direction over most institutional budgets, including the Branches of Government, the Constituent Power exempted certain matters from such controls by creating exceptions and legal remedies to substantiate them. Hence, this Chamber has established criteria such as that of constitutionally tied funds, since they are directed by the constituent power itself to solve a priority problem of distribution of State resources, such as, for example, the expenses budgeted by the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to give effectiveness to suffrage, the possible issue of the economic and operational independence of the Judicial Branch, and the State's contribution to social insurance, in the 3rd paragraph of Article 177 of the Political Constitution. Said provision states:

"To achieve the universalization of social insurance and fully guarantee the payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to the insufficiency of these revenues, the State shall assume it, for which the Executive Branch must include in its next Budget project the respective item determined as necessary by the aforementioned Institution to cover the totality of the State's quotas" (bold not in original).

Within the transcribed norm, it is clear that the Constituent Power established the goal of universalization of social insurance, on which the Costa Rican Social Security Fund has had outstanding work, which has allowed it to achieve a high percentage through the administration of social insurance, and in which, the Constituent Power established as a pivot the contributions of the State as employer and as State, which, indisputably, contains the mandate of the Constituent Power that obliges it to assume part of the equation of national solidarity expected of a social State under the Rule of Law. Note that the norm does not establish a percentage, but rather allows that constitutional obligation to be determinable at a given moment, to ensure the necessary current and projected future income, characteristic of a fund whose objective is always to maintain its sustainability over time and as the coverage of social insurance progresses. It draws the attention of this Chamber that this contribution is much lower than what existed with the creation of the Regime, and that it has been maintained as such for twenty-five years, as indicated in the report of the Actuarial Directorate of the Fund. The Costa Rican Social Security Fund demonstrates that the State is the one making the lowest percentage of contribution compared to that of employers and workers. In this line of thought, it should be noted that the jurisprudence of this Chamber has established that it corresponds to the Fund to set the sufficient revenues calculated in such a way as to cover the current and future needs of the Institution. All institutions party to this action have agreed that these calculations correspond to the Costa Rican Social Security Fund, which the Ministry of Finance itself recognizes. It has been clearly indicated that it corresponds to the institution of constitutional rank, because it has administrative and governmental autonomy in the order of the administration of social insurance. Thus, it was indicated in Judgment No. 2001-0378 of 14:37 hours on January 16, 2001 (as in previous ones No. 1993-3853 of 9:09 hours on August 11, 1993, and No. 1994-1059 of 15:39 hours on February 22, 1994) that:

"IV.- On the violation of the principle of legal reserve. The claimant's first argument is that the challenged norm injures the principle of legal reserve, by imposing, through a regulation, a substantial requirement to exercise the right to a pension. The regulation of fundamental rights is reserved to law, from which it follows that only through formal law, emanating from the Legislative Branch and through the procedure provided in the Political Constitution for the issuance of laws, is it possible to regulate, and in any case, restrict fundamental rights, all -of course- to the extent that the nature and regime of these allow it, and within the applicable constitutional limitations. However, the norm questioned here does not contravene the Political Constitution by virtue of the fact that Article 73 of the Political Constitution entrusts the administration and government of social insurance to the Costa Rican Social Security Fund, for which the Constitution establishes in favor of this autonomous institution, a degree of autonomy -administrative and governmental- that allows it to regulate, by way of regulation, matters relating to social insurance. Said constitutional norm is developed in the Constitutive Law of the Costa Rican Social Security Fund, especially in Articles 1, 2, and 3, which provide:

Article 1.- The institution created to apply mandatory social insurance shall be called the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) and, for the purposes of this law and its regulations, CAJA.

The Fund is an autonomous institution to which the government and administration of social insurance correspond. The funds and reserves of these insurances may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited. Except for matters relating to public employment and salaries, the Fund is not subject, nor may it be subject, to orders, instructions, circulars, or directives emanating from the Executive Branch or the Budgetary Authority, in matters of government and administration of said insurances, their funds, or reserves.

"Article 2.- Mandatory Social Insurance includes the risks of illness, maternity, disability, old age, and involuntary unemployment; in addition, it entails a participation in the burdens of maternity, family, widowhood, and orphanhood and the provision of a quota for burial in accordance with the scale established by the Fund, provided that death is not due to the occurrence of an occupational risk." "Article 3.- The coverage of Social Insurance - and entry into it - is mandatory for all manual and intellectual workers who receive a wage or salary. The amount of the quotas to be paid under this law shall be calculated on the total of the remunerations that under any denomination are paid, by reason of or derived from the worker-employer relationship. (...)

The Fund shall determine, by regulation, the entry requirements for each protection regime, as well as the benefits and conditions under which these shall be granted." The transcribed norms confer upon the Costa Rican Social Security Fund the power to administer everything related to social insurance, which implies determining, by regulation, the entry requirements for each protection regime, its benefits, and conditions, for which the Disability, Old Age, and Death Regulation issued by the Board of Directors, as well as its reforms, have been in the exercise of this competence, derived from constitutional numeral 73. Consequently, Article 9, subsection a) of the Regulation of the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund does not violate the principle of legal reserve." Now then, for the Chamber, in accordance with the provisions of Article 14, subsection f), of the Constitutive Law of the Costa Rican Social Security Fund, it corresponds to the Institution's Board of Directors to issue the regulations for its operation, so that, coupled with the transcribed jurisprudence, it is sufficient to determine that, in the case of ensuring the funds that the State must guarantee for the sustainability of the regime, it has no restrictions other than those established by technical criteria. In this sense, the Fund itself has determined that amount for the State, by amendment to Article 29 of the Disability, Old Age, and Death Regulation, and although it can be recognized that the economic situation due to the structural financing problems of the Costa Rican State exists and is real, it must be noted that it was the will of the Constituent Power to specify the legal mechanism when those revenues are insufficient for the fund, as well as the way to determine the economic commitments and the manner in which the Executive Branch must resolve it, when it indicates that it "must include in its next Budget project the respective item determined as necessary by the aforementioned Institution to cover the totality of the State's quotas." Finally, this Tribunal, in judgment No. 2021017098 of 23:15 hours on July 31, 2021, stated:

"2) Jurisprudential Antecedents on the Governmental Autonomy of the Costa Rican Social Security Fund On repeated occasions, as indicated in judgment No. 2011-14624 of 15:50 hours on October 26, 2011, this Tribunal indicated that the Costa Rican Social Security Fund (CCSS) enjoys administrative and governmental autonomy, in accordance with Article 73 of the Political Constitution, and can therefore issue provisions related to its internal regime. The Constitutive Law of the Costa Rican Social Security Fund itself, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, in Article 70 establishes the following:

"The Administrative Career of the Costa Rican Social Security Fund is hereby created, to regulate which (sic), the Board of Directors shall establish the conditions referring to the entry of employees into the service of the Institution, guarantees of stability, duties and rights thereof, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for judging infractions, and other necessary provisions…".

On the other hand, Article 14, subsection f) endows the Board of Directors of the CCSS with the attribution to regulate the functioning of the institution, in such a way that it confers upon it the power to dictate norms, including to regulate the regime of the officials that the institution requires for the fulfillment of the responsibilities indicated by the Political Constitution and its Constitutive Law, and this is constitutional, as indicated in said precedent:

"…In that context, the possibility that the Institution may establish by itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, as in the case of the Regulation for the Recruitment and Selection of Professionals in Pharmacy, Dentistry, and Social Work, is not unconstitutional. The Costa Rican Social Security Fund can establish the rules for the selection of officials who occupy positions in said institution, but respecting the specific purposes in the provision of the public service of the Costa Rican Social Security Fund (Articles 73, 191, and 192 of the Political Constitution). By virtue of this, Article 21 of the Constitutive Law establishes the following: "Article 21.- The Personnel of the Fund shall be integrated on the basis of proven suitability, and promotions in category shall be granted taking into account the merits of the worker in the first instance and then, seniority in the service." Based on the foregoing, as well as on the reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in that public officials must be governed by a statutory labor relationship, that is, by norms imposed by the Administration in its capacity as employer, in consideration of the efficient and effective provision of the public services that each administrative instance is called upon to offer. Even (sic) when the constituent power may have thought of a single statutory system, the truth is that the wording finally given to Article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting in nineteen forty-nine, means that nowadays the existence of diverse statutory relationships in the Administration is valid, in consideration of the functional independence and administrative autonomy that the legal system ensures for several public institutions." The foregoing is consistent with the same autonomy granted by the Constituent Power to certain institutions, for the specific case, that conferred upon the Costa Rican Social Security Fund in Article 73, defined as governmental autonomy (autonomía de gobierno), which is necessary so that it can fulfill the special assigned tasks and without interference from the Executive Branch.

In judgment No. 2011-15665 of 12:40 hours on November 11, 2011, reiterated in 2017-4797, particularly in relation to the C.C.S.S., the following was indicated:

"…In this case, we are facing a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is of degree two, which must be understood to include the powers to formulate plans or set the ends and goals of the entity, to give itself the internal functional and financial planning mechanisms through budgets, and the exercise of the autonomous regulatory power. Which translates, in the specific case of the administration of the pension regime under the charge of the Costa Rican Social Security Fund, into -at least- the power to define by itself, with the exclusion of all legislative power, three fundamental aspects of pensions: the amount of the contribution quotas, the number of quotas that workers must pay to access the pension, and the age for retirement. Precisely this greater degree of autonomy that the Costa Rican Social Security Fund has compared to the rest of the autonomous institutions is what explains how it has been excluded from the application of laws such as the 'Law of the Financial Administration of the Republic and Public Budgets,' Law No. 8131 of September 18, 2001. See Article 1 of said law:

"Article 1.- Scope of application This Law regulates the economic-financial regime of the organs and entities administering or custodians of public funds. It shall be applicable to:

• a)The Central Administration, constituted by the Executive Branch and its dependencies.
• b)The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies and auxiliary organs, without prejudice to the principle of separation of Powers established in the Political Constitution.
• c)The Decentralized Administration and public enterprises of the State.
• d)The state universities, the municipalities, and the Costa Rican Social Security Fund, only with regard to compliance with the principles established in Title II of this Law, in matters of responsibilities, and to provide the information required by the Ministry of Finance for its studies. In all other respects, they are exempted from the scope and application of this Law (…)" Which demonstrates that the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike them, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by the municipalities, which is, governmental autonomy. This means a degree of protection against the interference of the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS does not escape the law, the latter cannot 'modify or alter' the competence and autonomy constitutionally given to the CCSS, defining aspects that are of its exclusive purview. The Costa Rican Social Security Fund, being basically an autonomous institution of constitutional creation, the matter of its competence, constitutionally given, is outside the action of the law. Put another way, the legislator, in the case of the administration and government of social insurance, has limitations and must respect what the Constituent Power established. Just as it would be forbidden for the legislator to issue a law stating that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS, in the administration and government of social insurance. In this sense, see what this Chamber ordered through resolution number 2001-010545 of 14:58 hours on October 17, 2001:

"… It is clear that the law cannot interfere in matters of government of the Costa Rican Social Security Fund by virtue of the full autonomy enjoyed by this institution…" (Criterion reiterated in resolution number 2001-011592 of 09:01 hours on November 9, 2011).

As an additional argument, it must be highlighted that the norm that defines the functions and purposes of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while what refers to Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, when creating the institution of social security, intends to provide solidary and priority protection to the person by their own condition; evidently, it is an institution that assumes the spirit of solidarity that inspires Article fifty and seventy-four of the Constitution. The aim is for every person to have the guarantee that the solidary State assures them health, a pension, disability benefits, and everything related to social security. This provision becomes not only an end or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could diminish said constitutional competence." Then, in judgment No. 2007-18484, reiterated in 2018-6549, this Tribunal referred to the scopes of the different types of autonomy, in the following sense:

"A) Scopes of the administrative autonomy of autonomous institutions, and their subjection to the law in matters of government (…). The degree of administrative autonomy -minimal and of first degree- is characteristic of autonomous institutions; governmental autonomy (autonomía de gobierno) -of second degree-, characteristic of the municipalities and of the Costa Rican Social Security Fund regarding the administration of social insurance; and organizational autonomy - full or of third degree, characteristic of the State universities. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even extinguish it; but since decentralization implies that all the powers of the administrative chief correspond to the entity, it means that its personality encompasses all the administrative powers necessary to achieve its purpose independently. So then, the Political Constitution guarantees, in its ordinal 188, to every minor public entity, distinct from the State, a minimum or first-degree administrative autonomy, that is, the power to self-administer, without subjection to any other public entity and without the need for a legal norm that so orders, 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 this way, the central power has several limitations regarding its interference over autonomous institutions; thus, it cannot act as chief of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and, neither can it act as director of the management of the autonomous entity by imposing guidelines or basic programs. However, as expressed in Article 188 of the Constitution itself, autonomous institutions are subject to the law in matters of government. According to the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the laws, so then the objectives, purposes, and goals of the entity are given by the legislator" (Emphasis not in original).

As indicated in the cited jurisprudential text, the CCSS, in addition to enjoying administrative autonomy, also holds political or governmental autonomy. Hence, the Executive Branch has several limitations regarding its interference over the CCSS. It cannot act as its chief, it cannot control it by limiting its activity for reasons of opportunity; and, neither can it act as director of the management of that entity by imposing guidelines or basic programs. Likewise, regarding the autonomy of this particular institution, the Chamber in judgment No. 1994-6256, issued a criterion reiterated in judgments 2011-15665 and 2017-4797, which states:

"III.- THE COSTA RICAN SOCIAL SECURITY FUND.- The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Costa Rican Social Security Fund, following, basically, the original text of the Constitution of 1871; that is, the institution was transplanted from the Constitution of 1871, according to the modifications of 1943, to the Constitution of 1949. However, for the purposes of the query, the participations of Constituent Member Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: "Furthermore, the Fund, sooner or later, would have to assume the risk of unemployment, which will come to solve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Fund. The prudent thing is to strengthen it. Hence, the most advisable is to leave things as they are, giving the Fund full autonomy to thus make it independent from the Executive Branch"; and on page 36 idem it is added: "In that sense, the most appropriate is to maintain the wording of Article 63, which is good at least for the testing period. Anything that means limiting the resources of Social Insurance will undoubtedly be an inexplicable setback." When the article was approved, a second paragraph was included that literally said: "The administration and government of social insurance shall be in charge of an autonomous institution", a text that was later amended by Law No. 2737 of May 12, 1961, remaining today as follows: "The administration and government of social insurance shall be in charge of an autonomous institution, denominated Costa Rican Social Security Fund." In conclusion, the constituent power attributed the administration and government of social insurance to the Costa Rican Social Security Fund, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has granted it and sharing the general principles derived from its condition as a decentralized entity…

…Doctrinally, there is coincidence in affirming that any form of preventive intervention prior to the issuance of the act by the autonomous entity is prohibited, except for prior control functions, as a requirement for the validity of those acts (authorizations); the Central Power cannot act as chief of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and, neither can it act as director of the management of the autonomous entity by imposing guidelines or basic programs. All these characteristic notes of decentralized entities, which have their origin in a reinforced law (Article 189, subsection 3) of the Political Constitution), are equally applicable, as pertinent, to the autonomous institutions created by the Political Constitution itself, except that the conditions that it, in a special and exclusive manner, has given to the entity prevail." Hence, even in matters relating to the hiring of its personnel, it has that power to self-administer, since the fulfillment of the purposes constitutionally assigned also depends on that. As a demonstration of the particularities and needs of the service, for example, in judgment 2019-11130 of 10:30 hours on June 19, 2019, this Tribunal indicated the following:

"In this regard, this Tribunal verifies that indeed that article indicates that 'for the qualification of credentials and assignment of scores, the Technical Nursing Commission shall qualify the competitions in accordance with (…) One point shall be given for each year of service or fraction greater than six months, up to a maximum of ten points in areas outside the central plateau (…)'. However, this provision is not considered to violate the principle of equality and, therefore, becomes unconstitutional, but rather this decision has a reasonable justification, which consists of incentivizing nursing professionals to accept positions outside the central plateau, with the incentive that in future competitions for positions located in more coveted areas, they will have a better score. Thus, what the regulation seeks is not only the position of best suitability, but it seeks to incentivize nursing professionals to accept working in remote and less desired locations and, in this way, promote the provision of nursing services, necessary for an adequate provision of medical services, in all sectors of the country. This is in accordance with the principles of social solidarity.

It is clear, then, that the Constituent Power granted it such autonomy, allowing it the selection of its personnel under the systems it requires to fulfill its purposes, while respecting the constitutional principles established in constitutional ordinals 191 and 192. Criterion reiterated by this Chamber in judgments numbers 03065-98, 10545-01, and 12494-11, by stating:

"…it is possible for the different establishments of the Fund, in application of the constitutional principle of administrative and governmental autonomy, to dictate the necessary reorganization measures for its services for their improvement, in order to achieve greater satisfaction of its users and the general interest, which by its nature could never cease to prevail over particular interests." The autonomy that the original legislator granted to the Costa Rican Social Security Fund protects it from the intrusion of the Executive Branch and the Legislative Branch, as demonstrated in Judgment 03065-98 of 18:18 hours on May 6, 1998 (reiterated in 2001-10545), by stating:

"…Which demonstrates that the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike them, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by the municipalities, which is, governmental autonomy. This means a degree of protection against the interference of the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS does not escape the law, the latter cannot 'modify or alter' the competence and autonomy constitutionally given to the CCSS, defining aspects that are of its exclusive purview. The Costa Rican Social Security Fund, being basically an autonomous institution of constitutional creation, the matter of its competence, constitutionally given, is outside the action of the law. Put another way, the legislator, in the case of the administration and government of social insurance, has limitations and must respect what the Constituent Power established. Just as it would be forbidden for the legislator to issue a law stating that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS, in the administration and government of social insurance... As an additional argument, it must be highlighted that the norm that defines the functions and purposes of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while what refers to Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, when creating the institution of social security, intends to provide solidary and priority protection to the person by their own condition; evidently, it is an institution that assumes the spirit of solidarity that inspires Article fifty and seventy-four of the Constitution. The aim is for every person to have the guarantee that the solidary State assures them health, a pension, disability benefits, and everything related to social security." This provision becomes not only an end or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine that constitutional competence.” From the foregoing, it follows that the Caja Costarricense de Seguro Social (CCSS), by constitutional provision (Art. 73), enjoys administrative and governmental autonomy. This means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, and the existence of a special regulatory framework for its statutory relationship, which attends to and ensures its degree of autonomy, is valid in this case. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); to give itself its own internal organization; to set its own purposes, goals, and types of means to achieve them; and to issue autonomous service or activity regulations, in accordance with provisions normally called general policy provisions. Thus, as an autonomous institution of constitutional creation and with a greater degree of autonomy (administrative and governmental), it is protected from interference by the Executive Branch and from limitations when the Legislative Branch legislates (which cannot modify its degree of autonomy via statute). Thus, the Executive Branch cannot act as director or in a hierarchical relationship with this institution, cannot impose guidelines on it, nor give orders, nor control the timeliness of its activities.” Thus, no injury to the Law of the Constitution is configured on this point either, because it was the Constituent Power that determined, in a sovereign and democratic manner, the creation of the parafiscal contribution for the benefit of the social security regime administered by the CCSS, thereby fulfilling the principles governing the exercise of tax authority. Along the same lines, tax legality is not injured either, because it is the Constitutive Law of the CCSS that imposes on its Board of Directors objective parameters for determining the amount of the contribution to be paid by members of the system; moreover, in that determination, all actions must observe and be adjusted to the general principles of Law referred to herein, both systemic ones, such as legal certainty, and sector-specific ones, such as universality and solidarity regarding social security, all of which can be reviewed and controlled by the contentious-administrative jurisdiction.

Consequently, the constitutional violation alleged by the claimant regarding the parafiscal nature of the insurance contributions set by the Board of Directors of the Caja Costarricense de Seguro Social for the different categories of workers, whether salaried or self-employed, is far from being established, since, as repeatedly explained, both the authority granted to the Caja's Board of Directors and the setting itself by the latter find direct support and foundation in the constitutional text itself and in the institution's Constitutive Law, meaning that both the principle of legal reservation and tax legality are fully complied with.

…XVIII.- By way of conclusion. This Chamber has broadly recognized the powers of the Caja Costarricense de Seguro Social, derived from Article 73 of the Political Constitution, and which were granted to it by the constituent power by providing that this institution would be responsible for administering and governing social insurance, which necessarily implies that the Caja must have all the appropriate mechanisms to carry out that management. Among those powers, there is no doubt that the regulatory power is included, so that the institution can establish the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted, and also adopt the necessary measures for the exercise of its functions and its sustainability. In that regard, it should be recalled that subparagraph f) of Article 14 of the Constitutive Law of the Caja Costarricense de Seguro Social grants the Board of Directors the authority to issue regulations for the institution's operation, while Article 232 of the same Law states that said Board is competent to determine the contributions and benefits in accordance with the cost of services, all of which shall be done based on the actuarial calculations necessary for determining such items. On this point, for this Chamber, it is undeniable that the power of the CCSS Board of Directors to establish the obligation to affiliate self-employed workers, as well as the amount of contributions and benefits, is given by the Political Constitution itself and is due to its technical specialty, which means that any determination must necessarily be made based on actuarial recommendations; this means that the regulatory power of the CCSS Board of Directors has constitutional justification and must be used as a development of the law and with actuarial technical foundations – see in that regard judgment number 2002-4881-.

This Chamber has affirmed that said Article 23 of the Constitutive Law is consistent with the Political Constitution, so the powers it grants to the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but rather find support in the aforementioned Article 73 of the Constitution.

Likewise, the Chamber has recognized that the Board of Directors, within the powers it possesses, can establish that the conditions of one type of worker and another, the mandatory nature of their affiliation, the characteristics of the contribution they must pay, as well as the mechanisms necessary to compel them to pay the sums owed, are powers that also derive from Article 73 of the Political Constitution, as it encompasses the competences to administer everything related to social insurance.

From this perspective, the mandatory inclusion of self-employed workers within the CCSS regime is not contrary to the Constitution, and, in this matter, the legislator has discretion, for it should be recalled that the Constitutive Law of the CCSS provides in Article 3 challenged herein that the Caja shall determine by regulation the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted, and, as stated, Article 14, subparagraph f) of that Law grants the Board of Directors the authority to issue regulations for the institution's operation.

For that reason, if the legislator, in the exercise of that discretionary power, determined that anyone who freely practices a profession or trade must mandatorily affiliate with the Caja's regime, this does not injure the Political Constitution, and that discretionary power escapes the control of this Chamber, such that if the claimant disagrees with the fact that self-employed workers are obligated to affiliate with the Caja's regime, this is nothing more than a disagreement with the legislator's criterion, but not a matter of constitutionality – see judgments numbers 2000-643 and 2008-17304-.

The challenged norms, ultimately, establish obligations for the system's members, for the sake of fulfilling the institutional function of administration and governance of social insurance, as well as regarding the financing of the regime for the benefit of the beneficiaries. Therefore, it is improper to consider that they injure the Law of the Constitution in the terms asserted by the claimant when, on the contrary, they establish a series of minimum guarantees and the obligation of self-employed workers to be part of the system, and this Chamber has found no reason to exclude self-employed workers' insurance from the regulatory powers of the CCSS – see judgments numbers 2000-002571 and 2022-23208.

Consequently, the action of unconstitutionality must be dismissed, as ordered, not without first noting – as was done supra – that the regulatory provisions challenged in this process – Articles 1 and 2 of the Reglamento para la Afiliación de los Trabajadores Independientes of the CCSS, No. 7877 of August 5, 2004 – are not only repealed as of today, but have also been supplemented by the promulgation by the Legislative Assembly of new legislation called “Ley del Trabajador Independiente,” number 10363 of May 3, 2023, and the reform to the “Reglamento para el aseguramiento contributivo de los trabajadores independientes,” adopted by the Board of Directors of the Caja Costarricense de Seguro Social and published in Alcance number 212 to the Diario Oficial La Gaceta, number 205, of October 31, 2023.

Por tanto

The action is declared without merit. Magistrate Cruz Castro records additional reasons. Magistrate Rueda Leal records particular reasons…

…Particular reasons of Magistrate Rueda Leal. In the sub examine, I concur with the dismissal of the action, but for the following reasons.

Firstly, regarding social security and the autonomy of the Caja Costarricense de Seguro Social (CCSS), the Chamber, in resolution no. 2021023611 at 17:50 hours on October 20, 2021, ordered:

“V.- The Caja Costarricense de Seguro Social, its autonomy, and social security. In relation to articles 73 and 74, located in the sole chapter of Title V “Derechos y Garantías Sociales” of our Magna Carta, constitutional jurisprudence has extensively developed their content and implications regarding the autonomy of the CCSS in the administration and governance of social insurance.

Thus, in judgment no. 2001-10545 at 14:58 hours on October 17, 2001, it was ordered:

“II.- On the merits. The autonomy of the Caja Costarricense de Seguro Social. –Article 73 of the Political Constitution establishes in its second paragraph: "The Administration and governance of social insurance shall be the responsibility of an autonomous institution, called the Caja Costarricense de Seguro Social". Regarding the scope of what that norm establishes, the Chamber has repeatedly stated that the Caja's autonomy is not subject to limits in matters of governance. On this topic, analyzed in judgment 6256-94 at nine o'clock on October twenty-fifth, nineteen ninety-four, it was expressed:

"III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The Asamblea Nacional Constituyente, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, basically following the original text of the Constitution of 1871; that is, the institution was transplanted from the Constitution of 1871, according to the 1943 amendments, into the Constitution of 1949. However, for the purposes of this consultation, the contributions of Constituent Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the Asamblea Nacional Constituyente, the following is transcribed: 'Furthermore, the Caja, sooner or later, would have to assume the risk of unemployment, which will resolve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable thing is to leave things as they are, giving the Caja full autonomy to make it independent thus from the Executive Branch'; and on page 36 of the same it is added: 'In that sense, the most appropriate thing is to maintain the wording of article 63, which is good at least for this period of trial. Everything that signifies limiting the resources of Seguro Social will undoubtedly be an inexplicable regression.' When the article was approved, a second paragraph was included that literally read: 'The administration and governance of social insurance shall be the responsibility of an autonomous institution,' a text that was later reformed by Law No. 2737 of May 12, 1961, resulting today as follows: 'The administration and governance of social insurance shall be the responsibility of an autonomous institution, called the Caja Costarricense de Seguro Social.' In conclusion, the constituent power attributed the administration and governance of social insurance to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that the Constitution itself has granted it and sharing the general principles derived from its condition as a decentralized entity.

Other judgments of this Chamber in which reference is made to the topic of the autonomy of the Caja Costarricense de Seguro Social are the following: 0236-94 at 9 hours 57 minutes on January fourteenth; 3403-94 at 15 hours 42 minutes on July 7; 6471-94 at 9 hours 39 minutes on November 4, all from the year 1994). Subsequently, the Chamber has stated:

"IV.- Article 73 of our Political Constitution establishes the existence of social insurance, which is regulated by the system of compulsory contribution by the State, employer, and workers, in order to protect the latter against the risks of illness, maternity, disability, old age, and death. The Caja Costarricense de Seguro Social is the autonomous entity responsible for administering this type of insurance, with the autonomy that allows it to have its own initiative for its undertakings, as well as to execute its tasks and fulfill its legal obligations, setting goals and the means to achieve them. It guarantees, in this way, the establishment of social security and its nature, decrees the purpose of social insurance, and regulates the destination of the respective funds. Social security was created for the protection of the worker and their family, as human beings they are, and is provided from conception to death, seeking health and helping in unforeseen misfortunes such as disability and death, as well as in states of vulnerability due to their very condition, such as old age, pension, and retirement." (Judgment 004636-98 at 15 hours 57 minutes on June 30, 1998) "…it is permissible for the different establishments of the Caja, in application of the constitutional principle of administrative and governmental autonomy, to dictate the necessary reorganization measures for its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over private interests." (Judgment 03065-98 at 18 hours 18 minutes on May 6, 1998) "…the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution to the Caja is not subject to limits in matters of governance, as this tribunal has reiterated in preceding judgments (see, for example: 3403-94, 6256-94, 6524-94, among others). The constituent power expressly instituted an entity responsible for the administration of social security endowed with maximum autonomy for the performance of its important function; for which reason the reform to constitutional article 188 that instituted administrative direction did not modify its legal regime." (Judgment 07379-99 at 10 hours 36 minutes on September 24, 1999) Upon analyzing the claimant's allegations, the Chamber considers that – in effect – the content of Transitorio IV of Law 6577 is harmful to the autonomy of governance conferred upon the Caja Costarricense de Seguro Social by the second paragraph of Article 73 of the Political Constitution, because by ordering that norm the forced closure within a specified period of the retirement service – or even if it had ordered the contrary – it is evident that the powers attributed by virtue of governmental autonomy to said institution are invaded, understanding this as the capacity to carry out its legal purpose without subjection to another entity, to self-direct, self-govern, and dictate its own objectives and organize itself in the manner it deems convenient for the fulfillment of the purpose for which it was created.” For its part, vote no. 2002-06384 at 15:27 hours on June 26, 2002, stated:

“VIII.- Subparagraph b) of Article 2 of the Ley de Creación de la Autoridad Presupuestaria. Considerations of the Constitutional Chamber. In relation to autonomous institutions, the Chamber ruled in favor of the power of the Autoridad Presupuestaria to formulate guidelines for decentralized institutions, but interpreted this power restrictively. Based on Article 188 of the Political Constitution, this Tribunal considered in judgment No. 3309-94 that the power of the Autoridad Presupuestaria is constitutional as long as it:

“… remains in the field of design and subsequent execution of general policy guidelines, but certainly not to the extent that its application interferes with the concrete execution of those guidelines. The general nature of this function means that the Autoridad Presupuestaria cannot, within its competence, give concrete orders or subject the specific acts of execution that are part of the administrative autonomy of those entities to its approval.” If in the case of autonomous institutions in general, the power must be interpreted restrictively, in the case of the Caja Costarricense de Seguro Social, the power is totally unconstitutional. The Caja Costarricense de Seguro Social enjoys, as stated in judgment No. 3403-94, “a degree of autonomy distinct from and superior to that defined in general terms in Article 188.” This greater degree of autonomy derives from Article 73 of the Political Constitution. In judgment No. 6256-94, it was stated:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is one of solidarity, creating a system of tripartite compulsory contribution by the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and governance of social insurance, a degree of autonomy that is, of course, distinct from and superior to that defined generally in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their intended purpose. As seen in the preceding recitals, the Asamblea Nacional Constituyente chose to leave things, regarding this institution, as they were in the Constitution of 1871, 'with full autonomy to make it independent thus from the Executive Branch.'” By virtue of this full autonomy, any provision that obliges the Caja Costarricense de Seguro Social to abide by guidelines on the administration of the resources subject to its management is unconstitutional. Subparagraph b) of Article 2 of the Ley de Creación de la Autoridad Presupuestaria suffers from that defect and, therefore, is declared unconstitutional only as it refers to the Caja Costarricense de Seguro Social.

(…)

XIII.- On Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social. Considerations of the Constitutional Chamber. On this point, this Chamber disagrees with the claimant's thesis. While the claimant is correct that constitutionally the Caja is prohibited from allocating funds for purposes other than those imposed by the Constitution itself, Article 41 does not indicate such a thing. A clear distinction must be made between the norm itself and the application it may have been given in specific cases. As such, Article 41 is directed at the investment of reserves; this Tribunal understands it as such, and a provision of this nature is not unconstitutional. To interpret otherwise would be to oblige the Caja to keep idle resources that could otherwise generate resources that strengthen the fund itself. Another aspect is the possibility that the Caja may have used that article to invest funds, supposedly idle, when it was far from fulfilling its purposes. If so, there is the possibility of challenging in the legality jurisdiction the specific actions that exceed the limits established by that same Article 41. There is also the possibility of evaluating the personal responsibility of those who did not adjust their decisions to the regulations, for they are obligated to interpret that Article 41 harmoniously with Constitutional Article 73. In summary, Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social is not unconstitutional, provided it refers to idle funds and not to funds necessary to satisfy the objectives constitutionally assigned to that institution.” Judgment no. 2003-03483 at 14:05 hours on May 2, 2003, ordered:

“On the social security regime. Article 73 of the Political Constitution, interpreted harmoniously with Article 50 idem, enshrines the Right to Social Security. The Chamber has repeatedly pointed out that this right presupposes that public authorities will maintain a public social security regime for all citizens at the highest level, in a manner that guarantees assistance and provides sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, with a mandatory nature. The objective scope assumes the principle of generality, as it protects situations of need, not insofar as they have been previously foreseen and insured, but insofar as they effectively occur. Furthermore, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of automatic protection, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management must be public, under the responsibility of the State, represented by the Caja Costarricense de Seguro Social, and financing shall respond to the cardinal principle of social solidarity, as it is based on the compulsory and tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are: universality, generality, sufficiency of protection, and social solidarity.” What was decided in judgment no. 201007788 at 14:59 hours on April 28, 2010, must also be transcribed:

“III.- On the merits. (…) To resolve the present action of unconstitutionality, it is necessary to take into consideration the precedents on the autonomy of the Caja Costarricense de Seguro Social. Through judgment No. 1994-06256 at nine o'clock on October twenty-fifth, nineteen ninety-four, the Chamber establishes the following:

“Although it is not the subject of the consultation, for the purposes of the conclusion reached by the Chamber, it is necessary, at a minimum, to point out some general guidelines on what administrative decentralization implies in our constitutional regime. There are in our legal system three forms of autonomy: a) administrative, which is the legal possibility for an entity to carry out its legal purpose by itself without subjection to another entity, known in doctrine as the capacity for self-administration; b) political, which is the capacity for political self-direction, for self-governance, for the entity to dictate its own objectives to itself; and c) organizational, which is the capacity for self-organization, excluding any legislative power. In the first two cases, the autonomy is vis-à-vis the Executive Branch and in the third, also vis-à-vis the Legislative Branch. Organizational autonomy is characteristic of universities, as derived from Article 84 of the Political Constitution, and therefore unrelated to the purpose of this consultation. The other two degrees of autonomy derive from Political Autonomy, whose content shall be specific to the law (founding act) that creates the entity. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even extinguish it; but since decentralization implies that all the powers of the administrative hierarchy correspond to the entity, it means that its legal personality encompasses the totality of the administrative powers necessary to achieve its purpose independently. Autonomy, usually, comprises the powers to formulate plans or set the entity's purposes and goals, to establish internal mechanisms for functional and financial planning through budgets, and finally, the exercise of autonomous regulatory power. These general lines on autonomy are directed at administrative decentralization created by ordinary law.” Furthermore, the Chamber pointed out that:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is one of solidarity, creating a system of tripartite compulsory contribution by the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and governance of social insurance, a degree of autonomy that is, of course, distinct from and superior to that defined generally in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their intended purpose. As seen in the preceding recitals, the Asamblea Nacional Constituyente chose to leave things, regarding this institution, as they were in the Constitution of 1871, 'with full autonomy to make it independent thus from the Executive Branch.'” The Chamber maintains the same position with judgment No. 2003-02355, insofar as it establishes that:

“… it is concluded that the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution is not subject to limits for the Caja in matters of governance, as this tribunal has reiterated in preceding judgments (see, for example: 2001-7605, 6256-94, among others). The Caja is, definitively, the entity responsible for the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the foregoing, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits inherent to social security via regulation, in such a way that it can define the conditions, benefits, and entry requirements for each protection regime, supported by actuarial studies, so as not to bankrupt the system.” The Chamber must pose the question of whether the regulation effectively implies a reversal of the decentralization operating under the Political Constitution, or what is the same, an interference with the capacity of the Caja Costarricense de Seguro Social to administer and govern social insurance. The acts of the Asamblea Nacional Constituyente justify the formation of autonomous entities with the criterion of specialization of state functions, to organize the State and increase its administrative efficiency; therefore, it is not legitimate for it to depart from that purpose, and it must therefore provide a proactive response to public interests in matters vital to the human being and socially important. The administrative and governmental autonomy that the Political Constitution grants to the Caja Costarricense de Seguro Social is circumscribed to social insurance, as set forth in the 1st paragraph of Article 73 of the Political Constitution, as well as to what is recognized by the Law (Article 1°). However, institutional autonomy is not an insurmountable limit; pursuant to precedents, legislation may be enacted on other matters distinct from the designated competence, while of course complying with the guarantee established in Article 190 of the Political Constitution, which establishes prior audience for the Institution in the event that the provisions of a bill affect it, but this is not the topic to be analyzed in the action of unconstitutionality.” Likewise, judgment no. 2018013658 at 9:15 hours on August 22, 2018, held:

“I.- ON ARTICLE 23 OF THE CONSTITUTIVE LAW OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL. In the sub lite, the main reproach of the claimant is directed against Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, insofar as it establishes that: “The contributions and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations.

The workers' contribution may never be greater than the contribution of their employers, except for the exceptional cases that the Regulations establish, based on actuarial recommendations, in order to provide greater benefits to the former and to achieve a fairer distribution of the burdens of mandatory social security." The plaintiff essentially alleges that this provision violates Article 121, subsection 13), of the Political Constitution, asserting that the challenged rule confers a tax or levy power on the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) in violation of said constitutional provision.

The issue of parafiscal contributions (contribuciones parafiscales)—in this case, social security contributions—has provoked considerable controversy in doctrinal and jurisprudential spheres. Regarding the constitutional legal dispute before us, from the perspective of this Chamber, two theses are plausible. The first, which considers that since it is a tax—see in this regard ruling 2006-009568 of this Court—its structural elements—taxable event (hecho generador), rate, calculation basis, active and passive subject, etc.—inevitably must be defined by formal Law; this latter consequence has not been validated by the Constitutional Chamber. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality (principio de legalidad tributaria) would be violated, especially considering that some find the origin of Parliament and democracy in the struggle of English barons to seize taxing power—there is no democracy without Parliament, nor Parliament without the Opposition. In summary, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court—see, among others, rulings numbers 1994-003819 and 1998-007393—, is the one that considers that we are not in the presence of a parafiscal contribution and, consequently, the principle of tax legality should not be applied. "The payment of the quota or contribution, as the case may be, is not a tax, as stated in previous paragraphs, but the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the taxpayers themselves …".

According to the most authoritative doctrine in tax matters, parafiscal contributions are a tax, because they contain the material elements of obligation—the duty to pay them by those who fall under the premise of the creating norm—, singularity because they affect a determined and unique social or economic group, and sectoral allocation because what is collected through this mandatory levy is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a sovereign power of the State that imposes pecuniary levies for the fulfillment of social or economic ends. Ergo, they can only be created through a formal Law—*tributum sine lege*—.

Now, in the case of employer-worker quotas destined to sustain social security—sickness and maternity insurance and disability, old-age, and death insurance—our legal system has a singularity. Indeed, it is constitutional provision 73 that creates the parafiscal contribution by mandating a forced contribution from the State, employers, and workers, in order to protect them against the cited risks and other contingencies that the law may determine. Immediately following, the constitutional text establishes that the administration and governance of these social insurances corresponds to an autonomous institution: the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). Finally, of relevance, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes other than those that motivated their creation. As can be observed, we are, therefore, before a parafiscal contribution created by the original Constituent Power, by which, from the perspective of this Court, the maxim that there can be no taxation without representation (*no taxation without representation*) is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of taxing power is satisfactorily met, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle we must overcome is related to the setting of the amount of the quota to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense de Seguro Social) provides that the quotas and benefits will be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution may never be greater than the contribution of their employers, except for the exceptional cases that the Regulations establish, based on actuarial recommendations, in order to provide greater benefits to the former and to achieve a fairer distribution of the burdens of mandatory social security. Seen in this light, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, objective parameters are imposed on the Board of Directors of the Costa Rican Social Security Fund when determining the amount of the quota—the cost of the services it provides and the respective actuarial calculations—, meaning the legislator set for the administrative collegiate body the objective elements that must be observed when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Litigation Judge. The Tax Code of Norms and Procedures (Código de Normas y Procedimientos Tributarios) follows this same logic in its provision 5, in relation to fees, as it allows their amount to be varied through a Regulation so that their purpose is fulfilled in a more suitable manner, after the intervention of the agency legally responsible for regulating the rates of Public services.

Recapping, because the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on one hand, and because the legislator set objective parameters to determine the amount of the quota of the parafiscal contribution, that principle is also respected.

II.- Nor can it be interpreted that Article 23 of the Constitutive Law of the Costa Rican Social Security Fund infringes, *per se*, Article 177 of the Constitution, in the terms set out by the plaintiff, since said provision, far from preventing the Costa Rican Social Security Fund from setting—in the exercise of its powers derived from constitutional provision 73—the quotas paid by employers and workers, imposes, on the contrary, the obligation to create sufficient income (rentas) in favor of that institution, in order to achieve the universalization of social insurances and to guarantee, fully, the payment of the State's contribution as such and as an employer. Ergo, the action of unconstitutionality filed must be rejected on the merits, regarding the cited provision 23 of the Constitutive Law of the Costa Rican Social Security Fund, as is hereby done." Additionally, ruling no. 2018019511 of 21:45 hours on November 23, 2018, reads:

"Given the constitutional rank of the CCSS itself, it is necessary to analyze the budgetary rules pertaining to it. The Chamber emphasizes that the Constitution itself establishes—within the budgetary regulations—a specific regime for the CCSS, as regulated by the third paragraph of provision 177 of the Political Constitution:

"To achieve the universalization of social insurances and to fully guarantee the payment of the State's contribution as such and as an employer, sufficient income (rentas) shall be created in favor of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), calculated in such a way as to cover the current and future needs of the Institution. If a deficit arises due to the insufficiency of such income, the State shall assume it, for which purpose the Executive Branch must include in its next proposed Budget the respective item determined as necessary by the said Institution to cover the totality of the State's quotas." Likewise, the Constitution provides, in its Article 73, an additional guarantee for the funds and reserves of the social insurances, by stipulating:

"(…)

The funds and reserves of the social insurances may not be transferred or used for purposes other than those that motivated their creation. (…)" The importance of these texts lies in the fact that the Political Constitution is a directly applicable norm, as this Court has held on multiple occasions (for example, rulings no. 2016-017376 of 11:41 hours on November 23, 2016, and 2015-006787 of 15:45 hours on May 12, 2015). That is, the fact that the Constitution is the parameter against which other norms are measured, or that its precepts are developed in infra-constitutional norms, does not diminish or inhibit the full, direct, prevalent, and immediate application of certain constitutional postulates.

With this in mind, the Chamber observes that the aforementioned Article 177 guarantees that the State shall ensure that the CCSS has sufficient income (rentas) for the fulfillment of its assigned constitutional duties. Therefore, the Executive Branch is compelled by the Fundamental Law itself to budget sufficient income for this insuring entity to cover its needs. If it fails to do so, the same norm defines the corrective mechanism, as it obligates the Executive Branch to cover the deficit that may arise in the following period. While this norm omits to assign a specific percentage of the budget to the mentioned entity, unlike the Judicial Branch and public education, the truth is that it does impose an express and determinable constitutional mandate.

This first constitutional safeguard must be read in conjunction with the second transcribed guarantee, prescribed in provision 73. The third paragraph of said norm prevents any fund or reserve of the social insurances from being used for objectives different from the reason for their creation.

Such norms entail, on one hand, the State's obligation to provide sufficient income (rentas) for the CCSS (Article 177) and, on the other, the impossibility of using the resources of one insurance for different ends (provision 73). This means that, in the case of insurances with tripartite contributions, such as sickness and maternity insurance (questioned by the consultants), all the resources of said fund are covered by constitutional protection, making their affectation through the proposed fiscal measures impossible.

As has been stated, the aforementioned guarantees are of direct and prevalent application with respect to the CCSS. Thus, although the challenged norms make only two exceptions (the resources of the Disability, Old-Age, and Death Regime and the Non-Contributory Regime), the truth is that the constitutional impossibility of transferring or using the funds of the sickness and maternity insurance constitutes an exception emanating from our Magna Carta, in defense of the administrative autonomy of the CCSS and the appropriate use of the resources of said insurance.

The direct application of the Political Constitution with respect to the CCSS is not new for the Constitutional Chamber:

"VI.- THE SPECIFIC CASE.- The Costa Rican Social Security Fund finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite forced contribution from the State, employers, and workers; b) the norm grants, exclusively to the Costa Rican Social Security Fund, the administration and governance of the social insurances, a degree of autonomy that is, of course, distinct and superior to that defined generally in Article 188 ibidem; c) the funds and reserves of the social insurances cannot be transferred or used for purposes other than their task. As was seen in the preceding considerations, the Constituent National Assembly chose to leave things, regarding this institution, as they were in the 1871 Constitution, 'with full autonomy to thus make it independent from the Executive Branch.' Now, according to what has been said, among the characteristic notes of the autonomous institutions is included, undoubtedly, budgetary autonomy (see intervention in the Constituent National Assembly of Nombre35481 in Consideration II).- The inclusion of the budgetary items necessary for the State to pay its contributions to the Costa Rican Social Security Fund forms part of the ordinary resources created in the same Article 73 of the Constitution, so it is not possible for the Legislative Assembly to include and approve them in an ordinary or extraordinary budget of the Republic, with the simultaneous definition of the corresponding expenditure, thus substituting the powers granted by the Constitution to the Costa Rican Social Security Fund itself, without violating Articles 73 and 188 of the Political Constitution and the principles indicated herein. Being ordinary resources, only the institution, according to its own organization, can freely exercise constitutional autonomy (definition of legality reasons with opportunity and discretion) through the entity's budgets, which must be approved and audited by the Comptroller General of the Republic (Contraloría General de la República). That is, it is the Political Constitution itself that has defined which are the own and ordinary financial resources of the Costa Rican Social Security Fund, by indicating that they are composed of the forced contributions that the State, employers, and workers must pay, funds that are administered and governed by the institution itself. The case of extraordinary contributions from the State or third parties in favor of the social insurances is different, which can indeed specify, because they are donations, contributions, or participations (ultimately liberalities), the specific ends to which these special resources are directed, such as the construction of a hospital, a clinic, or the purchase of specialized equipment. But regarding ordinary resources, the legislator cannot substitute the head of the institution in defining spending priorities, because doing so is part of the essence of exercising the entity's autonomy, according to the characteristics, principles, and notes that have been indicated here. All of this leads us to the conclusion that the budget transfers consulted are unconstitutional, for being violative of Articles 73, 188, and 189 of the Political Constitution." (Ruling no. 6256-94 of 9:00 hours on October 25, 1994. Emphasis added)".

In the same direction, ruling no. 2020010608 of 14:00 hours on June 10, 2020, states:

"A.- The jurisprudence on the Social State of Law, the Costa Rican Social Security Fund, and entitlement rights. This Court has said much about the Social State of Law, especially related to the rights that the human person has regarding the essential services provided by the State, such as those related to the rights to health, to a pension, among others, provided by the Costa Rican Social Security Fund. These topics have been addressed with the content of Article 50, Constitutional, which establishes:

"The State shall strive for the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth." In this formula, the Constituent Power established the basic general principle of the Social State of Law, which will later be reinforced with other provisions that establish, concretely, the way in which the Costa Rican State materializes this principle transversally among the different social sectors.

In Ruling of this Chamber No. 2005-11132 of 8:49 hours on August 26, 2005, it was stated that:

"… the State shall strive for the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth, which, together with the declaration of adherence of the Costa Rican State to the Christian principle of social justice, included in Article 74 ibidem, determines the very essence of the political and social system we have chosen for our country and which defines it as a Social State of Law (see ruling number 1441-92 of fifteen hours forty-five minutes on June second, nineteen ninety-two). In this sense, this Constitutional Court also manifested itself in the following way:

'One of the basic connotations of the Costa Rican State and, in general, of every "Social" State of Law, is the intervention—increasingly frequent—of the governing authorities, to provide solutions to social problems.- The Political Constitution itself obligates the State to actively participate, not only in the processes of production (Article 50), but also in those related to the development of fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantee a dignified and useful existence for society.'- (Ruling No. 5058-98 of fourteen hours twenty minutes on October fourteenth, nineteen ninety-three)".

Similarly, by Ruling of this Chamber No. 2005-13205 of 15:13 hours on September 27, 2005, this Chamber ordered that:

"III.- On the Social State of Law, Equality, and Human Dignity. The Social State of Law, a fundamental element of our constitutional order, entails an orientation of our political regime towards social solidarity, that is, towards equity in social relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discrimination. In this sense, constitutional provision 74 explicitly establishes the duty to pursue a permanent policy of national solidarity based on the Christian principle of social justice, which makes it a constitutional value of the highest order (see ruling number 2170-93 of 10:12 hours on May 21, 1993). Consequently, based on the Social State of Law, our Political Constitution contemplates a set of entitlement rights relating to the protection of the family, workers, vulnerable sectors of the population, education, the environment, and Nation's assets such as cultural heritage. This duty to conform according to the guidelines of the Social State of Law is not constrained to the Administration, but extends to the entire national community, as it is a fundamental rule of citizen coexistence in our political system. In its condition as a general principle, a particular normative projection emanates in all areas of creation, interpretation, and execution of Law. Specifically concerning constitutionality control, the Principle of the Social State of Law is useful as a parameter of normative validity, a hermeneutical criterion, and a functional integrating instrument of the legal system." On the other hand, Ruling No. 2003-09880 of 11:10 hours on September twelve, 2003, established that:

"As an element proper to the Social and Democratic State of Law, Social Security stands as a standard-bearer thereof, being that it is founded on the principle of social solidarity, and is complemented by the right to equality and the principle of human dignity, being an entitlement right. Within our Political Constitution, the social insurance scheme, despite being a universal scheme accessible to all inhabitants of the Republic, starts from the fundamental premise for its economic support of tripartite contributions, i.e., the State, employer, and workers. Article 73 of the Constitution establishes that social insurances are created for the benefit of manual and intellectual workers, regulated by the system of forced contribution from the State, employers, and workers, in order to protect them against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine. As can be observed, the Constitution itself, in its effort to establish a financing mechanism for social security in favor of active and retired workers, establishes a tripartite forced contribution system, from which it is concluded that those workers or pensioners who contribute regularly to the scheme in accordance with the provisions of the Constitution will have access to social security services, without any additional cost." Among the manifestations of state intervention is social security, one of the most palpable being the pay-as-you-go pension scheme, through which retired or pensioned persons, upon meeting the requirements of the scheme, receive economic benefits when they have had to leave productive activities, whether due to old age or disability. In these cases, the twilight of a worker's productivity cycle has arrived, they cease receiving the respective income for the work performed, and it is when the principle of social solidarity begins, to provide the benefits proper to the pension, which, if they did not occur, would not allow them to continue fending for themselves—themselves and their dependents—, and they would fall into social and economic risk. In this way, in a pay-as-you-go social security system, a fund is formed with a mandatory contribution from workers, employers, and the State, in accordance with Article 73, Constitutional. On this topic, it is important to highlight that when the system has been challenged on the grounds that it constituted a tax obligation, the Constitutional Chamber dismissed such argumentation. Precisely, in Ruling No. 2018-13658 of 9:15 hours on August 22, 2018, which will be partially transcribed, the Chamber reviewed the jurisprudence on the legal nature of quotas and benefits, identifying them as a parafiscal contribution (contribución parafiscal) to deliver those contributions, in development of Article 23, of the Constitutive Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense de Seguridad Social). The Chamber established that:

"[...] According to the most authoritative doctrine in tax matters, parafiscal contributions (contribuciones parafiscales) are a tax, because they contain the material elements of obligation—the duty to pay them by those who fall under the premise of the creating norm—, singularity because they affect a determined and unique social or economic group, and sectoral allocation because what is collected through this mandatory levy is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a sovereign power of the State that imposes pecuniary levies for the fulfillment of social or economic ends. Ergo, they can only be created through a formal Law—*tributum sine lege*—.

Now, in the case of employer-worker quotas destined to sustain social security—sickness and maternity insurance and disability, old-age, and death insurance—, our legal system has a singularity. Indeed, it is constitutional provision 73 that creates the parafiscal contribution by mandating a forced contribution from the State, employers, and workers, in order to protect them against the cited risks and other contingencies that the law may determine. Immediately following, the constitutional text establishes that the administration and governance of these social insurances corresponds to an autonomous institution: the Costa Rican Social Security Fund. Finally, of relevance, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes other than those that motivated their creation. As can be observed, we are, therefore, before a parafiscal contribution created by the original Constituent Power, by which, from the perspective of this Court, the maxim that there can be no taxation without representation (*no taxation without representation*) is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of taxing power is satisfactorily met, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle we must overcome is related to the setting of the amount of the quota to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Costa Rican Social Security Fund provides that the quotas and benefits will be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution may never be greater than the contribution of their employers, except for the exceptional cases that the Regulations establish, based on actuarial recommendations, in order to provide greater benefits to the former and to achieve a fairer distribution of the burdens of mandatory social security. Seen in this light, this Court concludes that the principle of tax legality (principio de legalidad tributaria) is not violated, for the elementary reason that through formal Law, objective parameters are imposed on the Board of Directors of the Costa Rican Social Security Fund when determining the amount of the quota—the cost of the services it provides and the respective actuarial calculations—, meaning the legislator set for the administrative collegiate body the objective elements that must be observed when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Litigation Judge (Juez de lo Contencioso Administrativo). The Tax Code of Norms and Procedures (Código de Normas y Procedimientos Tributarios) follows this same logic in its provision 5, in relation to fees, as it allows their amount to be varied through a Regulation so that their purpose is fulfilled in a more suitable manner, after the intervention of the agency legally responsible for regulating the rates of Public services.

Recapping, because the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on one hand, and because the legislator set objective parameters to determine the amount of the quota of the parafiscal contribution, that principle is also respected.

II.- Nor can it be interpreted that Article 23 of the Constitutive Law of the Costa Rican Social Security Fund infringes, *per se*, Article 177 of the Constitution, in the terms set out by the plaintiff, since said provision, far from preventing the Costa Rican Social Security Fund from setting—in the exercise of its powers derived from constitutional provision 73—the quotas paid by employers and workers, imposes, on the contrary, the obligation to create sufficient income (rentas) in favor of that institution, in order to achieve the universalization of social insurances and to guarantee, fully, the payment of the State's contribution as such and as an employer." Thus, as the precedent clearly indicates, the powers of the Board of Directors of the Costa Rican Social Security Fund (Caja Costarricense de Seguridad Social) are to establish mandatory quotas for Employers and Workers, and the State's contribution, with objective parameters, such as the costs of services and actuarial studies to maintain the benefits that the Constituent Power granted under its competence.

As part of the rationale for Article 9, of session 8856, held on July 28, 2016, in which the Board of Directors of the Costa Rican Social Security Fund took various measures, such as the elimination of the early retirement option, and agreed to reform the Regulations of the Disability, Old-Age, and Death Insurance (Reglamento del Seguro de Invalidez, Vejez y Muerte), it was indicated—among other things—that:

"[…] 2 There is a significant percentage of pensioners for whom, without the application of any type of advance, the calculation of the pension amount—with the application of the formula—results in an amount lower than the minimum pension amount, meaning that due to such existence of minimum protection levels, they must be brought up to the minimum pension amount. Such situation costs the pension fund approximately 54 billion colones per year.

[…]

5. Even though the Long-Term Actuarial Valuations, prepared by the Actuarial and Economic Directorate, place the financial sustainability of the IVM Regime within time horizons that range between one and two decades—depending on the scenario—, there are conjunctural situations and short-term pressures that the Disability, Old-Age, and Death Insurance (Seguro de Invalidez, Vejez y Muerte) is facing, and which are largely reflected in cash flow and in the use of interest for the payment of the year-end bonus (aguinaldo).

Given that situation, it is advisable to inject new resources by accelerating the magnitude of the contribution premium.

[…]

C. That, based on the foregoing, it was recommended to eliminate early withdrawal with a reduction and also so that in all those cases where the total pension amount generated by applying the current calculation formula is lower than the minimum pension amount, the State, in its subsidiary capacity, contributes the difference.

D. That in accordance with the foregoing recommendation, it is in article 31 of Session No. 8803, held on October 1, 2015, that the Board of Directors ordered – among other aspects – the following:

"… the Board of Directors, as shall be recorded below, RESOLVES:

• 1)Early Withdrawal: eliminate […]
• 2)State Subsidy: accept the proposal regarding the establishment of a State subsidy for the minimum pension, for which the Pension Management, in coordination with the Legal Directorate and the Actuarial and Economic Directorate, is instructed to make the appropriate adjustments to the Reglamento del Seguro de Invalidez, Vejez y Muerte.

(…)".

Having said the foregoing, which serves as the motive for the reform of the Reglamento, it is important to highlight that, within a Social State of Law (Estado Social de Derecho), such as ours, there are certain unavoidable obligations of the State, which, due to the political and legal direction this concept contains, conditions the other constitutional bodies to act in a determined sense within an economic reality, as is well illustrated in Judgment No. 2018-19511 of 9:45 p.m. on November 23, 2018, which states:

"…In this context, a harmonious interpretation of the principle of budgetary balance and the Social State of Law is of special importance. This Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, sound management of public finances becomes necessary; that is, a balance must inexorably exist between benefit rights and state economic solvency, since the former depend on the material possibilities fostered by the latter, while the sense of the latter is to strengthen the development of a supportive political system, one in which the less favored strata of society find protection for their human dignity and their right to progress. In other words, the "ideal" Social State of Law is the "possible" Social State of Law, against which action is precisely taken when the principle of budgetary balance is breached, since, in the medium term, this seriously risks or entirely prevents obtaining the necessary resources to sustain a "real" Social State of Law, one that the most vulnerable can truly and effectively enjoy. Therefore, ensuring that we do not fall into a failed or paper Constitution, where constitutional-level benefit rights cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competences allows.

It must be warned, however, that all constitutional principles, values, and precepts must be observed in any circumstances, which the constitutional jurisdiction is permanently responsible for overseeing. Now, by reason of the exercise of weighing or optimization that the constitutional judge performs to resolve a collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of what has been expressed: the non-observance of the principle of budgetary balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of this principle and emphasize its real implementation for the sake of the principle of the Social State of Law. The observation made by the Programa del Estado de la Nación is reiterated: "This [referring to the structural imbalance in public finances] has put the future of the social welfare state built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient." Precisely, the hermeneutics of the general principles for resolving the sub examine, such as that of budgetary balance and that of the Social State of Law, cannot be detached from the parameters of constitutional relevance inferred from the consulted measures and the abundant technical references to the economic juncture, which are fundamental elements to rule out arbitrary or unreasonable action".

Now, it is true that the judgment outlines the State's obligation to engage with the economic and social reality, which implies that the State cannot deny the existence of the economic realities the State is going through, but also the social security systems (sistemas previsionales) for all the social sectors to which the constitutional provision is directed. In this sense, when establishing a general jurisprudential theoretical framework for these rights, it is important to recognize that there is a strong mandate, from the Political Constitution, when it establishes the existence of legal mechanisms to demand the payment of premiums for social insurance, in addition to the method for determining them.

B.- On the principle of social solidarity and the Caja Costarricense de Seguro Social. This Chamber had the opportunity to review the constitutionality of the maximum caps granted by the contributory social security system in Costa Rica, by a professional sector that contributes to the regime. Among other grounds for dismissing the action, the principle of social solidarity was noted, which in a Social State of Law acts transversally throughout society.

By Judgment No. 2013-06638 of 4:00 p.m. on May 15, 2013, this Chamber ruled as follows:

"B.- The principle of social solidarity. The main multiplying agent of wealth distribution in the Social State of Law lies in this principle, which in our country resides especially from the mandates contained in articles 1, 50, 73, and 74 of the Political Constitution. Through the entire administrative framework (centralized and decentralized) and the distribution of State Powers, an attempt must be made to eradicate the most pressing social inequalities; it implies that state activity needs to be reasonably linked to the administered party who has greater needs and must satisfy the most urgent demands with the State's powers of empire, even to impose itself in very qualified circumstances against the will of the governed, but which allows the State to establish mechanisms that make society a more just and stable place. This principle promotes social equity, which consists of the obligation of those who have more to help those who have less. It is inspired, consequently, by a duty-to-be of society or the collectivity, to provide support to those who do not have sufficient means of subsistence or those who find themselves in social and economic risk, and where society steps forward through the State or the mechanisms it creates, to satisfy the need of people who fall into social and economic risk: therefore, it promotes greater justice and equity. Just as social security is born from human necessity, all this entails a sacrifice by the better-off sectors in favor of the most dispossessed, which is precisely the spirit of what is regulated in articles 1, 50, 73, and 74 of the Political Constitution (as they are those who have or had access to education, to better personal and social conditions, and who by reason of such benefits would be expected to behave in a way tending to favor those with less luck, etc.). Precisely, social security systems promote the fight against extreme poverty for the most disadvantaged; it thus becomes a system of economic and social distribution that must be recognized as inherently entailing the sacrifice of certain better-advantaged social groups in society, but which contributes greatly to social security and peace. Well pointed out by Nombre35482: "An empty stomach is not a good political advisor," and this must be the main concern of the State when it exists in the lowest social strata of Costa Rican society".

It is important to bring up the case, since the constitutionality of the contribution and the benefit received from the tripartite forced contribution established in article 73 of the Political Constitution was questioned, in which employers, workers, and the State contribute obligatorily to a pension fund, and which redistributes the quotas of those who contribute more to those who have less. Although it is not proportional for either extreme (maximum and minimum), it is with the former that a greater sacrifice is evidenced, justified by the principle of social solidarity in favor of those who contributed less to the system due to belonging to the lower social stratum. In this way, the social security system must seek mechanisms that compensate for differences from a minimum to raise benefits to an amount that ensures the survival of all individuals. In the supra-cited judgment, the Chamber is clear in pointing out that:

"It must not be lost sight of that it is sustained by a basic social protection regime, or what is the same, the international obligation is with the establishment and sustainment of a social floor. It is thus that, being a basic coverage system, it encompasses a horizontal dimension of the system that demands minimum levels of protection to achieve or maintain the universality of that protection (even to sustain an elevation of levels for those who lack them, according to the principle of social solidarity), but that, without a doubt, progressivity in protection regimes must be recognized, that is, in their vertical dimension, where these must be in tune with the international guidelines and obligations that our country has accepted before the ILO. From the reports, it is clear that a very sensitive contraction in the regime would occur, due to the dynamics and pressures that the pension fund or reserve must face".

In conclusion, the maximum cap and the minimum amount are technically interrelated, such that they need, as references, the most recent actuarial calculations to allow for financial sustainability and the fund's solidity. It is clear that the latter depends on the former for its effectiveness; and that, as technical criteria of actuarial mathematics, they would be subject to periodic review according to the reserve's behavior. In the case at hand, Report No. DAE-735-17 of October 2, 2017, established:

"It is worth mentioning that although internally within the Seguro de Invalidez, Vejez y Muerte, solidarity manifests itself in multiple forms, one of the most significant being the risk of death and disability. The existence of a maximum cap allows for strengthening the pension amount of those who receive less; however, the number of people on the maximum pension is significantly reduced, as they barely represent 1%, so it is not sustainable to think that the contributions of those with high incomes – maximum pension – finance the total solidarity for those with low income".

Hence, the need to decree an increase in mandatory contributions is confirmed, and the importance of recognizing the competence of the Board of Directors of the Caja Costarricense de Seguro Social to decree the increase in the forced contribution of the State.

Nombre5650.- The prerogatives of the Executive Branch in the preparation of the national budget and the specialization of the Caja Costarricense de Seguro Social in the social security regime. The Executive Branch has, in the formation of the Republic's budget, certain prerogatives that constitutionally authorize it to preserve the State's financial order, be it in its income and expenses, which are powers that the Minister of Hacienda claims to oppose executing the agreement of the Board of Directors of the Caja Costarricense de Seguro Social, contained in article 9, of session No. 8856, as well as the claims deduced in this action of unconstitutionality. The implications of that agreement entail the disbursement of fifty-six billion colones annually from the National Budget, money that would imply greater indebtedness for the Costa Rican State, given that a difficult fiscal situation is recognized. Despite its opposition manifested in official letters DM-2293-2015 of December 10, 2015, and DM-0129-2016 of January 26, 2016, and because it considers that there was no endorsement from the Hacienda portfolio, nor attention to the pertinence of a national dialogue to endow the State with new revenues with which it could meet the obligation. In this sense, the report of the Procuraduría General de la República, which serves as an advisor to this Constitutional Chamber, concludes that, despite the noted historical fiscal problem, the lack of liquidity, the lack of consultation by the Caja; and, furthermore, the absence at that time of the generation of fresh resources by the Legislative Assembly, the Caja Costarricense de Seguro Social has no limit other than technical criteria for agreeing to a decreed increase. That is, the criterion of the Procuraduría General de la República is that, despite the claimed prerogatives of the Executive Branch, these cannot oppose the administrative and governmental autonomy of the Caja Costarricense de Seguro Social in the matter of social insurance, especially when its actions are based on mathematical-actuarial criteria.

This Chamber agrees with the Procuraduría General de la República, but especially because, although the Executive Branch finds in articles 176, 177, and 179 of the Political Constitution the powers of direction over most institutional budgets, including the State Powers, the Constituent excepted certain matters from such controls by creating exceptions and legal remedies to substantiate them. Hence, this Chamber has established criteria such as that of constitutionally tied resources, since they are directed by the constituent power itself to solve a priority problem of State resource distribution, such as, for example, the expenses budgeted by the Tribunal Supremo de Elecciones to give effectiveness to suffrage, the possible issue of the economic and operational independence of the Judicial Branch, and the State's contribution to social insurance, in paragraph 3, of article 177 of the Political Constitution. Said provision states:

"To achieve the universalization of social insurance and fully guarantee the payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit arises due to the insufficiency of these revenues, the State shall assume it, for which the Executive Branch must include in its next Budget proposal the respective item determined as necessary by the cited Institution to cover the totality of the State's quotas" (bold text is not from the original).

Within the transcribed norm, it is clear that the Constituent established the goal of universalizing social insurance, on which the Caja Costarricense de Seguro Social has performed outstanding work, allowing it to reach a high percentage through the administration of social insurance, and in which the Constituent established as a pivot the State's contributions as an employer and as State, which undoubtedly contains the Constituent's mandate that obliges it to assume part of the national solidarity equation expected from a Social State of Law. Note that the norm does not establish a percentage, but rather allows that constitutional obligation to be determined at a given time, to ensure the necessary current and future foreseeable income, characteristic of a fund whose objective is always to maintain its sustainability over time and as the coverage of social insurance progresses. This Chamber notes that this contribution is much lower than that which existed with the creation of the Regime, and that it has been maintained this way for twenty-five years, as indicated in the report from the Dirección Actuarial of the Caja. The Caja Costarricense de Seguro Social shows that the State makes the lowest contribution percentage compared to that of employers and workers. In this line of reasoning, it should be noted that this Chamber's jurisprudence has established that it is up to the Caja to set the sufficient revenues, calculated in such a way as to cover the current and future needs of the Institution. All the institutions party to this action have agreed that these calculations correspond to the Caja Costarricense de Seguro Social, a fact that the Ministerio de Hacienda itself acknowledges. It has been clearly pointed out that this corresponds to the institution of constitutional rank, because it has administrative and governmental autonomy in the order of the administration of social insurance. Thus, it was indicated in Judgment No. 2001-0378 of 2:37 p.m. on January 16, 2001 (as in earlier ones No. 1993-3853 of 9:09 a.m. on August 11, 1993, and No. 1994-1059 of 3:39 p.m. on February 22, 1994) that:

"IV.- On the violation of the principle of legal reserve. The plaintiff's first argument is that the challenged norm injures the principle of legal reserve, by imposing, through a regulation, a substantial requirement for exercising the right to a pension. The regulation of fundamental rights is reserved to the law, from which it follows that only through formal law, issued by the Legislative Branch and by the procedure provided in the Political Constitution for the issuance of laws, is it possible to regulate, and in any case, restrict fundamental rights, all - of course - to the extent that the nature and regime of these allow it, and within the applicable constitutional limitations. However, the norm questioned here does not contravene the Political Constitution by virtue of the fact that article 73 of the Political Constitution entrusts the administration and government of social insurance to the Caja Costarricense del Seguro Social, whereby the Constitution establishes in favor of this autonomous institution a degree of autonomy - administrative and governmental - that allows it to regulate, by way of regulation, matters relating to social insurance. This constitutional norm is developed in the Ley Constitutiva de la Caja Costarricense del Seguro Social, especially in articles 1, 2, and 3, which provide:

Article 1.- The institution created to apply mandatory social insurance shall be called Caja Costarricense de Seguro Social and, for the purposes of this law and its regulations, CAJA.

The Caja is an autonomous institution to which the government and administration of social insurance corresponds. The funds and reserves of these insurances may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited. Except for matters relating to public employment and salaries, the Caja is not subject to, nor may it be subjected to, orders, instructions, circulars, or directives emanating from the Executive Branch or the Budgetary Authority, in matters of government and administration of said insurance, their funds, or reserves.

"Article 2.- Mandatory Social Insurance includes the risks of illness, maternity, disability, old age, and involuntary unemployment; furthermore, it entails a share in the burdens of maternity, family, widowhood, and orphanhood and the provision of a burial quota according to the scale set by the Caja, provided the death is not due to the occurrence of a professional risk".

"Article 3.- Social Insurance coverage - and entry into it - are mandatory for all manual and intellectual workers who receive a wage or salary. The amount of the quotas to be paid under this law shall be calculated on the total remuneration paid under any denomination, by reason of or derived from the worker-employer relationship. (…)

The Caja shall regulation-wise determine the requirements for entry into each protection regime, as well as the benefits and conditions under which they will be granted".

The transcribed norms confer upon the Caja Costarricense del Seguro Social the power to administer everything related to social insurance, which implies regulation-wise determining the requirements for entry into each protection regime, their benefits, and conditions, such that the Reglamento de Invalidez, Vejez y Muerte issued by the Board of Directors, as well as its reforms, have been made in the exercise of this competence, derived from constitutional numeral 73. Consequently, article 9, subsection a) of the Reglamento del Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense del Seguro Social does not violate the principle of legal reserve".

Now, for this Chamber, in accordance with the provisions of article 14, subsection f), of the Ley Constitutiva de la Caja Costarricense de Seguro Social, it is up to the Institution's Board of Directors to issue the regulations for its operation, so that, coupled with the transcribed jurisprudence, this is sufficient to determine that, in the case of ensuring the funds that the State must guarantee for the regime's sustainability, it has no further restrictions than those established by technical criteria. In this sense, it has been the Caja itself that has determined this amount to the State, by reform to article 29 of the Reglamento de Invalidez, Vejez y Muerte, and while it can be recognized that the economic juncture due to the structural financing problems of the Costa Rican State exists and is real, it must be pointed out that it has been the will of the Constituent to specify the legal mechanism when those revenues are insufficient for the fund, as well as the method for determining economic commitments and the manner in which the Executive Branch must resolve it, when it indicates that "it must include in its next Budget proposal the respective item determined as necessary by the cited Institution to cover the totality of the State's quotas".

Finally, this Court, in judgment no. 2021017098 of 11:15 p.m. on July 31, 2021, recorded:

"2) Jurisprudential Background on the Governmental Autonomy of the Caja Costarricense de Seguro Social On repeated occasions, as indicated in judgment no. 2011-14624 of 3:50 p.m. on October 26, 2011, this Court stated that the Caja Costarricense de Seguro Social (CCSS) enjoys administrative and governmental autonomy, in accordance with article 73 of the Political Constitution, and therefore can issue provisions related to its internal regime. The Ley Constitutiva de la Caja Costarricense de Seguro Social itself, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, establishes in article 70 the following:

"The Administrative Career of the Caja Costarricense de Seguro Social is hereby created, to regulate which (sic), the Board of Directors shall establish the conditions regarding the entry of employees into the Institution's service, guarantee of stability, their duties and rights, method for filling vacancies, promotions, causes for removal, sanctions scale, procedure for judging infractions, and other necessary provisions…".

On the other hand, article 14, subsection f) endows the CCSS Board of Directors with the authority to regulate the institution's operation, such that it confers upon it the power to issue norms, including for regulating the regime of the officials the institution requires to fulfill the responsibilities assigned by the Political Constitution and its Ley Constitutiva, and this is constitutional, as indicated in said precedent:

"…In that context, the possibility for the Institution to establish by itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, as in the case of the Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, is not unconstitutional. The Caja Costarricense de Seguro Social may establish the rules for the selection of officials who hold positions in said institution, but respecting the specific purposes in the provision of the public service of the Caja Costarricense de Seguro Social (articles 73, 191, and 192 of the Political Constitution). By virtue of this, article 21 of the Ley Constitutiva establishes the following: "Article 21.- The Personnel of the Caja shall be integrated on the basis of proven suitability, and category promotions shall be granted taking into account the worker's merits in the first term and then, seniority in service." Based on the foregoing, as well as on a reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in that public officials must be governed by a statutory labor relationship, that is, by norms imposed by the Administration in its capacity as employer, in consideration of the efficient and effective provision of the public services that each administrative instance is called upon to offer. Even (sic) when the constituent power may have thought of a single statutory system, the fact is that the drafting finally given to article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting from nineteen forty-nine, means that today the existence of diverse statutory relationships in the Administration is valid, in consideration of the functional independence and administrative autonomy that the legal system assures to several public institutions." The foregoing is consistent with the same autonomy granted by the Constituent to certain institutions, in this specific case, that conferred upon the Caja Costarricense de Seguro Social in article 73, defined as governmental autonomy, which is necessary so that it can fulfill the special assigned tasks without interference from the Executive Branch.

In judgment no. 2011-15665 of 12:40 p.m. on November 11, 2011, reiterated in no. 2017-4797, particularly in relation to the C.C.S.S., the following was indicated:

"…In this case, we are facing a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is of degree two, which must be understood to include the powers to formulate plans or set the entity's purposes and goals, to provide itself with internal functional and financial planning mechanisms through budgets, and the exercise of autonomous regulatory power. Which translates, in the specific case of the pension regime administration under the responsibility of the Caja Costarricense de Seguro Social – at least – into the power to define by itself, excluding all legislative power, three fundamental aspects regarding pensions: the amount of the contribution quotas, the number of quotas workers must pay to access the pension, and the retirement age. Precisely this greater degree of autonomy that the Caja Costarricense de Seguro Social has compared to the rest of the autonomous institutions is what explains how it has been excluded from the application of laws such as "Ley de la Administración Financiera de la República y Presupuestos Públicos", law No. 8131 of September 18, 2001. See article 1 of said law:

"Article 1.- Scope of application The present Law regulates the economic-financial regime of the organs and entities administering or custodians of public funds. It shall be applicable to:

• a)The Central Administration, constituted by the Executive Branch and its dependencies.
• b)The Legislative and Judicial Branches, the Tribunal Supremo de Elecciones, their dependencies and auxiliary organs, without prejudice to the principle of separation of Powers established in the Political Constitution.
• c)The Decentralized Administration and the State public enterprises.
• d)State universities, municipalities, and the Caja Costarricense de Seguro Social, solely regarding compliance with the principles established in Title II of this Law, in matters of responsibilities, and in providing the information required by the Ministerio de Hacienda for its studies. In all other respects, they are excepted from the scope and application of this Law (…)" Which demonstrates that the Caja Costarricense de Seguro Social is always placed in a special category within autonomous institutions, because unlike these, it is not only of constitutional creation but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, namely, governmental autonomy. Which signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch.

Although the CCSS is certainly not beyond the reach of the law, the latter cannot "modify or alter" the constitutionally granted competence and autonomy of the CCSS by defining aspects that are its exclusive domain. The Caja Costarricense de Seguro Social, being fundamentally an autonomous institution of constitutional creation, the subject matter of its constitutionally granted competence lies beyond the scope of ordinary law. In other words, the legislator, in the matter of the administration and government (gobierno) of the social insurance schemes, is subject to limitations and must respect what the Framers established. Just as the legislator would be barred from issuing a law mandating that the administration and government of the social insurance schemes no longer corresponds to the Caja Costarricense de Seguro Social, so too may it not issue a law that intrudes upon aspects inherent to or within the purview of the CCSS in the administration and government of the social insurance schemes. In this regard, see what this Chamber ruled in resolution number 2001-010545, issued at 14:58 hours on October 17, 2001:

“… It is clear that the law cannot interfere in matters of government (gobierno) of the Caja Costarricense de Seguro Social by virtue of the full autonomy that this institution enjoys…” (A criterion reiterated in resolution number 2001-011592, issued at 09:01 hours on November 9, 2011).

As an additional argument, it must be emphasized that the norm defining the functions and purposes of the Caja Costarricense de Seguro Social is located in our Magna Carta within the chapter on social rights and guarantees, whereas matters relating to Autonomous Institutions are located in another title, Title XIV; this difference in placement reflects, from a systematic and systemic interpretation, that the fundamental norm itself, in creating the social security institution, intends to provide it with protective, solidary, and prioritized support for the individual by their very condition; it is evidently an institution that embodies the spirit of solidarity that inspires Article fifty and seventy-four of the Constitution. The aim is for every individual to have the guarantee that the solidary State ensures them health, a pension, disability benefits, and everything pertaining to social security. This provision becomes not only a goal or guide for State action but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could diminish said constitutional competence.” Subsequently, in judgment No. 2007-18484, reiterated in judgment 2018-6549, this Court addressed the scope of the different types of autonomy, in the following sense:

“A) Scope of the administrative autonomy of autonomous institutions, and their subjection to the law in matters of government (gobierno) (…). The degree of administrative autonomy—minimal and first-degree—is characteristic of autonomous institutions; of government (gobierno)—second-degree—characteristic of municipalities and the Caja Costarricense del Seguro Social with respect to the administration of social insurance schemes; and of organization—full or third-degree—characteristic of State universities. The decentralized entity created by ordinary law is subordinate to its content and involves the legislative power to modify and even extinguish it; but since decentralization implies that all the powers of the administrative superior correspond to the entity, it means that its legal personality encompasses all the administrative powers necessary to achieve its purpose independently. Thus, 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 to so provide, to dispose of its human, material, and financial resources in the manner it deems most suitable for the effective and efficient fulfillment of the tasks and purposes assigned to it. In this way, the central power has several limitations regarding its interference with autonomous institutions: it cannot act as the superior of the decentralized entity; it cannot control it by limiting the entity's activity for reasons of expediency; and it cannot, either, act as the director of the autonomous entity's management through the imposition of guidelines or basic programs. However, as expressed in the same Constitutional Article 188, autonomous institutions are subject to the law in matters of government (gobierno). In accordance with the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the laws; thus, the objectives, goals, and purposes of the entity are determined by the legislator” (Emphasis not in the original).

As indicated in the cited jurisprudential text, the CCSS, in addition to enjoying administrative autonomy, also possesses political autonomy or autonomy of government (gobierno). Hence, the Executive Branch has several limitations regarding its interference with the CCSS. It cannot act as its superior; it cannot control it by limiting its activity for reasons of expediency; and it cannot, either, act as the director of that entity's management through the imposition of guidelines or basic programs. Likewise, with respect to the autonomy of this particular institution, the Chamber, in judgment No. 1994-6256, issued a criterion reiterated in judgments 2011-15665 and 2017-4797, stating:

“III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, following, basically, the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the 1943 amendments, into the 1949 Constitution. However, for the purposes of this consultation, the interventions of Constituent Member Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: 'Furthermore, the Caja, sooner or later, would have to assume the risk of unemployment, which would solve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Caja. The prudent course is to strengthen it. Hence, the most advisable thing is to leave things as they are, granting the Caja full autonomy to thus make it independent from the Executive Branch'; and on page 36, idem, it is added: 'In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting Social Security resources will undoubtedly be an inexplicable step backward.' When the article was approved, a second paragraph was included that literally stated: 'The administration and government (gobierno) of the social insurance schemes shall be entrusted to an autonomous institution,' a text that was later amended by Law No. 2737 of May 12, 1961, today remaining as follows: 'The administration and government (gobierno) of the social insurance schemes shall be entrusted to an autonomous institution, called Caja Costarricense de Seguro Social.' In conclusion, the framer of the Constitution attributed the administration and government of the social insurance schemes to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it itself has granted it and sharing the general principles derived from its condition as a decentralized entity…

…Doctrinally, there is consensus in affirming that any form of preventive intervention prior to the issuance of the act by the autonomous entity is prohibited, except for prior control functions, as a requirement for the validity of those acts (authorizations); the Central Power cannot act as the superior of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of expediency; and it cannot, either, act as the director of the autonomous entity's management through the imposition of guidelines or basic programs. All these characteristic features of decentralized entities, which originate from a reinforced law (Article 189, subsection 3) of the Political Constitution), are equally applicable, where relevant, to autonomous institutions created by the Political Constitution itself, except that the conditions that it has specially and exclusively granted to the entity prevail.” Hence, even with respect to the hiring of its personnel, it has that power of self-administration, since the fulfillment of its constitutionally assigned purposes also depends upon it. As a demonstration of the particularities and needs of the service, for example, in judgment 2019-11130, issued at 10:30 hours on June 19, 2019, this Court indicated the following:

“In this regard, this Tribunal verifies that this article indeed states that 'for the qualification of credentials and assignment of scores, the Technical Nursing Commission will grade the competitions in accordance with (…) One point shall be awarded for each year of service or fraction greater than six months, up to a maximum of ten points in zones outside the central plateau (…)'. However, this provision is not considered to violate the principle of equality and, therefore, become unconstitutional; rather, this decision has a reasonable justification, which is to incentivize nursing professionals to accept positions outside the central plateau, with the incentive that in future competitions for positions located in more coveted zones, they will have a better score. Thus, what the regulation seeks is not solely the most suitable candidate, but rather to incentivize nursing professionals to accept working in remote and unpopular locations and, in this way, foster the provision of nursing services, necessary for the adequate provision of medical services, in all sectors of the country. This is in accordance with the principles of social solidarity.

It is clear, then, that the Constitution’s framer granted it such autonomy, allowing it the selection of its personnel under the standards it requires to fulfill its purposes, while, of course, respecting the constitutional principles established in Constitutional Articles 191 and 192. Criterion reiterated by this Chamber in judgments numbers 03065-98, 10545-01, and 12494-11, stating:

“…the different establishments of the Caja are permitted, in application of the constitutional principle of autonomy of administration and government (gobierno), to dictate the necessary reorganization measures of their services for their improvement, with the aim of achieving the best satisfaction of their users and the general interest, which by its nature could never fail to prevail over particular interests.” The autonomy that the original legislator grants to the Caja Costarricense de Seguro Social protects it from intrusion by the Executive Branch and the Legislative Branch, as evidenced in Judgment 03065-98 issued at 18:18 hours on May 6, 1998 (reiterated in judgment 2001-10545), stating:

“…This demonstrates that the Caja Costarricense de Seguro Social is always placed in a special category among autonomous institutions because, unlike them, it is not only of constitutional creation but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by the municipalities, that is, autonomy of government (gobierno). This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although the CCSS is certainly not beyond the reach of the law, the latter cannot 'modify or alter' the constitutionally granted competence and autonomy of the CCSS by defining aspects that are its exclusive domain. The Caja Costarricense de Seguro Social, being fundamentally an autonomous institution of constitutional creation, the subject matter of its constitutionally granted competence lies beyond the scope of ordinary law. In other words, the legislator, in the matter of the administration and government of the social insurance schemes, is subject to limitations and must respect what the Framers established. Just as the legislator would be barred from issuing a law mandating that the administration and government of the social insurance schemes no longer corresponds to the Caja Costarricense de Seguro Social, so too may it not issue a law that intrudes upon aspects inherent to or within the purview of the CCSS in the administration and government of the social insurance schemes… As an additional argument, it must be emphasized that the norm defining the functions and purposes of the Caja Costarricense de Seguro Social is located in our Magna Carta within the chapter on social rights and guarantees, whereas matters relating to Autonomous Institutions are located in another title, Title XIV; this difference in placement reflects, from a systematic and systemic interpretation, that the fundamental norm itself, in creating the social security institution, intends to provide it with protective, solidary, and prioritized support for the individual by their very condition; it is evidently an institution that embodies the spirit of solidarity that inspires Article fifty and seventy-four of the Constitution. The aim is for every individual to have the guarantee that the solidary State ensures them health, a pension, disability benefits, and everything pertaining to social security. This provision becomes not only a goal or guide for State action but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could diminish said constitutional competence.” From the foregoing, it follows that the Caja Costarricense de Seguro Social (CCSS), by constitutional mandate (Article 73), enjoys administrative autonomy and autonomy of government (gobierno). This means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, the existence of a special normative framework for its statutory relationship, which attends to and ensures its degree of autonomy, being valid in this case. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); to establish its own internal organization; to set goals, purposes, and types of means to achieve them; and to issue autonomous regulations for service or activity, in accordance with provisions normally called general policy. Thus, as an autonomous institution of constitutional creation with a greater degree of autonomy (administrative and of government), it is protected against interference from the Executive Branch and limitations when the Legislative Branch legislates (which cannot legally modify its degree of autonomy). Thus, the Executive Branch cannot act as director or in a hierarchical relationship with this institution; it cannot impose guidelines, give orders, or control the timeliness of its activities.”.

In addition, regarding the regulatory power (potestad reglamentaria) of the CCSS, this Court, in judgment No. 2022012512 issued at 9:20 hours on June 1, 2022, stated:

“III.- ON THE REGULATORY POWER OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- On several occasions, this Court has ruled on the exclusive nature of the power of government (gobierno) held by the Caja Costarricense de Seguro Social in relation to the insurance schemes under its charge. This Chamber has defined the issue in a jurisprudential line that began with judgment No. 1994-1059, issued at 15:39 hours on February 22, 1994, in which it stated:

'[…] the Caja Costarricense de Seguro Social has constitutional competence for the 'administration' of the social insurance schemes, such that the Disability, Old Age, and Death Regulation issued by the Board of Directors, as well as its amendments, have been enacted in the exercise of that competence.' Likewise, the Court, in judgment No. 2001-9734 issued at 14:23 hours on September 26, 2001, indicated:

'III.- ON THE COMPETENCE OF THE CAJA COSTARRICENSE DEL SEGURO SOCIAL. By virtue of the provisions of Article 73 of the Political Constitution, the Caja Costarricense del Seguro Social is responsible for 'the administration and government (gobierno) of the social insurance schemes,' a competence that is competence that is developed in Article 3 of the Constitutive Law of the Caja Costarricense del Seguro Social, number 17 of October twenty-second, nineteen hundred forty-three, such that its Board of Directors has full authority to establish, via regulation (reglamento), the scope of the benefits inherent to the social insurance schemes, both with respect to the definition of conditions and benefits, as well as the entry requirements for each protection regime. Likewise, Article 23 of the same Law establishes as one of the parameters to consider in this definition, actuarial studies and calculations, in order to maintain the sustainability of the system. From the foregoing, it is clear that the Caja Costarricense del Seguro Social has full competence to issue norms such as those challenged, as they respond to the constitutional mandate of Article 73, since they refer to an aspect of the organization and administration of social insurance schemes.' Subsequently, in judgment No. 2355-2003, issued at 14:48 hours on February 19, 2003, the Chamber analyzed the constitutionality of the Health Insurance Regulation (Reglamento al Seguro de Salud) and the Instructions for the Registration, Control, and Payment of Disabilities, at which time it indicated, with respect to what is relevant:

'the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution means the Caja is not subject to limits in matters of government (gobierno), as this court has reiterated in preceding judgments (see for example: 2001-7605, 6256-94, among others). The Caja is, in short, the entity charged with the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the above, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits inherent to social security via regulation (reglamento), such that it can define the conditions, benefits, and entry requirements for each protection regime, supported by actuarial studies, so as not to bankrupt the system.' In judgment No. 2010-005893, issued at 14:56 hours on March 24, 2010, when analyzing the constitutionality of the Regulation to Verify Compliance with Employer and Insured Obligations (Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados) —in which one of the grievances was, precisely, the violation of the principio de reserva de ley—, the Court specified the following:

III.- ON THE REGULATORY POWER OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL. This Chamber has already ruled on the regulatory power of the Caja Costarricense de Seguro Social to issue autonomous service and organization regulations, for which its Board of Directors is empowered to issue the norms necessary for the administration and government (gobierno) of the social insurance schemes that the Political Constitution itself entrusts to it in Article 73, which is not contrary to the provisions of Article 140, subsection 3) of the Constitution. In this regard, in judgment number 2000-02571 issued at fourteen hours thirty-eight minutes on March twenty-second, two thousand, this Chamber indicated:

'Regarding the harm to Article 140, subsection 3 of the Political Constitution. Regarding the petitioner's allegation, to the effect that the challenged norm exceeds the limits of the regulatory power (potestad reglamentaria) and that the regulated matter cannot be contained in an autonomous regulation, the Chamber agrees with the Office of the Attorney General (Procuraduría General de la República), in the sense that Article 10 of the Voluntary Insurance Regulation (Reglamento de Seguro Voluntario) is not unconstitutional for that reason. The Organic Law of the Caja Costarricense de Seguro Social provides in its Article 3, paragraph 5, that the Caja shall determine, through regulations (reglamentariamente), the entry requirements for each protection regime, as well as the benefits and conditions under which these are granted. Article 14, subsection f), confers upon the Board of Directors the authority to issue regulations for the functioning of the institution, and Article 23 indicates that the Board of Directors is the competent body to determine the contributions and benefits in accordance with the cost of services, according to actuarial calculations. This Chamber has referred to such powers in Vote No. 3403-94 issued at 15:42 hours on June 15, 1994, and in No. 7393-98 issued at 9:45 hours on October 16, 1998, it declared that norm 23 of the Constitutive Law of the Caja is consistent with the Political Constitution, given that the powers it confers upon the Board of Directors do not imply a delegation of the exercise of Legislative Branch functions, but rather are based on Article 73 of the Constitution. That norm entrusts the government and administration of the social insurance schemes to the Caja, and it is therefore competent to issue autonomous regulations such as the one on voluntary insurance. Consequently, it is not found that the Regulation in which the challenged provision is contained breaches Article 140, subsection 3) of the Political Constitution.' Thus, in that exercise of administration and government (gobierno) of the social insurance schemes that the Constitution entrusts to the Caja Costarricense de Seguro Social (Article 73, paragraph 2 of the Constitution), and in accordance with its Constitutive Law, the Board of Directors of the Caja is empowered to issue regulations of an executive nature, such as the Regulation to Verify Compliance with Employer and Insured Obligations, in order to ensure compliance with worker-employer obligations in relation to social insurance schemes and to be able to take the appropriate measures in case of non-compliance or evasion of those rights to compel the offender to fulfill those obligations and make the respective collections. Otherwise, it could not fulfill the constitutional mandate. On this particular matter, the Chamber has also stated:

'…Article 73 of the Political Constitution entrusts the administration and government (gobierno) of the social insurance schemes to the Caja Costarricense del Seguro Social, (sic) which is why the Constitution establishes, in favor of this autonomous institution, a degree of autonomy —administrative and of government— that allows it to regulate, through regulations (vía de reglamento), matters relating to social insurance schemes. This constitutional norm is developed in the Constitutive Law of the Caja Costarricense del Seguro Social, especially in Articles 1, 2, and 3, which provide:

Article 1.- The institution created to apply the mandatory social insurance schemes shall be called Caja Costarricense de Seguro Social and, for the purposes of this law and its regulations, CAJA.

The Caja is an autonomous institution responsible for the government (gobierno) and administration of the social insurance schemes. The funds and reserves of these insurance schemes may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited (sic). Except for matters relating to public employment and salaries, the Caja is not, nor may it be, subject to orders, instructions, circulars, or directives emanating from the Executive Branch or the Budgetary Authority, in matters of government (gobierno) and administration of said insurance schemes, their funds, or reserves.

'Article 2.- Mandatory Social Insurance covers the risks of illness, maternity, disability, old age, and involuntary unemployment; in addition, it includes participation in the burdens of maternity, family, widowhood, and orphanhood, and the provision of a burial allowance according to the scale established by the Caja, provided death is not due to a occupational risk (riesgo profesional)'.

'Article 3.- Social Insurance coverage —and enrollment therein— is mandatory for all manual and intellectual workers who receive a wage or salary. The amount of the contributions to be paid under this law shall be calculated on the total remuneration, under whatever name, paid in connection with or derived from the worker-employer relationship. (…)

The Caja shall determine, through regulations (reglamentariamente), the entry requirements for each protection regime, as well as the benefits and conditions under which these are granted.' The transcribed norms confer upon the Caja Costarricense del Seguro Social the power to administer everything relating to social insurance schemes, which implies determining, through regulations (reglamentariamente), the entry requirements for each protection regime, their benefits and conditions, such that the Disability, Old Age and Death Regulation (Reglamento de Invalidez, Vejez y Muerte) issued by the Board of Directors, as well as its amendments, have been enacted in the exercise of this competence, derived from Constitutional Article 73. Consequently, Article 9, subsection a) of the Disability, Old Age, and Death Regime Regulation of the Caja Costarricense del Seguro Social (sic) does not violate the principio de reserva legal.' (Judgment number 2001-00378 issued at 14:37 hrs. on January 16, 2001) What is stated in the preceding partially transcribed judgment is applicable to the constitutionality objections raised by the petitioner regarding the Regulation to Verify Compliance with Employer and Insured Obligations, which does not violate the provisions of Article 140, subsection 3) of the Political Constitution, nor does it violate, for the reasons stated in the cited judgments, the principle of reserva de ley, nor any other constitutional principle or norm, nor does it imply any excess in the exercise of the Institution's own regulatory power (potestad reglamentaria). There are numerous votes in which this Chamber has recognized that regulatory power of the Caja Costarricense de Seguro Social in the specific matter entrusted to it by the Constitution’s framer, among them, numbers 3853-93, 1059-94, 3403-94, 7393-98, 9580-01, 9734-01, 10546-01, and Telf2955. More recently, this Chamber, in judgment number 2003-02355 issued at fourteen hours forty-eight minutes on February nineteenth, two thousand three, expressed:

'III.- On the merits. The Caja Costarricense de Seguro Social as the autonomous institution charged with the administration and government (gobierno) of the social insurance schemes. The plaintiff alleges that Article 34 of the Health Regulation and Chapter Two, point 2.2.1, called 'Right to payment of disability subsidy for illness' of the Instructions for the Registration, Control, and Payment of Disabilities of C.C.S.S. Employees are violative of the principio de reserva legal in that they condition, via regulation (vía reglamentaria), the insured's right to the subsidy on having contributed six monthly installments within the twelve months prior to the start date of the disability, provided the last three are continuous and immediately prior to the start date of the disability. On the issue of the competence of the Caja Costarricense del Seguro Social to issue provisions with the challenged content, in its capacity as the autonomous institution charged with the administration and government (gobierno) of the social insurance schemes, this Chamber, based on the provisions of Constitutional Article 73, indicated through judgment 01-9734 issued at 14:23 hours on September 26, 2001, that:

'III.- ON THE COMPETENCE OF THE CAJA COSTARRICENSE DEL SEGURO SOCIAL. By virtue of the provisions of Article 73 of the Political Constitution, the Caja Costarricense del Seguro Social is responsible for "the administration and government (gobierno) of the social insurance schemes," a competence that is competence that is developed in Article 3 of the Constitutive Law of the Caja Costarricense del Seguro Social, number 17 of October twenty-second, nineteen hundred forty-three, such that its Board of Directors has full authority to establish, via regulation (vía de reglamento), the scope of the benefits inherent to the social insurance schemes, both with respect to the definition of conditions and benefits, as well as the entry requirements for each protection regime. Likewise, Article 23 of the same Law establishes as one of the parameters to consider in this definition, actuarial studies and calculations, in order to maintain the sustainability of the system. From the foregoing, it is clear that the Caja Costarricense del Seguro Social has full competence to issue norms such as those challenged, as they respond to the constitutional mandate of Article 73, since they refer to an aspect of the organization and administration of social insurance schemes.' From the transcribed quote, it is concluded that by virtue of the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution, the Caja is not subject to limits in matters of government (gobierno), as this court has reiterated in preceding judgments (see for example: 2001-7605, 6256-94, among others). The Caja is, in short, the entity charged with the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the above, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits inherent to social security via regulation (vía de reglamento), such that it can define the conditions, benefits, and entry requirements for each protection regime, supported by actuarial studies, so as not to bankrupt the system.' Consequently, the action must be dismissed on the merits with respect to the aforementioned point." Thus, contrary to what the petitioner argued, the regulatory power exercised by the Caja when its Board of Directors issued the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, as well as the provisions of Article 6 of that regulation, falls within the powers of administration and governance granted to it in matters of social security under the second paragraph of Article 73 of the Political Constitution and, therefore, is in accordance with the Law of the Constitution. That regulatory power is different from that which subsections 3 and 18 grant to the Executive Branch, which refer to regulations for the organization and services of the Administration. But the Executive Branch cannot regulate matters relating to the administration and governance of social insurance, an area in which the Caja has full independence and autonomy granted by the Constitution itself. The regulation in question is nothing other than the exercise of those powers, and the determination of the presumed base as an exceptional procedure, when due to certain actions or omissions of the employer or the insured, in the cases provided for in the various subsections of Article 6, the exact amount of the obligation cannot be established, is a legitimate mechanism that does not violate the Law of the Constitution, particularly the principle of legal reserve (principio de reserva de ley); rather, it is aimed at allowing the Caja to fulfill the purpose constitutionally entrusted to it, without it being necessary for it to be established by a law emanating from the Legislative Assembly." This Tribunal has endorsed the exercise of regulatory power by the Caja Costarricense de Seguro Social, with the characteristics indicated in the transcribed judgments, for the case of independent workers. Thus, in judgment No. 2008-017304, of 14:57 hours on November 19, 2008, it ordered:

VI.- INSURANCE FOR INDEPENDENT WORKERS. Contrary to the petitioner's opinion, this Tribunal has found no reason to exclude the insurance of independent workers —and even of non-contributory regimes— from the regulatory powers of the CAJA COSTARRICENSE DE SEGURO SOCIAL. On this matter, it issued a ruling in judgment No. 2000-02571, of 14:38 hrs. on March 22, 2000:

«Regarding the appellant's argument that the challenged norm exceeds the limits of regulatory power and that the regulated matter cannot be contained in an autonomous regulation, the Chamber agrees with the Procuraduría General de la República, in the sense that Article 10 of the Reglamento de Seguro Voluntario is not unconstitutional for that reason. The Organic Law of the Caja Costarricense de Seguro Social provides in its Article 3, paragraph 5, that the Caja shall determine, by regulation, the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted. Article 14, subsection f), grants the Board of Directors the power to issue regulations for the operation of the institution, and numeral 23 indicates that the Board of Directors is competent to determine the quotas and benefits in accordance with the cost of services, according to actuarial calculations. This Chamber has referred to such powers in vote Nº3403-94 of 15:42 hours on June 15, 1994, and in Nº7393-98 of 9:45 hours on October 16, 1998, it declared that norm 23 of the Constitutive Law of the Caja is in accordance with the Political Constitution, considering that the powers it confers on the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but are based on Article 73 of the Constitution. That norm entrusts the governance and administration of social insurance to the Caja, and for this reason it is competent to issue autonomous regulations such as the voluntary insurance regulation. Consequently, it is not found that the Regulation containing the challenged provision violates Article 140, subsection 3) of the Political Constitution».

As is evident from the cited judgment, the point raised by the petitioner is not new. This Tribunal has already ruled on the matter and there is no reason to change its criterion." In accordance with what is stated in the preceding precedents, the Caja Costarricense de Seguro Social is empowered to issue the regulations for the insurance under its administration, without the exercise of that power implying, in itself, any violation of constitutional order. By virtue of this, the Chamber does not find that the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes is unconstitutional, under the argument raised by the petitioners —principle of legal reserve (principio de reserva de ley)— so the action must be dismissed on this point, since the CCSS is the entity in charge of the administration of social security and is endowed with maximum autonomy for that purpose, and therefore has full competence to establish the scope of the benefits inherent to social security via regulation, such that it can define the conditions, benefits, and entry requirements of each protection regime." Regarding the universalization of social insurance and its mandatory nature, the Chamber, in resolution 2021023611 of 17:50 hours on October 20, 2021, ordered:

"For the purposes of the corresponding analysis, ordinals 73 and 74 of the Political Constitution are transcribed:

"ARTÍCULO 73.- Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of mandatory contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of social insurance shall be in charge of an autonomous institution, called the Caja Costarricense de Seguro Social.

The funds and reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Insurance against occupational risks shall be solely at the expense of the employers and shall be governed by special provisions.

(Thus reformed by the single article of law N 2737 of May 12, 1961).

ARTÍCULO 74.- The rights and benefits referred to in this Chapter are inalienable. Their enumeration does not exclude others that derive from the Christian principle of social justice and that the law indicates; they shall be applicable equally to all factors concurrent in the production process, and regulated in social and labor legislation, in order to procure a permanent policy of national solidarity" From the cited text, it is inferred that our Magna Carta configured social insurance as an inalienable benefit for workers against illness, disability, maternity, old age, death, and other contingencies determined by law, whose financing is regulated by the tripartite mandatory contribution system of the State, employers, and workers. Likewise, it is important to note the constitutional mandate to the CCSS for the administration and governance of social insurance (express reference to the institution introduced in 1961), besides the fact that their funds and reserves cannot be transferred or used for purposes other than those that motivated their creation.

In addition to the above, from the examination of the referred regulations, as explained below, it is deduced that social insurance was established for the benefit of all workers. In this sense, the unraveling of the "spirit of the law" in a constitutional norm demands a hermeneutic task, which includes both the will of the original constituent and that of the derived one, as well as a systemic analysis of the normative body.

Within this perspective, it is first useful to bring up the minutes of the Asamblea Nacional Constituyente of 1949, so that:

"ACTA No. 125 No. 125.- One hundred twenty-fifth minute of the session held by the Asamblea Nacional Constituyente at fifteen hours on the eighth day of August of nineteen hundred forty-nine, under the Presidency of Dr. Nombre35483. Present the Deputies: Nombre35484 and Nombre35485, Secretaries; Nombre35486, Nombre35487, Nombre29739, Nombre35488, Nombre35489, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35336, Nombre35378, Nombre23243, Nombre35379, Nombre35380, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre35498 and the substitutes: Nombre2656, Nombre8269, Nombre35499, Nombre35500 and Nombre19774.

(...)

Article 4.- The discussion on the chapter of Social Guarantees of the Constitution of '71 continued.

It was agreed to postpone the debate on the motion of Deputy Nombre2145, whose discussion had been pending in the previous section, as the proponent was absent.

In relation to Article 63 of the Charter of '71, referring to social insurance, motions were presented by the Social Democrat fraction, Nombre35501, Nombre35526 and by the gentlemen Nombre35382, Nombre18690, Nombre35527, and Nombre35336, which are published in "La Gaceta".

They are as follows:

"All inhabitants of the Republic have the right to live protected against social and occupational risks. For that purpose, the State shall establish, through Autonomous Institutions, a mandatory social security system, which shall be financed with its contributions and those of the employers and workers, in the case of social risks, and exclusively with those of the employers, in the case of occupational risks." Nombre35502 and colleagues.

"Social Insurance is established for the benefit of manual and intellectual workers who belong only to the economically weak and vulnerable classes of the population. These Insurers shall be regulated by the system of MANDATORY triple contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of Social Insurance shall be in charge of a permanent and autonomous institution, called the Caja Costarricense de Seguro Social. The funds or reserves of Social Insurance may not be transferred or used for purposes other than those that motivated their creation, and their management shall be conducted by the Caja in accordance with its constitutive law. Insurance against occupational risks shall be solely at the expense of the employers and shall be governed by special provisions (Law No. 24 of July 2, 1943.") Nombre35383 "Social Insurance is established for the benefit of manual and intellectual workers belonging to the economically weak and vulnerable classes of the population. These Insurers shall be regulated by the system of triple mandatory contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of Social Insurance shall be in charge of the State through the autonomous Institutions existing for that purpose.

The funds or reserves of Social Insurance may not be transferred or used for purposes other than those of a technical nature that determine their creation, and their management shall be exclusively in charge of those Institutions, in accordance with their constitutive laws." Nombre35384.

"All inhabitants of the Republic have the right to live protected against social and occupational risks.

For that purpose, the State shall establish a mandatory social insurance system to be regulated by law, whose economic base shall consist of the contributions of the State, employers, and workers, in the case of social risks; and exclusively with those of the employers, in the case of occupational risks. The State shall protect and stimulate the creation and development of private organizations that fulfill the same purpose." Nombre35503.– Nombre35504.– Nombre35505.– Nombre35506.

Licentiate Nombre35528 indicated that the motions presented on Social Insurance differed very little. In essence, they all say the same thing, as they accept the social security regime. However, he thinks that the one presented by them is a little broader. It fully adopts Article 63 of the Charter of '71, with some variations, which he briefly listed. He added that the motions of gentlemen Nombre35529 and Nombre35526 established insurance for manual and intellectual workers, but limiting it to the economically weak and vulnerable classes of the population. He opines that the exception is unacceptable because Social Guarantees must protect all workers, without discrimination of any kind. In that sense, the general principle of social insurance in favor of all manual and intellectual workers must be maintained, as indicated by the text of '71. Representative Nombre35526 also noted that the motions differed very little, then proceeding to refer specifically to his own.

Deputy Nombre35480 expressed (...) Secondly, it is known that the greater number of members is what guarantees the success of social insurance.

That is why he opposes limiting the scope of action of the Caja. It is fine to adopt the wording of the text of Article 63, but in no way introduce into it the exception raised by Mr. Nombre35501, which limits insurance to the economically weak and vulnerable classes of the population (...).

Deputy Nombre35529 analyzed the various motions presented, one of which –that of the Social Democrat fraction– tends to generalize insurance to the entire population, and others –his and that of Mr. Nombre35526– limit insurance to the economically weak and vulnerable classes of the population. (...) He added that his motion corresponded entirely to the text of Article 63, except that it limits insurance to the economically weak classes of the population, who cannot really afford a private doctor. But first, one must ask, for whom is social insurance beneficial? The establishment of social insurance in a country has been due to the desire to favor those population groups with limited economic capacity, who cannot pay for medical services as desired. Therefore, social insurance must be limited to providing aid and protection to those groups. (...) Mr. Nombre35529 concluded by insisting on the need to limit insurance to the economically weak and vulnerable classes of the population.

Then Deputy Nombre35525 took the floor to defend the thesis of companion Nombre35529's motion, which limits insurance to the economically weak and vulnerable classes of the population. With that sole limitation, he thinks that Social Insurance can fulfill its mission well in our country.

Representative Nombre35480 intervened in the debate again. He indicated that his colleagues had referred only to Sickness Insurance –of course the most important– but they forget other insurances of fundamental importance, which sooner or later will be established in Costa Rica, such as those for disability, old age, and death. The problem of involuntary unemployment must also be resolved, through adequate insurance. Thus, he opines that the problem should not be diminished. Nombre193 was among the first to recognize the deficiency of Social Insurance, which is largely due to the lack of indispensable resources. Insurance was established prematurely in Costa Rica. However, it started up. But what do five years of life mean for an institution of this magnitude? They have meant a great effort. Instead of discouraging us, of weakening the institution –he added– we must give it all kinds of support, strengthen it, so that it better fulfills its mission. It is true that Social Insurance was created for the weak and most disadvantaged classes of the country. The ideal, however, would be to extend it to all inhabitants of the country, an ambitious plan that will not be easily achieved in our country. On the other hand, Social Insurance is based on mutuality, that is, on the cooperation of all to achieve the good of the greatest number. In that sense, the most appropriate is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Insurance will undoubtedly be an inexplicable step backward.

Licentiate Nombre35528 stated that he agreed to definitively approve the text of the Constitution of '71 –in accordance with the purposes of Mr. Nombre35480– with some small modifications. Nombre193 that the idea that moved them to present the motion in relation to social insurance was to give a better, broader wording to Article 63, but not because they considered it deficient or inadequate. He then proceeded to list those variations. (...). The new formula presented by Licentiate Nombre35528 is as follows:

"Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple mandatory contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of social insurance shall be in charge of the State through the autonomous institutions determined by law.

The funds or reserves of social insurance may not be transferred or used for purposes other than those of a technical nature determined by their creation, and their management shall be exclusively in charge of those institutions, in accordance with their constitutive laws.

Insurance against occupational risks shall be solely at the expense of the employers." Due to the lateness of the hour, it was agreed to postpone the discussion of the previous motion, until each of the Deputies has a copy of it. (...)

ACTA Nº 126 Nº 126.– One hundred twenty-sixth minute of the session held by the Asamblea Nacional Constituyente at fifteen hours on the ninth day of August of nineteen hundred forty-nine, under the Presidency of Dr. Nombre35483. Present the Deputies: Nombre35484 and Nombre35507, Secretaries; Nombre35486, Nombre35487, Nombre35508, Nombre35509, Nombre35510, Nombre35480, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35379, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre30798, Nombre4511, Nombre35527, and the substitutes: Nombre35526, Nombre35512, Nombre35513 and Nombre35514 (...)

Article 3.– The Social Democrat fraction presented a new formula, so that Article 63 of the Charter of '71 reads as follows:

"Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple mandatory contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of social insurance shall be in charge of a permanent institution, of an autonomous nature, which shall perform its functions with absolute independence from the Executive Branch.

The funds or reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Insurance against occupational risks shall be solely at the expense of the employers and shall be governed by special provisions." Licentiate Nombre35528 explained that the motion, except for some variations of mere form, fully conforms to the text of '71.

(...)

Nombre35515 referred to the importance of the article under discussion, which must be studied more before voting on it. He explained that two institutions currently exist in Costa Rica, with intermingled functions: the Caja Costarricense de Seguro Social and the Instituto Nacional de Seguros. Sickness and maternity insurance –he thinks– should belong to the Caja. The others –disability, old age, death, and unemployment– to the Institute. He then insisted that social insurance does not have to be general. They must be limited to the economically weak and vulnerable classes of the population, as proposed by companion Nombre35529's motion.

(...)

Nombre35501 stated that none of the arguments given had convinced him regarding his motion, which he continues to consider the most reasonable and just. On the other hand, the Social Democrat motion only modifies the form –but not the substance– of the text of Article 63. He added that the part of his motion limiting social insurance to the economically weak and vulnerable classes of the population, far from harming them, benefits them.

(...)

The debate on the Social Democrat motion being exhausted, it was put to a vote and was approved.

(...)

ACTA No. 171 No. 171.- One hundred seventy-first minute of the session held by the Asamblea Nacional Constituyente at fifteen hours on the twentieth day of October of nineteen hundred forty-nine, under the Presidency of Dr. Nombre35516. Present the Deputies Nombre35484 and Nombre35507, Secretaries; Nombre35487, Nombre35508, Nombre2145, Nombre35488, Nombre35489, Nombre35517, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35518, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre8269, Nombre12068, Nombre35519, Nombre30798, Nombre4511, Nombre35527, and the substitutes: Nombre19774, Nombre35520, Nombre35521, Nombre35522 and Nombre18807.

(...)

In relation to Article 74, Deputy Nombre35492 presented a motion for paragraph 2 to read as follows: "The administration and governance of social insurance shall be in charge of an autonomous institution." The previous motion was approved.

Deputy Nombre35523 presented a motion to add after the word "maternity" the word "unemployment". The proponent explained that he has presented the previous motion at the suggestion of Mr. Nombre35381, who has expressed his wishes regarding unemployment insurance that the Caja de Seguro Social should assume.

Deputy Nombre30798 indicated that it will be the law that will establish when the Caja is in a position to assume the risk of unemployment. For that reason, he will not vote for the proposed motion, which was rejected.

Article 74 was approved, with the noted modifications, which shall read as follows:

Article 74.- "Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple mandatory contribution by the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of social insurance shall be in charge of an autonomous institution.

The funds or reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Insurance against occupational risks shall be solely at the expense of the employers and shall be governed by special provisions". (The underlining and result are not original).

In this way, in the transcribed minutes, two positions are clearly observed: 1) the intention to establish social insurance for the benefit of the entire working class; 2) to set such insurance only for the benefit of the labor population in economically vulnerable condition. Indeed, Deputy Nombre35529 himself frankly acknowledged both postures when he referred to a motion from the social democrat fraction that "tends to generalize insurance to the entire population", and to other motions proposed by him (together with Deputy Nombre35526) that "limit insurance to the economically weak and vulnerable classes of the population".

Now, after the corresponding discussion, the position that prevailed was to establish social insurance for the benefit of all workers, so that, for logical reasons, the constitutional interpretation must start from the arguments of the constituents who promoted that thesis.

In the first place, Deputy Nombre35528 affirmed that social guarantees should protect all workers without any discrimination. Furthermore, he pointed out that the general principle of social insurance in favor of all workers should be maintained.

On the other hand, although Deputy Nombre35480 mentioned that social insurance was created for the weak and most disadvantaged classes of the country, he also noted that the ideal was to extend it to all inhabitants of the country. He added that social insurance was based on mutuality; that is, on the cooperation of all to achieve the good of the greatest number.

In view of the above, there is no doubt that the spirit of numeral 73 of the Political Constitution extends to all workers and, even beyond, to all inhabitants of the country, which aligns with the principle of the universalization of social insurance.

Following that same direction, in 1961, the derived constituent reformed ordinal 177 of our Fundamental Law and expressly introduced the universalization of social insurance, in the following terms:

"ARTÍCULO 177.

(...).

To achieve the universalization of social insurance and fully guarantee the payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to the insufficiency of those revenues, the State shall assume it, for which the Executive Branch must include in its next Budget project the respective item determined as necessary by the said Institution to cover the totality of the State's quotas.

(...)

Article 177 (third paragraph) - Transitory.- The Caja Costarricense del Seguro Social must carry out the universalization of the various insurances placed in its charge, including family protection in the sickness and maternity regime, within a period not exceeding ten years. Counted from the promulgation of this constitutional reform.

(Thus reformed by the single article of law N 2738 of May 12, 1961) It is important to highlight that, prior to the constitutional reform that formally included the obligation to universalize the social insurance placed in charge of the CCSS, the constitutive law of that institution had already imposed on its board of directors the mandate to set the date of entry into force of the "social insurance of independent workers and the conditions of this insurance" (Article 3 of the Constitutive Law of the CCSS of October 22, 1943). That is, the social insurance of independent workers unfailingly formed part of such universalization and, consequently, its implementation in the country has constitutional grounding.

Within this context, it is not too much to reiterate that, by provision of constitutional ordinal 73, the administration and governance of social insurance is in charge of the CCSS, and that the funds and reserves of social insurance cannot be transferred or used for purposes other than those that motivated their creation. Likewise, as mentioned supra, through the constitutional reforms provided for in laws No. 2737 and 2738 of May 12, 1961, the explicit allusion of the CCSS was introduced to Article 73 of the Magna Carta (as the entity in charge of the administration and governance of social insurance), and, in constitutional numeral 177, that institution was expressly assigned the universalization of the social insurance placed in its charge. The foregoing undoubtedly includes the social insurance of independent workers, since they have been in charge of the CCSS since 1943.

Consequently, the fundamental right to social security covers all persons (salaried workers and independent workers) who carry out any type of activity in the country and are governed by the national legal order, since they must not only contribute in solidarity to the sustainability of social insurance, but are correlatively covered by the protection provided at the constitutional level.

In that sense, it is worth reiterating that the Chamber, in judgment No. 2003-03483 of 14:05 hours on May 2, 2003, recognized that the right to social security incorporates the principle of universality, as it extends to all citizens on a mandatory basis:

"On the social security regime. Article 73 of the Political Constitution, harmonically interpreted with Article 50 ídem, enshrines the Right of Social Security.

The Chamber has repeatedly indicated that this right implies that the public authorities shall maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the social security right incorporates the principle of universality, as it extends to all citizens, on a mandatory basis. The objective scope assumes the principle of generality, in that it protects situations of need, not to the extent that these have been foreseen and insured previously, but rather to the extent that they actually occur. In addition, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management must be public, under the charge of the State, represented by the Caja Costarricense de Seguro Social, and the financing shall respond to the cardinal principle of social solidarity, as it is based on the forced and tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are those of universality, generality, sufficiency of protection, and social solidarity.” (Emphasis not original).

Thus, it is possible to conclude that both the cited norms and the jurisprudence of this Chamber have recognized the constitutional protection of social insurance for all working persons. Precisely, the universalization of social insurance is what permeates, with an extensive character, the social insurance schemes under the responsibility of the CCSS, and therefore, they have constitutional protection.” In addition, in judgment no. 2011-10893 of 14:33 hours of August 17, 2011, it was ordered:

“IV.- REGARDING THE MANDATORY AFFILIATION OF INDEPENDENT WORKERS. Even though the action is inadmissible, as analyzed in the preceding recital, it is worth mentioning that on repeated occasions, this Chamber has ruled on the issue of the forced affiliation of independent workers to the social security regime, opportunities in which it has considered that it is not contrary to the Law of the Constitution, based on the following considerations. Firstly, the Caja Costarricense de Seguro Social is an autonomous institution constitutionally created for the administration of the insurance schemes, and therefore it is endowed with political autonomy for the performance of that function. Likewise, Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social provide that the Board of Directors of the Caja has full competence to establish, via regulation, the scope of the benefits inherent to social security, so that it may define the conditions, benefits, and entry requirements of each of the regimes. Secondly, the regulations contained in Articles 63, 73, and 74 of the Political Constitution, in relation to social security, constitute minimums and not maximums, so that the legislator, using its discretionary powers, may develop those precepts and even expand them, in order to make them extensive to other sectors of the population, and therefore it does not fall to this Court to exercise control over said discretion; only in those cases in which that power is exceeded to the direct detriment of the fundamental rights of persons may this Chamber validly hear and rule on the matter. However, this is not the case, because contrary to what the claimant asserts, Article 73 of the Political Constitution creates the social insurance schemes under the responsibility of the Caja Costarricense de Seguro Social for the benefit of workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law may determine. For its part, Article 74 of the Constitution contains the principles of social justice and social solidarity. The first is understood as the authorization for the Law to break into social relations in order to correct and compensate for inequalities between persons, which are contrary to their dignity, in such a way as to ensure the minimum conditions that a human being requires to live. The second principle, that of social solidarity, consists of the duty of collectivities to assist the members of the group in the face of contingencies that place them in a more vulnerable position, such as old age, illness, poverty, and disabilities. For their part, Articles 22, 23, 24, and 25 of the Universal Declaration of Human Rights, Articles 11, 16, and 35 of the American Declaration of the Rights and Duties of Man, and Articles 9 and 12(d) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, recognize the right of every person to social security that protects them against the consequences of old age and illness, as well as other conditions that prevent them from obtaining the means to lead a dignified and decent life. In this way, and based on the harmonious interpretation of all these constitutional and international precepts, the entire social security system is integrated. Moreover, although initially social security protected only salaried workers who contributed to the system, the truth is that this caused economic helplessness for the rest of the population, so that following the promulgation of the Political Constitution of 1949 and the progressive evolution of fundamental rights in this field, the principle of universality of insurance schemes emerged, which seeks to incorporate the entire population within the coverage of the insurance schemes, as a cornerstone of any democratic social state ruled by law and as an instrument for the development of persons and society. In this way, the social security system is conceived as a set of norms, principles, policies, and instruments designed to protect and recognize benefits for persons at the moment when states of vulnerability arise that prevent them from satisfying their basic needs and those of their dependents. Thus it is that, in our country, different pension regimes arise, whose provisions, requirements, and resources differ in response to those special conditions depending on the recipient in question. For all of the foregoing, this Court considers that the mandatory inclusion of independent workers—including those engaged in a liberal profession—within the regime of the Caja Costarricense de Seguro Social is not contrary to the Constitution. Now, the fact that the claimant works both as a salaried worker and as an independent worker, and contributes in both conditions, does not imply double taxation, as these involve different labors that the legislator, in the exercise of its discretion, shall determine as insurable activities. (See, in the same sense, judgments numbers 643-2000, 2571-2000, 16404-2005, 1591-2006, 5743-2006, and 14460-2006).” From the foregoing, the CCSS, as the institution charged with the governance and administration of the social insurance schemes, has the power to regulate the mandatory insurance of independent workers and the contributions they must pay. In that sense, it has sufficient autonomy to define the scope of the benefits inherent to social security, such as the conditions, benefits, and entry requirements of each regime. Precisely, the challenged norms allow the Board of Directors of the CCSS to set the conditions (coverages, contributions, and requirements) applicable to independent workers, which prima facie does not exceed the regulatory power granted to that institution. Furthermore, Article 23 of the Constitutive Law of the CCSS grants competence to that collegiate body to determine the contributions and benefits, in relation to the contributions and charges of the social insurance. Consequently, the principle of legal reservation is not found to have been violated on the terms sought. Likewise, as indicated by the Procuraduría General de la República, the regulatory competence derives from the autonomy of the CCSS, which is recognized in Article 73 of our Fundamental Law.

In relation to the foregoing, social security contributions constitute parafiscal contributions of constitutional origin (Article 73 of the Carta Magna), the elements of which must be established by the Board of Directors of the CCSS (Article 23 of its constitutive law). That is, based on the institution's autonomy, the legislator attributed to that body the power to determine the contributions and benefits, which entails defining the elements necessary for their calculation and regulation. Consequently, the alleged transgression of Articles 9 and 121, subsection 12, of the Carta Magna is not proven.

Regarding freedom of enterprise and the right to work (Articles 46 and 56 of the Political Constitution, respectively), I do not observe any transgression susceptible to being declared, given that what is involved is the regulation of the economic activities of persons by the CCSS (with due legal and constitutional support). In that sense, as stated by the PGR, Article 3 of the Constitutive Law of the CCSS itself expressly contemplates independent workers as obligated parties. Now, Article 74 eiusdem establishes that “persons who carry out, wholly or partially, independent or non-salaried activities must be up to date in the payment of their obligations with the Caja Costarricense de Seguro Social (CCSS), as well as with other social contributions collected by this Institution in accordance with the law,” which is not openly contrary to the concept developed in Article 1 of the challenged regulation. Rather, a legal definition is observed that encompasses persons who carry out independent or non-salaried activities, so that, for the purposes of the constitutional review that can be carried out in this proceeding, it is not absolutely essential that any specific concept of “independent worker” exist on the terms sought. Ergo, I do not perceive any omission susceptible to being declared on the terms presented, since both the work and the business activities carried out by persons are susceptible to regulation, by reason of the aforementioned powers recognized to the CCSS ut supra.

Regarding the transgression of the principles of proportionality and reasonableness, as well as the alleged violation of Article 28 of the Political Constitution, I do not observe any development or substantiation, so that prima facie it is not feasible to analyze them.

On the other hand, concerning the alleged violation of the “principle of unity of social security,” I do not observe any development that would permit it to be considered as such and integrated as a parameter of constitutionality; rather, what is alleged is that, in light of the principle of equality, similar benefits should be provided to persons protected by the same regime, which, as noted, is not fulfilled because independent workers are burdened more for the same benefits. However, although the challenged norms contain provisions for setting the contributions of independent workers, it is no less true that the claimant did not specify the questioned passages, nor did they establish (or develop) elements of comparison in relation to the parameters and conditions established for salaried workers. In fact, the arguments were not even individualized in relation to the challenged legal norm and the questioned regulatory provisions. The foregoing prevents an analysis of whether this is a problem of constitutionality, or rather, of application of the norms (an aspect that would not be susceptible to being declared in this proceeding). Now, independent workers, like salaried workers, have a duty to contribute to the system (in light of the principles of universality and solidarity), which grants them benefits and services without limiting coverage according to their particular condition, the amounts contributed, or the type of worker.

Neither do I verify any transgression of the principle of prohibition of arbitrariness. Note that it is claimed the establishment of a discretionary power for the Board of Directors of the CCSS to set more onerous contributions for independent workers compared to those of salaried workers; however, the normative parameters that regulate the latter are not set forth. Rather, what is claimed is that the Board of Directors has powers to establish a more onerous tax regime for independent workers; nevertheless, in addition to what was noted ut supra, arguments were not individualized with respect to the questioned articles. In any event, the Chamber has recognized the power of the legislator to extend the scope of social security to independent workers (with the consequent regulation by the institution, always within the framework established in the Carta Magna and constitutional jurisprudence); however, arguments of constitutional relevance that evidenced any transgression were not clearly developed. Ergo, I prima facie dismiss this argument.

Finally, there is no development whatsoever regarding the alleged violation of the principle of legal certainty. In this regard, the claimant limits itself to transcribing an excerpt of a vote and to stating that the norms do not establish “the taxable person, the taxable event, the tax base, or the rate of the parafiscal tax they create to the detriment of the so-called ‘independent worker’.” Precisely, the relationship between that principle and the fact of not establishing such specific aspects is not specified. Note that it is only justified that the foregoing is established by “the fundamental principles of Tax Law”…

…Additional Reasons of Magistrate Cruz Castro.- The principle of social solidarity and, in any event, the parafiscality created by the Constituent.

In this constitutional complaint, various regulations related to the payment of social security contributions by independent workers were challenged. The arguments are based on the tax nature of the social security contributions and, based on that, they challenge that such norms do not comply with the requirements that taxes must meet, creating a concealed income tax. It is argued that there is a violation of the principle of legal reservation; Articles 46 and 56 of the Constitution; 9 and 121.13 of the Constitution; 28 of the Constitution; the principle of unity of social security; the principle of prohibition of arbitrariness; and the principle of legal certainty.

The reasons given by this Chamber to dismiss this action relate to: the degree of autonomy of the CCSS that allows it to issue regulations to govern the scope of the benefits inherent in the social insurance schemes; the constitutionality of mandatory affiliation to the CCS based on Article 73 of the Constitution; the constitutionality of the forced affiliation of independent workers; no unreasonable differentiation is configured between salaried and independent workers, since both are constituted as affiliates to the system and receive the same benefits by reason of their condition, regardless of the amount they contribute or their affiliation status; the parafiscal nature of social security contributions, by constitutional provision, since it was the Constituent Power that determined, in a sovereign and democratic manner, the creation of the parafiscal contribution for the benefit of the social security regime administered by the CCSS, thereby fulfilling the principles that govern the exercise of tax authority; and furthermore, the additional legal and regulatory norms adopted consolidate the constitutional conformity of the power of the Board of Directors of the Caja Costarricense de Seguro Social to determine the contributions that the different sectors of insured working persons must cover, without this in any way implying an impairment of the principles of legal reservation, tax legality, legal certainty, universality, and solidarity of social security, nor of Articles 46 and 56 of the Political Constitution.

In addition to all the foregoing, I have considered adding reasons, referring to two aspects: the parafiscal contribution and the constitutional principle of solidarity.

I have considered in previous cases that the employer-worker contributions intended for the sustainability of social security—health and maternity insurance, and disability, old age, and death insurance—are not a tax in the strict sense (see different reasons in vote No. 2018-013658), because the social security regime protects and benefits the contributors themselves, and is nourished by the mandatory contributions that the law establishes. So, for its very existence, the contribution is an essential obligation, as its purpose is the strengthening of the fund that sustains the regime. The ratio legis of the norm, referring to the mandatory nature of the contribution to the fund of the social security regime, is adequate to the principle of social justice that our Constitution establishes. Therefore, since it does not constitute a tax in a technical legal sense, the fixing carried out by the Caja Costarricense de Seguro Social of the employer and worker contributions cannot be subject to the arguments and allegations as if it were one. Now, I agree with the current position that, in any event, if it is considered a parafiscal contribution, this was created by the Constituent. As stated in the vote, it is that Article 73 of the Constitution is what creates the parafiscal contribution by providing for a forced contribution of the State, employers, and workers, in order to protect them against the cited risks and other contingencies that the law may determine. Immediately thereafter, the constitutional text establishes that the administration and governance of those social insurance schemes correspond to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, as relevant, the constitutional norm imposes the prohibition of transferring or using for purposes other than those that motivated their creation, the funds and reserves of the social insurance schemes. As can be observed, we are, then, facing a parafiscal contribution created by the original Constituent, thereby fulfilling the maxim that there can be no taxation without representation. In other words, in the case before us, adherence to the principles that govern the exercise of tax authority is satisfactorily met, since a representative, plural body, which exercises the maximum power in a democratic and social state ruled by law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

On the other hand, in this case, under the constitutional principle of solidarity, which applies to social security, it must be understood that the entire population, to the extent of its means, must contribute economically to the financing of the system. No one should be excluded, nor would any regulation that precisely seeks to establish a universal obligation to contribute to social security be unconstitutional. This vision is reinforced by the phrase of Article 73 of the Constitution, when it indicates that it is a forced contribution, and therefore, does not admit exemptions.

It is appropriate to recall what this Chamber has indicated regarding the progressivity of the mandatory nature of social security (see judgment No. 2000-2571):

“VI.- It is clear that to comply with the constitutional precepts and the international norms cited supra, the Caja Costarricense de Seguro Social had to draw up plans for the implementation and extension of social insurance schemes, which in a first stage were frustrated because the State, the principal employer, did not pay the contributions it owed in a timely manner. Fifteen years after the principle of universality of social insurance schemes was elevated to constitutional rank in favor of the ‘manual and intellectual workers’ of Costa Rica, they had not been extended to more than a minority of Costa Ricans. The previous situation motivated the reform of Article 177 of the Political Constitution—approved by Law No. 2738 of May 12, 1961—to achieve the definitive economic consolidation of the Social Security Insurance in Costa Rica, through the establishment of a norm that guarantees the payment of the contributions that the State must obligatorily pay to finance and develop the social security system. The explanatory statement of the constitutional reform bill indicates that as of December 31, 1959, the State's debt, accumulated in favor of the Caja Costarricense de Seguro Social, was estimated at twenty-one million nine hundred sixty-five thousand seven hundred thirty-nine colones and six céntimos. The special commission appointed by the Legislative Assembly to study the bill to reform Article 177 of the Constitution cited in its report a report from the Caja according to which, based on a study carried out in 1958—with data from 1957—, 66% of the possible workers nationwide and 89% of the family members of these workers who could be covered by social insurance throughout the country remained to be insured. The reform to Article 177 of the Political Constitution constituted a way of assuring the Caja that the State would honor its obligations. In this way, the third paragraph was included, which provides:

‘To achieve the universalization of the insurance schemes and to ensure the full payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit arises due to the insufficiency of those revenues, the State shall assume it, for which purpose the Executive Branch must include in its next budget bill the respective appropriation that the aforementioned institution determines as necessary to cover the totality of the State's contributions.’ Likewise, the Constituent included a transitory article to the third paragraph of Article 177, which states:

‘The Caja Costarricense de Seguro Social must carry out the universalization of the various insurance schemes under its charge, including family protection under the health and maternity regime, within a period not to exceed ten years, counted from the promulgation of this constitutional reform.’ The Constituent set a deadline for the institution charged with the administration and governance of social insurance schemes to achieve their universalization, in protection of the rights of its beneficiaries, and considered that ten years was a reasonable period for workers and their families to be protected against the risks of illness, disability, old age, death, ‘and the other contingencies that the Law may determine.’ The truth is that the Caja Costarricense de Seguro Social has, since then, directed its effort to achieve total coverage of workers subject to labor relations and their families, and this has borne fruit, given that the coverage percentages are very high, and the Costa Rican social security system is among the best in Latin America. At the historical moment when social guarantees were included in the Political Constitution, the population group intended to be protected was that of the manual and intellectual workers regulated by the system of forced contribution of the State, employers, and workers, and the Constituent itself considered that this group should be covered during the decade of the seventies. A later stage in the evolution of social insurance schemes constitutes their gradual expansion to other groups of society, such as independent or own-account workers—who are not subject to an employment relationship—and those insured on behalf of the State—who cannot access social security due to their precarious economic situation—. Thus, current efforts must be directed toward ensuring that the entire national population is covered by the social security system, because if their quality of life is raised, a general improvement of the economy will be produced. (…)” In this way, it is understood that a later stage in the evolution of social insurance schemes constitutes their gradual expansion to other groups of society, such as independent or own-account workers—who are not subject to an employment relationship—and those insured on behalf of the State—who cannot access social security due to their precarious economic situation—. Thus, current efforts must be directed toward ensuring that the entire national population is covered by the social security system, because if their quality of life is raised, a general improvement of the economy will be produced.

Finally, the progressive weakening of social security is a path that does not harmonize with the historical and political significance of the social guarantees. Some legislative decisions or omissions by the Executive Branch evidence an economic weakening of the CCSS, but such a trend cannot translate into contravening the Constituent's definition of universal, accessible, and solidarity-based medical insurance. There are many reasons and circumstances for which we now face a financial weakening of the CCSS, but that transformation, perhaps inconvenient for the well-being of the majorities, cannot disregard the constitutional norms that privileged social insurance.” VI.- Regarding the alleged violation of the principle of equality before the law, of reasonableness and proportionality. The claimant argues that the contravention of Article 33 of the Political Constitution arises at the moment in which the institution's regulatory norms apply two different standards, one for employees or workers who receive a wage or salary and another for independent workers; and this distinction is made without an objective parameter of differentiation, since one cannot discriminate or differentiate between the nature of the work or the functions performed by one group or the other, given that both carry out productive activities equally. They also note that it is contrary to the principle of equality before the law that, for independent workers, the regulation is attributed entirely to the Board of Directors; whereas, on the contrary, for salaried workers, the regulation is dictated by the legal norm itself. Thus, in the judgment of the claimant, it is unreasonable and contrary to the aforementioned principle of equality that the independent worker—who does not have an economic structure to support them, but rather assumes all the risks and burdens of exercising their own activity—must contribute more—in terms of the contribution and the percentage—than a salaried worker. The latter, in contrast, assumes none of the risks of the company's organization and only has to contribute their labor to the system of factors of production.

In relation to this type of allegation, the Chamber has indicated that, in order to carry out the intended analysis, the claimant must substantiate their argument, applying the due test of reasonableness to the questioned norms, which is omitted in this case. This Chamber, on repeated occasions, has indicated the following:

“To undertake a reasonableness review of a norm, the Constitutional Court requires that the party provide evidence or at least elements of judgment on which to base their argumentation, and an equal procedural burden falls on whoever rebuts the arguments of the action, and failure to comply with these requirements makes the claims of unconstitutionality unacceptable. This is because it is not possible to conduct an analysis of ‘reasonableness’ without the existence of a coherent line of argument that is probatively supported. This is so, of course, when it is not a case whose ‘unreasonableness’ is evident and manifest” (Judgment No. 1999-5236 of 14:00 hours of July 7, 1999, reiterated in judgments 2016-14392 of 9:05 hours of October 5, 2016, 2019-6935 of 11:20 hours of April 24, 2019, and 2021-11995 of 16:31 hours of May 26, 2021).

Without conducting the respective test, the claimant's line of argument lacks substantiation. It should be remembered that one cannot equate what is not necessarily identical, and that not every distinction is discriminatory, only that which is not duly justified based on the principles of reasonableness and proportionality. Hence, as indicated in the transcribed judgment, this Court would require, in order to undertake a reasonableness review of a norm, that the party provide sufficient evidence or elements of judgment on which to base their argumentation, and an equal procedural burden would fall on whoever challenges them.

Without it, it is not possible to conduct an analysis of “reasonableness” without the existence of a coherent line of argument that is supported by evidence.

In any case, in the aforementioned judgment, the claimant also alleged that the challenged regulations discriminate between independent workers and salaried workers, such that the burden on the former far exceeds that borne by the latter, which is a product of the subjective will of the Board of Directors (Junta Directiva); and, in this regard, the Chamber considered the following:

“XIV.- Regarding the alleged violation of the principle of unity of social security and the prohibition of arbitrariness. According to this principle, the social security system as a whole must function with congruent and coordinated criteria, as well as grant similar benefits or services to the different groups it protects. What is emphasized by this principle is that there must be consistency in the management of the different entities that participate in the administration of the social security system, and in the benefits granted by them, so that the multiplicity of instances or departments does not imply a break in the unity as a whole and also does not produce an affectation of the principle of equality.

As has been indicated, Article 73 of the Political Constitution, interpreted harmoniously with Article 50 of the same Constitution, enshrines the right to social security, regarding which, the Chamber has repeatedly stated that it presupposes that the public authorities will maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve life and health, which, therefore, guarantees the effective exercise of the principle of unity of social security.

Now then, it cannot be forgotten that this principle is closely related to: a) the principle of universality, according to which, the application of the right to social security extends to all citizens, with a mandatory nature; b) the principle of solidarity, which is the other side of the previous one, in the sense that, if universality is intended to protect the entire population because rights derived from social security are granted to all inhabitants, with the principle of solidarity it must be understood that the entire population, to the extent of its possibilities, must contribute economically to the financing of the system; c) the principle of generality, insofar as it protects situations of need, not to the extent that they have been foreseen and insured beforehand, but insofar as they actually occur - see judgment number 2003-3483. Regarding the principle of universality of insurance, through judgment number 2011-10892 the Chamber stated that said principle:

“[S]eeks to incorporate the entire population within the coverage of insurance, as a cornerstone of every social democratic state under the rule of law and as an instrument for the development of individuals and society. In this way, the social security system is conceived as a set of norms, principles, policies and instruments aimed at protecting and recognizing benefits for people at the moment when states of vulnerability arise, which prevent them from satisfying their basic needs and those of their dependents.” Therefore, with the situation submitted for study, no violation of the principle of unity of social security is presented, inasmuch as, as stated, the system is also based on universality and solidarity, so that, when the contribution is made by the State, employers and workers in a mandatory manner, with the payment of quotas according to the economic capacity and income of each one, the same services and benefits are guaranteed to the participants of the insurance regime, which are granted to them not based on the amount of the contribution that each one provides, but by mere belonging to the regime.

From this perspective, the unity of social security is guaranteed because everyone, regardless of their status as employers or workers, salaried or independent, will receive services and benefits under similar conditions according to their particular health situation, which also guarantees the principle of equality, in the sense that the same treatment will be given to all people who are in the same situation, which, in this case, is being beneficiaries of one and the same single system, and not by reason of the amount of their contribution.

It is precisely for these reasons that there is also no affectation of the principle of prohibition of arbitrariness, because contrary to the plaintiff's opinion, no unreasonable differentiation is configured between salaried and independent workers, since both are constituted as affiliates to the system and receive equal benefits by reason of their condition, regardless of the amount of what they contribute or the subscription condition in which they find themselves, which, as stated, is a characteristic of the CCSS and the Costa Rican social security regime, as a universal and solidary system.

Consequently, it is not observed that with respect to this point there is a violation of the Right to the Constitution.” In accordance with the expressed criterion highlighted in bold, this Court dismissed that there is discriminatory treatment between the way in which the social security systems have been constituted, that is, between salaried persons and independent workers, because although there is differentiated treatment, this is not unreasonable, since in both cases, they are affiliated with the system and receive equal benefits, by reason of their condition, regardless of the amount of what they contribute or the subscription condition in which they find themselves, which, as the aforementioned precedent indicated, is a product of the principles of solidarity and of the universal social security regime that governs in our country.

VII.- Conclusion. As a corollary of the foregoing, it is appropriate to reject this action on the merits on the points indicated, as is hereby ordered.

VIII.- NOTE OF MAGISTRATE GARRO VARGAS. In this judgment, I must advise that I did not vote for the precedent cited to reject this process on the merits, that is, judgment n.°2024-3228 of 12:17 hours on February 7, 2024.

IX.- Documentation provided to the 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 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 that is not removed within this period will be destroyed, as provided in the "Regulation on the Electronic File before the Judiciary" (Reglamento sobre Expediente Electrónico ante el Poder Judicial), approved by the Full Court in session N° 27-11 of August 22, 2011, Article XXVI and published in Judicial Bulletin number 19 of January 26, 2012, as well as in the agreement approved by the Superior Council of the Judiciary (Consejo Superior del Poder Judicial), in session N° 43-12 held on May 3, 2012, Article LXXXI.

Por tanto:

Se rechaza por el fondo la acción. The magistrate Garro Vargas enters a note.

Thus, in the plaintiff's judgment, it is unreasonable and contrary to the mentioned principle of equality that the independent worker—who does not have an economic structure to support them, but rather assumes all the risks and burdens of carrying out their own activity—must contribute more—in terms of the fee and the percentage—than a salaried worker. The latter, by contrast, assumes no risk from the company’s organization and only needs to contribute their labor to the system of production factors. They indicate that these are clearly two distinct types of workers, but what cannot occur is the existence of regulatory provisions that do not recognize the conditions and the very nature of the work performed by independent workers, since in this way, the differences that exist between one type and the other would consequently be ignored. They consider that it was incumbent upon the law itself to set a minimum contribution that respects the particularity of the independent worker's situation. The manner in which the CCSS unjustifiably treats salaried and independent workers differently can be seen in the regulation of Article 33 of the Reglamento del Seguro de Invalidez, Vejez y Muerte. They argue that the very wording of that article introduces an undue distinction, because the contribution amounts are diametrically different between salaried workers and independent workers, without there being an objective and measurable criterion justifying such differentiated treatment when the same objective is pursued. And it is that the purpose to which the different social security regimes tend is, ultimately, to provide health services and the possibility of access to a pension to all citizens, under conditions of equality for all; therefore, it is never justified why the regulation establishes such differentiated treatment of the contributions of independent workers—compared to the legal situation of salaried workers—when the idea is to guarantee basic conditions for the population's access—under equal conditions—to health services and social security. In relation to Article 23 of the Ley Constitutiva de la CCSS, they point out that it clearly determines that the cost of the medical services to be provided to the insured shall be the determining criterion for defining the amount of the respective contributions. From the foregoing, it is then evident that there is no reasonable basis for making such substantial differences in the contribution percentage corresponding to salaried workers and that of independent workers; given that, for example, the degree of utilization of medical services is presumably comparable between salaried workers and independent workers. Consequently, there is no reason at all to maintain that the group of independent workers requires health services or pension benefits in a greater proportion than salaried workers, nor vice versa. Thus, at least from the initial provision contained in the cited regulation, the contribution of salaried workers—to provide resources to the IVM Regime—shall be 4.50% of their salary income; whereas, by contrast, the contribution of independent workers is established at 10.25% of their corresponding monthly income. This differentiation is completely devoid of a reasonable and objective basis for differentiation, so much so that none of the regulatory texts governing the contributions from workers' income explain why, or the justifying cause for this divergence, which compels it to be struck down as unconstitutional. And it is that, with determinations such as those adopted by the CCSS in this regard, a differentiation is enshrined that finds no justification in the legal rule itself, nor in the reality or social context inherent to the application of the rule, because nothing justifies taxing under a different legal treatment, and imposing differentiated tax burdens, a set of activities that are ultimately comparable—and whose only difference resides solely in the agent performing them. Therefore, they request the unconstitutionality of Articles 3, second and fourth paragraphs of the Ley Constitutiva de la Caja Costarricense de Seguro Social, 1 and 2 of the Reglamento de Afiliación de Trabajadores independientes de la CCSS, and—by connection—the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes; given that these regulations neither guarantee nor ensure, in the most appropriate manner, the principle of equality before the law. They indicate that, in the present case, the provisions challenged as unconstitutional also breach the basic standards of the principle of proportionality (necessity, suitability, and proportionality in the strict sense), which have been designed and set forth by jurisprudence. The foregoing, because in order to solve a problem certainly worthy of the most prompt attention from the State and—particularly—from the Caja Costarricense de Seguro Social, extremely burdensome measures are taken, which are completely injurious to the constitutional rights of all independent workers. They recognize that the finances of the Sickness and Maternity Regime and, mainly, of the Invalidity, Old Age, and Death Regime are experiencing a difficult moment, and that this warrants taking the necessary measures to guarantee the future sustainability of the system. However, these necessities cannot be taken as a free path or carte blanche to attack the constitutional rights of the citizenry, or to impose the payment of contributions that may harm the economic capacity of the taxpayers. Furthermore, they highlight that—as has been argued in relation to the preceding grounds of unconstitutionality—the impositions placed on independent workers are percentage-wise higher than those required of salaried workers, which is exacerbated because in the case of self-employed workers, there is no employer; the percentages that must be assumed by the workers and the State are comparatively higher (the latter, in an attempt to compensate the overall contribution percentage, with that which applies in the case of workers who receive a salary). Therefore, they indicate that the challenged regulations do not satisfy the criteria or sub-principles of necessity and suitability that form part of the more generic principle of proportionality. This is manifested in the fact that, from a range of possible measures that would allow the shortcomings and weaknesses of the pension regimes administered by the CCSS to be resolved, the Board of Directors of the Caja de Seguro Social inadmissibly adopts a set of extremely burdensome and arbitrary measures, which grant an abusive exercise of public powers to the institution's own administrative bodies and, in particular, to the Inspection Directorate, which results in the tax burdens imposed on independent workers becoming truly confiscatory. The foregoing, because the percentage quantum of the fees imposed effectively diverts a significant percentage of the net income of each of the passive subjects obligated to contribute to the sustainability of these regimes. Thus, tolerating or admitting as a possible conclusion the constitutionality of a series of administrative regulations that have proven so burdensome for the rights of those administered and all legal subjects who receive some type of income, would be equivalent to permitting or admitting—even implicitly—that cracks or loopholes be opened for the exercise of arbitrary quotas in the actions of the State's administrative bodies. It is not possible to admit that an administrative body of the State should arrogate to itself powers of a tax nature, without the political control and the debate proper to parliamentary bodies, and without any subjection to material, temporal, or spatial limitations. The Board of Directors does not even have those supposed prerogatives to modify the contribution amounts that independent workers must pay delimited by law; so much so that it can even define modifications to its own agreements at any time and as many times as it considers necessary. They indicate that it is unreasonable and disproportionate that there is no definition of what exactly the figure of the "Trabajador Independiente" (Independent Worker) comprises. Article 1 of the Reglamento para la Afiliación de los Trabajadores Independientes—a regulation alleged here as unconstitutional—states that the obligations to contribute to the Seguro de Trabajador Independiente (Independent Worker Insurance) are erected upon income received from work and even "from any income-generating activity"; which gives rise to the autonomous institution governing social security potentially overreaching, considering that absolutely every private activity that the imagination can conceive must be subject to this type of contribution, which is unreasonable, as the effects of such a level of generality and regulatory imprecision have already been seen. The CCSS has initiated administrative procedures against people who only receive passive income, such as from leasing furniture or real estate; investigations have even been opened against people who are part of boards of directors and representation of commercial companies, or who receive interest on bank certificates and other assets deposited in financial institutions, all of which simply obeys the fact that there is no rule defining what it is to "work" independently. Following the thesis outlined by the CCSS, one would easily reach the absurdity that even any patrimonial disposition in favor of another would convert the latter into a case of interest for the CCSS and would also be subject matter of the Seguro de Trabajador Independiente; the foregoing, because they would fall within the very broad framework of "income-generating activity" provided for in Article 1 of the Reglamento para la Afiliación de los Trabajadores Independientes. The profiles or activities that, eventually, would allow the CCSS to consider those activities as independent work have not been defined, especially since there is no definition of a set of tasks and means to carry them out that, permanently and voluntarily, are performed to generate income. This lack of definition becomes contrary to the principles of reasonableness and proportionality, as it could become a source of potential abuses against the administered party. They state that the aforementioned regulations contravene the principles of legal certainty, reservation of law, equality before the law, the inviolability of citizens' private property, and reasonableness and proportionality. They request that the unconstitutionality be declared of Article 3, second and fourth paragraphs, and Article 23 of Law No. 17, "Ley Constitutiva de la Caja Costarricense del Seguro Social", of October 22, 1943, Articles 1, 2, and 3 of the "Reglamento de Afiliación de los Trabajadores independientes", approved by Article 21 of session No. 7877, of the Board of Directors of the Caja Costarricense de Seguro Social, held on August 5, 2004; and by connection, the "Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes", approved by Article 30 of session No. 8051, of the Board of Directors of the Caja Costarricense de Seguro Social, held on April 27, 2006, insofar as the latter refers to the regulation of the supposed obligations of independent workers.

2.- By resolution at 14:37 hours on November 19, 2021, the Gerente Financiero of the Caja Costarricense de Seguro Social was requested to remit to this Tribunal a certified copy of the file corresponding to case No. 1246-2020-00015, where it is indicated that the appeal filed by Nombre35479, in their capacity as special legal representative of the plaintiff herein, against the resolution at 14:00 hours on May 14, 2020, called Informe de Inspección No. 1246-00015-2020-I, is pending resolution.

3.- On December 1, 2021, the Gerencia Financiera of the Caja Costarricense de Seguro Social remitted to this Tribunal the certified copy of the file corresponding to case No. 1246-2020-00015.

4.- By brief of January 5, 2021, Judge Jorge Isaac Solano Aguilar filed his recusal from hearing this process, by virtue of the fact that he also holds the status of independent worker.

5.- By resolution at 7:48 hours on January 6, 2022, the president of this Chamber accepted the recusal filed by substitute Judge Jorge Isaac Solano Aguilar.

6.- According to draw 9659, carried out by the Presidency of the Court, substitute Judge José Roberto Garita Navarro was designated to replace Judge Jorge Isaac Solano Aguilar.

7.- By resolution No. 2022-11626, at 9:20 hours on May 25, 2022, the Majority of this Tribunal decided to flatly reject the action regarding the challenge of Article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, of ordinal 3 of the Reglamento para la Afiliación de Trabajadores Independientes, and of the alleged violation of the right to work, freedom of enterprise, and the inviolability of private property. As for the rest, the processing of this action was suspended until the one processed before this Chamber under file No. 18-004106-0007-CO was resolved.

8.- By judgment No. 2024-03228 at 12:17 hours on February 7, 2024, this Tribunal resolved the unconstitutionality action No. 18-004106-0007-CO, with the following operative part: "Se declara sin lugar la acción. El magistrado Cruz Castro consigna razones adicionales. El magistrado Rueda Leal consigna razones particulares." (The action is declared without merit. Judge Cruz Castro records additional reasons. Judge Rueda Leal records particular reasons.).

9.- By resolution at 12:13 hours on February 18, 2025, the president of this Chamber nullified the appointment of substitute Judge José Roberto Garita Navarro and declared Judge Hess Herrera enabled to hear this unconstitutionality action.

10.- Article 9 of the Ley de la Jurisdicción Constitucional empowers the Chamber to flatly or on the merits reject, at any time, even from its presentation, any petition brought before it that proves to be manifestly improper, or when it considers that there are sufficient elements of judgment to reject it, or that it is a simple reiteration or reproduction of a previous, equal or similar petition that was rejected.

Drafted by Judge Castillo Víquez; and,

Considering:

I.- Preliminary matter. It is noted beforehand that this Tribunal, by resolution No. 2022-11626, at 9:20 hours on May 25, 2022, the Majority of this Tribunal decided to flatly reject the action regarding the challenge of Article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, of ordinal 3 of the Reglamento para la Afiliación de Trabajadores Independientes, and of the alleged violation of the right to work, freedom of enterprise, and the inviolability of private property. As for the rest, the processing of this action was suspended until the one processed before this Chamber under file No. 18-004106-0007-CO was resolved. Therefore, this Tribunal's pronouncement will be circumscribed solely to the alleged unconstitutionality of Article 3, second and fourth paragraphs of the Ley Constitutiva de la Caja Costarricense de Seguro Social and ordinals 1 and 2 of the Reglamento para la Afiliación de Trabajadores Independientes, for the violation of the principles of legal certainty and reservation of law in tax matters, equality before the law, and reasonableness and proportionality.

II.- On standing. The plaintiff is deemed to have standing to file this action, based on Article 75, paragraph 1, of the Ley de la Jurisdicción Constitucional, since they indicated as the underlying matter the administrative procedure processed in file No. 1246-2020-00015, where it is indicated that the appeal filed by the plaintiff herein, before the Gerencia Financiera of the CCSS, within which they invoked the unconstitutionality of the regulations challenged here, is pending resolution.

III.- Object of this action. The petitioner files this unconstitutionality action against Article 3, second and fourth paragraphs of the Ley Constitutiva de la Caja Costarricense de Seguro Social and ordinals 1 and 2 of the Reglamento para la Afiliación de Trabajadores Independientes, for the violation of the principles of legal certainty and reservation of law in tax matters, equality before the law, and reasonableness and proportionality.

IV.- On the procedure. This action was suspended pending what was resolved in unconstitutionality action number 18-004106-0007-CO, in which the constitutionality of the second paragraph of Article 3 of the Ley Constitutiva de la CCSS, No. 17 of October 22, 1943, and its reforms, as well as Articles 1 and 2 of the Reglamento para la Afiliación de los Trabajadores Independientes de la CCSS, No. 7877 of August 5, 2004, was questioned. Said unconstitutionality action was resolved by judgment No. 2024-03228 at 12:17 hours on February 7, 2024, which ordered the following:

"Por tanto:

Se declara sin lugar la acción. El magistrado Cruz Castro consigna razones adicionales. El magistrado Rueda Leal consigna razones particulares.".

Given that, in the case before us, similar grievances of constitutionality were alleged against the regulations challenged here, we proceed to reject this action on the merits based on the considerations set forth in the mentioned judgment, as indicated below.

V.- On the alleged violation of the challenged regulations to the principle of reservation of law and legal certainty. The plaintiff argues that, by virtue of the principle of reservation of law governing tax matters, the fees that the CCSS imposes on the independent worker are parafiscal contributions and as such, must be established and predefined by the legislator, not by administrative dependencies of the Executive Branch or autonomous institutions. None of which is satisfied in the specific case, because both the core elements of the Seguro de Trabajador Independiente, such as its taxable event, the methodology for calculating the rates and the taxable base, the passive subject; in short, all the substantial aspects of the tax, are defined by a collegiate body of an autonomous institution of the State, and not by formal law, pursuant to Article 3 of the Ley Constitutiva de la CCSS and the challenged regulation, which not only violates the principle of reservation of law, but also that of legal certainty.

As already indicated, in relation to this provision and the argument invoked by the plaintiff herein, this Chamber, in judgment No. 2024-03228 at 12:17 hours on February 7, 2024, in what is relevant, ordered the following:

"XI.- On the constitutionality of the challenged regulations.

The alleged violation of the principle of legal reservation (principio de reserva de ley). The constitutional questions regarding the principle of legal reservation being raised in this action have already been discussed by this Court on previous occasions and, in all of them, the Chamber has concluded that the arguments concerning the violation of the principle of legal reservation are far from harming the Law of the Constitution, based precisely on the high degree of autonomy held by the CCSS, which is a highly relevant reason to justify that decision.

In that sense, the jurisprudence of this Court is reiterated, recognizing that, precisely because of the degree of autonomy granted by the Constituent Power, the institution has broad regulatory authority to be exercised in matters within its own competence, which—as has been stated—was entrusted to it by the Political Constitution itself, an authority that does not harm the principle of legal reservation and, therefore, nor does it harm the Law of the Constitution—see judgment number 2010-5893, reiterated in judgment number 2022-23208; additionally, judgments numbers 2003-2355, 2001-9580, 2001-9734, 2001-546, 2002-4881, 7393-98, 1059-94, 3853-93 and 3403-94, among others, may be consulted.

This Chamber, based on the provisions of Article 73 of the Constitution, stated in judgment number 2001-009734, reiterated in number 2003-002355, in pertinent part:

“III.- ON THE COMPETENCE OF THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DEL SEGURO SOCIAL). By virtue of the provisions of Article 73 of the Political Constitution, the Costa Rican Social Security Fund is responsible for 'the administration and governance of social security,' a competence which is developed in Article 3 of the Constitutive Law of the Costa Rican Social Security Fund, number 17 of October twenty-second, nineteen forty-three, such that its Board of Directors has full authority to establish, via regulation, the scope of the benefits inherent to social security, both regarding the definition of conditions and benefits, as well as the entry requirements for each protection regime. Likewise, Article 23 of the same Law establishes as one of the parameters to be considered in this definition, actuarial studies and calculations, in order to maintain the sustainability (sostenibilidad) of the system. From the foregoing, it is clear that the Costa Rican Social Security Fund has full competence to issue norms such as those challenged, insofar as they respond to the constitutional mandate of Article 73, since they refer to an aspect of the organization and administration of social security.” —emphasis added— Thus, the regulatory authority regarding independent workers (trabajadores independientes) exercised by the Fund through its Board of Directors falls within the powers of administration and governance that, in matters of social security, have been granted to it in the second paragraph of Article 73 of the Political Constitution and, therefore, is consistent with the Law of the Constitution; this regulatory authority should not be confused with that established in Article 140, subsections 3) and 18) of the Political Constitution, which grants the Executive Branch the authority to issue organizational and service regulations for the Administration. It must be borne in mind that, precisely because of the autonomy enjoyed by the CCSS examined supra, the Executive Branch cannot regulate matters related to the administration and governance of social security, because this is a matter reserved for the Fund, which has full independence and autonomy to regulate and manage it, as it was granted and recognized by the Political Constitution itself.

From this perspective, matters related to the mandatory enrollment (aseguramiento obligatorio) of independent workers and the contributions (cuotas) they must pay are proper to the exercise of those powers and a legitimate mechanism that does not violate the Law of the Constitution, particularly the principle of legal reservation; rather, it is aimed at allowing the Fund to fulfill the purpose constitutionally entrusted to it, without requiring that it be established by a law emanating from the Legislative Assembly. In this regard, in judgment number 2008-017304, this Chamber expressly provided:

“VI.- INSURANCE FOR INDEPENDENT WORKERS (SEGUROS DE TRABAJADORES INDEPENDIENTES). Contrary to the petitioner's opinion, this Court has found no reason to exclude insurance for independent workers—and even non-contributory regimes—from the regulatory powers of the COSTA RICAN SOCIAL SECURITY FUND. On this matter, it pronounced in judgment No. 2000-02571, at 14:38 hrs. on March 22, 2000:

«Regarding the appellant's argument that the challenged norm exceeds the limits of regulatory authority and that the matter regulated cannot be contained in an autonomous regulation, the Chamber agrees with the Attorney General's Office that Article 10 of the Voluntary Insurance Regulation (Reglamento de Seguro Voluntario) is not unconstitutional for that reason. The Organic Law of the Costa Rican Social Security Fund provides in its Article 3, paragraph 5, that the Fund shall regulationarily determine the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted. Article 14, subsection f), confers upon the Board of Directors the authority to issue regulations for the institution's operation, and numeral 23 indicates that the Board of Directors is competent to determine contributions and benefits in accordance with the cost of services, based on actuarial calculations. This Chamber has referred to such attributions in vote No. 3403-94 at 15:42 hours on June 15, 1994, and in No. 7393-98 at 9:45 hours on October 16, 1998, declared that norm 23 of the Constitutive Law of the Fund is consistent with the Political Constitution, in view of the fact that the attributions it confers on the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but rather are based on Article 73 of the Constitution. That norm entrusts the governance and administration of social security to the Fund, and for this reason it is competent to issue autonomous regulations such as that of voluntary insurance. Consequently, it is not found that the Regulation containing the challenged provision breaches Article 140, subsection 3) of the Political Constitution».

As is evident from the cited judgment, the point raised by the petitioner is not new. This Court has already pronounced on the matter and there is no reason to change its criteria. To exclude insurance for independent workers, there must be some characteristic of these that distinguishes them from other insurances. The actor argued that the difference lies in that it restricts freedom of commerce. However, this Court does not consider such an argument to be admissible. In the first place, the norm does not prevent the exercise of a lucrative activity, but rather imposes a burden, just as the mandatory contribution to the insurance of their employees constitutes a burden for employers. Consequently, the first ground for unconstitutionality is not actionable.” In accordance with what is indicated in the preceding precedents, the CCSS is empowered to issue the regulations for the insurance under its administration, without the exercise of that power implying, in and of itself, any infraction of a constitutional nature in general, much less of the principle of legal reservation, in particular. This was recognized in a judgment of this Chamber, number 2022-23208, when defining that:

“By virtue of this, the Chamber does not consider that the Regulation to Verify Compliance with Employer and Independent Worker Obligations (Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes) is unconstitutional, under the argument raised by the petitioner—regarding the principle of legal reservation—so the action must be dismissed on this point, since the CCSS is the entity charged with the administration of social security and is endowed with maximum autonomy for that purpose, and therefore has full competence to establish the scope of social security benefits via regulation, such that it can define the conditions, benefits, and entry requirements for each protection regime (…)” —the highlighting is not from the original— Thus, the fact that the challenged norms allow the CCSS, and specifically its Board of Directors, to establish the conditions, requirements, and contributions applicable to independent workers does not imply an excess of the limits of regulatory authority, given that, as has been stated, the Fund has the power to regulationarily determine the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted, and, in that sense, Article 14, subsection f) of its Constitutive Law, confers upon the Board of Directors the authority to issue regulations for the functioning of the institution, while numeral 23 of the same Law indicates that the Board of Directors is competent to determine contributions and benefits in accordance with the cost of services, based on actuarial calculations.

As is evident from the preceding transcriptions, the Chamber has referred to such attributions and has declared that norm 23 of the Constitutive Law of the Fund is consistent with the Political Constitution in the sense that the attributions it confers on the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but rather are founded on Article 73 of the Political Constitution, which entrusts the governance and administration of social security to that institution and, therefore, it is competent to issue autonomous regulations—such as those relating to the affiliation and contributions of independent workers—without thereby breaching the provisions of Article 140, subsection 3) of the Political Constitution—see in a similar sense, judgments numbers 2000-2571 and 2008-17304—. Consequently, this argument must be dismissed since no violation of the principle of legal reservation is found.” Likewise, given that the petitioner here also invokes the parafiscal nature (parafiscalidad) of the compulsory contribution imposed on independent workers, it is convenient to cite what was provided in that same judgment on the matter:

“… XVI.- On the arguments regarding the parafiscal nature of the contributions paid to social security. According to the petitioner, social security contributions are conceived as taxes insofar as they belong to the category of parafiscal contributions (contribuciones parafiscales), and therefore, for their application, the principles that apply to taxes must be observed, such as legal reservation, economic capacity, and tax equality, given that, in the case of the Costa Rican Social Security Fund, its Board of Directors is authorized—by paragraph 2 of Article 3 of the Constitutive Law of the Fund that is being challenged—to create this parafiscal contribution without compliance with the indicated principles, thus harming the Law of the Constitution.

Beyond what has already been set forth in this judgment regarding the non-affectation of the principle of legal reservation, at this point it is important to note that the Chamber has analyzed this issue of parafiscality (parafiscalidad) in several pronouncements in which it has expressly recognized that social security contributions are parafiscal contributions, but of constitutional origin. Thus, in judgment number 2018-13658—reiterated, among many others, by judgments numbers 2019-9190, 2021-2161, 2021-23611, 2021-27052, and 2023-3593—the Chamber expressly stated that:

“The question of parafiscal contributions (contribuciones parafiscales)—in this case, contributions to social security—has provoked no small controversy in the doctrinaire and jurisprudential spheres. Regarding the constitutional legal controversy at hand, from the perspective of this Chamber, two theses are plausible. The first, which considers that since it is a tax—see in this regard judgment 2006-009568 of this Court—its structural elements—triggering event (hecho generador), rate, calculation basis, active and passive subject, etc.—must irremediably be defined by formal Law; this latter consequence has not been validated by the Constitutional Chamber. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality (principio de legalidad tributaria) would be violated, especially considering that in the struggle of the English barons to seize the taxing power, some find the origin of Parliament and democracy—there is no democracy without Parliament, nor of the latter without the Opposition. In short, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court—see, among others, judgments numbers 1994-003819 and 1998-007393—, is the one that considers that we are not in the presence of a parafiscal contribution and, consequently, the principle of tax legality should not be applied. 'The payment of the contribution or fee, as the case may be, is not a tax, as stated in previous paragraphs, but the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the very contributors …'.

According to the most authoritative doctrine in tax matters, parafiscal contributions are a tax, since they contain the material elements of obligation—the duty to pay them by those who fall under the provision of the creating norm—, of singularity because it affects a specific and unique social or economic group, and of sectoral allocation because what is collected through this mandatory payment is used for the exclusive benefit of the group that paid the tax. We are, then, before the exercise of a power of sovereignty (potestad de imperio) of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law—tributum sine legge—.

Now then, in the case of employer-worker contributions (cuotas obrero-patronales) intended for the support of social security—sickness and maternity insurance and disability, old age, and death insurance—, our legal system has a singularity. Indeed, it is constitutional numeral 73 that creates the parafiscal contribution by providing for a mandatory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies that the law determines. Immediately thereafter, the constitutional text establishes that the administration and governance of these social security systems correspond to an autonomous institution: the Costa Rican Social Security Fund. Finally, and what is relevant here, the constitutional norm imposes the prohibition against transferring or using the funds and reserves of social security for purposes other than those that motivated their creation. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent Power, whereby, from the perspective of this Court, the maxim that there can be no taxation without representation is fulfilled. In other words, in the case at hand, adherence to the principles governing the exercise of the taxing power is satisfactorily achieved, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle we must overcome is related to fixing the amount of the contribution (cuota) to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Costa Rican Social Security Fund stipulates that contributions and benefits shall be determined by the Board of Directors, according to the cost of the services to be provided in each region and in accordance with the respective actuarial calculations. The contribution of the workers can never be greater than the contribution of their employers, except in cases of exception that the Regulation indicates, based on actuarial recommendations, to provide greater benefits to the former, and to obtain a fairer distribution of the burdens of mandatory social security. Seen in this way, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, objective parameters are imposed on the Board of Directors of the Costa Rican Social Security Fund when determining the amount of the contribution—the cost of the services it provides and the respective actuarial calculations—, so the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Litigation Judge. This same logic is followed by the Code of Tax Norms and Procedures (Código de Normas y Procedimientos Tributarios) in its numeral 5, regarding fees, as it allows their amount to be varied by way of Regulation so that their purpose is fulfilled in a more suitable manner, after the intervention of the body that by law is charged with regulating the rates of Public services.

Recapitulating, since the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is more than fulfilled, on the one hand, and by the legislator setting objective parameters to determine the amount of the parafiscal contribution, that principle is also respected” —emphasis added— In the same sense, the aforementioned judgment 2021-23611 refers in a profuse and absolutely clear manner to the relationship between the autonomy regime of the Costa Rican Social Security Fund, the principle of legal reservation, and the power the institution has to set social security contributions—including, of course, those relating to independent workers—, without this representing or implying the constitutional violations alleged in this action, so for the purposes of a comprehensive conclusion on all these aspects, it is particularly illustrative to expressly cite what is developed in said judgment 2021-23611. This judgment states that:

“V.- The Costa Rican Social Security Fund, its autonomy and social security.

Regarding Articles 73 and 74, located in the single chapter of Title V "Social Rights and Guarantees" of our Magna Carta, constitutional jurisprudence has extensively developed its content and its implications concerning the autonomy of the CCSS in relation to the administration and government of social insurance.

Thus, in judgment No. 2001-10545 of 14:58 hours on October 17, 2001, it was ordered:

**"II.- On the merits. The autonomy of the Caja Costarricense de Seguro Social.** –The second paragraph of Article 73 of the Political Constitution establishes: 'The Administration and government of social insurance shall be in charge of an autonomous institution, called the Caja Costarricense de Seguro Social.' Regarding the scope of what this provision establishes, the Chamber has repeatedly stated that the autonomy of the Caja is not subject to limits in matters of government. On this topic, analyzed in judgment 6256-94 of nine o'clock on October twenty-fifth, nineteen ninety-four, it was expressed:

"III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, basically following the original text of the 1871 Constitution; that is, the institution from the 1871 Constitution was transplanted, according to the 1943 modifications, to the 1949 Constitution. However, for the purposes of the consultation, the participations of Constituent Member Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: 'Moreover, the Caja, sooner or later, would have to assume the risk of unemployment, which will come to resolve the serious problem posed by joblessness. He insisted that he did not think it appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable course is to leave things as they are, giving the Caja full autonomy to thus make it independent from the Executive Branch'; and on page 36 idem it is added: 'In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Insurance will undoubtedly be an inexplicable step backward.' When the article was approved, a second paragraph was included that literally read: 'The administration and government of social insurance shall be in charge of an autonomous institution,' text that was later reformed by Law No. 2737 of May 12, 1961, remaining today as follows: 'The administration and government of social insurance shall be in charge of an autonomous institution, called the Caja Costarricense de Seguro Social.' In conclusion, the constituent power attributed the administration and government of social insurance to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has granted it and sharing the general principles derived from its condition as a decentralized entity.

Other judgments of this Chamber in which reference is made to the issue of the autonomy of the Caja Costarricense de Seguro Social are the following: 0236-94 of 9 hours 57 minutes on January fourteenth; 3403-94 of 15 hours 42 minutes on July 7th; 6471-94 of 9 hours and 39 minutes on November 4th, all from the year 1994). At a date subsequent to these, the Chamber has indicated:

"IV.- Article 73 of our Political Constitution establishes the existence of social insurance, which is regulated by the system of mandatory contribution from the State, employer, and workers, with the purpose of protecting them against the risks of illness, maternity, disability, old age, and death. The Caja Costarricense de Seguro Social is the autonomous entity charged with administering this type of insurance, with the autonomy that allows it to have its own initiative for its undertakings, as well as to execute its tasks and fulfill its legal obligations, setting goals and the means to achieve them. It guarantees, in this way, the establishment of social security and its nature, decrees the purpose of social insurance, and regulates the destination of the respective funds. Social security was born to protect the worker and their family, as the human beings they are, and is provided from conception until death, seeking health and assisting in unforeseen misfortunes such as disability and death, as well as in states of lack of protection due to their own condition such as old age and retirement." (Judgment 004636-98 of 15 hours 57 minutes on June 30, 1998) "…it is feasible for the different establishments of the Caja, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures for its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over particular interests." (Judgment 03065-98 of 18 hours 18 minutes on May 6, 1998) "…the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution for the Caja is not subject to limits in matters of government, as this court has reiterated in previous judgments (see for example: 3403-94, 6256-94, 6524-94, among others). The constituent power expressly instituted an entity in charge of the administration of social security endowed with maximum autonomy for the performance of its important function; reason for which the reform to constitutional Article 188 that instituted the administrative direction did not modify its legal regime." (Judgment 07379-99 of 10 hours and 36 minutes on September 24, 1999) When analyzing what was alleged by the claimant, the Chamber considers that –in effect-, the content of Transitional Provision IV of Law 6577 is harmful to the autonomy of government conferred upon the Caja Costarricense de Seguro Social by the second paragraph of Article 73 of the Political Constitution, since by ordering that provision the forced closure within a determined period of the retirement service -or even if it had ordered the contrary-, it is evident that the powers attributed to said institution by virtue of the autonomy of government are invaded, this being understood as the capacity to carry out its legal mission without subjection to another entity, to self-direct, self-govern, and dictate its own objectives and organize itself in the manner it deems convenient for the fulfillment of the purpose for which it was created." For its part, vote No. 2002-06384 of 15:27 hours on June 26, 2002, indicated:

**"VIII.- Subsection b) of Article 2 of the Law Creating the Budgetary Authority. Considerations of the Constitutional Chamber.** In relation to autonomous institutions, the Chamber ruled in favor of the power of the Budgetary Authority to formulate directives to decentralized institutions, but interpreted this power restrictively. Based on Article 188 of the Political Constitution, this Court considered in judgment No. 3309-94 that the power of the Budgetary Authority is constitutional insofar as:

“… it remains in the field of design and subsequent execution of general policy directives, but not, of course, to the extent that its application interferes with the concrete execution of those directives. The general character of this function means that the Budgetary Authority cannot, within its competence, give concrete orders or subject to approval the specific acts of execution that are part of the administrative autonomy of those entities.” If in the case of autonomous institutions in general the power must be interpreted restrictively, in the case of the Caja Costarricense de Seguro Social the power is totally unconstitutional. The Caja Costarricense de Seguro Social enjoys, as stated in judgment No. 3403-94, “a degree of autonomy distinct and superior to that which is defined in general terms in Article 188.” This higher degree of autonomy is derived from Article 73 of the Political Constitution. In judgment No. 6256-94 it was stated:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite mandatory contribution from the State, employers, and workers; b) the provision grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, distinct and superior to that which is defined in general form in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their mission. As seen in the preceding whereas clauses, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, 'with full autonomy to thus make it independent from the Executive Branch'.” By virtue of this full autonomy, any provision that obliges the Caja Costarricense de Seguro Social to comply with directives on the administration of the resources that are subject to its management is unconstitutional. Subsection b) of Article 2 of the Law Creating the Budgetary Authority suffers from that defect and, therefore, is declared unconstitutional solely with regard to the Caja Costarricense de Seguro Social.

(…)

**XIII.- On Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social. Considerations of the Constitutional Chamber.** On this point, this Chamber dissents from the claimant's thesis. Although the claimant is correct in stating that the Caja is constitutionally prohibited from allocating funds to purposes other than those imposed by the Constitution itself, Article 41 does not indicate such a thing. It is necessary to differentiate clearly between the regulation itself and the application that has been given to it in specific cases. As such, Article 41 is directed towards the investment of reserves; this is how this Court understands it, and a provision of this nature is not unconstitutional. To interpret it otherwise would be to oblige the Caja to keep idle resources that, otherwise, could generate resources that strengthen the fund itself. Another aspect is the possibility that the Caja may have used that article to invest funds, supposedly idle, when it remotely fulfills its purposes. If this is the case, it is possible to challenge in the legality jurisdiction the concrete actions that exceed the limits established by that same Article 41. It is also possible to evaluate the personal responsibility of those who did not adjust their decisions to the regulation, since they are obliged to interpret that Article 41 harmoniously with Constitutional Article 73. In summary, Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social is not unconstitutional, as long as it refers to idle funds and not to funds necessary to satisfy the objectives constitutionally set for that institution.” Judgment No. 2003-03483 of 14:05 hours on May 2, 2003, ordered:

“On the social security regime. Article 73 of the Political Constitution, interpreted harmoniously with Article 50 idem, enshrines the Right to Social Security. The Chamber has repeatedly indicated that this right presupposes that the public powers will maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, with a mandatory character. The objective scope assumes the principle of generality, in that it protects situations of need, not to the extent that they have been foreseen and insured previously, but insofar as they effectively occur. Furthermore, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management must be public, in charge of the State, represented by the Caja Costarricense de Seguro Social, and the financing will respond to the cardinal principle of social solidarity, as it is based on the mandatory and tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are those of universality, generality, sufficiency of protection, and social solidarity.” What was decided in judgment No. 201007788 of 14:59 hours on April 28, 2010, must also be transcribed:

**“III.- On the merits.** (…) To resolve the present unconstitutionality action, it is necessary to take into consideration the precedents on the **autonomy of the Caja Costarricense de Seguro Social.** In judgment No. 1994-06256 of nine o'clock on October twenty-fifth, nineteen ninety-four, the Chamber establishes the following:

“Although it is not the subject of the consultation, for the purposes of the conclusion reached by the Chamber, it is necessary, at least, to point out some general guidelines of what administrative decentralization implies in our constitutional regime. Three forms of autonomy exist in our legal system: a) administrative, which is the legal possibility for an entity to carry out its legal mission by itself without subjection to another entity, known in doctrine as the capacity for self-administration; b) political, which is the capacity to self-direct politically, to self-govern, for the entity itself to dictate its own objectives; and, c) organizational, which is the capacity to self-organize, with the exclusion of any legislative power. In the first two cases, autonomy is vis-à-vis the Executive Branch, and in the third, also vis-à-vis the Legislative Branch. Organizational autonomy is characteristic of universities, as deduced from Article 84 of the Political Constitution, and therefore extraneous to the purposes of this consultation. The other two degrees of autonomy derive from Political Autonomy, the content of which will be proper to the law (foundational act) that creates the entity. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even extinguish it; but since decentralization implies that all the powers of the administrative hierarch correspond to the entity, this means that its legal personality encompasses all the administrative powers necessary to achieve its mission independently. Autonomy usually comprises the powers to formulate plans or set the entity's ends and goals, that of providing itself with internal mechanisms for functional and financial planning through budgets, and finally, the exercise of autonomous regulatory power. These general lines on autonomy are directed at administrative decentralization created by ordinary law.” Furthermore, the Chamber indicated that:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite mandatory contribution from the State, employers, and workers; b) the provision grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, distinct and superior to that which is defined in general form in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their mission. As seen in the preceding whereas clauses, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, 'with full autonomy to thus make it independent from the Executive Branch'” The Chamber maintains the same position with judgment No. 2003-02355, in that it establishes that:

“… it is concluded that the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution for the Caja is not subject to limits in matters of government, as this court has reiterated in previous judgments (see for example: 2001-7605, 6256-94, among others). The Caja is ultimately the entity in charge of the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the foregoing, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits proper to social security via regulation, such that it can define the conditions, benefits, and entry requirements for each protection regime, supported by actuarial studies, in order not to break the system.” The Chamber must consider the question of whether the regulation effectively implies a reversal of the decentralization that operates from the Political Constitution, or what amounts to the same thing, an interference (sic) with the capacity of the Caja Costarricense de Seguro Social to administer and govern social insurance. The acts of the National Constituent Assembly justify the formation of autonomous entities with the criterion of specialization of state functions, to organize the State and increase its administrative efficiency, therefore it is not legitimate to depart from that purpose, therefore it must give a pro-active response to public interests in matters that are vital for the human being and socially important. The administrative autonomy and autonomy of government that the Political Constitution grants to the Caja Costarricense de Seguro Social is circumscribed to social insurance, to what is indicated in the 1st paragraph of Article 73 of the Political Constitution, as well as to what is recognized by the Law (Article 1). However, institutional autonomy is not an insurmountable limit; according to the precedents, legislation can be enacted on other topics distinct from the indicated competence, complying of course with the guarantee established in Article 190 of the Political Constitution, which establishes the prior hearing of the Institution in the event that the provisions of a bill affect it, but this is not the issue to be analyzed in the unconstitutionality lawsuit.” Likewise, judgment No. 2018013658 of 9:15 hours on August 22, 2018, held:

**“I.- ON ARTICLE 23 OF THE CONSTITUTIVE LAW OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL.** In the case at hand, the claimant's main reproach is directed against Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, in that it establishes that: “The quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution may never be greater than the contribution of their employers, except in cases of exception that the Regulation indicates, based on actuarial recommendations, to give greater benefits to the former, and to obtain a fairer distribution of the burdens of mandatory social insurance.” The claimant essentially alleges that said article infringes Article 121, subsection 13), of the Political Constitution, in that it affirms that the contested provision confers upon the Caja Costarricense de Seguro Social a tax or levy power in violation of the cited constitutional provision.

The question of parafiscal contributions –in this case, contributions to social security– has provoked no small controversy in the doctrinal and jurisprudential sphere. Regarding the constitutional legal controversy before us, from the perspective of this Chamber, two theses are plausible. The first, which considers that being a tax –see in this regard judgment 2006-009568 of this Court– its structural elements –generating event, rate, calculation base, active and passive subject, etc.– must inevitably be defined by formal Law -; this last consequence has not been validated by the Constitutional Chamber. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality would be violated, especially considering that in the struggle of the English barons to obtain tax power, some find the origin of Parliament and democracy – there is no democracy without Parliament, nor the latter without the Opposition.

In summary, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Tribunal—see, among others, judgments numbers 1994-003819 and 1998-007393—is the one that considers that we are not in the presence of a parafiscal contribution (contribución parafiscal) and, consequently, the principle of tax legality should not be applied. "The payment of the fee or contribution, as the case may be, is not a tax, as stated in previous paragraphs, but rather the payment of a legal obligation, which is an essential condition for the very existence of the system, created precisely for the benefit of the contributors themselves …".</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">According to the most authoritative doctrine in tax matters, parafiscal contributions (contribuciones parafiscales) are a tax, as they contain the material elements of obligatoriness—the duty to pay them by those who fall under the assumption of the creating norm—, of singularity because they affect a specific and unique social or economic group, and of sectoral allocation because what is collected through this mandatory levy is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a power of imperium of the State that imposes pecuniary levies for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law—tributum sine lege.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Now, in the case of employer-worker quotas (cuotas obrero-patronales) destined for the maintenance of social security—sickness and maternity insurance (seguro de enfermedad y maternidad) and disability, old-age, and death insurance (seguro de invalidez, vejez y muerte)—our legal system has a singularity. Indeed, constitutional numeral 73 is what creates the parafiscal contribution (contribución parafiscal) by providing for a forced contribution from the State, employers, and workers, in order to protect them against the cited risks and other contingencies that the law may determine. Following this, the constitutional text establishes that the administration and government of these social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, of relevance here, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes other than those that motivated their creation. As can be observed, we are, therefore, before a parafiscal contribution (contribución parafiscal) created by the original Constituent Power, with which, from the</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">perspective of this Tribunal, the maxim that there can be no taxation without representation is fulfilled. In other words, in the case at hand, adherence to the principles governing the exercise of tax authority is satisfactorily met, since a representative, plural body, which exercises the maximum power in a democratic and social Rule-of-Law State, as is the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution (contribución parafiscal).</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">A second hurdle we must overcome relates to the setting of the amount of the fee to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social (Ley Constitutiva de la Caja Costarricense de Seguro Social) stipulates that the fees and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution can never be greater than their employers' contribution, except in cases of exception that, to give greater benefits to the former, and to obtain a fairer distribution of the burdens of compulsory social insurance, the Regulation may indicate, based on actuarial recommendations. Viewed in this way, this Tribunal concludes that the principle of tax legality is not violated, for the elementary reason that through a formal Law, objective parameters are imposed on the Board of Directors of the Caja Costarricense de Seguro Social when determining the amount of the fee—the cost of the services it provides and the respective actuarial calculations—, whereby the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Judge of the Contentious-Administrative jurisdiction (Juez de lo Contencioso Administrativo). This same logic is followed by the Code of Tax Norms and Procedures (Código de Normas y Procedimientos Tributarios) in its numeral 5, in relation to rates, as it allows their amount to be varied by way of Regulation so that their purpose is fulfilled in a more suitable manner, with the prior intervention of the body that by law is responsible for regulating the tariffs of Public Services.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Recapitulating, as the parafiscal contribution (contribución parafiscal) was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on one hand, and by the legislator setting objective parameters to determine the amount of the parafiscal contribution fee (cuota de la contribución parafiscal), that principle is also respected. </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">II.-</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> Nor can it be interpreted that Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social (Ley Constitutiva de la Caja Costarricense de Seguro Social) infringes, per se, constitutional article 177, in the terms expressed by the claimant, since such numeral, far from preventing the Caja Costarricense de Seguro Social from setting—in the exercise of its powers, derived from constitutional ordinal 73—the fees paid by employers and workers, imposes, on the contrary, the obligation to create sufficient revenues in favor of that institution, in order to achieve the universalization of social insurances and guarantee, fully, the payment of the State's contribution as such and as an employer. Ergo, the action of unconstitutionality filed must be rejected on the merits, regarding the cited ordinal 23 of the Constitutive Law of the Caja Costarricense de Seguro Social (Ley Constitutiva de la Caja Costarricense de Seguro Social), as is hereby done.”</span></p><p style=\"margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Additionally, judgment no. 2018019511 of 21:45 hours on November 23, 2018, reads: </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“Given the constitutional rank of the CCSS itself, it is necessary to analyze the budgetary norms pertaining to it. The Chamber underscores that the Constitution itself establishes—within the budgetary regulations—a specific regime for the CCSS, as regulated by the third paragraph of numeral 177 of the Political Constitution (Constitución Política):</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“To achieve the universalization of social insurances and fully guarantee the payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way that they cover the Institution's current and future needs. If a deficit arises due to the insufficiency of these revenues, the State shall assume it, for which the Executive Branch must include in its next Budget project the respective item determined as necessary by the cited Institution to cover the totality of the State's quotas.” </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Likewise, the Constitution provides, in its article 73, an additional guarantee for the funds and reserves of social insurances, by providing:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“(…)</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The funds and reserves of the social insurances may not be transferred or used for purposes other than those that motivated their creation. (…)”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The importance of these texts lies in the fact that the Political Constitution (Constitución Política) is a norm of direct application, as this Tribunal has upheld on multiple occasions (for example, judgments nos. 2016-017376 of 11:41 hours on November 23, 2016, and 2015-006787 of 15:45 hours on May 12, 2015). That is, the fact that the Constitution is the parameter against which other norms are measured, or that its precepts are developed in infra-constitutional norms, </span><span style=\"font-size:9.33pt; font-style:italic; text-decoration:underline; vertical-align:sub\">does not subtract or inhibit the full, direct, prevalent, and immediate application</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> of certain constitutional postulates.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">With this in mind, the Chamber observes that the aforementioned article 177 guarantees that the State shall ensure that the CCSS has sufficient revenues for the fulfillment of the assigned constitutional duties. Therefore, the Executive Branch is compelled by the Fundamental Law itself to budget for that insuring entity sufficient revenues to cover its needs. In case of not doing so, the same norm defines the corrective mechanism, as it obliges the Executive Branch to cover in the following period the deficit that might arise. Although such norm omits assigning a specific percentage of the budget to the mentioned entity, unlike the Judicial Branch and public education, the truth is that it does impose an express and determinable constitutional mandate. </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">This first constitutional safeguard must be read in conjunction with the second transcribed guarantee, precepted in numeral 73. The third paragraph of said norm prevents any fund or reserve of the social insurances from being used for objectives different from the reason for their creation.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Such norms entail, on the one hand, the State's obligation to provide sufficient revenues for the CCSS (article 177) and, on the other, the impossibility of using the resources of one insurance for different purposes (numeral 73). This means that, in the case of insurances with tripartite contributions, such as sickness and maternity insurance (seguro de enfermedad y maternidad) (questioned by the consultants), all the resources of said fund are covered by constitutional protection, making it impossible to affect them through the proposed fiscal measures.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">As stated, the aforementioned guarantees are of direct and prevalent application regarding the CCSS. Thus, although the questioned norms make only two exceptions (the resources of the Disability, Old-Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) and the Non-Contributory Regime (Régimen No Contributivo)), the truth is that the constitutional impossibility of transferring or using the funds of the sickness and maternity insurance (seguro de enfermedad y maternidad) constitutes an exception emanating from our Magna Carta, in defense of the governmental autonomy of the CCSS and the appropriate use of the resources of said insurance. </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The direct application of the Political Constitution with respect to the CCSS is not new to the Constitutional Chamber:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“VI.- THE SPECIFIC CASE.- The Caja Costarricense de Seguro Social finds its guarantee of existence in constitutional article 73, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite forced contribution from the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurances, a degree of autonomy which is, of course, distinct and superior to that defined generally in article 188 idem; c) the funds and reserves of social insurances cannot be transferred or used for purposes other than their duty. As seen in the previous recitals, the National Constituent Assembly chose to leave things, regarding this institution, as they were in the Constitution of 1871, \"with full autonomy to thus make it independent from the Executive Branch\". Now, as stated, among the characteristic notes of autonomous institutions, budgetary autonomy is undoubtedly included</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">(see intervention in the National Constituent Assembly by Nombre35481 in recital II).-</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The inclusion of the budgetary items necessary for the State to cancel its contributions to the Caja Costarricense de Seguro Social forms part of the ordinary resources created in the same constitutional article 73, such that it is not possible for the Legislative Assembly to include and approve them in an ordinary or extraordinary budget of the Republic, with the simultaneous definition of the corresponding expenditure, thereby substituting the faculties granted by the Constitution to the Caja Costarricense de Seguro Social itself, without violating articles 73 and 188 of the Political Constitution and the principles indicated herein. Being ordinary resources, only the institution, in accordance with its own organization, can freely exercise constitutional autonomy (definition of the reasons of legality with opportunity and discretion) through the entity's budgets, which must be approved and audited by the Contraloría General de la República. That is, it is </span><span style=\"font-size:9.33pt; font-style:italic; text-decoration:underline; vertical-align:sub\">the Political Constitution itself that has defined which are the own and ordinary financial resources of the Caja Costarricense de Seguro Social, by indicating that they are composed of the forced contributions that must be paid by the State, employers, and workers, funds that are administered and governed by the institution itself</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">. The case is different for extraordinary contributions from the State or third parties in favor of social insurances, which may indeed carry, being donations, contributions, or participations (liberalities in the end), the specific purposes to which those special resources are directed, such as the construction of a hospital, a clinic, or the purchase of specialized equipment. But in the case of ordinary resources, the legislator cannot substitute the head of the institution in defining the priorities of expenditure, because doing so is part of the essence of the exercise of the entity's autonomy, according to the characteristics, principles, and notes that have been indicated here. All of this leads us to the conclusion that the budgetary transfers that have been consulted are unconstitutional, being violative of articles 73, 188, and 189 of the Political Constitution.” (Judgment no. 6256-94 of 9:00 hours on October 25, 1994. The underline is added)”.</span></p><p style=\"margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">In the same direction, judgment no. 2020010608 of 14:00 hours on June 10, 2020, warns: </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">“A.- The case law on the Social Rule-of-Law State, the Caja Costarricense de Seguro Social, and prestational rights</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">. This Tribunal has said much about the Social Rule-of-Law State, especially related to the rights that the human person has regarding the essential services provided by the State, such as those related to the rights to health, to a pension, among others, provided by the Caja Costarricense de Seguro Social.</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">These themes have been addressed with the content of Constitutional Article 50, which establishes: </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">In this formula, the Constituent Power established the basic general principle of the Social Rule-of-Law State, which will later be reinforced with other provisions that establish, concretely, the way in which the Costa Rican State materializes this principle transversally among the different social sectors.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">In Judgment of this Chamber No. 2005-11132 of 8:49 hours on August 26, 2005, it was stated that:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“… the State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth, which, together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in article 74 ibidem, determines the very essence of the political and social system we have chosen for our country and that defines it as a social Rule-of-Law State (see judgment number 1441-92 of fifteen hours forty-five minutes on June 2, nineteen ninety-two). In that sense, this Constitutional Tribunal also expressed itself as follows:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“One of the basic connotations of the Costa Rican State and, in general, of every 'social' Rule-of-Law State, is constituted by the intervention - increasingly more frequent - of the rulers, to provide a solution to social problems.- The Political Constitution itself obliges the State to participate actively, not only in production processes (Article 50), but also in those related to the development of fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantee a dignified and useful existence for society.”- (Judgment No. 5058-98 of fourteen hours twenty minutes on October 14, nineteen ninety-three).”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">In the same manner, by Judgment of this Chamber No. 2005-13205 of 15:13 hours on September 27, 2005, this Chamber ruled that:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“III.- On the Social Rule-of-Law State, Equality, and Human Dignity. The Social Rule-of-Law State, a fundamental element of our constitutional order, entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations. In that sense, constitutional numeral 74 explicitly establishes the duty to pursue a permanent policy of national solidarity based on the Christian principle of social justice, which makes it a constitutional value of the first order (see judgment number 2170-93 of 10:12 hours on May 21, 1993). Consequently, based on the Social Rule-of-Law State, our Political Constitution contemplates a set of prestational rights related to the protection of the family, workers, vulnerable sectors of the population, education, the environment, and assets of the Nation such as cultural heritage. This duty to conform according to the guidelines of the Social Rule-of-Law State is not constrained to the Administration, but extends to the entire national community, as it is a fundamental rule of citizen coexistence in our political system. In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of Law. Specifically concerning constitutional control, the Principle of the Social Rule-of-Law State is useful as a parameter of normative validity, a hermeneutic criterion, and a functional integrating instrument of the legal system.” </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Furthermore, Judgment No. 2003-09880 of 11:10 hours on September 12, 2003, established that:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">\"As an element proper to the Social and Democratic Rule-of-Law State, Social Security stands as a standard thereof, being that it is founded on the principle of social solidarity, and is complemented by the right to equality and the principle of human dignity, as a prestational right that it is. Within our Political Constitution, the social insurance regime, despite being a universal regime and accessible to all inhabitants of the Republic, starts from the fundamental premise for its economic sustenance of tripartite contribution, i.e., State, employer, and workers. Constitutional article 73 establishes that social insurances are created for the benefit of manual and intellectual workers, regulated by the system of forced contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law may determine. As can be observed, the Constitution itself, in the pursuit of establishing a mechanism for financing social security in favor of active and pensioned workers, establishes a tripartite forced contribution system, from which it is concluded that those workers or pensioners who contribute regularly to the regime in accordance with what is established in the Constitution shall have access to social security services, without any additional cost\". </span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Among the manifestations of state intervention is social security, one of the most palpable being the pay-as-you-go pension regime, through which persons who are pensioned or retired, upon meeting the regime's requirements, receive economic benefits when they have had to leave productive activities, whether due to old age or disability. In these cases, the twilight of a worker's productivity cycle has arrived, they cease to receive the respective income for the work performed, and it is when the principle of social solidarity begins, to provide the benefits of the pension, which, if it did not happen, would not allow them to continue fending for themselves - them and their dependents -, and would fall into social and economic risk. In this way, in a pay-as-you-go social security system, a fund is formed with a mandatory contribution from workers, employers, and the State, in accordance with Constitutional Article 73. On this topic, it is important to highlight that when the system was challenged on the grounds that it was a tax obligation, the Constitutional Chamber dismissed such argumentation. Precisely, in Judgment No. 2018-13658 of 9:15 hours on August 22, 2018, which will be partially transcribed, the Chamber reviewed the case law on the legal nature of the quotas and benefits, which it identified as a parafiscal contribution (contribución parafiscal) of delivering those contributions, in development of Article 23, of the Constitutive Law of the Caja Costarricense de Seguridad Social.

The Chamber established that:

"[...] According to the most authoritative doctrine in tax matters, parafiscal contributions (contribuciones parafiscales) are a tax, since they contain the material elements of obligatoriness—the duty to pay them by those who fall within the assumption of the creating norm—of singularity because they affect a determined and unique social or economic group, and of sectoral allocation because what is collected through this mandatory payment is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a power of imperium of the State that imposes pecuniary payments for the fulfillment of social or economic ends. Ergo, they can only be created through a formal Law—tributum sine lege.

Now then, in the case of the worker-employer quotas destined for the support of social security—sickness and maternity insurance (seguro de enfermedad y maternidad) and disability, old-age, and death insurance (seguro de invalidez, vejez y muerte)—our legal system has a singularity. Indeed, it is constitutional numeral 73 that creates the parafiscal contribution by providing a compulsory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies that the law may determine. Immediately thereafter, the constitutional text establishes that the administration and governance of those social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, as relevant here, the constitutional norm imposes the prohibition against transferring or using for purposes different from those that motivated their creation, the funds and reserves of the social insurances. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent Power, with which, from the perspective of this Tribunal, the maxim that there can be no taxation without representation is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of the taxing power is satisfactorily achieved, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle that we must overcome relates to the fixing of the amount of the quota to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social provides that the quotas and benefits shall be determined by the Board of Directors (Junta Directiva), in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The contribution of the workers may never be greater than the contribution of their employers, except in the cases of exception that, to give greater benefits to the former and to obtain a fairer distribution of the burdens of compulsory social insurance, the Regulation may indicate, based on actuarial recommendations. Seen in this light, this Tribunal concludes that the principle of tax legality is not violated, for the elementary reason that through a formal Law, the Board of Directors of the Caja Costarricense de Seguro Social is imposed objective parameters when determining the amount of the quota—the cost of the services it provides and the respective actuarial calculations—whereby the legislator set for the administrative collegial body the objective elements it must observe when fixing the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Contentious Judge. This same logic is followed by the Code of Tax Norms and Procedures in its numeral 5, in relation to fees, since it allows their amount to be varied by way of Regulation so that their purpose is fulfilled in a more suitable manner, with the prior intervention of the body that by law is charged with regulating the rates of Public services.

Recapitulating, since the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on the one hand, and when the legislator sets objective parameters to determine the amount of the parafiscal contribution quota, that principle is also respected.

II.- Neither can it be interpreted that Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social infringes, per se, Article 177 of the Constitution, in the terms set forth by the claimant, since that numeral, far from preventing the Caja Costarricense de Seguro Social from fixing—in the exercise of its competencies, derived from constitutional numeral 73—the quotas paid by employers and workers, imposes, on the contrary, the obligation to create in favor of that institution the sufficient revenues, in order to achieve the universalization of social insurances and to guarantee, fully, the payment of the State's contribution as such and as employer." In this way, as the precedent clearly indicates, the powers of the Board of Directors of the Caja Costarricense de Seguridad Social are to establish compulsory quotas for Employers and Workers, and the State's contribution, with objective parameters, such as the costs of the services and the actuarial studies to maintain the benefits that the Constituent Power granted under its competence.

As part of the basis for Article 9, of session 8856, held on July 28, 2016, in which the Board of Directors of the Caja Costarricense de Seguro Social takes several measures, such as the elimination of the early retirement option, and it was agreed to reform the Regulation of Disability, Old-Age, and Death Insurance (Reglamento del Seguro de Invalidez, Vejez y Muerte), it was indicated—among other things—that:

"[...] 2 There is a significant percentage of pensioners for whom, without the application of any type of early retirement, the calculation of the pension amount—with the application of the formula—results in an amount lower than the minimum pension amount, such that due to such existence of minimum protections, they must be raised to the minimum pension amount. This situation costs the pension fund around 54 billion colones per year.

[...]

5. Even though the Long-Term Actuarial Valuations, prepared by the Actuarial and Economic Directorate, place the financial sustainability of the IVM Regime in time horizons that range between one and two decades—depending on the scenario—there are conjunctural situations and short-term pressures that the Disability, Old-Age, and Death Insurance is facing, and which are largely reflected in the cash flow and in the use of interest for the payment of the year-end bonus. Given that situation, it is advisable to inject new resources through an acceleration in the magnitude of the contribution premium.

[...]

C. That, based on the foregoing, it was recommended to eliminate early retirement with reduction and also so that, in all those cases where the global pension amount generated with the application of the current calculation formula is lower than the minimum pension amount, the State in its subsidiary capacity contributes the difference.

D. That in accordance with what was recommended above, it is in Article 31 of Session No. 8803, held on October 1, 2015, that the Board of Directors ordered—among other aspects—the following:

'... the Board of Directors, as will be set forth below, AGREES:

• 1)Early Retirement: eliminate [...]
• 2)State Subsidy: accept what was proposed regarding the establishment of a State subsidy for the minimum pension, for which purpose the Pension Management is instructed, in coordination with the Legal Directorate and the Actuarial and Economic Directorate, to make the appropriate adjustments to the Regulation of Disability, Old-Age, and Death Insurance.

(...)'." Having said the foregoing, which serves as the reason for the regulatory reform, it is important to highlight that, within a Social State of Law, like ours, there are certain inescapable obligations of the State, which, by the political and legal direction that this concept contains, conditions the other constitutional organs to act in a certain sense within an economic reality, as is well noted in Judgment No. 2018-19511 of 21:45 hours on November 23, 2018, which stated:

"...In this context, a harmonious interpretation of the principle of budget balance (principio de equilibrio presupuestario) and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there inexorably must be a balance between benefit rights and state economic solvency, since the former depend on the material possibilities fostered by the latter, while the purpose of the latter is to strengthen the development of a solidary political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. In other words, the 'ideal' Social State of Law is the 'possible' Social State of Law, against which precisely one acts when the principle of budget balance is violated, since, in the medium term, that puts at serious risk or entirely prevents obtaining the necessary resources to sustain a 'real' Social State of Law, one that the most vulnerable can truly and effectively enjoy. Watching, then, that we do not fall into a failed or paper Constitution, where constitutional benefit rights cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competencies allows.

It must be noted, indeed, that all constitutional principles, values, and precepts must be observed in any circumstances, which the constitutional jurisdiction is permanently responsible for monitoring. Now, in the context of the balancing or optimization exercise that the constitutional judge performs to resolve a collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of what has been expressed: non-observance of the principle of budget balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of that principle and to emphasize its real implementation for the sake of the principle of the Social State of Law. Emphasis is placed on the observation of the State of the Nation Program (Programa del Estado de la Nación): 'This [referring to the structural imbalance in public finances] has put the future of the social welfare state built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient.' Precisely, the hermeneutics of the general principles for resolving the sub examine, such as that of budget balance and that of the Social State of Law, cannot be detached from the parameters of constitutional relevance inferred from the measures consulted and the abundant technical references to the economic situation, which are fundamental elements for ruling out arbitrary or unreasonable action." Now then, it is true that the judgment outlines the obligation of the State to link itself to the economic and social reality, which implies that the State cannot deny the existence of the economic realities that the State is going through, but also the social security systems for all the social sectors to which the constitutional provision is directed. In this sense, when establishing a general jurisprudential theoretical framework for these rights, it is important to recognize that there is a strong mandate, from the Political Constitution, when it establishes the existence of legal mechanisms to demand the payment of premiums for social insurances, as well as the manner to determine them.

B.- On the principle of social solidarity (principio de la solidaridad social) and the Caja Costarricense de Seguro Social. The Chamber had the opportunity to review the constitutionality of the maximum caps granted by the contributory social security system in Costa Rica, on the part of a professional sector that contributes to the regime. Among other grounds for dismissing the action, the principle of social solidarity was cited, which in a Social State of Law acts transversally throughout society.

By Judgment No. 2013-06638 of 16:00 hours on May 15, 2013, this Chamber ruled as follows:

"B.- The principle of social solidarity. The main multiplying agent of wealth distribution in the Social State of Law resides in this principle, which in our country resides especially from the mandates contained in Articles 1, 50, 73, and 74 of the Political Constitution. Through the entire administrative framework (centralized and decentralized) and distribution of the Powers of the State, one must attempt to eradicate the most pressing social inequalities; it implies that state activity has the need to reasonably link itself with the administered person who has greater needs and must satisfy the most urgent demands with the powers of imperium of the State, even to impose itself in very qualified circumstances against the will of the governed, but which allows—the State—to establish mechanisms that make society a more just and stable place. This principle promotes social equity, which consists of the obligation of those who have more to help those who have less. It is inspired, consequently, by an ought-to-be of society or the collectivity, to provide support to those who do not have sufficient means of subsistence or who find themselves in a social and economic risk, and where society steps forward through the State or the mechanisms it creates, to satisfy the need of persons who fall into a social and economic risk: for this reason, it promotes greater justice and equity. As social security is born of human necessity, all of this entails a sacrifice by the better-off sectors in favor of the most dispossessed, which is precisely the spirit of what is regulated in Articles 1, 50, 73, and 74 of the Political Constitution (since they are those who have or had access to education, to better personal and social conditions, and who by reason of such benefits would be expected to have conduct tending to favor those with lesser luck, etc.). Precisely, social security systems promote the fight against extreme poverty for the most disadvantaged; it becomes, then, a system of economic and social distribution that must be recognized as inherently entailing the sacrifice of certain better-advantaged social groups in society, but which greatly contributes to security and social peace. Well stated by Nombre35482: 'An empty stomach is not a good political advisor,' and that must be the principal concern of the State when it exists in the lowest social strata of Costa Rican society." It is important to bring up the case, since the constitutionality of the contribution and the benefit received was questioned, arising from the tripartite compulsory contribution established by Article 73 of the Political Constitution, in which employers, workers, and the State contribute obligatorily to a pension fund, and which redistributes the quotas of those who contribute more to those who have less. While it is not proportional for either extreme (maximum and minimum), it is with the former that a greater sacrifice is evident, justified by the principle of social solidarity in favor of those who contributed less to the system because they belong to the lowest social stratum. In this way, the social security system must seek mechanisms that compensate for the differences from a minimum level to raise benefits to an amount that ensures the survival of all individuals. In the supra-cited judgment, the Chamber is clear in pointing out that:

"One must not lose sight of the fact that it is based on a basic social protection regime, or what is the same, the international obligation is with the establishment and maintenance of a social floor. It is thus how, being a basic coverage system, it encompasses a horizontal dimension of the system that requires minimum levels of protection to achieve or maintain the universality of that protection (including even to sustain an elevation of levels for those who do not have them, according to the principle of social solidarity), but that, without a doubt, progressivity in the protection regimes must be recognized, that is, in their vertical dimension, where these must be in tune with the international guidelines and obligations that our country has accepted before the ILO. From the reports, it is clear that a very sensitive contraction in the regime would occur, due to the dynamics and pressures that the pension fund or reserve must face." In conclusion, the maximum cap and the minimum amount are technically interrelated, in such a way that they need, as referents, the most recent actuarial calculations, so that they allow for financial sustainability and the soundness of the fund. It is clear that they depend on the former to give validity to the latter; and that, as technical criteria of actuarial mathematics, they would be subject to periodic review according to the behavior of the reserve. In the case before us, Report No. DAE-735-17 of October 2, 2017, established:

"It is worth mentioning that although within the Disability, Old-Age, and Death Insurance, solidarity manifests itself in multiple ways, one of the most significant being the risk of death and disability. The existence of a maximum cap allows the pension amount of those who receive less to be reinforced; however, the number of people on the maximum pension is significantly reduced, as they barely represent 1%, so it is not sustainable to think that the contributions of high-income earners—maximum pension—finance the total solidarity for low-income earners." Hence, the need to decree an increase in compulsory contributions is confirmed, and the importance of recognizing the competence of the Board of Directors of the Caja Costarricense de Seguro Social to decree the increase in the compulsory contribution from the State.

Nombre5650.- The prerogatives of the Executive Branch in the preparation of the national budget and the specialization of the Caja Costarricense de Seguro Social in the regime of social insurances. The Executive Branch has, in the formation of the Republic's budget, certain prerogatives that constitutionally authorize it to preserve the financial order of the State, whether in its revenues or expenditures, which are powers that the Minister of Finance claims to oppose executing the agreement of the Board of Directors of the Caja Costarricense de Seguro Social, contained in Article 9, of session No. 8856, as well as to the claims deduced in this unconstitutionality action. The implications of that agreement entail the expenditure of fifty-six billion colones annually from the National Budget, money that would imply greater indebtedness for the Costa Rican State, since a difficult fiscal situation is recognized. Despite its opposition expressed in official letters DM-2293-2015 of December 10, 2015, and DM-0129-2016 of January 26, 2016, and because it considers that there was no endorsement from the Finance portfolio, nor attention to the relevance of a national dialogue to endow the State with new revenues with which it could meet the obligation. In this sense, the report of the Procuraduría General de la República, which serves as an advisor to this Constitutional Chamber, concludes that, despite the indicated historic fiscal problem, the lack of liquidity, the lack of consultation by the Caja; and, furthermore, the absence at that time of the generation of fresh resources by the Legislative Assembly, the Caja Costarricense de Seguro Social has no limit other than the technical criteria for agreeing to a decreed increase.

That is to say, the criterion of the Attorney General's Office (Procuraduría General de la República) is that, despite the claimed prerogatives of the Executive Branch, these cannot be opposed to the administrative and government autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguros Social) in the matter of social insurance, especially when its actions are founded on mathematical-actuarial criteria.

The Chamber agrees with the Attorney General's Office, but in particular, because although the Executive Branch finds in articles 176, 177, and 179 of the Political Constitution the powers of direction over the majority of institutional budgets, including the Branches of the State, the Constituent excepted certain matters from such controls by creating exceptions and legal remedies to substantiate them. Hence, this Chamber has established criteria such as that of constitutionally tied resources, since they are directed by the constituent himself to solve a priority problem of distribution of State resources, such as, for example, the expenses budgeted by the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to give effect to suffrage, the possible issue of the economic and operational independence of the Judicial Branch, and the State's contribution to social insurance, in paragraph 3 of article 177 of the Political Constitution. Said provision states:

“To achieve the universalization of social insurance and fully guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Costa Rican Social Security Fund, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to the insufficiency of said revenues, the State shall assume it, for which the Executive Branch must include in its next Budget proposal the respective item that the aforementioned Institution determines as necessary to cover the totality of the State's quotas” (boldface is not from the original).

Within the transcribed norm, it is clear that the Constituent established the goal of universalization of social insurance, on which the Costa Rican Social Security Fund has had outstanding work, which has allowed it to achieve a high percentage through the administration of social insurance, and in which the Constituent established as a pivot the State's contributions as employer and as State, which undeniably contains the Constituent's mandate that obliges it to assume part of the equation of national solidarity expected of a social State under the rule of law. Note that the norm does not establish a percentage, but rather allows that determinable constitutional obligation to be established at a given moment, to ensure the necessary current and future income, typical of a fund whose objective is always to maintain its sustainability over time and as the coverage of social insurance progresses. This Chamber notes that this contribution is much lower than that which existed at the creation of the Regime, and that it has been thus maintained for twenty-five years, as indicated by the report of the Actuarial Directorate (Dirección Actuarial) of the Fund. The Costa Rican Social Security Fund demonstrates that the State is the one making the smallest contribution percentage compared to that of employers and workers. In this order of ideas, it is worth noting that the jurisprudence of this Chamber has established that it corresponds to the Fund to set the sufficient revenues, calculated in such a way as to cover the Institution's current and future needs. All the institutions party to this action have agreed that these calculations correspond to the Costa Rican Social Security Fund, which the Ministry of Finance (Ministerio de Hacienda) itself acknowledges. It has been clearly stated that it corresponds to the institution of constitutional rank, because it has administrative and government autonomy in the realm of social insurance administration. Thus, it was indicated in Judgment No. 2001-0378 of 14:37 hours on January 16, 2001 (as in other previous ones, No. 1993-3853 of 9:09 hours on August 11, 1993, and No. 1994-1059 of 15:39 hours on February 22, 1994) that:

“IV.- On the violation of the principle of legal reserve. The plaintiff's first argument is that the challenged norm violates the principle of legal reserve, by imposing, through a regulation, a substantial requirement to exercise the right to a pension. The regulation of fundamental rights is reserved to the law, from which it results that only by means of a formal law, emanating from the Legislative Branch and by the procedure provided in the Political Constitution for the issuance of laws, is it possible to regulate, and in any case, restrict fundamental rights, all -of course- to the extent that the nature and regime of these allow it, and within the applicable constitutional limitations. However, the norm questioned here does not contravene the Political Constitution by virtue of the fact that article 73 of the Political Constitution entrusts the administration and government of social insurance to the Costa Rican Social Security Fund, for which reason the Constitution establishes in favor of this autonomous institution a degree of autonomy -administrative and of government- that allows it to regulate, via regulation, matters relating to social insurance. Said constitutional norm is developed in the Constitutive Law of the Costa Rican Social Security Fund, especially in articles 1, 2 and 3, which provide:

Article 1.- The institution created to apply mandatory social insurance shall be called Costa Rican Social Security Fund and, for the purposes of this law and its regulations, CAJA.

The Fund is an autonomous institution to which corresponds the government and administration of social insurance. The funds and reserves of these insurances may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited. Except for matters relating to public employment and salaries, the Fund is not and may not be subject to orders, instructions, circulars, or directives emanating from the Executive Branch or the Budgetary Authority, in matters of government and administration of said insurances, their funds, or reserves.

“Article 2.- Mandatory Social Insurance comprises the risks of illness, maternity, disability, old age, and involuntary unemployment; it also entails participation in the burdens of maternity, family, widowhood, and orphanhood, and the provision of a quota for burial according to the scale set by the Fund, provided that death is not due to the occurrence of a professional risk.” “Article 3.- The coverage of Social Insurance - and entry thereto - is mandatory for all manual and intellectual workers who receive a salary or wage. The amount of the quotas to be paid under this law shall be calculated on the total of the remunerations that under any denomination are paid, on the occasion of or derived from the worker-employer relationship. (…)

The Fund shall determine by regulation the requirements for entry to each protection regime, as well as the benefits and conditions under which these shall be granted.” The transcribed norms confer upon the Costa Rican Social Security Fund the power to administer everything relating to social insurance, which implies determining by regulation the requirements for entry to each protection regime, its benefits and conditions, for which reason the Regulation of Disability, Old Age, and Death issued by the Board of Directors (Junta Directiva), as well as its reforms, have been made in the exercise of this competence, derived from constitutional numeral 73. Consequently, article 9, subsection a) of the Regulation of the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund does not violate the principle of legal reserve.” Now then, for the Chamber, in accordance with the provisions of article 14, subsection f), of the Constitutive Law of the Costa Rican Social Security Fund, it corresponds to the Institution's Board of Directors to issue the regulations for its operation, so that, coupled with the transcribed jurisprudence, is sufficient to determine that, in the case of ensuring the funds that the State must guarantee for the maintenance of the regime, it has no restrictions other than those established by technical criteria. In this sense, it has been the Fund itself that has determined that amount to the State, by reform to article 29 of the Regulation of Disability, Old Age, and Death, and although it may be recognized that the economic situation due to the structural financing problems of the Costa Rican State exists and is real, it must be noted that it has been the will of the Constituent to specify the legal mechanism when those revenues are insufficient for the fund, as well as the manner of determining the economic commitments and the way in which the Executive Branch must resolve it, when it states that “must include in its next Budget proposal the respective item that the aforementioned Institution determines as necessary to cover the totality of the State's quotas.” Finally, this Court, in judgment No. 2021017098 of 23:15 hours on July 31, 2021, recorded:

“2) Jurisprudential Background on the Government Autonomy of the Costa Rican Social Security Fund On repeated occasions, as indicated in judgment No. 2011-14624 of 15:50 hours on October 26, 2011, this Court stated that the Costa Rican Social Security Fund (CCSS) enjoys administrative and government autonomy, in accordance with article 73 of the Political Constitution, and therefore may issue provisions related to its internal regime. The Constitutive Law of the Costa Rican Social Security Fund itself, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, in article 70 establishes the following:

“The Administrative Career of the Costa Rican Social Security Fund is hereby created, to regulate which (sic), the Board of Directors shall establish the conditions regarding the entry of employees to the service of the Institution, guarantees of stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for judging infractions, and other necessary provisions…”.

Furthermore, article 14, subsection f) endows the Board of Directors of the CCSS with the authority to regulate the functioning of the institution, in such a way that it confers the power to issue norms, even to regulate the regime of the officials the institution requires to fulfill the responsibilities assigned to it by the Political Constitution and its Constitutive Law, and this is constitutional, as indicated in said precedent:

“…In that context, the possibility for the Institution to establish by itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, such as the case of the Regulation on Recruitment and Selection of Professionals in Pharmacy, Dentistry, and Social Work, is not unconstitutional. The Costa Rican Social Security Fund can establish the rules for the selection of officials who occupy positions in said institution, but respecting the specific aims in the provision of the public service of the Costa Rican Social Security Fund (articles 73, 191, and 192 of the Political Constitution). By virtue of this, article 21 of the Constitutive Law establishes the following: 'Article 21.- The Staff of the Fund shall be integrated based on proven suitability, and promotions in category shall be granted taking into account the worker's merits primarily and then, seniority in service.' From the foregoing, as well as from the reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in the fact that public officials must be governed by a statutory employment relationship, that is, by norms imposed by the Administration in its capacity as employer, in consideration of the efficient and effective provision of the public services that each administrative instance is called upon to offer. Even though the constituent may have thought of a single statutory system, the truth is that the final wording given to article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting in nineteen forty-nine, makes it valid in our times for diverse statutory relationships to exist in the Administration, in consideration of the functional independence and administrative autonomy that the legal system ensures for several public institutions.” The foregoing is in agreement with the very autonomy granted by the Constituent to certain institutions, in the specific case, that conferred on the Costa Rican Social Security Fund in article 73, defined as government autonomy, which is necessary so that it can fulfill the special tasks assigned and without interference from the Executive Branch.

In judgment No. 2011-15665 of 12:40 hours on November 11, 2011, reiterated in 2017-4797, particularly in relation to the CCSS, the following was indicated:

“…In this case, we are facing a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is grade two, which must be understood to include the powers to formulate plans or set the aims and goals of the entity, to provide itself with internal mechanisms of functional and financial planning through budgets, and the exercise of autonomous regulatory power. Which translates, in the specific case of the administration of the pension regime under the charge of the Costa Rican Social Security Fund -at least- into the power to define by itself, to the exclusion of all legislative power, three fundamental aspects regarding pensions: the amount of the contribution quotas, the number of quotas that workers must pay to access the pension, and the retirement age. Precisely this higher degree of autonomy that the Costa Rican Social Security Fund has compared to the rest of the autonomous institutions is what explains how it has been excluded from the application of laws such as the “Law of Financial Administration of the Republic and Public Budgets”, law No. 8131 of September 18, 2001. See article 1 of said law:

“Article 1.- Scope of application This Law regulates the economic-financial regime of the organs and entities that administer or are custodians of public funds. It shall be applicable to:

• a)The Central Administration, constituted by the Executive Branch and its dependencies.
• b)The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies and auxiliary bodies, without prejudice to the principle of separation of Branches established in the Political Constitution.
• c)The Decentralized Administration and public enterprises of the State.
• d)The state universities, the municipalities, and the Costa Rican Social Security Fund, solely regarding compliance with the principles established in title II of this Law, in matters of responsibilities, and in providing the information required by the Ministry of Finance for its studies. In all other respects, they are exempt from the scope and application of this Law (…)” Which demonstrates that the Costa Rican Social Security Fund is always placed in a special category within autonomous institutions, because unlike these, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, that is, government autonomy. This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS does not escape the law, the latter cannot “modify or alter” the constitutionally granted competence and autonomy of the CCSS, defining aspects that are its exclusive domain. The Costa Rican Social Security Fund, being basically an autonomous institution of constitutional creation, has its constitutionally granted field of competence outside the action of the law. Stated another way, the legislator, in the case of the administration and government of social insurance, has limitations, and must respect what the Constituent established. Just as the legislator would be prohibited from issuing a law stipulating that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS in the administration and government of social insurance. In this regard, see what this Chamber provided through resolution number 2001-010545 of 14:58 hours on October 17, 2001:

“… It is clear that the law cannot interfere in matters of government of the Costa Rican Social Security Fund by virtue of the full autonomy that this institution enjoys…” (Criterion reiterated in resolution number 2001-011592 of 09:01 hours on November 9, 2011).

As an additional argument, it should be highlighted that the norm that defines the functions and aims of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while what relates to Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, upon creating the social security institution, seeks to provide solidary and priority protection to the person by their own condition; evidently it is an institution that assumes the solidary spirit that inspires article fifty and seventy-four of the Constitution. What is intended is for each person to have the guarantee that the supportive State ensures them health, pension, disability benefits, and everything related to social security.

This provision becomes not only an end or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine said constitutional competence.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Later, in judgment no. 2007-18484, reiterated in 2018-6549, this Court referred to the scope of the different types of autonomy, in the following sense:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">A) Scope of the administrative autonomy of autonomous institutions, and their subjection to the law in matters of government</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> (…). </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">The degree of administrative autonomy -minimum and first-degree-, is characteristic of autonomous institutions; of government -second-degree-, characteristic of municipalities and the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) with respect to the administration of social security insurances</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">; and of organization - full or third-degree, characteristic of the State universities. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify and even extinguish it; but since decentralization implies that the entity holds all the powers of the administrative superior, it means that its legal personality encompasses the totality of the administrative powers necessary to achieve its purpose independently. Thus then, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">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 of self-administration, without subjection to any other public entity and without the need for a legal norm that so provides, 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.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> In this way, the central power has several limitations regarding its interference with autonomous institutions, thus </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">it cannot act as the superior of the decentralized entity: it cannot control it by limiting the entity’s activity for reasons of opportunity; and it cannot, either, act as director of the autonomous entity’s management through the imposition of guidelines or basic programs.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> However, as expressed in the same Article 188 of the Constitution, autonomous institutions are subject to the law in matters of government. In accordance with the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the laws, thus then the objectives, purposes, and goals of the entity are given by the legislator” (Emphasis is not from the original).</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">As indicated in the cited jurisprudential text, the CCSS, in addition to enjoying administrative autonomy, also holds political or governmental autonomy. Hence, the Executive Branch has several limitations regarding its interference with the CCSS. It cannot act as its superior, it cannot control it by limiting its activity for reasons of opportunity; and it cannot, either, act as director of that entity’s management through the imposition of guidelines or basic programs. Equally, regarding the autonomy of this institution in particular, the Chamber, in judgment no. 1994-6256, issues a criterion reiterated in judgments 2011-15665 and 2017-4797, which states:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">III.- THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DE SEGURO SOCIAL).-</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), following, basically, the original text of the 1871 Constitution; that is, the institution from the 1871 Constitution, according to the 1943 modifications, was transplanted to the 1949 Constitution. However, for the purposes of the consultation, the participations of Constituent Delegate35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: \"Furthermore, the Fund, sooner or later, would have to assume the risk of unemployment, which will resolve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Fund. The prudent thing is to strengthen it. Hence, the most advisable is to leave things as they are, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">giving the Fund full autonomy to thus make it independent from the Executive Branch\";</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> and on page 36 idem it is added: \"In that sense, the most adequate is to maintain the wording of article 63, which is good at least for the trial period. Everything that signifies limiting the resources of Social Security will undoubtedly be an inexplicable step backward\". When the article was approved, a second paragraph was included that literally said: \"The administration and government of social security insurances shall be in charge of an autonomous institution\", text that was later reformed by Law No. 2737 of 12 May 1961, remaining today as follows: \"The administration and government of social security insurances shall be in charge of an autonomous institution, denominated Costa Rican Social Security Fund (Caja Costarricense de Seguro Social)\". In conclusion, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">the constituent attributed the administration and government of social security insurances to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), as an autonomous institution created by the Political Constitution itself, with the special characteristics that it itself has granted it and sharing the general principles derived from its condition as a decentralized entity</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…Doctrinally, there is consensus in affirming that any form of preventive intervention prior to the issuance of the act by the autonomous entity is prohibited, except for functions of prior control, as a requirement for the validity of those acts (authorizations); the Central Government cannot act as the superior of the decentralized entity: it cannot control it by limiting the entity’s activity for reasons of opportunity; and it cannot, either, act as director of the autonomous entity’s management through the imposition of guidelines or basic programs. All these characteristic notes of decentralized entities, which have their origin in a reinforced law (article 189, subsection 3) of the Political Constitution), are equally applicable, as pertinent, to the autonomous institutions created by the Political Constitution itself, unless the conditions that the latter, in a special and exclusive manner, has given to the entity prevail.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Hence, even regarding the hiring of its personnel, it has that power of self-administration, since the fulfillment of the constitutionally assigned purposes also depends on it. As a sample of the particularities and needs of the service, for example, in judgment 2019-11130 at 10:30 hours on 19 June 2019, this Court stated the following:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“In this regard, this Court verifies that effectively that article states that “for the qualification of credentials and assignment of scores, the Technical Nursing Commission (Comisión Técnica de Enfermería) shall qualify the competitions according to (…) One point shall be given for each year of service or fraction greater than six months, up to a maximum of ten points in areas outside the central plateau (meseta central) (…)”. However, it is not considered that this provision violates the principle of equality and, therefore, becomes unconstitutional, but rather that </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">this decision has a reasonable justification, which consists of incentivizing nursing professionals to accept positions outside the central plateau, with the incentive that in future competitions for positions located in more coveted areas, they will have a better score. Thus, what the regulation seeks is not only the position of best suitability, but rather seeks to incentivize nursing professionals to accept working in remote and little desired places and, in this way, promote the provision of nursing services, necessary for an adequate provision of medical services, in all sectors of the country. This in accordance with the principles of social solidarity.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It is clear, then, that the Constituent granted it such autonomy, allowing it the selection of its personnel under the standards it requires to fulfill its purposes, while respecting the constitutional principles established in articles 191 and 192 of the Constitution. Criterion reiterated by this Chamber in judgments numbers 03065-98, 10545-01, and 12494-11, stating:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“…it is possible for the different establishments of the Fund, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures of their services for their improvement, in order to achieve the best satisfaction of its users and of the general interest, which by its nature could never cease to prevail over particular interests.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The autonomy that the original legislator grants to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) protects it from the intrusion of the Executive and Legislative Branches, as evidenced in Judgment 03065-98 at 18:18 hours on 6 May 1998 (reiterated in 2001-10545), stating:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“…Which shows that the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is, autonomy of government. This means a degree of protection against the interference of the Executive Branch, but also limitations on the intervention of the Legislative Branch. </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Although certainly the CCSS does not escape the law, the latter cannot ‘modify or alter’ the competence and autonomy constitutionally given to the CCSS, defining aspects that are of its exclusive purview.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), for being basically an autonomous institution of constitutional creation, the matter of its competence, constitutionally given, is outside the action of the law. Put another way, the legislator, in the case of the administration and government of social security insurances has limitations, and must respect what the Constituent established. Just as the legislator would be prohibited from issuing a law where it provides that the administration and government of social security insurances no longer corresponds to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), likewise, it cannot issue a law that intrudes into aspects proper to or corresponding to the definition of the CCSS, in the administration and government of social security insurances…As an additional argument, it must be highlighted that the norm that defines the functions and purposes of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), is located in our Magna Carta in the chapter of social rights and guarantees, while the matter referring to Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, upon creating the social security institution, intends to provide solidary and priority protection to the person for their own condition; evidently it is an institution that assumes the solidary spirit that inspires article fifty-seven and seventy-four of the Constitution. What is intended is that each person has the guarantee that the solidary State ensures health, pension, disability benefits, and everything referring to social security. This provision becomes not only an end or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine said constitutional competence.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From the foregoing, it follows that the Costa Rican Social Security Fund (CCSS), by constitutional provision (Art. 73) enjoys administrative and governmental autonomy. This means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, the existence of a special normative framework for its statutory relationship, which attends to and ensures its degree of autonomy, being valid in this case. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); to give itself its own internal organization; the setting of purposes, goals, and types of means to achieve them; the issuance of autonomous service or activity regulations, in accordance with the provisions normally called general policy. Thus then, as an autonomous institution of constitutional creation and with a greater degree of autonomy (administrative and governmental), it is allowed to be protected against interference from the Executive Branch and from limitations when legislating by the Legislative Branch (which cannot modify via law its degree of autonomy). Thus, the Executive Branch cannot act as director or in a hierarchical relationship vis-à-vis this institution, it cannot impose guidelines on it, nor give orders, nor control the timeliness of its activities”.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Thus, no injury to the Law of the Constitution is configured either regarding this extreme, because it was the Constituent Power that determined, in a sovereign and democratic manner, the creation of the parafiscal contribution (contribución parafiscal) for the benefit of the social security regime that the CCSS governs, with which the principles that regulate the exercise of the tax power are fulfilled. Along the same line, tax legality is not injured either, because it is the Constitutive Law (Ley Constitutiva) of the CCSS that imposes on its Board of Directors (Junta Directiva), objective parameters to determine the amount of the quota to be paid by those affiliated with the system; in addition, in that setting, all action must observe and adjust to the general principles of Law referred to here, both the systemic ones such as legal certainty (seguridad jurídica), and the sectorial ones of universality and solidarity with respect to social security, all of which can be reviewed and controlled by the administrative litigation jurisdiction</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Consequently, the constitutional violation alleged by the plaintiff, regarding the parafiscal nature of the insurance quotas (cuotas de aseguramiento) that the Board of Directors (Junta Directiva) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) sets for the different modalities of workers, whether they are salaried or independent, is far from being configured, since according to what has been repeatedly explained, both the power granted to the Board of Directors (Junta Directiva) of the Fund, and the setting itself that it carries out, finds direct support and foundation in the constitutional text itself, and in the Constitutive Law (Ley Constitutiva) of the institution, so that both the principle of legal reservation and that of tax legality are fully complied with.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">XVIII.- By way of conclusion. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">This Chamber has widely recognized the powers of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), derived from Article 73 of the Political Constitution, and that have been granted by the constituent upon providing that said institution would be in charge of administering and governing social security insurances, which necessarily implies that the Fund must have all the adequate mechanisms to carry out that management. Within those powers, there is no doubt that the regulatory power (potestad reglamentaria) is found so that the institution can establish the admission requirements to each protection regime, as well as the benefits and conditions under which they will be granted, but also to adopt the measures that are necessary for the exercise of its functions and its sustainability. In that sense, recall that subsection f) of Article 14 of the Constitutive Law (Ley Constitutiva) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), confers on the Board of Directors (Junta Directiva) the power to issue regulations for the functioning of the institution, while Article 232 of the same Law states that said Board is the competent body to determine the quotas and benefits in accordance with the cost of the services, all of which shall be done based on the actuarial calculations that are necessary for the determination of such items. At this point, for this Chamber, it is undoubted that the power of the Board of Directors (Junta Directiva) of the CCSS to establish the obligation to affiliate independent workers, as well as the amount of quotas and benefits, is given by the Political Constitution itself and obeys its technical specialty, which assumes that every setting must necessarily be made based on actuarial recommendations; this means that the regulatory power (potestad reglamentaria) of the Board of Directors (Junta Directiva) of the CCSS has constitutional justification and must be used as a development of the law and with actuarial technical foundations -see in that sense judgment number 2002-4881-.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">This Chamber has affirmed that said article 23 of the Constitutive Law (Ley Constitutiva) is in accordance with the Political Constitution, so that the powers it confers on the Board of Directors (Junta Directiva) do not imply delegation of the exercise of Legislative Branch functions, but rather find support in the cited Article 73 of the Constitution.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Likewise, the Chamber has recognized that the Board of Directors (Junta Directiva), within the powers it has, can establish that the conditions of some and other workers, the mandatory nature of their affiliation, the characteristics of the contribution they must pay, as well as the mechanisms that are necessary to compel them to pay the sums to be paid, are powers that equally derive from that Article 73 of the Political Constitution, since it includes the powers to administer everything related to social security insurances.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From this perspective, the mandatory inclusion of independent workers within the CCSS regime is not contrary to the Constitution and, in that matter, the legislator has discretion, for it should be recalled that the Constitutive Law (Ley Constitutiva) of the CCSS provides in Article 3, challenged herein, that the Fund shall determine by regulation the admission requirements to each protection regime, as well as the benefits and conditions under which they shall be granted and, as stated, Article 14, subsection f) of that Law, confers on the Board of Directors (Junta Directiva) the power to issue regulations for the functioning of the institution.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">For that reason, if the legislator, in exercise of that discretionary power, determined that anyone who freely exercises a profession or trade must be mandatorily affiliated with the Fund's regime, this does not injure the Political Constitution, and that discretion escapes the control of this Chamber, so that if the plaintiff does not agree with the fact that independent workers are obliged to affiliate with the Fund's regime, this is nothing more than a disagreement with the legislator’s criterion, but not a matter of constitutionality -see judgments numbers 2000-643 and 2008-17304-.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The challenged norms, definitively, establish obligations for those affiliated with the system, for the sake of fulfilling the institutional function of administration and government of social security insurances, as well as regarding the financing of the regime for the benefit of the beneficiaries, so it is improper to consider that they injure the Law of the Constitution in the terms affirmed by the plaintiff when, on the contrary, they establish a series of minimum guarantees and the obligation of independent workers to be part of the system, without this Chamber having found any reason to exclude the insurances of independent workers from the regulatory powers of the CCSS -see judgments numbers 2000-002571 and 2022-23208.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Consequently, the action of unconstitutionality must be dismissed, as ordered, not without first warning -as already done supra-, that the regulatory provisions challenged in this process -Articles 1 and 2 of the Regulation for the Affiliation of Independent Workers of the CCSS (Reglamento para la Afiliación de los Trabajadores Independientes de la CCSS), No. 7877 of 5 August 2004-, are not only repealed as of today, but have also been complemented with the enactment by the Legislative Assembly of new legislation called «Independent Worker Law (Ley del Trabajador Independiente)», number 10363 of 3 May 2023, and the reform to the «Regulation for the contributory insurance of independent workers (Reglamento para el aseguramiento contributivo de los trabajadores independientes)», adopted by the Board of Directors (Junta Directiva) of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), and published in Scope number 212 to the Official Gazette La Gaceta, number 205, of 31 October 2023. </span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:center; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Por tanto</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="width:1.2pt; text-indent:0pt; display:inline-block"> </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The action is declared without merit. Judge Cruz Castro records additional reasons. Judge Rueda Leal records particular reasons…</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">…Particular reasons of Judge Rueda Leal. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In the sub examine, I concur with the dismissal of the action, but for the following reasons. </span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In the first place, with respect to social security and the autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguridad Social) (CCSS), the Chamber, in resolution no. 2021023611 at 17:50 hours on 20 October 2021, ordered: </span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">V.- The Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), its autonomy, and social security.</span></p> In relation to numerals 73 and 74, located in the sole chapter of Title V “Social Rights and Guarantees” of our Magna Carta, constitutional jurisprudence has extensively developed their content and implications regarding the autonomy of the CCSS in the administration and government of social insurance.

Thus, in judgment No. 2001-10545 of 14:58 hours of October 17, 2001, it was ordered:

**“II.- On the merits. The autonomy of the Caja Costarricense de Seguro Social.** –Article 73 of the Political Constitution establishes in its second paragraph: “The Administration and government of social insurance shall be in charge of an autonomous institution, called Caja Costarricense de Seguro Social.” Regarding the scope of what this norm establishes, the Chamber has repeatedly stated that the autonomy of the Caja is not subject to limits in matters of government. On this subject, analyzed in judgment 6256-94 of nine o’clock on October twenty-fifth, nineteen ninety-four, it was expressed:

“III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The National Constituent Assembly, as recorded in Minutes Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, basically following the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the 1943 amendments, to the 1949 Constitution. However, for the purposes of the consultation, the interventions of Constituent Member Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Minutes of the National Constituent Assembly, the following is transcribed: ‘Furthermore, the Caja, sooner or later, would have to assume the risk of unemployment, which will come to solve the serious problem posed by termination of employment. He insisted that it did not seem appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable course is to leave things as they are, giving the Caja full autonomy to thus make it independent from the Executive Branch’; and on page 36 ibidem it is added: ‘In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of the Social Insurance will undoubtedly be an inexplicable step backward.’ When the article was approved, a second paragraph was included that literally stated: ‘The administration and government of social insurance shall be in charge of an autonomous institution,’ text that was later reformed by Law No. 2737 of May 12, 1961, remaining today as follows: ‘The administration and government of social insurance shall be in charge of an autonomous institution, called Caja Costarricense de Seguro Social.’ In conclusion, the constituent attributed the administration and government of social insurance to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has granted it and sharing the general principles derived from its condition as a decentralized entity.

Other judgments of this Chamber in which allusion is made to the subject of the autonomy of the Caja Costarricense de Seguro Social are the following: 0236-94 of 9 hours 57 minutes of January fourteenth; 3403-94 of 15 hours 42 minutes of July 7; 6471-94 of 9 hours and 39 minutes of November 4, all of the year 1994). On a date subsequent to these, the Chamber has pointed out:

“IV.- Article 73 of our Political Constitution establishes the existence of social insurance, which are regulated by the system of forced contribution of the State, employer, and workers, in order to protect the latter against the risks of illness, maternity, disability, old age, and death. The Caja Costarricense de Seguro Social is the autonomous entity in charge of administering this type of insurance, with the autonomy that allows it to have its own initiative for its efforts, as well as to execute its tasks and fulfill its legal obligations, setting goals and the means to fulfill them. It guarantees, in this way, the establishment of social security and its nature, decrees the purpose of social insurance, and regulates the destination of the respective funds. Social security was born to protect the worker and his family, as the human beings they are, and is provided from their conception until their death, seeking health and helping in unforeseen misfortunes such as disability and death, as well as in states of lack of protection due to their very condition such as those of old age, pension, and retirement.” (Judgment 004636-98 of 15 hours 57 minutes of June 30, 1998) “…it is feasible for the different establishments of the Caja, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures of its services for their improvement, in order to achieve the best satisfaction of its users and of the general interest, which by its nature could never cease to prevail over private interests.” (Judgment 03065-98 of 18 hours 18 minutes of May 6, 1998) “…the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution to the Caja is not subject to limits in matters of government, as this court has reiterated in preceding judgments (see for example: 3403-94, 6256-94, 6524-94, among others). The constituent expressly instituted an entity in charge of the administration of social security endowed with maximum autonomy for the performance of its important function; reason for which the reform to constitutional numeral 188 that instituted the administrative direction did not modify its legal regime.” (Judgment 07379-99 of 10 hours and 36 minutes of September 24, 1999) When analyzing what was alleged by the plaintiff, the Chamber considers that –in effect–, the content of Transitory Provision IV of Law 6577 is injurious to the autonomy of government conferred upon the Caja Costarricense de Seguro Social by the second paragraph of Article 73 of the Political Constitution, because when that norm orders the forced closure within a determined period of the retirement service –or even if it had ordered the contrary–, it is evident that the powers attributed by virtue of the autonomy of government to said institution are invaded, with autonomy of government understood as the capacity to carry out its legal purpose without subjection to another entity, to self-direct, self-govern and dictate its own objectives and organize itself in the manner it deems convenient for the fulfillment of the purpose for which it was created.” For its part, vote No. 2002-06384 of 15:27 hours of June 26, 2002, pointed out:

**“VIII.- Subsection b) of Article 2 of the Law of Creation of the Budgetary Authority. Considerations of the Constitutional Chamber.** In relation to autonomous institutions, the Chamber ruled in favor of the power of the Budgetary Authority to formulate directives to decentralized institutions, but interpreted this power restrictively. Based on Article 188 of the Political Constitution, this Court considered in judgment No. 3309-94 that the power of the Budgetary Authority is constitutional as long as:

“… it remain in the field of the design and subsequent execution of general policy directives, but not, of course, to the extent that its application interferes with the concrete execution of those directives. The general character of this function means that the Budgetary Authority cannot, within its competence, give concrete orders or submit for approval the specific acts of execution that are part of the administrative autonomy of those entities.” If in the case of autonomous institutions in general the power must be interpreted restrictively, in the case of the Caja Costarricense de Seguro Social the power is totally unconstitutional. The Caja Costarricense de Seguro Social enjoys, as stated in judgment No. 3403-94, “a degree of autonomy different and superior to that defined in general terms in Article 188.” This greater degree of autonomy derives from Article 73 of the Political Constitution. In judgment No. 6256-94 it was stated:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in constitutional Article 73, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite forced contribution of the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, different and superior to that defined generally in Article 188 ibidem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their purpose. As seen in the preceding recitals, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, ‘with full autonomy to thus make it independent from the Executive Branch.’ By virtue of this full autonomy, any provision that obliges the Caja Costarricense de Seguro Social to comply with directives on the administration of the resources that are subject to its management is unconstitutional. Subsection b) of Article 2 of the Law of Creation of the Budgetary Authority suffers from that defect and, therefore, is declared unconstitutional solely with regard to the Caja Costarricense de Seguro Social.

(…)

**XIII.- On Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social. Considerations of the Constitutional Chamber.** On this point, this Chamber dissents from the thesis of the plaintiff. Although he is correct that constitutionally the Caja is prohibited from allocating funds to other purposes different from those imposed by the Constitution itself, Article 41 does not indicate such a thing. One must differentiate clearly between the norm itself and the application that may have been given to it in specific cases. As such, Article 41 is directed at the investment of reserves; this Court understands it so, and a provision of this nature is not unconstitutional. To interpret otherwise would be to force the Caja to keep resources idle that could otherwise generate resources that strengthen the fund itself. Another aspect is the possibility that the Caja may have used that article to invest funds, supposedly idle, when it remotely fulfills its purposes. If so, the possibility exists to challenge through the legality review channel the concrete actions that exceed the limits established by that same Article 41. The possibility also exists to evaluate the personal responsibility of those who did not adjust their decisions to the norm, because they are obliged to interpret that Article 41 harmoniously with Constitutional Article 73. In summary, Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social is not unconstitutional, as long as it refers to idle funds and not to funds necessary to satisfy the objectives constitutionally set for that institution.” Judgment No. 2003-03483 of 14:05 hours of May 2, 2003, ordered:

“On the social security regime. Article 73 of the Political Constitution, interpreted harmoniously with Article 50 ibidem, enshrines the Right to Social Security. The Chamber has repeatedly pointed out that this right presupposes that public powers will maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, with a mandatory character. The objective scope assumes the principle of generality, as it protects situations of need, not to the extent that they have been foreseen and insured beforehand, but as they effectively occur. Additionally, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection regarding illness, disability, old age, and death. By express constitutional provision, this management must be public, in charge of the State, represented by the Caja Costarricense de Seguro Social, and financing shall respond to the cardinal principle of social solidarity, as it is based on the forced and tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are those of universality, generality, sufficiency of protection, and social solidarity.” Also, it is necessary to transcribe what was decided in judgment No. 201007788 of 14:59 hours of April 28, 2010:

**“III.- On the merits.** (…) To resolve the present action of unconstitutionality, it is necessary to take into consideration the precedents on the **autonomy of the Caja Costarricense de Seguro Social.** By judgment No. 1994-06256 of nine o’clock on October twenty-fifth, nineteen ninety-four, the Chamber establishes the following:

“Although it is not the subject matter of the consultation, for the purposes of the conclusion reached by the Chamber, it is necessary, at least, to point out some general guidelines on what administrative decentralization implies in our constitutional regime. There exist in our legal order three forms of autonomy: a) administrative, which is the legal possibility for an entity to carry out its legal purpose by itself without subjection to another entity, known in doctrine as the capacity for self-administration; b) political, which is the capacity to self-direct politically, to self-govern, for the entity to dictate its own objectives to itself; and, c) organizational, which is the capacity to self-organize, with the exclusion of all legislative power. In the first two cases, autonomy is vis-à-vis the Executive Branch and in the third, also vis-à-vis the Legislative Branch. Organizational autonomy is characteristic of the universities, as deduced from Article 84 of the Political Constitution, and therefore alien to the purposes of this consultation. The other two degrees of autonomy derive from Political Autonomy, whose content shall be specific to the law (founding act) that creates the entity. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even to extinguish it; but since decentralization implies that all the powers of the administrative hierarch correspond to the entity, it means that its personality encompasses the totality of the administrative powers necessary to achieve its purpose independently. Autonomy usually comprises the powers to formulate plans or set the ends and goals of the entity, to provide itself with the internal mechanisms of functional and financial planning through budgets, and finally, the exercise of autonomous regulatory power. These general lines on autonomy are directed at administrative decentralization created by ordinary law.” Furthermore, the Chamber pointed out that:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in constitutional Article 73, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite forced contribution of the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, different and superior to that defined generally in Article 188 ibidem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their purpose. As seen in the preceding recitals, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, ‘with full autonomy to thus make it independent from the Executive Branch.’” The Chamber maintains the same position with judgment No. 2003-02355, in that it establishes that:

“… it is concluded that the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution is not subject to limits in matters of government for the Caja, as this court has reiterated in precedent judgments (see for example: 2001-7605, 6256-94, among others). The Caja is definitively the entity in charge of the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the foregoing, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits inherent to social security via regulation, so that it can define the conditions, benefits, and entry requirements of each protection regime, based on actuarial studies, so as not to bankrupt the system.” The Chamber must consider the question of whether the norm effectively implies a reversal of the decentralization that operates from the Political Constitution, or what amounts to the same thing, an interference with the capacity of the Caja Costarricense de Seguro Social to administer and govern social insurance. The minutes of the National Constituent Assembly justify the formation of autonomous entities with the criterion of specialization of state functions, to organize the State and increase its administrative efficiency; therefore, it is not legitimate for it to depart from that end, and it must therefore give a pro-active response to public interests on subjects that are vital for human beings and socially important. The administrative and government autonomy that the Political Constitution grants to the Caja Costarricense de Seguro Social is circumscribed to social insurance, to what is indicated in paragraph 1 of Article 73 of the Political Constitution, as well as to what is recognized by Law (Article 1). However, institutional autonomy is not an insurmountable limit; according to precedents, legislation can be enacted on other subjects different from the indicated competence, complying, of course, with the guarantee established in Article 190 of the Political Constitution, which establishes a prior hearing for the Institution in case the provisions of a bill affect it, but that is not the subject that must be analyzed in the claim of unconstitutionality.” Likewise, judgment No. 2018013658 of 9:15 hours of August 22, 2018, held:

“**I.- ON ARTICLE 23 OF THE CONSTITUTIVE LAW OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL.** In the case at hand, the principal reproach of the plaintiff is directed against Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, in that it establishes that: ‘The quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The contribution of the workers may never be greater than the contribution of their employers, except for the cases of exception that the Regulation may establish, based on actuarial recommendations, to give greater benefits to the former and to obtain a fairer distribution of the burdens of mandatory social insurance.’ The plaintiff essentially alleges that said numeral infringes Article 121, subsection 13), of the Political Constitution, in that he affirms that the challenged norm confers upon the Caja Costarricense de Seguro Social a tax or levying power in violation of the cited constitutional provision.

The question of parafiscal contributions –in this case, contributions to social security– has provoked no small controversy in the doctrinal and jurisprudential sphere. Regarding the constitutional legal controversy before us, from the perspective of this Chamber, two theses are plausible. The first, which considers that as it is a tax –see in this regard judgment 2006-009568 of this Court– its structural elements –taxable event, rate, calculation base, active and passive subject, etc.– must irremediably be defined by formal Law–; this last consequence which has not been validated by the Constitutional Chamber–. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality would be violated, especially if one takes into account that in the struggle of the English barons to seize the tax power, some find the origin of Parliament and democracy – there is no democracy without Parliament, nor the latter without the Opposition–.

In summary, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court—see, among others, rulings number 1994-003819 and 1998-007393—is the one that considers we are not in the presence of a parafiscal contribution and, consequently, the principle of tax legality should not be applied. “The payment of the fee or contribution, as the case may be, is not a tax, as stated in previous paragraphs, but rather the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the taxpayers themselves …”.

According to the most authoritative doctrine in tax matters, parafiscal contributions are a tax, as they contain the material elements of obligatory nature—the duty to pay them for those who fall under the premise of the creating norm—, of singularity because it affects a determined and unique social or economic group, and of sectoral allocation because what is collected through this obligatory payment is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a power of imperium of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law—tributum sine legge—.

Now, in the case of worker-employer fees destined for the maintenance of social security—sickness and maternity insurance and disability, old age, and death insurance—, our legal system has a singularity. Indeed, it is constitutional numeral 73 that creates the parafiscal contribution by establishing a forced contribution from the State, employers, and workers, in order to protect them (sic) against the cited risks and other contingencies that the law determines. Immediately thereafter, the constitutional text establishes that the administration and governance of those social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, of relevance here, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes different from those that motivated their creation. As can be observed, we are, therefore, before a parafiscal contribution created by the original Constituent Power, whereby, from the perspective of this Court, the maxim that there can be no imposition without representation—no taxation without representation—is fulfilled. In other words, in the case at hand, adherence to the principles governing the exercise of tax power is satisfactorily met, given that a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle we must overcome relates to the setting of the amount of the fee to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social stipulates that the fees and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The contribution of the workers can never be greater than the contribution of their employers, except for the exceptional cases that the Regulations indicate, based on actuarial recommendations, to give greater benefits to the former and to obtain a fairer distribution of the burdens of mandatory social insurance. Viewed in this light, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, objective parameters are imposed on the Board of Directors of the Caja Costarricense de Seguro Social when determining the amount of the fee—the cost of the services it provides and the respective actuarial calculations—, meaning the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Litigation Judge. This same logic is followed by the Tax Code of Norms and Procedures in its numeral 5, in relation to rates, as it allows varying their amount by way of Regulation so that their purpose is fulfilled in a more suitable manner, prior intervention of the body that by law is responsible for regulating the tariffs of Public services.

Recapitulating, since the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on the one hand, and by the legislator setting objective parameters to determine the amount of the fee of the parafiscal contribution, that principle is also respected.

II.- Nor can it be interpreted that Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social infringes, per se, constitutional Article 177, in the terms set forth by the claimant, since such numeral, far from preventing the Caja Costarricense de Seguro Social from setting—in the exercise of its powers, derived from constitutional ordinal 73—the fees paid by employers and workers, imposes, on the contrary, the obligation to create sufficient revenues in favor of that institution, in order to achieve the universalization of social insurances and fully guarantee the payment of the State's contribution as such and as employer. Ergo, the unconstitutionality action filed must be rejected on the merits, regarding the cited ordinal 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, as is hereby done.

In addition, ruling no. 2018019511 of 21:45 hours on November 23, 2018, reads:

“Given the constitutional rank of the CCSS itself, it is necessary to analyze the budgetary norms related to it. The Chamber emphasizes that the Constitution itself establishes—within the budgetary regulations—a specific regime for the CCSS, just as the third paragraph of numeral 177 of the Political Constitution regulates:

‘To achieve the universalization of social insurances and fully guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit arises due to insufficiency of those revenues, the State shall assume it, for which purpose the Executive Branch must include in its next draft Budget the respective item determined as necessary by the cited Institution to cover the totality of the State's fees.’ Likewise, the Constitution provides, in its Article 73, an additional guarantee for the funds and reserves of the social insurances, by providing:

‘(...)

The funds and reserves of the social insurances may not be transferred or used for purposes different from those that motivated their creation. (...)’ The importance of these texts lies in the fact that the Political Constitution is a norm of direct application, as this Court has held on multiple occasions (for example, rulings nos. 2016-017376 of 11:41 hours on November 23, 2016, and 2015-006787 of 15:45 hours on May 12, 2015). That is, the fact that the Constitution is the parameter against which other norms are measured or that its precepts are developed in infra-constitutional norms, does not diminish nor inhibit the full, direct, prevailing, and immediate application of certain constitutional postulates.

With this in mind, the Chamber observes that the aforementioned Article 177 guarantees that the State shall ensure that the CCSS has sufficient revenues for the fulfillment of the assigned constitutional tasks. For this reason, the Executive Branch is compelled by the Fundamental Law itself to budget for that insurance entity sufficient revenues to cover its needs. In the event it does not, the same norm defines the corrective mechanism, as it obliges the Executive Branch to cover in the following period the deficit that may arise. Although such norm omits assigning a specific percentage of the budget to the mentioned entity, unlike the Judicial Branch and public education, the truth is that it does impose an express and determinable constitutional mandate.

This first constitutional safeguard must be read in conjunction with the second transcribed guarantee, precepted in numeral 73. The third paragraph of said norm prevents any fund or reserve of the social insurances from being used for objectives different from the reason for its creation.

Such norms entail, on the one hand, the State's obligation to provide sufficient revenues for the CCSS (Article 177) and, on the other, the impossibility of using the resources of an insurance fund for different purposes (numeral 73). This means that, in the case of insurance with tripartite contributions, such as sickness and maternity (questioned by the consultants), all the resources of said fund are covered by constitutional protection, making their affectation impossible through the proposed fiscal measures.

As was stated, the aforementioned guarantees are of direct and prevailing application with respect to the CCSS. Thus, although the questioned norms make only two exceptions (the resources of the Disability, Old Age, and Death Regime and the Non-Contributory Regime), the truth is that the constitutional impossibility of transferring or using the funds of the sickness and maternity insurance constitutes an exception emanating from our Magna Carta, in defense of the CCSS’s governmental autonomy and the appropriate use of the resources of said insurance.

The direct application of the Political Constitution with respect to the CCSS is not new to the Constitutional Chamber:

‘VI.- THE SPECIFIC CASE.- The Caja Costarricense de Seguro Social finds its guarantee of existence in constitutional Article 73, with the following particularities: a) the system that supports it is that of solidarity, creating a system of forced tripartite contribution from the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and governance of social insurances, a degree of autonomy that is, of course, different and superior to that defined generally in Article 188 idem; c) the funds and reserves of the social insurances may not be transferred or used for purposes different from their mission. As seen in the preceding considerandos, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the Constitution of 1871, "with full autonomy to thus make it independent from the Executive Branch." Now, as stated, among the characteristic notes of autonomous institutions is undoubtedly included budgetary autonomy (see intervention in the National Constituent Assembly of Nombre35481 in considerando II).- The inclusion of the necessary budget items for the State to pay its contributions to the Caja Costarricense de Seguro Social forms part of the ordinary resources created in the same constitutional Article 73, such that it is not possible for the Legislative Assembly to include and approve them in an ordinary or extraordinary budget of the Republic, with the simultaneous definition of the corresponding expenditure, thus substituting the powers granted by the Constitution to the Caja Costarricense de Seguro Social itself, without violating Articles 73 and 188 of the Political Constitution and the principles indicated herein. Being ordinary resources, only the institution, in accordance with its own organization, can exercise constitutional autonomy freely (definition of the reasons of legality with opportunity and discretion) through the entity's budgets, which must be approved and supervised by the Comptroller General of the Republic. That is, it is the Political Constitution itself that has defined which are the own and ordinary financial resources of the Caja Costarricense de Seguro Social, by indicating that they are composed of the forced contributions that must be paid by the State, employers, and workers, funds that are administered and governed by the institution itself. The case is different for extraordinary contributions from the State or third parties in favor of social insurances, which may indeed carry, as they are donations, contributions, or participations (liberalities ultimately), the specific purposes to which those special resources are directed, such as the construction of a hospital, a clinic, or the purchase of specialized equipment. But regarding ordinary resources, the legislator cannot substitute the head of the institution in defining spending priorities, because doing so is part of the essence of exercising the entity's autonomy, according to the characteristics, principles, and notes that have been indicated here. All this leads us to the conclusion that the consulted budget transfers are unconstitutional, for violating Articles 73, 188, and 189 of the Political Constitution.’ (Ruling no. 6256-94 of 9:00 hours on October 25, 1994. The underlining is added).” In the same direction, ruling no. 2020010608 of 14:00 hours on June 10, 2020, notes:

“A.- The jurisprudence on the Social State of Law, the Caja Costarricense de Seguro Social, and benefit rights. This Court has said much about the Social State of Law, especially related to the rights that the human person has regarding the essential services provided by the State, such as those related to the rights to health, to a pension, among others, provided by the Caja Costarricense de Seguro Social. These topics have been addressed with the content of Article 50, Constitutional, which establishes:

‘The State shall strive for the greatest well-being of all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth.’ In this formula, the Constituent Power established the basic general principle of the Social State of Law, which would later be reinforced with other provisions that establish, specifically, the way in which the Costa Rican State materializes this principle transversally among the different social sectors.

In Ruling No. 2005-11132 of 8:49 hours on August 26, 2005, from this Chamber, it was indicated that:

‘… the State shall strive for the greatest well-being of all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth, which, together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in Article 74 ibidem, determines the very essence of the political and social system we have chosen for our country and that defines it as a Social State of Law (see ruling number 1441-92 of fifteen hours forty-five minutes on June two, nineteen ninety-two). In that sense, this Constitutional Court also stated as follows:

‘One of the basic connotations of the Costa Rican State and, in general, of any “social” State of Law, is constituted by the intervention –increasingly frequent– of the governing officials, to provide solutions to social problems. The Political Constitution itself obliges the State to actively participate, not only in the production processes (Article 50), but also in those related to the development of fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantee a dignified and useful existence for society.’ (Ruling No. 5058-98 of fourteen hours twenty minutes on October fourteen, nineteen ninety-three).” Similarly, by Ruling No. 2005-13205 of 15:13 hours on September 27, 2005, from this Chamber, this Chamber held that:

‘III.- On the Social State of Law, Equality, and Human Dignity. The Social State of Law, a fundamental element of our constitutional order, entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations. In this sense, constitutional numeral 74 explicitly establishes the duty to pursue a permanent policy of national solidarity based on the Christian principle of social justice, which makes it a constitutional value of the first order (see ruling number 2170-93 of 10:12 hours on May 21, 1993). Consequently, based on the Social State of Law, our Political Constitution contemplates a set of benefit rights relating to the protection of the family, workers, vulnerable sectors of the population, education, the environment, and goods of the Nation such as cultural heritage. This duty to adhere to the guidelines of the Social State of Law is not constrained to the Administration but extends to the entire national community, as it is a fundamental rule of citizen coexistence in our political system. In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of Law. Specifically concerning constitutional control, the Principle of the Social State of Law is useful as a parameter of normative validity, a hermeneutic criterion, and a functional integrative instrument of the legal system.’ On the other hand, Ruling No. 2003-09880 of 11:10 hours on September 12, 2003, established that:

‘As a characteristic element of the Social and Democratic State of Law, Social Security stands as a standard-bearer thereof, given that it is founded on the principle of social solidarity, and is complemented by the right to equality and the principle of human dignity, as a benefit right that it is. Within our Political Constitution, the social insurance regime, despite being a universal regime accessible to all inhabitants of the Republic, part of the fundamental premise for its economic support is tripartite contribution, that is, State, employer, and workers. Constitutional Article 73 establishes that social insurances are created for the benefit of manual and intellectual workers, regulated by the system of forced contribution from the State, employers, and workers, in order to protect them against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law determines. As can be observed, the Constitution itself, in its effort to establish a financing mechanism for social security in favor of active and retired workers, establishes a system of forced tripartite contribution, from which it is concluded that those workers or pensioners who contribute regularly to the regime in accordance with the provisions of the Constitution shall have access to social security services, without any additional cost.’ Among the manifestations of state intervention is social security, one of the most palpable being the pay-as-you-go pension regime, through which pensioned or retired persons, upon meeting the requirements of the regime, receive economic benefits when they have had to cease productive activities, whether due to old age or disability. In these cases, the twilight of a worker's productivity cycle has occurred, they stop receiving the respective income for the work performed, and it is when the principle of social solidarity begins, to provide the benefits proper to the pension, which, if it did not occur, would not allow them to continue fending for themselves—they and their dependents—and would fall into social and economic risk. Thus, in a pay-as-you-go social security system, a fund is formed with a mandatory contribution from workers, employers, and the State, in accordance with Article 73, Constitutional. On this topic, it is important to highlight that when the system has been challenged on the grounds that it was a tax obligation, the Constitutional Chamber dismissed that argument. Precisely, in Ruling No. 2018-13658 of 9:15 hours on August 22, 2018, which will be partially transcribed, the Chamber reviewed the jurisprudence on the legal nature of the fees and benefits, which it identified as a parafiscal contribution to deliver those contributions, in development of Article 23 of the Constitutive Law of the Caja Costarricense de Seguridad Social.

The Chamber established that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"[...] According to the most authoritative doctrine in tax matters, parafiscal contributions (contribuciones parafiscales) are a tax, because they contain the material elements of obligation -the duty to pay them for those who fall within the assumption of the creating norm-, of singularity because it affects a determined and unique social or economic group, and of sectoral allocation because what is collected through this obligatory payment is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a power of imperium of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law -tributum sine lege-.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Now then, in the case of the employer-worker quotas destined for the support of social security -sickness and maternity insurance and disability, old-age, and death insurance-, our legal system has a singularity. Indeed, constitutional numeral 73 is what creates the parafiscal contribution by providing a compulsory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies that the law determines. Immediately thereafter, the constitutional text establishes that the administration and governance of those social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, of relevance, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes different from those that motivated their creation. As can be observed, we are, therefore, before a parafiscal contribution created by the original Constituent Power, with which, from the perspective of this Tribunal, the maxim that there can be no taxation without representation -no taxation without representation- is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of tax authority is satisfactorily fulfilled, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">A second obstacle we must overcome relates to the setting of the amount of the quota to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social stipulates that the quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The contribution of the workers can never be greater than the contribution of their employers, except in cases of exception that, to give greater benefits to the former, and to obtain a more just distribution of the burdens of compulsory social insurance, the Regulation indicates, based on actuarial recommendations. Seen in this light, this Tribunal concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, objective parameters are imposed upon the Board of Directors of the Caja Costarricense de Seguro Social when determining the amount of the quota -the cost of the services it provides and the respective actuarial calculations-, whereby the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Judge of Administrative Litigation. This same logic is followed by the Tax Code of Standards and Procedures in its numeral 5, in relation to fees, as it allows varying their amount by way of Regulation so that their purpose is fulfilled more suitably, after intervention by the body that by law is responsible for regulating the rates of Public services.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Recapitulating, since the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on one hand, and by the legislator setting objective parameters to determine the amount of the parafiscal contribution quota, this principle is also respected.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">II.-</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> Neither can it be interpreted that Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social infringes, per se, Article 177 of the Constitution, in the terms expressed by the claimant, since such numeral, far from preventing the Caja Costarricense de Seguro Social from setting -in the exercise of its powers, derived from constitutional numeral 73- the quotas paid by employers and workers, imposes, on the contrary, the obligation to create sufficient revenues in favor of that institution, in order to achieve the universalization of social insurances and to guarantee, fully, the payment of the State's contribution as such and as an employer."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Thus, as the precedent clearly indicates, the powers of the Board of Directors of the Caja Costarricense de Seguro Social are to establish mandatory quotas for Employers and Workers, and the State's contribution, with objective parameters, such as the costs of services and actuarial studies to maintain the benefits that the Constituent granted under its competence.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">As part of the basis for Article 9°, of session 8856, held on July 28, 2016, in which the Board of Directors of the Caja Costarricense de Seguro Social takes various measures, such as the elimination of the early retirement option, and it was agreed to reform the Regulation of the Disability, Old-Age, and Death Insurance, it was indicated -among other things- that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"[...] 2 There is a significant percentage of pensioners for whom, without the application of any type of advance, the calculation of the pension amount - </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">with the application of the formula- </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">is lower than the minimum pension amount, and given the existence of such minimum protections, they must be brought up to the minimum pension amount. Such a situation costs the pension fund around 54 billion colones per year.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">[...]</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">5. Even though the Long-Term Actuarial Valuations, prepared by the Actuarial and Economic Directorate, place the financial sustainability of the IVM Regime in time horizons that range between one and two decades -depending on the scenario- there are conjunctural situations and short-term pressures that the Disability, Old-Age, and Death Insurance is facing, and which are greatly reflected in the cash flow and in the use of interest for the payment of the Christmas bonus. Given this situation, it is advisable to inject new resources by accelerating the magnitude of the contribution premium.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">[...]</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">C. That, based on the foregoing, it was recommended to eliminate early retirement with reduction and also so that in all those cases where the global pension amount generated by the application of the current calculation formula is lower than the minimum pension amount, the State, in its subsidiary capacity, contribute the difference.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">D. That in accordance with what was recommended above, it is that in Article 31° of Session No. 8803, held on October 1, 2015, the Board of Directors ordered –among other aspects- the following:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"… the Board of Directors, as will be recorded below, AGREES:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">1) Early Retirement: eliminate […]</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">2) State Subsidy: accept what was proposed regarding the establishment of a State subsidy regarding the minimum pension, for which the Pension Management, in coordination with the Legal Directorate and the Actuarial and Economic Directorate, is instructed to make the appropriate adjustments to the Regulation of the Disability, Old-Age, and Death Insurance.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">(…)".</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Having said the above, which serves as the reason for the reform of the Regulation, it is important to highlight that, within a Social State of Law, such as ours, there exist certain unavoidable obligations of the State, which, due to the political and legal direction that this concept contains, conditions the other constitutional bodies to act in a certain sense within an economic reality, as is well noted in Judgment No. 2018-19511 of 9:45 p.m. on November 23, 2018, which:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“…In this context, a harmonious interpretation of the principle of budget balance and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, a balance must inexorably exist between benefit rights and state economic solvency, since the former depend on the material possibilities brought about by the latter, while the meaning of the latter is to strengthen the development of a supportive political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. In other words, the "ideal" Social State of Law is the "possible" Social State of Law, against which precisely action is taken when the principle of budget balance is breached, since, in the medium term, this seriously risks or entirely prevents obtaining the necessary resources to sustain a "real" Social State of Law, one that the most vulnerable can truly and effectively enjoy. Watching over, therefore, that we do not fall into a failed or paper Constitution, where benefit rights of constitutional rank cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competencies allows.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It must be warned, however, that all constitutional principles, values, and precepts must be observed in any circumstances, which the constitutional jurisdiction is permanently responsible for safeguarding. Now, by reason of the balancing or optimization exercise that the constitutional judge performs to resolve some collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Corollary of what is expressed: the non-observance of the principle of budget balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and to emphasize its real implementation for the sake of the principle of the Social State of Law. The observation of the State of the Nation Program is insisted upon: “This [referring to the structural imbalance in public finances] has put the future of the social welfare state built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient”.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Precisely, the hermeneutics of general principles to resolve the sub examine, such as that of budget balance and that of the Social State of Law, cannot be separated from the parameters of constitutional relevance that follow from the consulted measures and the abundant technical references to the economic situation, which are fundamental elements to rule out arbitrary or unreasonable action."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Now then, it is true that the judgment outlines the obligation of the State to link itself to the economic and social reality, which implies that the State cannot deny the existence of the economic realities that the State is going through, but also the pension systems for all the social sectors to which the constitutional provision is directed. In this sense, by establishing a general jurisprudential theoretical framework for these rights, it is important to recognize that there is a strong mandate, from the Political Constitution, when it establishes the existence of legal mechanisms to demand the payment of premiums for social insurances, in addition to the method for determining them.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">B.- On the principle of social solidarity and the Caja Costarricense de Seguro Social.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The Chamber had the opportunity to review the constitutionality of the maximum caps granted by the contributory social security system in Costa Rica, by a professional sector that contributes to the regime. Among other grounds for dismissing the action, the principle of social solidarity was noted, which in a Social State of Law acts transversally throughout the entire society.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">By Judgment No. 2013-06638 of 4:00 p.m.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">of May 15, 2013, this Chamber ruled as follows:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">B.- The principle of social solidarity. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The main multiplying agent for the distribution of wealth in the Social State of Law lies in this principle, which in our country resides especially from the mandates contained in Articles 1, 50, 73, and 74 of the Political Constitution. Through the entire administrative framework (centralized and decentralized) and the distribution of the Powers of the State, an attempt must be made to eradicate the most pressing social inequalities; it implies that state activity has a need to be linked reasonably with the administered who has greater needs and must satisfy the most urgent demands with the powers of imperium of the State, even to impose itself in very qualified circumstances against the will of the governed, but which allows the State to establish mechanisms that make society a more just and stable place. With this principle, social equity is promoted, which consists of the obligation of those who have more to help those who have less. It is inspired, consequently, in an ought-to-be of society or of the community, to provide support to those who do not have sufficient means of subsistence or who find themselves at social and economic risk, and where society steps forward through the State or the mechanisms it creates, to satisfy the need of people who fall into social and economic risk: therefore, it promotes greater justice and equity. As social security is born from human necessity, all of this entails a sacrifice by the better-off sectors in favor of the most dispossessed, which is precisely the spirit of what is regulated in Articles 1, 50, 73, and 74 of the Political Constitution (since they are those who have or had access to education, to better personal and social conditions, and who, by reason of such benefits, would be expected to conduct themselves in a manner tending to favor those with less luck, etc.). Precisely, social security systems promote the fight against extreme poverty for the most disadvantaged; it becomes, then, a system of economic and social distribution that must be recognized as inherently entailing the sacrifice of certain more advantaged social groups in society, but which contributes greatly to security and social peace.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Well pointed out by Name35482: “An empty stomach is not a good political advisor,” and this must be the main concern of the State when it exists in the lowest social strata of Costa Rican society."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It is important to bring up the case, since the constitutionality of the contribution and the benefit received from the tripartite compulsory contribution established by Article 73 of the Political Constitution was questioned, in which employers, workers, and the State contribute obligatorily to a pension fund, and which redistributes the quotas from those who contribute more to those who have less. Although it is not proportional for either extreme (maximum and minimum), it is with the former that a greater sacrifice is evidenced, justified by the principle of social solidarity in favor of those who contributed less to the system due to belonging to the lowest social stratum. In this way, the social security system must seek mechanisms that compensate for the differences from a minimum to raise the benefits to an amount that ensures the survival of all individuals. In the aforementioned judgment, the Chamber is clear in pointing out that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"One must not lose sight of the fact that it is based on a basic regime of social protection, or what is the same, the international obligation is with the establishment and maintenance of a social floor. Thus, as it is a basic coverage system, it encompasses a horizontal dimension of the system that demands minimum levels of protection to achieve or maintain the universality of that protection (even to support an elevation of levels for those who do not have them, according to the principle of social solidarity), but which, without a doubt, must recognize the progressivity in the protection regimes, that is, in its vertical dimension, where these must be in tune with the international guidelines and obligations that our country has accepted before the ILO. From the reports, it is clear that a very sensitive contraction would occur in the regime, due to the dynamics and pressures that the pension fund or reserve must face."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In conclusion, the maximum cap and the minimum amount are technically interrelated, in such a way that they need, as references, the most recent actuarial calculations, so that they allow financial sustainability and the solidity of the fund. It is clear that the former is necessary to give effect to the latter; and that, as technical criteria of actuarial mathematics, they would be subject to periodic review according to the behavior of the reserve. In the case before us, Report No. DAE-735-17 of October 2, 2017, established:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"It is worth mentioning that although internally within the Disability, Old-Age, and Death Insurance, solidarity manifests itself in multiple forms, one of the most significant being the risk of death and disability. The existence of a maximum cap allows strengthening the pension amount of those who receive less; however, the number of people on the maximum pension is significantly reduced, as they barely represent 1%, so it is not sustainable to think that the contributions of high-income earners -maximum pension- finance the total solidarity for low-income earners."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Hence, the need to decree an increase in mandatory contributions is confirmed, and the importance of recognizing the competence of the Board of Directors of the Caja Costarricense de Seguro Social to decree the increase in the compulsory contribution of the State.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Name5650.- The prerogatives of the Executive Branch in the preparation of the national budget and the specialization of the Caja Costarricense de Seguro Social in the social insurance regime. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The Executive Branch has, in the formation of the budget of the Republic, certain prerogatives that authorize it, constitutionally, to preserve the financial order of the State, be it in its income and expenses, which are powers claimed by the Ministry of Finance to oppose executing the agreement of the Board of Directors of the Caja Costarricense de Seguro Social, contained in Article 9°, of session No. 8856, as well as the claims deduced in this unconstitutionality action. The implications of that agreement entail the expenditure of fifty-six billion colones annually on the National Budget, money that would imply greater indebtedness for the Costa Rican State, since a difficult fiscal situation is acknowledged. Despite its opposition manifested in official letters DM-2293-2015 of December 10, 2015, and DM-0129-2016 of January 26, 2016, and because it considers that there was no endorsement from the Ministry of Finance, nor attention to the relevance of a national dialogue to provide the State with new revenues with which to face the obligation. In this sense, the report of the Office of the Attorney General of the Republic, which constitutes an advisor to this Constitutional Chamber, concludes that, despite the noted historical fiscal problem, the lack of liquidity, the lack of consultation by the Caja; and, additionally, the absence at that time of the generation of fresh resources by the Legislative Assembly, the Caja Costarricense de Seguro Social has no limit other than the technical criteria to agree to a decreed increase.</span></p> That is, the criterion of the Office of the Attorney General of the Republic (Procuraduría General de la República) is that, despite the claimed prerogatives of the Executive Branch, these cannot be opposed to the administrative and governmental autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguros Social) in the matter of social insurance, especially when its actions are based on mathematical-actuarial criteria.

This Chamber agrees with the Office of the Attorney General of the Republic, but in particular, because although the Executive Branch finds in articles 176, 177, and 179 of the Political Constitution the powers of direction over most institutional budgets, including those of the State Branches, the Constituent Power excepted certain matters from such controls by creating exceptions and legal remedies to substantiate them. Hence, this Chamber has established criteria such as that of constitutionally tied resources, since they are directed by the constituent power itself to solve a priority problem of distribution of State resources, such as, for example, the expenses budgeted by the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to give effectiveness to suffrage, the possible issue of the economic and operational independence of the Judicial Branch, and the State's contribution to social insurance, in paragraph 3 of article 177 of the Political Constitution. Said provision states:

“To achieve the universalization of social insurance and fully guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Costa Rican Social Security Fund, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to insufficiency of those revenues, the State shall assume it, for which the Executive Branch must include in its next Budget proposal the respective allocation determined as necessary by the cited Institution to cover the totality of the State's quotas” (boldface is not in the original).

Within the transcribed norm, it is clear that the Constituent Power established the goal of universalization of social insurance, on which the Costa Rican Social Security Fund has had an outstanding labor, which has allowed it to reach a high percentage through the administration of social insurance, and in which the Constituent Power established as a pivot the contributions of the State as employer and as State, which, indisputably, contains the mandate of the Constituent Power that obliges it to assume part of the equation of national solidarity expected from a social State under the Rule of Law. Note that the norm does not establish a percentage, but rather allows that constitutional obligation to be determinable at a given moment, to ensure the necessary current income and that foreseen for the future, characteristic of a fund whose objective is always to maintain its sustainability over time and as the coverage of social insurance progresses. It draws the attention of this Chamber that this contribution is much lower than what existed with the creation of the Regime, and that it has remained so for twenty-five years, as indicated in the report of the Actuarial Directorate of the Fund. The Costa Rican Social Security Fund demonstrates that the State is the one making the lowest contribution percentage compared to that of employers and workers. In this order of ideas, it is worth noting that the jurisprudence of this Chamber has established that it corresponds to the Fund to set the sufficient revenues calculated in such a way as to cover the current and future needs of the Institution. All the institutions party to this action have agreed that these calculations correspond to the Costa Rican Social Security Fund, which the Ministry of Finance itself acknowledges. It has been clearly indicated that this corresponds to the institution of constitutional rank, because it has administrative and governmental autonomy in the order of administration of social insurance. Thus, it was indicated in Judgment No. 2001-0378 of 14:37 hours of January 16, 2001 (as in other previous ones No. 1993-3853 of 9:09 hours of August 11, 1993 and No. 1994-1059 of 15:39 hours of February 22, 1994) that:

"IV.- On the violation of the principle of legal reserve. The plaintiff's first argument is that the challenged norm injures the principle of legal reserve, by imposing, through a regulation, a substantial requirement to exercise the right to a pension. The regulation of fundamental rights is reserved to the law, from which it follows that only through formal law, emanating from the Legislative Power and by the procedure provided in the Political Constitution for the issuance of laws, is it possible to regulate, and in any case, restrict fundamental rights, all -of course- to the extent that the nature and regime of these permit it, and within the applicable constitutional limitations. However, the norm questioned here does not contravene the Political Constitution by virtue of the fact that article 73 of the Political Constitution entrusts the administration and government of social insurance to the Costa Rican Social Security Fund, for which the Constitution establishes in favor of this autonomous institution, a degree of autonomy -administrative and governmental- that allows it to regulate, by way of regulation, matters relating to social insurance. Said constitutional norm is developed in the Constitutive Law of the Costa Rican Social Security Fund, especially in articles 1, 2, and 3, which provide:

Article 1.- The institution created to apply compulsory social insurance shall be called the Costa Rican Social Security Fund and, for the effects of this law and its regulations, CAJA. The Fund is an autonomous institution to which corresponds the government and administration of social insurance. The funds and reserves of these insurances may not be transferred nor used for purposes other than those that motivated their creation. The latter is expressly prohibited. Except for matters relating to public employment and salaries, the Fund is not and may not be subject to orders, instructions, circulars, or directives emanating from the Executive Branch or the Budgetary Authority, in matters of government and administration of said insurances, their funds, or reserves.

"Article 2.- Compulsory Social Insurance comprises the risks of illness, maternity, disability, old age, and involuntary unemployment; in addition, it entails participation in the burdens of maternity, family, widowhood, and orphanhood, and the provision of a quota for burial in accordance with the scale set by the Fund, provided that death is not due to the occurrence of a professional risk".

"Article 3.- The coverage of Social Insurance - and enrollment in it - are compulsory for all manual and intellectual workers who receive a salary or wage. The amount of the quotas that must be paid under this law shall be calculated on the total of the remunerations that under any denomination are paid, by reason of or derived from the labor-employer relationship. (...) The Fund shall determine, by regulation, the requirements for enrollment in each protection regime, as well as the benefits and conditions under which these shall be granted".

The transcribed norms confer upon the Costa Rican Social Security Fund the power to administer everything related to social insurance, which implies determining, by regulation, the requirements for enrollment in each protection regime, its benefits, and conditions, thus the Regulation for Disability, Old Age, and Death issued by the Board of Directors, as well as its reforms, has been in exercise of this competence, derived from constitutional numeral 73. Consequently, article 9, subsection a) of the Regulation of the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund does not violate the principle of legal reserve.” Now then, for this Chamber, in accordance with the provisions of article 14, subsection f) of the Constitutive Law of the Costa Rican Social Security Fund, it corresponds to the Institution's Board of Directors to issue the regulations for its operation, so that, coupled with the transcribed jurisprudence, it is sufficient to determine that, in dealing with the assurance of the funds that the State must guarantee for the maintenance of the regime, it has no more restrictions than those established by technical criteria. In this sense, it has been the Fund itself that has determined that amount to the State, by reform to article 29 of the Regulation for Disability, Old Age, and Death, and although it can be recognized that the economic situation due to the structural financing problems of the Costa Rican State exist and are real, it must be noted that it has been the will of the Constituent Power to specify the legal mechanism when those revenues are insufficient for the fund, as well as the way to determine the economic commitments and the manner in which the Executive Branch must solve it, when it indicates that "it must include in its next Budget proposal the respective allocation determined as necessary by the cited Institution to cover the totality of the State's quotas." Finally, this Court, in judgment no. 2021017098 of 23:15 hours of July 31, 2021, stated:

"2) Jurisprudential Background on the Governmental Autonomy of the Costa Rican Social Security Fund On repeated occasions, as indicated in judgment no. 2011-14624 of 15:50 hours of October 26, 2011, this Court pointed out that the Costa Rican Social Security Fund (CCSS) enjoys administrative and governmental autonomy, in accordance with article 73 of the Political Constitution, and thus may issue provisions related to its internal regime. The Constitutive Law of the Costa Rican Social Security Fund itself, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, establishes in article 70 the following:

“The Administrative Career of the Costa Rican Social Security Fund is hereby created, to regulate which (sic), the Board of Directors shall establish the conditions regarding the entry of employees into the service of the Institution, guarantees of stability, duties and rights of the same, manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for judging infractions, and other necessary provisions…”.

On the other hand, article 14 subsection f) endows the Board of Directors of the CCSS with the attribution of regulating the functioning of the institution, in such a way that it confers upon it the power to dictate norms, including to regulate the regime of the officials that the institution requires for the fulfillment of the responsibilities assigned by the Political Constitution and its Constitutive Law, and this is constitutional, as indicated in said precedent:

“…In that context, the possibility that the Institution establishes by itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, as in the case of the Regulation for Recruitment and Selection of Professionals in Pharmacy, Dentistry, and Social Work, is not unconstitutional. The Costa Rican Social Security Fund can establish the rules for the selection of officials occupying positions in said institution, but respecting the specific purposes in the provision of the public service of the Costa Rican Social Security Fund (articles 73, 191, and 192 of the Political Constitution). By virtue of this, article 21 of the Constitutive Law establishes the following: "Article 21.- The Personnel of the Fund shall be integrated based on proven suitability, and category promotions shall be granted taking into account the merits of the worker in the first place and then, seniority in the service." From the foregoing, as well as from the reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in that public officials must be governed by a statutory labor relationship, that is, by norms imposed by the Administration in its capacity as employer, in attention to the efficient and effective provision of the public services that each administrative instance is called to offer. Even though the constituent power may have thought of a single statutory system, the truth is that the wording finally given to article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting in nineteen forty-nine, makes it valid in our days for there to exist diverse statutory relationships in the Administration, in attention to the functional independence and administrative autonomy that the legal system ensures for several public institutions." The foregoing is consistent with the same autonomy granted by the Constituent Power to certain institutions, for the specific case, that conferred upon the Costa Rican Social Security Fund in article 73, defined as governmental autonomy, which is necessary so that it can fulfill the special assigned tasks without interference from the Executive Branch.

In judgment no. 2011-15665 of 12:40 hours of November 11, 2011, reiterated in 2017-4797, particularly in relation to the C.C.S.S., the following was indicated:

“…In this case, we are before a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is of degree two, which must be understood to include the powers to formulate plans or set the entity's ends and goals, that of establishing internal mechanisms for functional and financial planning through budgets, and the exercise of autonomous regulatory power. This translates, in the specific case of the administration of the pension regime in charge of the Costa Rican Social Security Fund -at least- into the power to define by itself, with the exclusion of all legislative power, three fundamental aspects regarding pensions: the amount of the contribution quotas, the number of quotas that workers must pay to access the pension, and the age for retirement. Precisely this greater degree of autonomy that the Costa Rican Social Security Fund has compared to the rest of the autonomous institutions, is what explains how it has been excluded from the application of laws such as the “Law of the Financial Administration of the Republic and Public Budgets,” law No. 8131 of September 18, 2001. See article 1 of said law:

“Article 1.- Scope of application This Law regulates the economic-financial regime of the organs and entities administering or safekeeping public funds. It shall be applicable to: a) The Central Administration, constituted by the Executive Branch and its dependencies. b) The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies and auxiliary organs, without prejudice to the principle of separation of Powers established in the Political Constitution. c) The Decentralized Administration and the public companies of the State. d) The state universities, the municipalities, and the Costa Rican Social Security Fund, only regarding compliance with the principles established in title II of this Law, in matters of responsibilities, and to provide the information required by the Ministry of Finance for its studies. In all other respects, they are excepted from the scope and application of this Law (…)” Which demonstrates that the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, that is, governmental autonomy. This means a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS does not escape the law, the latter cannot “modify or alter” the competence and autonomy given constitutionally to the CCSS, defining aspects that are its exclusive domain. The Costa Rican Social Security Fund, being basically an autonomous institution of constitutional creation, the matter of its competence, given constitutionally, is outside the action of the law. In other words, the legislator, in the case of the administration and government of social insurance, has limitations, having to respect what the Constituent Power established. Just as it would be forbidden for the legislator to issue a law ordering that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS, in the administration and government of social insurance. In this sense, see what this Chamber ordered through resolution number 2001-010545 of 14:58 hours of October 17, 2001:

“… It is clear that the law cannot interfere in matters of government of the Costa Rican Social Security Fund by virtue of the full autonomy that this institution enjoys…” (Criterion reiterated in resolution number 2001-011592 of 09:01 hours of November 9, 2011).

As an additional argument, it must be highlighted that the norm defining the functions and aims of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while the matter regarding Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, when creating the institution of social security, intends to provide it with solidary and priority protection for the person by their own condition; evidently it is an institution that assumes the solidary spirit that inspires article seventy-four of the Constitution. What is intended is that each person has the guarantee that the solidary State ensures them health, a pension, disability benefits, and everything related to social security.

This provision becomes not only an end or a guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine said constitutional competence."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Later, in ruling No. 2007-18484, reiterated in 2018-6549, this Court addressed the scope of different types of autonomy, in the following sense:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">A) Scope of the administrative autonomy of autonomous institutions, and their subjection to the law in matters of government</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> (…). </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">The degree of administrative autonomy –minimal and of the first degree– is characteristic of autonomous institutions; government autonomy –of the second degree– characteristic of municipalities and the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) regarding the administration of social insurance</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">; and organizational autonomy – full or of the third degree, characteristic of State universities. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even extinguish it; but because decentralization implies that the entity possesses all the powers of the administrative superior, this means that its legal personality encompasses all the administrative powers necessary to achieve its purpose independently. Thus, then, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">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 to self-administer, without being subject to any other public entity and without the need for a legal rule that so orders, to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the duties and ends assigned to it.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> In this way, the central power has several limitations regarding its interference with autonomous institutions, thus </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">it cannot act as the superior of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and it cannot, either, act as director of the autonomous entity's management by imposing guidelines or basic programs.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> However, as expressed in the same Article 188 of the Constitution, autonomous institutions are subject to the law in matters of government. In accordance with the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the laws, thus then the objectives, ends, and goals of the entity are given by the legislator" (Emphasis not in the original).</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">As indicated in the cited jurisprudential text, the CCSS in addition to enjoying administrative autonomy, also holds political or government autonomy (autonomía política o de gobierno). Hence, the Executive Branch has several limitations regarding its interference with the CCSS. It cannot act as its superior, cannot control it by limiting its activity for reasons of opportunity; and it cannot, either, act as director of that entity's management by imposing guidelines or basic programs. Likewise, regarding the autonomy of this particular institution, the Chamber in ruling No. 1994-6256, issued a criterion reiterated in rulings 2011-15665 and 2017-4797, which states:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">III.- THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DE SEGURO SOCIAL).-</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Costa Rican Social Security Fund, basically following the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the 1943 amendments, to the 1949 Constitution. However, for the purposes of the consultation, the interventions of Constituent Member No. 35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: "Furthermore, the Fund, sooner or later, would have to assume the risk of unemployment, which will resolve the serious problem posed by severance. He insisted that it did not seem appropriate to weaken the Fund. The prudent thing is to strengthen it. Hence, the most advisable is to leave things as they are, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">giving the Fund full autonomy to thus make it independent from the Executive Branch";</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> and on the same page 36 it adds: "In that sense, the most appropriate is to maintain the wording of Article 63, which is good at least for the trial period. Everything that signifies limiting the resources of Social Insurance will undoubtedly be an inexplicable setback." When the article was approved, a second paragraph was included that literally stated: "The administration and the government of social insurance shall be in charge of an autonomous institution," text that was later reformed by Law No. 2737 of May 12, 1961, remaining today as follows: "The administration and the government of social insurance shall be in charge of an autonomous institution, called the Costa Rican Social Security Fund." In conclusion, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">the constituent power attributed the administration and government of social insurance to the Costa Rican Social Security Fund, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has granted it and sharing the general principles derived from its condition as a decentralized entity</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…Doctrinally, there is consensus in affirming that any form of preventive intervention prior to the issuance of the act by the autonomous entity is prohibited, except for prior control functions, as a requirement for the validity of those acts (authorizations); the Central Power cannot act as the superior of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and it cannot, either, act as director of the autonomous entity's management by imposing guidelines or basic programs. All these characteristic notes of decentralized entities, which have their origin in a reinforced law (Article 189, subsection 3) of the Political Constitution), are equally applicable, where pertinent, to the autonomous institutions created by the Political Constitution itself, except that the conditions that the latter, in a special and exclusive manner, has given to the entity prevail."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Hence, even regarding the contracting of its personnel, it possesses that power of self-administration (auto-administrarse), because the fulfillment of the constitutionally assigned ends also depends on it. As an example of the particularities and needs of the service, for instance, in ruling 2019-11130 of 10:30 a.m. on June 19, 2019, this Court stated the following:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"In this regard, this Court verifies that indeed that article states that 'for the qualification of credentials and assignment of scores, the Technical Nursing Commission (Comisión Técnica de Enfermería) shall grade the competitions in accordance with (…) One point shall be given for each year of service or fraction greater than six months, up to a maximum of ten points in areas outside the central plateau (meseta central) (…)'. However, it is not considered that this provision violates the principle of equality and, therefore, becomes unconstitutional, but rather that </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">this decision has a reasonable justification, which consists of incentivizing nursing professionals to accept positions outside the central plateau, with the incentive that in future competitions for positions located in more coveted areas, they will have a better score. Thus, what the regulation seeks is not only the position of the best suitability, but it seeks to incentivize nursing professionals to accept working in remote and less desired places and, in this way, promote the provision of nursing services, necessary for an adequate provision of medical services, in all sectors of the country. This is in accordance with the principles of social solidarity.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It is clear, then, that the Constituent Power granted such autonomy, allowing it the selection of its personnel under the structures it requires to fulfill its ends, while respecting the constitutional principles established in Articles 191 and 192 of the Constitution. This criterion was reiterated by this Chamber in rulings numbers 03065-98, 10545-01, and 12494-11, stating:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"…it is feasible for the different establishments of the Fund, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures of its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over particular interests."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The autonomy that the original legislator grants to the Costa Rican Social Security Fund protects it from the intrusion of the Executive Branch and the Legislative Branch, as evidenced in Ruling 03065-98 of 6:18 p.m. on May 6, 1998 (reiterated in 2001-10545), stating:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"…Which demonstrates that the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but it has a greater degree of autonomy, comparable to the degree of autonomy that municipalities enjoy, which is, government autonomy. Which means a degree of protection against the interference of the Executive Branch, but also limitations on the intervention of the Legislative Branch. </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Although certainly the CCSS does not escape the law, the latter cannot 'modify or alter' the competence and autonomy constitutionally given to the CCSS, defining aspects that are its exclusive domain.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The Costa Rican Social Security Fund, because it is basically an autonomous institution of constitutional creation, the subject matter of its competence, given constitutionally, is beyond the action of the law. In other words, the legislator, in the case of the administration and government of social insurance, has limitations, and must respect what the Constituent Power established. Just as the legislator would be forbidden from issuing a law stating that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that intrudes into aspects specific to or corresponding to the definition of the CCSS, in the administration and government of social insurance… As an additional argument, it must be highlighted that the rule defining the functions and ends of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while the matter referring to Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental rule itself, upon creating the institution of social security, intends to provide it with supportive and priority protection to the person for their own condition; evidently it is an institution that assumes the spirit of solidarity that inspires Article seventy-four of the Constitution. What is intended is that every person has the guarantee that the supportive State assures them health, pension, disability benefits, and everything related to social security. This provision becomes not only an end or a guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine said constitutional competence."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From the foregoing, it derives that the Costa Rican Social Security Fund (CCSS), by constitutional provision (Art. 73), enjoys administrative and government autonomy. Which means that, as a functionally decentralized entity (ente descentralizado funcional), it can establish the rules for the selection of its personnel, the existence of a special regulatory framework for its statutory relationship (relación estatutaria) being valid in this case, which addresses and ensures its degree of autonomy. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); give itself its own internal organization; set ends, goals, and types of means to achieve them; issue autonomous regulations of service or activity, in accordance with the provisions normally called general policy. Thus then, as an autonomous institution of constitutional creation and with a greater degree of autonomy (administrative and governmental), it is protected against interference from the Executive Branch and from limitations when the Legislative Branch legislates (which cannot modify via law its degree of autonomy). Thus, the Executive Branch cannot act as director or in a hierarchical relationship with this institution, cannot impose guidelines on it, nor give orders, nor control the timeliness of its activities.".</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In addition, regarding the regulatory power of the CCSS, this Court, in ruling No. 2022012512 of 9:20 a.m. on June 1, 2022, stated:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">"III.- ON THE REGULATORY POWER OF THE COSTA RICAN SOCIAL SECURITY FUND.- </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">On several occasions, this Court has ruled on the exclusive nature of the government power held by the Costa Rican Social Security Fund, in relation to the insurance under its charge. This Chamber has defined the issue in a jurisprudential line that began with ruling No. 1994-1059, of 3:39 p.m. on February 22, 1994, in which it stated:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"[…] the Costa Rican Social Security Fund has a constitutional compe</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">&#xad;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">tence for the 'administration' of social insurance, so that the Reglamento de Invalidez, Vejez y Muerte issued by the Board of Directors (Junta Directiva), as well as its reforms, have been issued in exercise of that competence".</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Likewise, the Court in ruling No. 2001-9734 of 2:23 p.m. on September 26, 2001, indicated:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"III.-</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">ON THE COMPETENCE OF THE COSTA RICAN SOCIAL SECURITY FUND. By virtue of the provisions of Article 73 of the Political Constitution, the Costa Rican Social Security Fund is responsible for 'the administration and the government of social insurance', a competence that is developed in Article 3 of the Constitutive Law (Ley Constitutiva) of the Costa Rican Social Security Fund, number 17 of October twenty-second, nineteen hundred forty-three, so that its Board of Directors has full powers to establish, by regulation, the scope of the benefits specific to social insurance, both regarding the definition of conditions and benefits, as well as the entry requirements for each protection regime. Likewise, Article 23 of the same Law establishes as one of the parameters to consider in this definition, the actuarial studies and calculations, in order to maintain the sustainability of the system. From what has been said, it is clear that the Costa Rican Social Security Fund has full competence to dictate rules such as the challenged ones, insofar as they respond to the constitutional mandate of Article 73, as they refer to an aspect of the organization and administration of social insurance".</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Subsequently, in ruling No. 2355-2003, of 2:48 p.m. on February 19, 2003, the Chamber analyzed the constitutionality of the Reglamento al Seguro de Salud and the Instructivo para el Registro, Control y Pago de Incapacidades, an opportunity in which it was indicated, as relevant:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution, the Fund is not subject to limits in matters of government, as this court has reiterated in previous rulings (see for example: 2001-7605, 6256-94, among others). The Fund is, in short, the entity in charge of the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the foregoing, through Articles 3 and 23 of the Constitutive Law (Ley Constitutiva) of the Costa Rican Social Security Fund, its Board of Directors has full competence to establish the scope of the benefits specific to social security via regulation, so that it can define the conditions, benefits, and entry requirements for each protection regime, supported by actuarial studies, in order not to bankrupt the system".</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In ruling No. 2010-005893, of 2:56 p.m. on March 24, 2010, when analyzing the constitutionality of the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados - in which one of the grievances was, precisely, the infringement of the principle of legal reserve -, the Court specified the following:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">III.- ON THE REGULATORY POWER OF THE COSTA RICAN SOCIAL SECURITY FUND.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> This Chamber has already ruled on the regulatory power of the Costa Rican Social Security Fund to issue autonomous regulations of service and organization, for which its Board of Directors is empowered to issue the rules necessary for the administration and government of social insurance that the Political Constitution itself entrusts to it in Article 73, which is not contrary to the provisions of Article 140, subsection 3) of the Constitution. In this regard, in ruling number 2000-02571 of two hours thirty-eight minutes in the afternoon on March twenty-second, two thousand, this Chamber indicated:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"On the injury to Article 140, subsection 3 of the Political Constitution. Regarding the appellant's argument that the challenged rule exceeds the limits of the regulatory power and that the regulated matter cannot be contained in an autonomous regulation, the Chamber agrees with the Procuraduría General de la República, in the sense that Article 10 of the Reglamento de Seguro Voluntario is not unconstitutional for that reason. The Ley Orgánica of the Costa Rican Social Security Fund provides in its Article 3, paragraph 5 that the Fund shall determine by regulation the entry requirements for each protection regime, as well as the benefits and conditions under which they shall be granted. Article 14, subsection f), confers on the Board of Directors the power to issue regulations for the functioning of the institution, and Article 23 states that the Board of Directors is the competent body to determine the quotas and benefits in accordance with the cost of services, according to actuarial calculations. This Chamber has referred to such powers in vote No. 3403-94 of 3:42 p.m. on June 15, 1994, and in No. 7393-98 of 9:45 a.m. on October 16, 1998, declared that rule 23 of the Constitutive Law of the Fund is in accordance with the Political Constitution, in view that the powers it confers on the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but rather are based on Article 73 of the Constitution. That rule entrusts the government and administration of social insurance to the Fund, and therefore it is competent to issue autonomous regulations such as the voluntary insurance regulation. Consequently, it is not verified that the Regulation in which the challenged provision is contained breaches Article 140, subsection 3) of the Political Constitution."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">So that in this exercise of administration and government of social insurance that the Constitution entrusts to the Costa Rican Social Security Fund (Article 73, paragraph 2 of the Constitution), and in accordance with its Constitutive Law, the Board of Directors of the Fund is empowered to issue executive regulations such as the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, in order to ensure that employer-worker obligations in relation to social insurance are fulfilled and to be able to take the pertinent measures in case of non-compliance or evasion of those rights to compel the offender to fulfill those obligations and make the respective collections. Otherwise, it could not fulfill the constitutional mandate. On this matter, the Chamber has also said:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"…Article 73 of the Political Constitution entrusts the administration and government of social insurance to the Costa Rican Social Security Fund (sic), so the Constitution establishes in favor of this autonomous institution, a degree of autonomy –administrative and governmental– that allows it to regulate, by regulation, matters relating to social insurance. Said constitutional rule is developed in the Constitutive Law (Ley Constitutiva) of the Costa Rican Social Security Fund, especially in Articles 1, 2, and 3, which provide:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Article 1.-</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The institution created to apply mandatory social insurance shall be called Costa Rican Social Security Fund and, for the effects of this law and its regulations, CAJA.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The Fund is an autonomous institution to which corresponds the government and administration of social insurance. The funds and reserves of these insurances may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited (sic).</span></p> Except for matters relating to public employment and salaries, the Caja is not subject to, nor may it be subject to, orders, instructions, circulars, or directives issued by the Executive Branch or the Budgetary Authority, regarding the governance and administration of said insurance programs, their funds, or reserves.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"Article 2.-</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Mandatory Social Insurance covers the risks of illness, maternity, disability, old age, and involuntary unemployment; furthermore, it entails a participation in the burdens of maternity, family, widowhood, and orphanhood and the provision of a burial allowance according to the scale set by the Caja, provided that death is not due to the occurrence of a professional risk."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"Article 3.- Social Insurance coverage - and enrollment in it - are mandatory for all manual and intellectual workers who receive a wage or salary. The amount of the contributions payable under this law shall be calculated on the total remunerations, under whatever name they are paid, arising from or derived from the employer-worker relationship. (...)</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The Caja shall determine, through regulation, the enrollment requirements for each protection regime, as well as the benefits and conditions under which they shall be granted."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The transcribed norms confer upon the Caja Costarricense del Seguro Social the power to administer everything related to social insurance, which entails determining, through regulation, the enrollment requirements for each protection regime, their benefits, and conditions; therefore, the Reglamento de Invalidez, Vejez y Muerte issued by the Board of Directors, as well as its amendments, have been enacted in exercise of this competence, derived from constitutional Article 73. Consequently, Article 9, subsection a) of the Reglamento del Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense del Seguro Social (sic) does not violate the principle of legal reserve (principio de reserva legal)." (Judgment number 2001-00378 at 2:37 p.m. on January 16, 2001)</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">What is stated in the partially transcribed judgment above applies to the objections of constitutionality raised by the appellant regarding the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, which does not violate the provisions of Article 140, subsection 3) of the Political Constitution, nor does it violate, based on what is stated in the cited judgments, the principle of legal reserve, or any other constitutional principle or norm, nor does it imply any excess in the exercise of the regulatory power (potestad reglamentaria) inherent to the Institution. There are numerous rulings in which this Chamber has recognized that regulatory power of the Caja Costarricense de Seguro Social in the specific matter entrusted to it by the Constituent, among them, numbers 3853-93, 1059-94, 3403-94, 7393-98, 9580-01, 9734-01, 10546-01, and Telf2955. More recently, this Chamber, in judgment number 2003-02355 at fourteen hours forty-eight minutes on February nineteenth, two thousand three, stated:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">III.- On the merits.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">The Caja Costarricense de Seguro Social as an autonomous institution responsible for the administration and governance of social insurance. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The plaintiff alleges that Article 34 of the Health Regulation and Chapter Two, point 2.2.1 called "Right to payment of sickness incapacity benefits" of the Instructivo para el Registro, Control y Pago de las Incapacidades de los Empleados de la C.C.S.S. are in violation of the principle of legal reserve in that they condition, via regulation, the insured's right to the benefit on having contributed six monthly installments within the twelve months prior to the incapacity start date, provided the last three are continuous and immediately prior to that date. On the issue of the competence of the Caja Costarricense del Seguro Social to issue provisions with the contested content, in its capacity as an autonomous institution responsible for the administration and governance of social insurance, this Chamber, based on the provisions of constitutional Article 73, indicated through judgment 01-9734 at 14:23 hours on September 26, 2001, that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"III.- ON THE COMPETENCE OF THE CAJA COSTARRICENSE DEL SEGURO SOCIAL. By virtue of the provisions of Article 73 of the Political Constitution, the Caja Costarricense del Seguro Social is responsible for 'the administration and governance of social insurance,' a competence that is developed in Article 3 of the Constitutive Law of the Caja Costarricense del Seguro Social, number 17 of October twenty-second, nineteen forty-three, such that its Board of Directors has full powers to establish, via regulation, the scope of the specific benefits of social insurance, both with regard to defining conditions and benefits, as well as the enrollment requirements for each protection regime. Likewise, Article 23 of the same Law establishes, as one of the parameters to be taken into account in this definition, actuarial studies and calculations, in order to maintain the system's sustainability. From the foregoing, it is clear that the Caja Costarricense del Seguro Social has full competence to issue norms such as those contested, as they respond to the constitutional mandate of Article 73, since they refer to an aspect of the organization and administration of social insurance."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From the transcribed citation, it is concluded that the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution means the Caja is not subject to limits in governance matters, as this court has reiterated in previous judgments (see for example: 2001-7605, 6256-94, among others). The Caja is ultimately the entity responsible for the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the above, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the specific benefits of social security via regulation, such that it can define the conditions, benefits, and enrollment requirements for each protection regime, supported by actuarial studies, so as not to break the system. Consequently, it is appropriate to dismiss the action on the merits with respect to the aforementioned point."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Thus, contrary to what was argued by the plaintiff, the regulatory power exercised by the Caja when its Board of Directors issued the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, as well as the provisions of Article 6 of that regulation, falls within the powers of administration and governance that, in matters of social security, are granted to it in the second paragraph of Article 73 of the Political Constitution and, therefore, is consistent with the Law of the Constitution. This regulatory power is different from that which subsections 3 and 18 grant to the Executive Branch, which refer to regulations for the organization and services of the Administration. But the Executive Branch cannot regulate matters related to the administration and governance of social insurance, a matter in which the Caja has full independence and autonomy granted by the Constitution itself. The regulation in question is nothing but the exercise of those powers, and the determination of the presumed base (base presunta) as an exceptional procedure when, due to certain actions or omissions of the employer or the insured, in the cases provided for in the various subsections of Article 6, the amount of the obligation cannot be precisely established, is a legitimate mechanism that does not violate the Law of the Constitution, particularly the principle of legal reserve; rather, it is aimed at allowing the Caja to fulfill the purpose constitutionally entrusted to it, without it being necessary for this to be established by a law emanating from the Legislative Assembly."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">This Court has endorsed the exercise of the regulatory power by the Caja Costarricense de Seguro Social, with the characteristics indicated in the transcribed judgments, for the case of independent workers. Thus, in judgment No. 2008-017304, at 2:57 p.m. on November 19, 2008, it held:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">VI.- INSURANCE FOR INDEPENDENT WORKERS.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> Contrary to the plaintiff's opinion, this Court has found no reason to exclude insurance for independent workers—and even non-contributory regimes—from the regulatory powers of the CAJA COSTARRICENSE DE SEGURO SOCIAL. On this matter, it ruled in judgment No. 2000-02571, at 14:38 hrs. on March 22, 2000:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"Regarding the appellant's claim that the contested norm exceeds the limits of the regulatory power and that the regulated matter cannot be contained in an independent regulation, the Chamber agrees with the Procuraduría General de la República, in the sense that Article 10 of the Reglamento de Seguro Voluntario is not unconstitutional for that reason. The Organic Law of the Caja Costarricense de Seguro Social provides in its Article 3, paragraph 5, that the Caja shall determine, through regulation, the enrollment requirements for each protection regime, as well as the benefits and conditions under which they shall be granted. Article 14, subsection f), grants the Board of Directors the power to issue regulations for the institution's functioning, and Article 23 indicates that the Board of Directors is competent to determine contributions and benefits in accordance with the cost of services, based on actuarial calculations. This Chamber has referred to such powers in ruling No. 3403-94 at 15:42 hours on June 15, 1994, and in No. 7393-98 at 9:45 hours on October 16, 1998, declared that Article 23 of the Constitutive Law of the Caja is consistent with the Political Constitution, noting that the powers it confers on the Board of Directors do not imply a delegation of the exercise of Legislative Branch functions, but are based on Article 73 of the Constitution. That norm entrusts the governance and administration of social insurance to the Caja, and for that reason it is competent to issue independent regulations such as that for voluntary insurance. Consequently, it is not found that the Regulation containing the contested provision violates Article 140, subsection 3) of the Political Constitution."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">As is apparent from the cited judgment, the point raised by the plaintiff is not new. This Court has already ruled on this matter and there is no reason to change its criterion."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In accordance with the aforementioned precedents, the Caja Costarricense de Seguro Social is empowered to issue the regulations for the insurance programs under its administration, without the exercise of that power implying, per se, any infringement of a constitutional nature. By virtue of this, the Chamber does not find that the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes is unconstitutional, under the argument raised by the plaintiff—regarding the principle of legal reserve—and therefore the action must be dismissed with respect to this point, since the CCSS is the entity responsible for the administration of social security and is endowed with maximum autonomy for that purpose, and therefore has full competence to establish the scope of the specific benefits of social security via regulation, such that it can define the conditions, benefits, and enrollment requirements for each protection regime."</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">With respect to the universalization of social insurance and its mandatory nature, the Chamber, in resolution 2021023611 at 5:50 p.m. on October 20, 2021, held: </span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"For the purposes of the corresponding analysis, Articles 73 and 74 of the Political Constitution are transcribed:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"ARTICLE 73.- Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of mandatory contribution (contribución forzosa) from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The administration and governance of social insurance shall be in charge of an autonomous institution, named Caja Costarricense de Seguro Social.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The funds and reserves of the social insurance programs may not be transferred or used for purposes other than those that motivated their creation.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Insurance against professional risks shall be at the exclusive expense of employers and shall be governed by special provisions.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">(Thus amended by sole article of Law No. 2737 of May 12, 1961).</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">ARTICLE 74.- The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others derived from the Christian principle of social justice and indicated by law; they shall be applicable equally to all factors concurrent to the production process, and regulated in social and labor legislation, in order to pursue a permanent policy of national solidarity."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From the cited text, it is inferred that our Magna Carta configured social insurance as an inalienable benefit for workers in the event of illness, disability, maternity, old age, death, and other contingencies determined by law, whose financing is regulated by the tripartite mandatory contribution system of the State, employers, and workers. Likewise, it is important to note the constitutional mandate to the CCSS for the administration and governance of social insurance (express reference to the institution introduced in 1961), besides the fact that the funds and reserves thereof cannot be transferred or used for purposes other than those that motivated their creation.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Coupled with the above, from the examination of the referenced regulations, as explained below, it is deduced that social insurance was established for the benefit of all</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub"> </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">workers. In this sense, deciphering the "spirit of the law" in a constitutional norm demands a hermeneutical task, which encompasses both the will of the original constituent and that of the derivative one, as well as a systemic analysis of the normative body.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From this perspective, it is firstly useful to bring up the minutes of the 1949 National Constituent Assembly, such that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">"MINUTE No. 125</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">No. 125.- One hundred twenty-fifth minute of the session held by the National Constituent Assembly at fifteen hours on the eighth day of August, nineteen forty-nine, under the Presidency of Dr. Nombre35483, Present the Deputies: Nombre35484 and Nombre35485, Secretaries; Nombre35486, Nombre35487, Nombre29739, Nombre35488, Nombre35489, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35336, Nombre35378, Nombre23243, Nombre35379, Nombre35380, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre35498 and the substitutes: Nombre2656, Nombre8269, Nombre35499, Nombre35500 and Nombre19774.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">(...)</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Article 4.- Discussion continued on the Social Guarantees chapter of the 1871 Constitution.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It was agreed to postpone the debate on Deputy Nombre2145's motion, the discussion of which had been pending from the previous session, due to the proponent's absence.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In relation to Article 63 of the 1871 Constitution, regarding social insurance, motions were presented by the Social Democrat faction, Nombre35501, Nombre35526, and by Messrs. Nombre35382, Nombre18690, Nombre35527, and Nombre35336, which are published in "La Gaceta."</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">They are the following:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"All inhabitants of the Republic have the right to live protected against social and professional risks. For this purpose, the State shall establish, through Autonomous Institutions, a mandatory social security system, which shall be financed by its contributions and those of employers and workers, in the case of social risks, and exclusively by those of employers, in the case of professional risks." Nombre35502 and colleagues.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"Social Insurance is established for the benefit of manual and intellectual workers belonging solely to the economically weak and vulnerable classes of the population. This Insurance shall be regulated by the system of MANDATORY triple contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The administration and governance of Social Insurance shall be in charge of a permanent and autonomous institution, called Caja Costarricense de Seguro Social. The funds or reserves of Social Insurance may not be transferred or used for purposes other than those that motivated their creation, and their management shall be carried out by the Caja in accordance with its constitutive law. Insurance against professional risks shall be at the exclusive expense of employers and shall be governed by special provisions (Law No. 24 of July 2, 1943.)" Nombre35383</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"Social Insurance is established for the benefit of manual and intellectual workers belonging to the economically weak and vulnerable classes of the population. This Insurance shall be regulated by the system of mandatory triple contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The administration and governance of Social Insurance shall be in charge of the State through the Autonomous Institutions that exist for that purpose.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The funds or reserves of Social Insurance may not be transferred or used for purposes other than those of a technical nature determined by their creation, and their management shall be exclusively in charge of those Institutions, in accordance with their constitutive laws." Nombre35384.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">"All inhabitants of the Republic have the right to live protected against social and professional risks.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">For this purpose, the State shall establish a mandatory social insurance system to be regulated by law, with an economic base formed by contributions from the State, employers, and workers, in the case of social risks; and exclusively by those of employers, in the case of professional risks. The State shall protect and encourage the creation and development of private organizations fulfilling the same purpose." Nombre35503.– Nombre35504.– Nombre35505.– Nombre35506.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Licenciado Nombre35528 indicated that the motions presented on Social Insurance differed very little in reality. They essentially all say the same thing, as they accept the social security regime. However, he thought the one presented by them was somewhat broader. It fully embraces Article 63 of the 1871 Constitution, with some variations, which he briefly enumerated. He added that the motions of Messrs. Nombre35529 and Nombre35526 established insurance for manual and intellectual workers, but limited them to the economically weak and vulnerable classes of the population.</span></p> [He] expresses the opinion that the exception is unacceptable because the Social Guarantees must protect all workers, without discrimination of any kind. In that sense, the general principle of social insurance in favor of all manual and intellectual workers must be maintained, just as the text of the 71 [Constitution] indicates. The representative Nombre35526 also warned that the motions differed very little, later going on to refer specifically to his own.

The deputy Nombre35480 stated (…) Secondly, it is well known that the greatest number of members is what guarantees the success of social insurance.

For this reason, he opposes limiting the sphere of action of the Caja. It is proper to adopt the wording of the text of Article 63, but in no way to introduce into it the exception raised by Nombre35501, which limits insurance to the economically weak and vulnerable classes of the population (…).

The deputy Nombre35529 analyzed the various motions presented, one of which—that of the Social Democrat faction—tends to generalize insurance to the entire population, and others—his and that of Mr. Nombre35526—limit insurance to the economically weak and vulnerable classes of the population. (…) He added that his motion corresponded entirely to the text of Article 63, with the exception that it limits insurance to the economically weak classes of the population, who in reality cannot afford a private physician. But first, it is worth asking, for whom is social insurance beneficial? The establishment of social insurance in a country has been due to the desire to favor those groups of the population with limited economic capacity, who cannot pay for medical services as is desirable. Therefore, social insurance must focus on providing aid and protection to those groups. (…) Mr. Nombre35529 concluded by insisting on the need to limit insurance to the economically weak and vulnerable classes of the population.

Deputy Nombre35525 then took the floor to defend the thesis of the motion of fellow member Nombre35529, which limits insurance to the economically weak and vulnerable classes of the population. With that sole limitation, he thinks that the Social Insurance will be able to fulfill its mission well in our country.

The representative Nombre35480 intervened in the debate again. He indicated that his colleagues had referred only to Sickness Insurance—certainly the most important—but they forget other fundamentally important insurances, which sooner or later will be established in Costa Rica, such as those for disability, old age, and death. The problem of involuntary unemployment must also be resolved through adequate insurance. In this way, he believes the problem should not be minimized. He was among the first to recognize the deficiency of the Social Insurance, which is largely due to the lack of essential resources. The insurance was established in Costa Rica prematurely. However, it got underway. But what does five years of existence mean for an institution of this magnitude? They have meant a great effort. Instead of discouraging us, of weakening the institution—he added—we must give it all kinds of support, strengthen it, so that it better fulfills its mission. It is true that the Social Insurance was created for the weak and most disadvantaged classes of the country. The ideal, however, would be to extend it to all the country's inhabitants, an ambitious plan that will not be easily realized in our country. On the other hand, Social Insurance is based on mutuality, that is, on the cooperation of all to achieve the good of the greatest number. In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for a trial period. Anything that means limiting the resources of the Social Insurance will undoubtedly be an inexplicable step backward.

Licentiate Nombre35528 stated that he agreed to definitively approve the text of the 71 Constitution—in accordance with the purposes of Mr. Nombre35480—with some small modifications. He said that the idea that moved them to present the motion regarding social insurance was to give a better, broader wording to Article 63, but not because they considered it deficient or inadequate. He then proceeded to list these variations. (…). The new formula presented by Licentiate Nombre35528 is the following:

"Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple compulsory contribution from the State, the employers, and the workers, in order to protect the latter against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine.

The administration and governance of social insurance shall be in charge of the State by means of the autonomous institutions that the law may determine.

The funds or reserves of social insurance may not be transferred or used for purposes other than those of a technical nature that determined their creation, and their management shall be exclusively in charge of those institutions, in accordance with their constitutive laws.

Insurance against occupational risks shall be exclusively at the expense of the employers." Due to the late hour, it was agreed to postpone the discussion of the previous motion until each one of the Deputies has a copy of it. (…)

MINUTES Nº 126 Nº 126.– One hundred twenty-sixth minutes of the session held by the National Constituent Assembly at fifteen hundred hours on August ninth, nineteen hundred and forty-nine, under the Presidency of Dr. Nombre35483. Present were the Deputies: Nombre35484 and Nombre35507, Secretaries; Nombre35486, Nombre35487, Nombre35508, Nombre35509, Nombre35510, Nombre35480, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35379, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre30798, Nombre4511, Nombre35527, and the substitutes: Nombre35526, Nombre35512, Nombre35513, and Nombre35514 (…)

Article 3º.– The Social Democrat faction presented a new formula, so that Article 63 of the 71 Charter would read as follows:

"Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple compulsory contribution from the State, the employers, and the workers, in order to protect the latter against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine.

The administration and governance of social insurance shall be in charge of a permanent institution, of an autonomous nature, which shall perform its functions with absolute independence from the Executive Branch.

The funds or reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Insurance against occupational risks shall be exclusively at the expense of the employers and shall be governed by special provisions." Licentiate Nombre35528 explained that the motion, save for some variations of simple form, conforms entirely to the text of the 71 [Constitution].

(…)

The Nombre35515 referred to the importance of the article under discussion, which must be studied more before voting on it. He explained that in Costa Rica there currently exist two institutions, with intermingled functions: the Caja Costarricense de Seguro Social and the Instituto Nacional de Seguros. Sickness and maternity insurance—he thinks—must belong to the Caja. The others—disability, old age, death, and unemployment—to the Institute. He then insisted that social insurance has no reason to be general. It must be confined to the economically weak and vulnerable classes of the population, just as the motion of fellow member Nombre35529 proposes.

(…)

The Nombre35501 stated that none of the arguments given had convinced him regarding his motion, which he still considers the most reasonable and just. On the other hand, the Social Democrat motion only modifies the form—but not the substance—of the text of Article 63. He added that the part of his motion that limits social insurance to the economically weak and vulnerable classes of the population, far from harming them, benefits them.

(…)

The debate regarding the Social Democrat motion having concluded, it was put to a vote and was approved.

(…)

MINUTES No. 171 No. 171.- One hundred seventy-first minutes of the session held by the National Constituent Assembly at fifteen hundred hours on October twentieth, nineteen hundred and forty-nine, under the Presidency of Dr. Nombre35516. Present were the Deputies Nombre35484 and Nombre35507, Secretaries; Nombre35487, Nombre35508, Nombre2145, Nombre35488, Nombre35489, Nombre35517, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35518, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre8269, Nombre12068, Nombre35519, Nombre30798, Nombre4511, Nombre35527, and the substitutes: Nombre19774, Nombre35520, Nombre35521, Nombre35522, and Nombre18807.

(…)

Regarding Article 74, Deputy Nombre35492 presented a motion so that paragraph 2 would read as follows: "The administration and governance of social insurance shall be in charge of an autonomous institution." The previous motion was approved.

Deputy Nombre35523 presented a motion to add the word "unemployment" after the word "maternity." The proponent explained that he presented the previous motion at the suggestion of Mr. Nombre35381, who has expressed his desires regarding unemployment insurance that the Caja de Seguro Social must assume.

Deputy Nombre30798 indicated that it will be the law that will establish when the Caja is in a position to assume the risk of unemployment. For that reason, he will not vote for the proposed motion, which was rejected.

Article 74 was approved, with the noted modifications, which shall read as follows:

Article 74.- "Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple compulsory contribution from the State, the employers, and the workers, in order to protect the latter against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine.

The administration and governance of social insurance shall be in charge of an autonomous institution.

The funds or reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Occupational risk insurance shall be exclusively at the expense of the employers and shall be governed by special provisions." (The underlining and result is not original).

In this way, two positions are observed with complete clarity in the transcribed minutes: 1) the intention to establish social insurance for the benefit of the entire working class; 2) to set such insurance only for the benefit of the laboring population in an economically vulnerable condition. Precisely, deputy Nombre35529 himself frankly acknowledged both stances when he made reference to a motion from the Social Democrat faction that "tends to generalize insurance to the entire population," and to other motions proposed by him (together with deputy Nombre35526) that "limit insurance to the economically weak and vulnerable classes of the population." Now, after the corresponding discussion, the position that prevailed was that of establishing social insurance for the benefit of all workers, so that, for logical reasons, the constitutional interpretation must start from the arguments of the constituents who promoted that thesis.

In the first place, deputy Nombre35528 affirmed that the social guarantees must protect all workers without any discrimination. Furthermore, he pointed out that the general principle of social insurance in favor of all workers must be maintained.

On the other hand, although deputy Nombre35480 mentioned that social insurance was created for the weak and most disadvantaged classes of the country, he also noted that the ideal was to extend it to all the country's inhabitants. He added that social insurance was based on mutuality; that is, on the cooperation of all to achieve the good of the greatest number.

In view of the foregoing, there is no doubt that the spirit of section 73 of the Political Constitution extends to all working persons and, even further, to all the country's inhabitants, which aligns with the principle of the universalization of social insurance.

Along that same path, in 1961, the derived constituent power reformed section 177 of our Fundamental Law and expressly introduced the universalization of social insurance, in the following terms:

"ARTICLE 177.

(…).

To achieve the universalization of social insurance and to fully guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit were to occur due to the insufficiency of those revenues, the State shall assume it, for which purpose the Executive Branch must include in its next Budget proposal the respective item determined as necessary by the cited Institution to cover the totality of the State's quotas.

(…)

Article 177 (third paragraph) - Transitional.- The Caja Costarricense del Seguro Social must carry out the universalization of the various insurances placed under its charge, including family protection in the sickness and maternity regime, within a period of no more than ten years, counted from the promulgation of this constitutional reform.

(As amended by the sole article of Law N 2738 of May 12, 1961) It is important to highlight that, prior to the constitutional reform that formally included the obligation to universalize the social insurance placed under the charge of the CCSS, the constitutive law of that institution had already imposed on its board of directors the mandate to set the date for the entry into force of the "social insurance of independent workers and the conditions of this insurance" (article 3 of the Constitutive Law of the CCSS of October 22, 1943). That is, the social insurance of independent workers unfailingly formed part of such universalization and, consequently, its implementation in the country has constitutional grounding.

Within this context, it is not superfluous to reiterate that, by provision of constitutional section 73, the administration and governance of social insurance is in charge of the CCSS, and that the funds and reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Likewise, as mentioned supra, through the constitutional reforms set forth in Laws No. 2737 and 2738 of May 12, 1961, explicit reference to the CCSS was introduced in Article 73 of the Magna Carta (as the entity responsible for the administration and governance of social insurance), and, in constitutional provision 177, that institution was expressly assigned the universalization of the social insurance under its charge. The foregoing undoubtedly includes the social insurance of independent workers, since they have been under the charge of the CCSS since 1943.

Consequently, the fundamental right to social security encompasses **all persons (salaried and independent workers)** who engage in any type of activity in the country and are governed by the national legal system, since they must not only contribute in a spirit of solidarity to the sustainability of social insurance, but correlatively are covered by the protection established at the constitutional level.

In that sense, it is worth reiterating that this Chamber, in judgment No. 2003-03483 of 2:05 p.m. on May 2, 2003, recognized that the right to social security incorporates the principle of universality, as it extends to all citizens on a mandatory basis:

“Regarding the social security system. Article 73 of the Political Constitution, interpreted harmoniously with Article 50 thereof, enshrines the Right to Social Security. This Chamber has repeatedly indicated that this right presupposes that public authorities will maintain a public social security system for all citizens at the highest level, in such a way as to guarantee assistance and provide sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, on a mandatory basis. The objective scope assumes the principle of generality, in that it protects situations of need, not to the extent that they have been foreseen and insured previously, but insofar as they effectively occur. Furthermore, it incorporates the principles of sufficient protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management must be public, under the responsibility of the State, represented by the Caja Costarricense de Seguro Social, and financing shall respond to the cardinal principle of social solidarity, as it is based on the mandatory tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are those of universality, generality, sufficient protection, and social solidarity.” (Emphasis not original).

Thus, it is possible to conclude that both the aforementioned norms and the jurisprudence of this Chamber have recognized the constitutional protection of social insurance for all working persons. Precisely, the universalization of social insurance is what pervasively and extensively permeates the social insurance under the charge of the CCSS and, therefore, they enjoy constitutional protection.” In addition, in judgment No. 2011-10893 of 2:33 p.m. on August 17, 2011, it was held:

“**IV.- ON THE OBLIGATORY AFFILIATION OF INDEPENDENT WORKERS.** Even (sic) though the action is inadmissible, as analyzed in the preceding considerando, it is worth mentioning that on repeated occasions, this Chamber has pronounced on the issue of the mandatory affiliation of independent workers to the social security system, opportunities in which it has considered that it is not contrary to the Law of the Constitution, based on the following considerations. In the first place, the Caja Costarricense de Seguro Social is an autonomous institution constitutionally created for the administration of insurance, and is therefore endowed with political autonomy for the performance of that function. Likewise, Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social provide that the Board of Directors of the Caja has full competence to establish, via regulation, the scope of the benefits inherent to social security, so that it can define the conditions, benefits, and entry requirements of each of the systems. Secondly, the regulations contained in Articles 63, 73, and 74 of the Political Constitution, in relation to social security, constitute minimums and not maximums, so that the legislator, in the exercise of its discretionary powers, may develop those precepts and even extend them, in order to make them applicable to other sectors of the population, and therefore it is not up to this Tribunal to exercise control over such discretion; only in those cases in which that power is exceeded to the direct detriment of the fundamental rights of persons may this Chamber validly hear and pronounce on the matter. However, this is not the case, since contrary to what the petitioner asserts, Article 73 of the Political Constitution creates social insurance under the charge of the Caja Costarricense de Seguro Social for the benefit of workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law may determine. For its part, Article 74 of the Constitution contains the principles of social justice and social solidarity. The former is understood as the authorization for the Law to intervene in social relations in order to correct and compensate for inequalities among persons that are contrary to their dignity, so as to ensure the minimum conditions required for a human being to live. The second principle, that of social solidarity, consists of the duty of communities to assist members of the group in the face of contingencies that place them in a more vulnerable position, such as old age, illness, poverty, and disabilities. For their part, Articles 22, 23, 24, and 25 of the Universal Declaration of Human Rights, Articles 11, 16, and 35 of the American Declaration of the Rights and Duties of Man, and Articles 9 and 12(d) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, recognize the right of every person to social security that protects them against the consequences of old age and illness, as well as other conditions that prevent them from obtaining the means to lead a dignified and decent life. In this way, and based on the harmonious interpretation of all these constitutional and international precepts, the entire social security system is integrated. Moreover, although initially social security protected only salaried workers who contributed to the system, the fact is that this caused economic helplessness for the rest of the population, and therefore, following the promulgation of the Political Constitution of 1949 and the progressive evolution of fundamental rights in this field, the principle of universality of insurance emerged, which seeks to incorporate the entire population within the coverage of insurance, as the cornerstone of any social democratic state governed by the rule of law and as an instrument for the development of persons and society. Thus, the social security system is conceived as a set of norms, principles, policies, and instruments designed to protect and grant benefits to persons at the moment when states of vulnerability arise that prevent them from satisfying their basic needs and those of their dependents. It is thus that, in our country, different pension systems arise whose provisions, requirements, and resources differ in consideration of those special conditions according to the recipient in question. For all of the foregoing, this Tribunal considers that the obligatory inclusion of independent workers – including those practicing a liberal profession – within the system of the Caja Costarricense de Seguro Social is not contrary to the Constitution. Now, the fact that the petitioner works both as a salaried worker and as an independent worker, and contributes in both capacities, does not imply double taxation, since these are different labors that the legislator, in the exercise of its discretion, shall determine as insurable activities. (See in the same sense judgments Nos. 643-2000, 2571-2000, 16404-2005, 1591-2006, 5743-2006, and 14460-2006).” Based on the foregoing, the CCSS, as the institution responsible for the governance and administration of social insurance, has the power to regulate the mandatory insurance of independent workers and the contributions they must pay. In that sense, it has sufficient autonomy to define the scope of the benefits inherent to social security, such as conditions, benefits, and entry requirements for each system. Precisely, the challenged norms allow the Board of Directors of the CCSS to set the conditions (coverages, contributions, and requirements) applicable to independent workers, which prima facie does not exceed the regulatory power granted to that institution. Furthermore, provision 23 of the Constitutive Law of the CCSS grants that collegiate body the competence to determine contributions and benefits, in relation to the contributions and charges of social insurance. Consequently, the principle of legislative reserve is not considered violated in the terms intended. Likewise, as noted by the Procuraduría General de la República, the regulatory competence derives from the autonomy of the CCSS, which is recognized in provision 73 of our Fundamental Law.

In relation to the foregoing, social security contributions constitute parafiscal contributions of constitutional origin (canon 73 of the Magna Carta), whose elements must be established by the Board of Directors of the CCSS (precept 23 of its constitutive law). That is, based on the autonomy of the institution, the legislator attributed to that body the power to determine contributions and benefits, which entails defining the elements necessary for their calculation and regulation. Consequently, the alleged violation of Articles 9 and 121, subsection 12, of the Magna Carta is not substantiated.

Regarding freedom of enterprise and the right to work (provisions 46 and 56 of the Political Constitution, respectively), I do not observe any violation susceptible of being declared, given that what is involved is the regulation of the economic activities of persons by the CCSS (with due legal and constitutional support). In that sense, as stated by the PGR, provision 3 of the Constitutive Law of the CCSS itself expressly contemplates independent workers as obligated parties. Now, canon 74 of the same law provides that “persons who perform, totally or partially, independent or non-salaried activities must be up to date in the payment of their obligations with the Caja Costarricense de Seguro Social (CCSS), as well as with other social contributions that this Institution collects in accordance with the law,” which is not openly contrary to the concept developed in the challenged precept 1 of the regulation. Rather, a legal definition is observed that encompasses persons who perform independent or non-salaried activities, such that, for the purposes of the constitutional review that may be conducted in this venue, it is not absolutely essential that there exist some concept of “independent worker” in the terms intended. Ergo, I do not perceive any omission susceptible of being declared in the terms raised, since both the work and the business activities carried out by persons are subject to regulation, by virtue of the aforementioned powers recognized to the CCSS ut supra.

Regarding the violation of the principles of proportionality and reasonableness, as well as the alleged violation of Article 28 of the Political Constitution, I do not observe any development or foundation, and therefore, prima facie, they are not amenable to analysis.

Furthermore, concerning the alleged violation of the “principle of unity of social security,” I do not observe any development that would allow it to be considered as such and integrated as a parameter of constitutionality; rather, what is alleged is that, in consideration of the principle of equality, similar benefits should be provided to persons protected by the same system, which, it is mentioned, is not fulfilled because independent workers are charged more for the same benefits. However, although the challenged norms contain provisions for setting the contributions of independent workers, it is no less true that the claimant did not specify the extracts challenged, nor did they establish (or develop) elements of comparison with respect to the parameters and conditions established for salaried workers. Indeed, the arguments were not even individualized in relation to the challenged legal norm and the questioned regulatory provisions. The foregoing prevents an analysis of whether this is a problem of constitutionality, or rather, of the application of the norms (an aspect that would not be susceptible of being declared in this action venue). Now, independent workers, like salaried workers, have the duty to contribute to the system (in consideration of the principles of universality and solidarity), which grants them benefits without limiting coverage to their particular condition, the amounts contributed, or the type of worker.

Neither do I verify any violation of the principle of prohibition of arbitrariness. It should be noted that the establishment of a discretionary power for the Board of Directors of the CCSS to set more onerous contributions for independent workers compared to those for salaried workers is challenged; however, the normative parameters that regulate the latter are not set forth. Rather, what is challenged is that the Board of Directors has powers to establish a more onerous tax regime for independent workers; however, in addition to what was pointed out ut supra, arguments were also not individualized with respect to the questioned articles. In any event, this Chamber has recognized the power of the legislator to extend the scope of social security to independent workers (with the consequent regulation by the institution, always within the framework established in the Magna Carta and constitutional jurisprudence); however, no clear arguments of constitutional relevance demonstrating any violation were developed. Ergo, prima facie I dismiss this argument.

Finally, there is no development whatsoever regarding the alleged violation of the principle of legal certainty. In this regard, the claimant merely transcribes an excerpt from a vote and states that the norms do not establish “the taxpayer, the taxable event, the tax base, or the rate of the parafiscal levy they create to the detriment of the so-called ‘independent worker’.” Precisely, the relationship between that principle and the failure to establish such specific aspects is not specified. It should be noted that it is only justified that the foregoing is established by “the fundamental principles of Tax Law”…

**…Additional Reasons of Magistrate Cruz Castro**.- **The principle of social solidarity and, in any case, the parafiscality created by the Constituent** In this acción de inconstitucionalidad, various regulations related to the payment of social insurance contributions by independent workers were challenged. In their arguments, they start from the tax nature of social security contributions and, based on that, challenge that such norms do not meet the requirements that taxes must meet, thereby creating a disguised income tax. Arguing the violation of the principle of legal reserve; Articles 46 and 56 of the Constitution; 9 and 121.13 of the Constitution; 28 of the Constitution; the principle of unity of social security; the principle of prohibition of arbitrariness; and the principle of legal certainty.

The reasons this Chamber gives for dismissing this action refer to: the degree of autonomy of the CCSS that allows it to issue regulations to govern the scope of the benefits inherent to social insurance; the constitutionality of mandatory affiliation to the CCSS based on Article 73 of the Constitution; the constitutionality of the compulsory affiliation of independent workers; no unreasonable differentiation between salaried and independent workers is configured, since both are constituted as affiliates to the system and receive equal benefits by reason of their condition, regardless of the amount they contribute or the subscription status in which they find themselves; the parafiscal nature of social security contributions, by constitutional provision, since it was the Constituent Power that determined, in a sovereign and democratic manner, the creation of the parafiscal contribution for the benefit of the social security regime administered by the CCSS, thereby fulfilling the principles that regulate the exercise of tax authority; and furthermore, the additional regulations adopted legally and administratively consolidate the constitutional conformity of the authority of the Board of Directors of the Caja Costarricense de Seguro Social to determine the contributions that must be covered by the different sectors of insured working persons, without this in any way implying an impact on the principles of legal reserve, tax legality, legal certainty, universality and solidarity of social security, nor on Articles 46 and 56 of the Political Constitution.

In addition to all of the above, I have considered adding reasons, referring to two aspects: the parafiscal contribution and the constitutional principle of solidarity.

I have considered in previous cases that the employer-worker contributions destined for the maintenance of social security –sickness and maternity insurance and disability, old-age, and death insurance– are not a tax in the strict sense (see different reasons in Voto n° 2018-013658), since the social security regime protects and benefits the contributors themselves, and is nourished by the mandatory contributions established by law. Thus, for its very existence, the contribution is an essential obligation, since its purpose is the strengthening of the fund that sustains the regime. The ratio legis of the norm, referring to the mandatory nature of the contribution to the social security regime fund, is adequate to the principle of social justice that our Constitution establishes. Therefore, since it does not constitute a tax, in the technical legal sense, the fixing of employer and worker contributions by the Caja Costarricense de Seguro Social cannot be subjected to the arguments and allegations as if it were one. That said, I agree with the current position that, in any case, if considered a parafiscal contribution, it was created by the Constituent Power. As stated in the vote, it is Constitutional Article 73 that creates the parafiscal contribution by establishing a compulsory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies determined by law. Immediately thereafter, the constitutional text establishes that the administration and governance of these social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, as relevant here, the constitutional norm imposes a prohibition on transferring or using the funds and reserves of the social insurances for purposes other than those that motivated their creation. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent Power, with which the maxim that there can be no taxation without representation is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of tax authority is satisfactorily fulfilled, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, as is the exercise of constituent power, sovereignly and democratically determined to create the parafiscal contribution.

On the other hand, in this case, under the constitutional principle of solidarity, which applies to social security, it must be understood that the entire population, to the extent of their possibilities, must contribute economically to the financing of the system. No one should be excluded, nor would any regulation be unconstitutional that rightly seeks to establish a universal obligation to contribute to social security. This vision is reinforced by the phrase of Article 73 of the Constitution, when it indicates that it is a compulsory contribution, therefore, it does not admit exemptions.

It is appropriate to recall what this Chamber has indicated regarding the progressivity of the mandatory nature of social security (see judgment n° 2000-2571):

"VI.- It is clear that to comply with the constitutional precepts and the international regulations cited supra, the Caja Costarricense de Seguro Social had to draw up plans for the implementation and extension of social insurance, which in a first stage were frustrated because the State, the main employer, did not pay the contributions it owed in a timely manner. Fifteen years after the principle of universality of social insurance was elevated to constitutional rank in favor of the 'manual and intellectual workers' of Costa Rica, they had not been extended beyond a minority of Costa Ricans. The previous situation motivated the reform of Article 177 of the Political Constitution –approved by Law N°2738 of May 12, 1961– to achieve the definitive economic consolidation of Social Insurance in Costa Rica, through the establishment of a norm that guarantees the payment of the contributions that the State must obligatorily pay to finance and develop the social security system. The explanatory statement of the constitutional reform bill indicates that as of December 31, 1959, the State's debt, accumulated in favor of the Caja Costarricense de Seguro Social, was estimated at twenty-one million nine hundred sixty-five thousand seven hundred thirty-nine colones and six centimos. The special commission appointed by the Legislative Assembly to study the bill to reform Article 177 of the Constitution cited in its report a report from the Caja according to which, based on a study conducted in 1958 –with data from 1957–, 66% of possible workers nationwide and 89% of the family members of these workers who could be covered by social insurance throughout the country remained to be insured. The reform of Article 177 of the Political Constitution constituted a way to assure the Caja that the State would honor its obligations. In this way, the third paragraph was included, which provides:

'To achieve the universalization of the insurances and fully guarantee the payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to the insufficiency of said revenues, the State shall assume it, for which the Executive Branch must include in its next budget bill the respective item determined as necessary by the aforementioned institution to cover the totality of the State's contributions.' Likewise, the Constituent Power included a transitory article to the third paragraph of Article 177, which indicates:

'The Caja Costarricense de Seguro Social must carry out the universalization of the various insurances under its charge, including family protection in the sickness and maternity regime, within a period not exceeding ten years, counted from the promulgation of this constitutional reform.' The constituent power set a deadline for the institution in charge of the administration and governance of social insurance to achieve its universalization, in protection of the rights of its beneficiaries, and considered ten years a reasonable period for workers and their families to be protected against the risks of sickness, disability, old age, death, 'and the other contingencies that the Law may determine.' The truth is that the Caja Costarricense de Seguro Social has since directed its effort towards achieving total coverage of workers subject to labor relations and their families, and this has borne fruit, given that coverage percentages are very high, and the Costa Rican social security system is among the best in Latin America. At the historical moment when social guarantees were included in the Political Constitution, the population group intended to be protected was that of manual and intellectual workers regulated by the system of compulsory contribution from the State, employers, and workers, and the constituent power itself considered that this group should be covered in the decade of the 1970s. A later stage in the evolution of social insurance constitutes its gradual expansion to other groups in society, such as independent or own-account workers –who are not subject to an employment relationship– and those insured on behalf of the State –who cannot access social security due to their precarious economic situation–. Thus, current efforts must be directed towards ensuring that the entire national population must be covered by the social security system, since if their quality of life is raised, an improvement in the economy in general will occur. (…)" In this way, it is understood that a later stage in the evolution of social insurance constitutes its gradual expansion to other groups in society, such as independent or own-account workers –who are not subject to an employment relationship– and those insured on behalf of the State –who cannot access social security due to their precarious economic situation–. Thus, current efforts must be directed towards ensuring that the entire national population must be covered by the social security system, since if their quality of life is raised, an improvement in the economy in general will occur.

Finally, the progressive weakening of social security is a path that does not harmonize with the historical and political transcendence of social guarantees. Some legislative decisions or omissions by the Executive Branch evidence an economic weakening of the CCSS, but such a trend cannot translate into contravening the Constituent Power's definition of universal, accessible, and solidary medical insurance. There are many reasons and circumstances for which we now face a financial weakening of the CCSS, but that transformation, perhaps inconvenient for the well-being of the majorities, cannot disregard the constitutional norms that privileged social insurance." **VI.- On the alleged violation of the principle of equality before the law, reasonableness, and proportionality.** The petitioner argues that the contravention of Article 33 of the Political Constitution arises at the moment when the institution's regulatory norms apply two different standards, one for employees or workers who receive a wage or salary and another for independent workers; and this distinction is made without there being an objective parameter for differentiation, since one cannot discriminate or differentiate between the nature of the work or the functions performed by one group or the other, given that both equally carry out productive activities. They also note that it is contrary to the principle of equality before the law that, for independent workers, the regulation is attributed entirely to the Board of Directors; while, on the contrary, for salaried workers, the regulation is dictated by the legal norm itself. Thus, in the judgment of the petitioner, it is unreasonable and contrary to the aforementioned principle of equality that the independent worker –who does not have an economic structure to support them, but rather assumes all the risks and burdens of exercising their own activity– must contribute more –in terms of the contribution amount and percentage– than a salaried worker. The latter, by contrast, assumes no risk from the company's organization, and only has to contribute their work to the system of production factors.

In relation to this type of allegation, the Chamber has indicated that, in order to carry out the intended analysis, the petitioner must substantiate their argument by applying the due reasonableness test to the challenged regulation, which is omitted in this case. This Chamber, on repeated occasions, has indicated the following:

"To undertake a reasonableness test of a norm, the Constitutional Court requires that the party provide evidence or at least elements of judgment on which to base its argument, and the same procedural burden corresponds to whoever rebuts the arguments of the action, and the failure to fulfill these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to carry out an analysis of 'reasonableness' without the existence of a coherent argumentative line that is evidentially supported. This, of course, when it does not involve cases whose 'unreasonableness' is evident and manifest" (Judgment N° 1999-5236 of 14:00 hours on July 7, 1999, reiterated in judgments 2016-14392 of 9:05 hours on October 5, 2016, 2019-6935 of 11:20 hours on April 24, 2019, and 2021-11995 of 16:31 hours on May 26, 2021).

Without carrying out the respective test, the petitioner's argumentative line lacks foundation. It must be remembered that what is not necessarily identical cannot be equated, and that not every distinction is discriminatory, only that which is not duly justified under the principles of reasonableness and proportionality. Hence, as indicated in the transcribed judgment, this Court would require, to undertake a reasonableness test of a norm, that the party provide sufficient evidence or elements of judgment to support its argumentation, and the same procedural burden would correspond to whoever questions them. Without this, it is not possible to carry out an analysis of "reasonableness" without the existence of a coherent argumentative line that is evidentially supported.

In any case, in the aforementioned judgment, the petitioner also alleged that the challenged regulation discriminates between independent workers and salaried workers, in such a way that the burden on the former far exceeds that borne by the latter, which is a product of the subjective will of the Board of Directors; and, in this regard, the Chamber considered the following:

"**XIV.- On the alleged injury to the principle of unity of social security and the prohibition of arbitrariness.** According to this principle, the social security system as a whole must function with congruent and coordinated criteria, as well as grant similar benefits or services to the different groups that are protected. What is emphasized with this principle is that there must be consistency in the management of the different entities that participate in the administration of the social security system, and in the benefits granted by them, so that the multiplicity of instances or departments does not imply a breakdown of unity as a whole and also does not produce an impact on the principle of equality.

As has been indicated, Article 73 of the Political Constitution, interpreted harmoniously with Article 50 of the same Constitution, enshrines the right to social security, regarding which, the Chamber has repeatedly indicated that it supposes that public authorities will maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve life and health, which, then, guarantees the effective exercise of the principle of unity of social security.

Now, it cannot be forgotten that this principle is closely related to: a) the principle of universality, according to which the application of the right to social security extends to all citizens, with a mandatory nature; b) the principle of solidarity, which is the other side of the previous one, in the sense that, if universality seeks protection for the entire population because rights derived from social security are granted to all inhabitants, with the principle of solidarity it must be understood that the entire population, to the extent of their possibilities, must contribute economically to the financing of the system; c) the principle of generality, insofar as it protects situations of need, not to the extent that they have been foreseen and insured previously, but insofar as they actually occur –see judgment number 2003-3483–. Regarding the principle of universality of insurance, through judgment number 2011-10892, the Chamber indicated that said principle:

'[S]eeks to incorporate the entire population within the coverage of the insurances, as the cornerstone of any democratic social state of law and as an instrument for the development of persons and society. In this way, the social security system is conceived as a set of norms, principles, policies, and instruments intended to protect and recognize benefits for persons at the moment when states of vulnerability arise, which prevent them from satisfying their basic needs and those of their dependents.'.

In such a way, with the situation under study, no violation of the principle of unity of social security occurs, since, as stated, the system is also based on universality and solidarity, so that, when the contribution is made by the State, employers, and workers on a mandatory basis, with the payment of contributions according to the economic capacity and income of each one, the participants in the insurance regime are guaranteed the same benefits and services, which are granted to them not based on the amount of the contribution each one makes, but solely by belonging to the regime.

**From this perspective, the unity of social security is guaranteed because everyone, regardless of their status as employers or workers, salaried or independent, will receive benefits and services under similar conditions according to their particular health situation, which also guarantees the principle of equality, in the sense that the same treatment will be given to all persons who are in the same situation which, in this case, is being beneficiaries of one and the same single system, and not by reason of the amount of their contribution.** **It is precisely for these reasons that no impact on the principle of the prohibition of arbitrariness occurs either, because contrary to the petitioner's criteria, no unreasonable differentiation is configured between salaried and independent workers, since both are constituted as affiliates to the system and receive equal benefits by reason of their condition, regardless of the amount they contribute or the subscription status in which they find themselves, which, as stated, is a characteristic inherent to the CCSS and the Costa Rican social security regime, as a universal and solidary system.** Consequently, it is not observed that regarding this point, there is an injury to the Constitution." In accordance with the criteria set forth highlighted in bold, this Court dismissed the existence of discriminatory treatment between the manner in which the social security systems have been constituted, whether between salaried persons and independent workers, since although differentiated treatment exists, it is not unreasonable, given that in both cases, they are affiliated with the system and receive equal benefits, by reason of their condition, regardless of the amount they contribute or the subscription status in which they find themselves, which, as the aforementioned precedent indicated, is a product of the principles of solidarity and the universal social security regime that governs our country.

**VII.- Conclusion.** As a corollary of the foregoing, it is appropriate to dismiss this action on the merits regarding the points indicated, as is hereby ordered.

**VIII.- NOTE FROM MAGISTRATE GARRO VARGAS.** In the present judgment, I must note that I did not vote for the precedent cited to dismiss this action on the merits, namely, judgment N° 2024-3228 of 12:17 hours on February 7, 2024.

**IX.- Documentation submitted to the case file.** The parties are warned that if they have provided any document on paper, 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 withdrawn 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 No. 27-11 of August 22, 2011, article XXVI and published in Judicial Bulletin number 19 of January 26, 2012, as well as the agreement approved by the Consejo Superior del Poder Judicial, in session No. 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

The action is rejected on the merits. Judge Garro Vargas enters a note.

Salazar A.</span></p></td></tr><tr><td style=\"padding-right:5.65pt; padding-left:5.65pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; 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-align:center; font-size:10.5pt; background-color:#ffffff\"><span style=\"font-size:7pt; vertical-align:sub\">Anamari Garro V.</span></p></td></tr><tr><td style=\"padding-right:5.65pt; padding-left:5.65pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10.5pt; background-color:#ffffff\"><img 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 SOCIAL SECURITY. AFFILIATION OF INDEPENDENT WORKERS File: 21-022962-0007-CO Judgment: 005942-25 of February 26, 2025 Type of matter: Unconstitutionality action Challenged norm: Article 3, second and fourth paragraphs, and 23 of the Constitutive Law of the CCSS. Articles 1, 2, and 3 of the Regulation for the Affiliation of Independent Workers of the Board of Directors of the CCSS and, by connection, the Regulation to Verify Compliance with Employer and Independent Worker Obligations of the Board of Directors of the CCSS, insofar as it refers to independent workers. Dispositive part: The action is rejected on the merits. Magistrate Garro Vargas records a note.

CO05/25 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at nine hours and twenty minutes on February twenty-sixth, two thousand twenty-five.

Unconstitutionality action brought by Nombre35477, of legal age, married once, with identity card number CED16242, against Articles 3, second and fourth paragraphs, and 23 of the Constitutive Law of the Costa Rican Social Security Fund; 1, 2, and 3 of the Regulation for the Affiliation of Independent Workers of the Board of Directors of the Costa Rican Social Security Fund; and—by connection—the Regulation to Verify Compliance with Employer and Independent Worker Obligations of the Board of Directors of the Costa Rican Social Security Fund.

**Considering:** **1.-** By brief filed in the Management System of this Court on November 11, 2021, it is requested that Articles 3, second and fourth paragraphs, and 23 of the Constitutive Law of the Costa Rican Social Security Fund; 1, 2, and 3 of the Regulation for the Affiliation of Independent Workers of the Board of Directors of the Costa Rican Social Security Fund; and—by connection—the Regulation to Verify Compliance with Employer and Independent Worker Obligations of the Board of Directors of the Costa Rican Social Security Fund, the latter insofar as it refers to independent workers, be declared unconstitutional for violating the freedom of enterprise, the right to work, legal certainty, equality before the law, the principle of statutory reservation in tax matters, reasonableness and proportionality, and the inviolability of private property. It cites as the base matter the file known under case no. 1246-2020-00015, through which the coercive collection of a series of allegedly omitted sums is sought, corresponding to the payment of Independent Worker Insurance. It states that, within that administrative file, the Inspection Directorate of the Costa Rican Social Security Fund issued Inspection Report no. 1246-00015-2020-1, of May 14, 2020, by means of which a payment obligation for Independent Worker Insurance was determined against her, for the sum of twelve million two hundred eighty-one thousand one hundred five colones with zero cents (¢). On January 11, 2021, she filed a revocation appeal with a subsidiary appeal against the aforementioned inspection report. On April 23, 2021, the Inspection Directorate of the Costa Rican Social Security Fund notified her of resolution no. 1246-00174-202l-R, adopted at 8:00 a.m. on February 9, 2021, by which the revocation appeal was rejected and the appeal was elevated to the Financial Management of the institution, where it is in the phase of exhausting the administrative channel. Regarding the alleged **violation of the principle of legal certainty and statutory reservation in tax matters**, she points out, among other things, that although the CCSS is the governing institution in the matter of Social Security, and although it certainly has administrative and functional autonomy protected by the constitutional text itself, this does not authorize it to exercise tax powers without the recourse and referral—at least—to general postulates that the legal text must provide, which must determine core aspects of the tax, such as the taxable event, the active and passive subject, as well as the temporal, spatial, actuarial, financial, and mathematical parameters, so that the institution's authorities may set or modify the corresponding quotas. And it is that the legal and regulatory norms currently in force enshrine excessively broad and generic powers for the Board of Directors of the CCSS, which generates important constitutional friction, precisely because we are in tax matters, where norms must be as bounded and restricted as possible to prevent the interpreter from assuming—to the detriment of the taxpayer—powers not foreseen or that exceed the central (hard) core of the fundamental right. In this same sense, the wording of Article 3 of the Constitutive Law of the Costa Rican Social Security Fund incurs these shortcomings—specifically in its second and fourth paragraphs—:

*“Article 3.- The coverages of Social Security—and entry into it—are obligatory for all manual and intellectual workers who receive a wage or salary. The amount of the quotas to be paid under this law shall be calculated on the total of the remunerations that under any denomination are paid, by reason of or derived from the worker-employer relationship.* ***The Board of Directors shall set the date on which Social Security for independent women workers will enter into force and the conditions of this insurance**; however, all those independent workers who voluntarily wish to insure themselves before Social Security enters into force generally for that sector may do so by means of the corresponding request to the Costa Rican Social Security Fund, which, for such purposes, shall issue the pertinent regulations. Independent workers shall be exempt from paying the employer quota. The possibility of re-entry of those independent workers who voluntarily affiliated under the second paragraph of this article, and who subsequently disaffiliated, shall be regulated by the Fund.* ***The Board of Directors is authorized to take measures aimed at contributing to medical care for the indigent, in professional risks and accidents, and in the preventive medicine campaign.*** ***The Fund shall determine, by regulation, the requirements for entry into each protection regime, as well as the benefits and conditions under which these shall be granted**. (...)”* (The highlighting and underlining does not belong to the original).

She indicates that it is neither possible nor constitutional—as mentioned in the second paragraph of the cited norm—to simply state that the Board of Directors has the power to define the conditions of independent worker insurance. Doctrine, as well as the jurisprudence of this very Constitutional Chamber, has been consistent in the fact that social security obligations constitute a modality of tax obligations called "parafiscal contributions." Parafiscal contributions share, along with taxes, their notes of generality and coerciveness, in the sense that their fulfillment is not voluntary or optional for the taxpayer; however, the destinations of these contributions are generally aimed at a specific purpose, so—in general—they are not taxes administered or collected by the central apparatus of the State. At this level of appreciations, for example, international doctrine has expressed itself as follows: *“Therefore, all obligations arising from a legal imposition of the State whose revenues do not form part of the public budget and are destined for parallel treasuries are called parafiscal contributions. From another perspective, given their growing proliferation, it should be noted that in recent years there has been a doctrinal development that considers the presence of certain formal aspects that enclose other taxes, that is, compliance with tax principles: generality, legality, and progressivity. Thus, they are taxes established by authority of law that are charged to members of a particular sector or economic or social group destined to finance an activity that interests the same group or sector for the benefit of all contributors; the administration of the resources may be carried out by public, semi-public, or private bodies”* (Cf. Nombre35478. *Tributos vinculados y parafìscalidad*, in Dirección1964 (coord.). *"Del Derecho de la Hacienda Pública al Derecho Tributario"* (201 I). 2nd ed. Bogotá, Colombia: Nombre35524, p. 581. This same Constitutional Chamber had the opportunity to express itself, in judgment 2018-13658, on the characterization of Social Security quotas as a "parafiscal contribution." Thus, there can be no doubt in doctrine that Social Security quotas and contributions have a tax nature, although they are certainly not taxes. Their tax character is perceived in some of their characteristics, such as, for example, their coerciveness, the circumstance of being imposed by a Public Administration body, and the consideration that their destination is aimed at satisfying collective needs, specifically, for the coverage of the Social Security regime. This is concretized, for the Costa Rican Social Security system, in the payment of periodic, mandatory, and coercively enforceable quotas, to which employers and workers are obliged. The requirement of these quotas as one of the main sources of financing for the system is already perceived in the first paragraph of Article 3 of this legal norm. Based on the foregoing, and it being clear that the quotas are the contributions of employers and workers through which the parafiscal contribution is concretized, it follows as a consequence that, by virtue of the principle of statutory reservation that governs tax matters, the same quotas must be established and predefined by the legislator, and not by administrative departments of the Executive Branch or autonomous institutions. And it is that, in development of the oft-referenced principle of statutory reservation in tax matters, Article 5 of the Code of Tax Norms and Procedures imposes that only the law, and not an agreement or a regulation issued by an administrative body, can create, modify, or suppress taxes, define the taxable event of the tax obligation, establish the rates of the taxes and their calculation bases, and indicate who the passive subject of the tax obligation is. None of which is fulfilled in the specific case, because both the core elements of the Independent Worker Insurance, such as its taxable event, the methodology for calculating the rates and the tax base, the passive subject; in short, all the substantial aspects of the tax, are defined by a collegiate body of an autonomous institution of the State, and not by formal law. The charge of unconstitutionality for violation of the principle of statutory reservation that is alleged lies in the fact that the entire discipline of the Independent Worker Insurance quotas is regulated in the Regulation for the Affiliation of Independent Workers; that is, in an infra-legal normative provision, the quantum and practically all the conditions of the parafiscal social security taxes that the administered must pay are established. And the accusation of unconstitutionality of Article 3 of the Constitutive Law of the CCSS rests, in turn, on the point that this legal norm attempts to legitimize or validate an excessive and, therefore, unreasonable and disproportionate normative referral; the foregoing, with the confessed purpose that it be the Board of Directors of the CCSS that defines all the elements of this tax, which represents a violation of the constitutional doctrine embodied in the General Law of Public Administration, in the understanding that the essential competencies of public bodies and entities shall be inalienable, non-transferable, and imprescriptible. But, furthermore, this means in practice that the legislator is renouncing in advance the exercise of absolutely all competence for the setting or regulation of the aforementioned quotas, which not only represents a legislative technique violating the principle of equality (because for salaried workers standards are indeed set from the law itself) but also a violation of the principles of legal certainty and statutory reservation, because—in breach of the rules of Articles 9 and 121, subsection l3) of the Political Constitution—the Legislative Branch is delegating to the CCSS the definition of absolutely all the conditions regarding the regulation of Independent Worker Insurance. Likewise, she points out that the fourth paragraph of the aforementioned Article 3 of the Constitutive Law of the CCSS is unconstitutional not because certain competencies or powers are granted to the Board of Directors of the CCSS, but rather because no limit or condition whatsoever is established from the legal text for said administrative body to carry out the work of determining the parafiscal social security contributions, given that the norm does not impose any clear temporal or substantial criterion on the CCSS to carry out the work of issuing the corresponding regulations. She states that the principle of statutory reservation is also violated because there is no legal definition of what an "independent worker" is. The only normative statement that even tangentially refers to the scope of coverage of the CCSS's action is the Regulation for the Affiliation of Independent Workers, which—nevertheless—is openly disproportionate, by inadmissibly extending the framework of this insurance to "all income-generating productive activity." She states that the ability to define what exactly is and is not an independent worker would allow an understanding of an element of the tax as important as the passive subject of the tax obligation, such that the patent lack of definition of what an independent worker is ultimately inappropriately grants the CCSS a series of powers with which this entity is not vested, since they belong exclusively to the legislator. She argues that the Board of Directors of the CCSS operates without any clear or standardized parameter in the norm to issue the successive regulatory norms with which it regulates the issue of the affiliation of independent workers. For example, precise and univocal technical rules that determine how this setting should be carried out are not known, and this is clearly exemplified by the fact that the independent worker quota has been increasing percentage-wise over time, from about 10% in 2005 to about 22% at present, as an average of all contribution levels. A situation that involves an affront against the terms of Article 34 of the Political Constitution, since, with these extreme variations in the various contribution scales, it causes the individual not to know what to expect in their economic planning and in their relations with the organs of public power. After referring to the jurisprudence of this Court in relation to the **principle of equality**, she points out that the challenged norms are unconstitutional, since, by not establishing express limitations or conditions for the CCSS, they allow the latter to make the determinations of the Independent Worker Insurance quotas unequally, if compared with the worker-employer quotas.

In this way, the legal provision challenged as unconstitutional is contrary to the principle of equality before the law in tax matters, because it allows the Board of Directors of the CCSS to engage in discriminatory treatment such as that which it ultimately determines through its resolutions and agreements, given that no objective and genuinely verifiable pattern of differentiation exists that would explain why independent workers must contribute at higher percentage scales than salaried workers. That is, faced with the same manifestation of economic capacity by salaried workers and independent workers, the contribution amounts established by the authorities of the Costa Rican Social Security Fund are different. Therefore, the contravention of Article 33 of the Political Constitution arises at the moment in which the institution's regulatory framework applies two different standards, one for employees or workers who earn a salary or wage and another for independent workers; and this distinction is made without an objective parameter for differentiation existing, since one cannot discriminate or differentiate between the nature of the work or the functions that each performs, given that both exercise productive activities equally. Both salaried and independent workers put their intellect and manual activity at the disposal of the beneficial transformation of their environment and their surroundings. It also warns that it is contrary to the aforementioned principle of equality before the law that, for independent workers, the regulation is attributed entirely to the Board of Directors, while, conversely, for salaried workers, the regulation is dictated by the legal provision itself. Thus, in the plaintiff's judgment, it is unreasonable and contrary to the aforementioned principle of equality that the independent worker—who does not have an economic structure to support them but rather assumes all the risks and burdens of exercising their own activity—must contribute more—in terms of the quota and the percentage—than a salaried worker. The latter, in contrast, assumes no risk from the company's organization and only has to contribute their labor to the system of production factors. It indicates that they are clearly two different types of workers, but what cannot occur is the existence of regulatory provisions that fail to recognize the conditions and the very nature of the work performed by independent workers, because in this way, the differences that exist between one and the other would consequently also fail to be recognized. It considers that the law itself should have set a minimum contribution that respects the particularity of the independent worker's situation. The manner in which the CCSS unjustifiably treats salaried and independent workers differently can be seen in the regulation of Article 33 of the Reglamento del Seguro de Invalidez, Vejez y Muerte. It argues that the very wording of that article introduces an undue distinction, because the contribution amounts are diametrically different between salaried and independent workers, without any objective and measurable criterion existing that justifies such differentiated treatment when the same objective is pursued. And the purpose that the different social security regimes strive for is, after all, to provide health services and the possibility of access to a pension for all citizens, under conditions of equality for all, which is why it is never justified why the norm establishes such differentiated treatment for the contributions of independent workers—compared to the legal situation of salaried workers—when the idea is to guarantee basic conditions for the population's access—under equal conditions—to health and social security services. Regarding Article 23 of the Ley Constitutiva de la CCSS, it points out that this clearly determines that the cost of the medical services to be provided to the insured will be the decisive criterion for defining the amount of the respective contributions. From what has been stated, then, it is denoted that there is no reasonable basis for making such large differences in the contribution percentage corresponding to salaried workers and that of independent workers; given that, for example, the degree of utilization of medical services is presumably comparable between salaried and independent workers. Subsequently, there is no reason whatsoever to maintain that the group of independent workers requires health services or pension benefits in a greater proportion than salaried workers, nor vice versa. Thus, at least from the initial provision contained in the cited norm, the contribution of salaried workers—to provide resources to the IVM Regime—will be 4.50% of their salary income; meanwhile, and in contrast, the contribution of independent workers is set at 10.25% of their corresponding monthly income. This differentiation is completely devoid of a reasonable and objective basis for differentiation, so much so that none of the regulatory texts governing the contributions on workers' income explain the reason, or the justifiable cause for this divergence, which necessitates striking it down as unconstitutional. And it is that, with determinations such as those adopted in this regard by the CCSS, a differentiation is entrenched that finds no justification in the legal norm itself, nor in the reality or social context of the norm's application, because nothing justifies taxing under different legal treatment, and imposing differentiated tax burdens, a set of activities that are ultimately comparable—and whose only difference resides solely in the acting subject thereof. Therefore, it requests the unconstitutionality of Articles 3, second and fourth paragraphs of the Ley Constitutiva de la Caja Costarricense de Seguro Social, 1 and 2 of the Reglamento de Afiliación de Trabajadores Independientes of the CCSS, and—by connection—the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes; given that these norms neither guarantee nor ensure, in the most convenient manner, the principle of equality before the law. It indicates that, in the present case, the norms accused as unconstitutional also violate the basic standards of the principle of proportionality (need, suitability, and proportionality in the strict sense), which have been designed and set forth by jurisprudence. The foregoing, because to solve a problem certainly deserving of the State's most prompt attention and—in particular—of the Costa Rican Social Security Fund, extremely burdensome measures are taken, which are completely harmful to the constitutional rights of all independent workers. It acknowledges that the finances of the Regime of Sickness and Maternity and, mainly, of the Regime of Invalidez, Vejez y Muerte are experiencing a difficult moment, and that this merits taking the necessary measures to guarantee the future sustainability of the system. However, these needs cannot be taken as a free path or carte blanche to violate the constitutional rights of citizens, or to impose the payment of contributions that may harm the taxpaying capacity of the contributors. In addition, it emphasizes that—as has been argued on the occasion of the preceding grounds of unconstitutionality—the impositions made on independent workers are percentage-wise greater than those demanded of salaried workers, which is exacerbated by the fact that in the case of self-employed workers, there is no employer, and the percentages that the workers and the State must assume are comparatively greater (the latter, to try to compensate for the overall contribution percentage applied in the case of workers who receive a salary). Therefore, it indicates that the challenged norms do not satisfy the criteria or sub-principles of need and suitability that form part of the more generic principle of proportionality. This is manifested in the fact that, from a range of possible measures that would allow solving the shortcomings and weaknesses of the pension regimes administered by the CCSS, the Board of Directors of the Social Security Fund inadmissibly takes a set of extremely burdensome and arbitrary measures that grant an abusive exercise of public powers to the institution's own administrative bodies and, in particular, to the Inspection Directorate, which results in the tax burdens imposed on independent workers becoming truly confiscatory. The foregoing, because the percentage quantum of the imposed quotas effectively diverts a significant percentage of the net income of each of the passive subjects obliged to contribute to the sustainability of these regimes. Thus, tolerating or admitting as a possible conclusion the constitutionality of a series of administrative norms that have proven so burdensome to the rights of the administered parties and of all those legal subjects who receive any type of income, would amount to allowing or admitting—even implicitly—that gaps or openings be created for the exercise of quotas of arbitrariness in the actions of the administrative bodies of the State. It is not possible to admit that an administrative body of the State should arrogate taxation powers to itself, without the political control and the debate proper to parliamentary bodies intervening, and without any subjection to material, temporal, or spatial limitations. The Board of Directors does not even have these presumed prerogatives to modify the contribution amounts that independent workers must pay delimited by law; so much so that it can even define modifications to its own agreements at any time and as many times as it deems necessary. It indicates that it is unreasonable and disproportionate that there is no definition of what exactly the figure of "Trabajador Independiente" comprises. Article 1 of the Reglamento para la Afiliación de los Trabajadores Independientes—a norm alleged here as unconstitutional—states that the obligations to contribute for the Seguro de Trabajador Independiente are established on the income received from work and even "from any income-generating activity," which gives rise to the autonomous institution governing social security being able to potentially overreach, considering that absolutely every private activity that the imagination can conceive must be subject to this type of contribution, which is unreasonable, since the effects of such a level of generality and normative imprecision have already been seen. The CCSS has initiated administrative proceedings against persons who only receive passive income, such as the lease of movable or immovable property, and investigations have even been opened against persons who are part of boards of directors and representation of commercial companies, or who receive interest on bank certificates and other assets deposited in financial institutions, all of which simply occurs because there is no norm defining what it means to "work" independently. Following the thesis outlined by the CCSS, one would easily arrive at the absurdity that even any transfer of assets in favor of another converts the latter into a case of interest for the CCSS and would also be matter for the Seguro de Trabajador Independiente; the foregoing, because they would fall within the extremely broad framework of "income-generating activity" provided for in Article 1 of the Reglamento para la Afiliación de los Trabajadores Independientes. It has not been defined which profiles or activities would eventually allow the CCSS to consider that these activities are independent work, especially since there is no definition of a set of tasks and means to develop them that are carried out on a permanent and voluntary basis to generate income. This lack of definition runs contrary to the principles of reasonableness and proportionality, as it could become a source of potential abuses against the administered party. It states that the alleged norms contravene the principles of security, legal reserve, equality before the law, inviolability of citizens' private property, and reasonableness and proportionality. It requests that the unconstitutionality be declared of Article 3, second and fourth paragraphs, and 23 of Law No. 17, "Ley Constitutiva de la Caja Costarricense del Seguro Social," of October 22, 1943, Articles 1, 2, and 3 of the "Reglamento de Afiliación de los Trabajadores independientes," approved by Article 21 of session No. 7877, of the Board of Directors of the Costa Rican Social Security Fund, held on August 5, 2004; and by connection, the "Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes," approved by Article 30 of session No. 8051, of the Board of Directors of the Costa Rican Social Security Fund, held on April 27, 2006, insofar as the latter refers to the regulation of the alleged obligations of independent workers.

**2.-** By resolution at 2:37 p.m. on November 19, 2021, the Gerente Financiero of the Costa Rican Social Security Fund was requested to send this Court a certified copy of the file corresponding to case No. 1246-2020-00015, where the appeal filed by Nombre35479, in their capacity as special representative of the plaintiff herein, against the resolution at 2:00 p.m. on May 14, 2020, called Informe de Inspección No. 1246-00015-2020-I, is indicated as pending resolution.

**3.-** On December 1, 2021, the Gerencia Financiera of the Costa Rican Social Security Fund sent this Court the certified copy of the file corresponding to case No. 1246-2020-00015.

**4.-** By brief dated January 5, 2021, Judge Jorge Isaac Solano Aguilar raised his recusal from hearing this process, by virtue of the fact that he also holds the status of independent worker.

**5.-** By resolution at 7:48 a.m. on January 6, 2022, the president of this Chamber accepted the recusal raised by substitute judge Jorge Isaac Solano Aguilar.

**6.-** According to draw 9659, carried out by the Presidency of the Court, substitute judge José Roberto Garita Navarro was designated to substitute judge Jorge Isaac Solano Aguilar.

**7.-** By resolution No. 2022-11626, at 9:20 a.m. on May 25, 2022, the Majority of this Court ordered the outright rejection of the action regarding the challenge of Article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, of Article 3 of the Reglamento para la Afiliación de Trabajadores Independientes, and of the alleged violation of the right to work, freedom of enterprise, and the inviolability of private property. As for the rest, the processing of this action was suspended until such time as the one processed before this Chamber under file No. 18-004106-0007-CO is resolved.

**8.-** By judgment No. 2024-03228 at 12:17 p.m. on February 7, 2024, this Court resolved the unconstitutionality action No. 18-004106-0007-CO, with the following operative part: *"The action is declared without merit. Judge Cruz Castro records additional reasons. Judge Rueda Leal records particular reasons."*.

**9.-** By resolution at 12:13 p.m. on February 18, 2025, the president of this Chamber annulled the appointment of substitute judge José Roberto Garita Navarro and declared Judge Hess Herrera enabled to hear this unconstitutionality action.

**10.-** Article 9 of the Ley de la Jurisdicción Constitucional empowers the Chamber to reject outright or on the merits, at any time, including from its presentation, any petition brought to its attention that proves to be manifestly improper, or when it considers that there are sufficient elements of judgment to reject it, or that it is a mere reiteration or reproduction of an equal or similar previous petition that was rejected.

Drafted by Judge **Castillo Víquez**; and, **Considering:** **I.- Preliminary matter.** It is noted beforehand that this Court, by resolution No. 2022-11626, at 9:20 a.m. on May 25, 2022, the Majority of this Court ordered the outright rejection of the action regarding the challenge of Article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, of Article 3 of the Reglamento para la Afiliación de Trabajadores Independientes, and of the alleged violation of the right to work, freedom of enterprise, and the inviolability of private property. As for the rest, the processing of this action was suspended until such time as the one processed before this Chamber under file No. 18-004106-0007-CO is resolved. Consequently, this Court's pronouncement will be limited solely to the alleged unconstitutionality of Article 3, second and fourth paragraphs of the Ley Constitutiva de la Caja Costarricense de Seguro Social and Articles 1 and 2 of the Reglamento para la Afiliación de Trabajadores Independientes, due to the violation of the principles of legal certainty and legal reserve in tax matters, equality before the law, and reasonableness and proportionality.

**II.- On standing.** The plaintiff is deemed to have standing to file this action, based on Article 75, paragraph 1, of the Ley de la Jurisdicción Constitucional, since it indicated as a base matter the administrative procedure processed in file No. 1246-2020-00015, where it is indicated that the appeal filed by the plaintiff herein, before the Gerencia Financiera of the CCSS, is pending resolution, within which it invoked the unconstitutionality of the norms challenged here.

**III.- Object of this action.** The petitioner files this unconstitutionality action against Article 3, second and fourth paragraphs of the Ley Constitutiva de la Caja Costarricense de Seguro Social and Articles 1 and 2 of the Reglamento para la Afiliación de Trabajadores Independientes, due to the violation of the principles of legal certainty and legal reserve in tax matters, equality before the law, and reasonableness and proportionality.

**IV.- On the procedure.** This action was suspended pending the resolution of unconstitutionality action number 18-004106-0007-CO, in which the constitutionality of the second paragraph of Article 3 of the Ley Constitutiva de la CCSS, No. 17 of October 22, 1943 and its amendments, as well as Articles 1 and 2 of the Reglamento para la Afiliación de los Trabajadores Independientes of the CCSS, No. 7877 of August 5, 2004, was questioned. Said unconstitutionality action was resolved by judgment No. 2024-03228 at 12:17 p.m. on February 7, 2024, which ordered the following:

*"**Por tanto:** * *The action is declared without merit. Judge Cruz Castro records additional reasons. Judge Rueda Leal records particular reasons.".* Given that, in the case at hand, similar constitutional grievances were alleged against the regulatory framework challenged here, this action is hereby rejected on the merits based on the considerations set forth in the aforementioned judgment, as indicated below.

**V.- On the alleged violation of the challenged norms of the principle of legal reserve and legal certainty.** The plaintiff argues that, by virtue of the principle of legal reserve governing tax matters, the quotas that the CCSS imposes on the independent worker are parafiscal contributions and, as such, must be established and predefined by the legislator, not by administrative dependencies of the Executive Branch or autonomous institutions. None of which is fulfilled in the specific case, because both the core elements of the Seguro de Trabajador Independiente, such as its taxable event, the calculation methodology for rates and the taxable base, the passive subject; in short, all substantial aspects of the tax, are defined by a collegial body of an autonomous institution of the State, and not by formal law, pursuant to Article 3 of the Ley Constitutiva de la CCSS and the challenged regulation, which not only violates the principle of legal reserve but also that of legal certainty.

As already indicated, in relation to this provision and the argument invoked by the plaintiff herein, this Chamber, in judgment No. 2024-03228 at 12:17 p.m. on February 7, 2024, in what is relevant, ordered the following:

*"**XI.- On the constitutionality of the challenged regulatory framework.** * The alleged violation of the principle of legal reservation (principio de reserva de ley). The constitutional questions regarding the principle of legal reservation being raised in this action have already been discussed by this Court on previous occasions and, in all of them, the Chamber has concluded that the arguments concerning the violation of the principle of legal reservation are far from harming the Law of the Constitution, based precisely on the high degree of autonomy held by the CCSS, which is a highly relevant reason to justify that decision.

In that sense, the jurisprudence of this Court is reiterated, recognizing that, precisely because of the degree of autonomy granted by the Constituent Power, the institution has broad regulatory authority to be exercised in matters within its own competence, which—as has been stated—was entrusted to it by the Political Constitution itself, an authority that does not harm the principle of legal reservation and, therefore, nor does it harm the Law of the Constitution—see judgment number 2010-5893, reiterated in judgment number 2022-23208; additionally, judgments numbers 2003-2355, 2001-9580, 2001-9734, 2001-546, 2002-4881, 7393-98, 1059-94, 3853-93 and 3403-94, among others, may be consulted.

This Chamber, based on the provisions of Article 73 of the Constitution, stated in judgment number 2001-009734, reiterated in number 2003-002355, in pertinent part:

“III.- ON THE COMPETENCE OF THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DEL SEGURO SOCIAL). By virtue of the provisions of Article 73 of the Political Constitution, the Costa Rican Social Security Fund is responsible for 'the administration and governance of social security,' a competence which is developed in Article 3 of the Constitutive Law of the Costa Rican Social Security Fund, number 17 of October twenty-second, nineteen forty-three, such that its Board of Directors has full authority to establish, via regulation, the scope of the benefits inherent to social security, both regarding the definition of conditions and benefits, as well as the entry requirements for each protection regime. Likewise, Article 23 of the same Law establishes as one of the parameters to be considered in this definition, actuarial studies and calculations, in order to maintain the sustainability (sostenibilidad) of the system. From the foregoing, it is clear that the Costa Rican Social Security Fund has full competence to issue norms such as those challenged, insofar as they respond to the constitutional mandate of Article 73, since they refer to an aspect of the organization and administration of social security.” —emphasis added— Thus, the regulatory authority regarding independent workers (trabajadores independientes) exercised by the Fund through its Board of Directors falls within the powers of administration and governance that, in matters of social security, have been granted to it in the second paragraph of Article 73 of the Political Constitution and, therefore, is consistent with the Law of the Constitution; this regulatory authority should not be confused with that established in Article 140, subsections 3) and 18) of the Political Constitution, which grants the Executive Branch the authority to issue organizational and service regulations for the Administration. It must be borne in mind that, precisely because of the autonomy enjoyed by the CCSS examined supra, the Executive Branch cannot regulate matters related to the administration and governance of social security, because this is a matter reserved for the Fund, which has full independence and autonomy to regulate and manage it, as it was granted and recognized by the Political Constitution itself.

From this perspective, matters related to the mandatory enrollment (aseguramiento obligatorio) of independent workers and the contributions (cuotas) they must pay are proper to the exercise of those powers and a legitimate mechanism that does not violate the Law of the Constitution, particularly the principle of legal reservation; rather, it is aimed at allowing the Fund to fulfill the purpose constitutionally entrusted to it, without requiring that it be established by a law emanating from the Legislative Assembly. In this regard, in judgment number 2008-017304, this Chamber expressly provided:

“VI.- INSURANCE FOR INDEPENDENT WORKERS (SEGUROS DE TRABAJADORES INDEPENDIENTES). Contrary to the petitioner's opinion, this Court has found no reason to exclude insurance for independent workers—and even non-contributory regimes—from the regulatory powers of the COSTA RICAN SOCIAL SECURITY FUND. On this matter, it pronounced in judgment No. 2000-02571, at 14:38 hrs. on March 22, 2000:

«Regarding the appellant's argument that the challenged norm exceeds the limits of regulatory authority and that the matter regulated cannot be contained in an autonomous regulation, the Chamber agrees with the Attorney General's Office that Article 10 of the Voluntary Insurance Regulation (Reglamento de Seguro Voluntario) is not unconstitutional for that reason. The Organic Law of the Costa Rican Social Security Fund provides in its Article 3, paragraph 5, that the Fund shall regulationarily determine the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted. Article 14, subsection f), confers upon the Board of Directors the authority to issue regulations for the institution's operation, and numeral 23 indicates that the Board of Directors is competent to determine contributions and benefits in accordance with the cost of services, based on actuarial calculations. This Chamber has referred to such attributions in vote No. 3403-94 at 15:42 hours on June 15, 1994, and in No. 7393-98 at 9:45 hours on October 16, 1998, declared that norm 23 of the Constitutive Law of the Fund is consistent with the Political Constitution, in view of the fact that the attributions it confers on the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but rather are based on Article 73 of the Constitution. That norm entrusts the governance and administration of social security to the Fund, and for this reason it is competent to issue autonomous regulations such as that of voluntary insurance. Consequently, it is not found that the Regulation containing the challenged provision breaches Article 140, subsection 3) of the Political Constitution».

As is evident from the cited judgment, the point raised by the petitioner is not new. This Court has already pronounced on the matter and there is no reason to change its criteria. To exclude insurance for independent workers, there must be some characteristic of these that distinguishes them from other insurances. The actor argued that the difference lies in that it restricts freedom of commerce. However, this Court does not consider such an argument to be admissible. In the first place, the norm does not prevent the exercise of a lucrative activity, but rather imposes a burden, just as the mandatory contribution to the insurance of their employees constitutes a burden for employers. Consequently, the first ground for unconstitutionality is not actionable.” In accordance with what is indicated in the preceding precedents, the CCSS is empowered to issue the regulations for the insurance under its administration, without the exercise of that power implying, in and of itself, any infraction of a constitutional nature in general, much less of the principle of legal reservation, in particular. This was recognized in a judgment of this Chamber, number 2022-23208, when defining that:

“By virtue of this, the Chamber does not consider that the Regulation to Verify Compliance with Employer and Independent Worker Obligations (Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes) is unconstitutional, under the argument raised by the petitioner—regarding the principle of legal reservation—so the action must be dismissed on this point, since the CCSS is the entity charged with the administration of social security and is endowed with maximum autonomy for that purpose, and therefore has full competence to establish the scope of social security benefits via regulation, such that it can define the conditions, benefits, and entry requirements for each protection regime (…)” —the highlighting is not from the original— Thus, the fact that the challenged norms allow the CCSS, and specifically its Board of Directors, to establish the conditions, requirements, and contributions applicable to independent workers does not imply an excess of the limits of regulatory authority, given that, as has been stated, the Fund has the power to regulationarily determine the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted, and, in that sense, Article 14, subsection f) of its Constitutive Law, confers upon the Board of Directors the authority to issue regulations for the functioning of the institution, while numeral 23 of the same Law indicates that the Board of Directors is competent to determine contributions and benefits in accordance with the cost of services, based on actuarial calculations.

As is evident from the preceding transcriptions, the Chamber has referred to such attributions and has declared that norm 23 of the Constitutive Law of the Fund is consistent with the Political Constitution in the sense that the attributions it confers on the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but rather are founded on Article 73 of the Political Constitution, which entrusts the governance and administration of social security to that institution and, therefore, it is competent to issue autonomous regulations—such as those relating to the affiliation and contributions of independent workers—without thereby breaching the provisions of Article 140, subsection 3) of the Political Constitution—see in a similar sense, judgments numbers 2000-2571 and 2008-17304—. Consequently, this argument must be dismissed since no violation of the principle of legal reservation is found.” Likewise, given that the petitioner here also invokes the parafiscal nature (parafiscalidad) of the compulsory contribution imposed on independent workers, it is convenient to cite what was provided in that same judgment on the matter:

“… XVI.- On the arguments regarding the parafiscal nature of the contributions paid to social security. According to the petitioner, social security contributions are conceived as taxes insofar as they belong to the category of parafiscal contributions (contribuciones parafiscales), and therefore, for their application, the principles that apply to taxes must be observed, such as legal reservation, economic capacity, and tax equality, given that, in the case of the Costa Rican Social Security Fund, its Board of Directors is authorized—by paragraph 2 of Article 3 of the Constitutive Law of the Fund that is being challenged—to create this parafiscal contribution without compliance with the indicated principles, thus harming the Law of the Constitution.

Beyond what has already been set forth in this judgment regarding the non-affectation of the principle of legal reservation, at this point it is important to note that the Chamber has analyzed this issue of parafiscality (parafiscalidad) in several pronouncements in which it has expressly recognized that social security contributions are parafiscal contributions, but of constitutional origin. Thus, in judgment number 2018-13658—reiterated, among many others, by judgments numbers 2019-9190, 2021-2161, 2021-23611, 2021-27052, and 2023-3593—the Chamber expressly stated that:

“The question of parafiscal contributions (contribuciones parafiscales)—in this case, contributions to social security—has provoked no small controversy in the doctrinaire and jurisprudential spheres. Regarding the constitutional legal controversy at hand, from the perspective of this Chamber, two theses are plausible. The first, which considers that since it is a tax—see in this regard judgment 2006-009568 of this Court—its structural elements—triggering event (hecho generador), rate, calculation basis, active and passive subject, etc.—must irremediably be defined by formal Law; this latter consequence has not been validated by the Constitutional Chamber. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality (principio de legalidad tributaria) would be violated, especially considering that in the struggle of the English barons to seize the taxing power, some find the origin of Parliament and democracy—there is no democracy without Parliament, nor of the latter without the Opposition. In short, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court—see, among others, judgments numbers 1994-003819 and 1998-007393—, is the one that considers that we are not in the presence of a parafiscal contribution and, consequently, the principle of tax legality should not be applied. 'The payment of the contribution or fee, as the case may be, is not a tax, as stated in previous paragraphs, but the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the very contributors …'.

According to the most authoritative doctrine in tax matters, parafiscal contributions are a tax, since they contain the material elements of obligation—the duty to pay them by those who fall under the provision of the creating norm—, of singularity because it affects a specific and unique social or economic group, and of sectoral allocation because what is collected through this mandatory payment is used for the exclusive benefit of the group that paid the tax. We are, then, before the exercise of a power of sovereignty (potestad de imperio) of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law—tributum sine legge—.

Now then, in the case of employer-worker contributions (cuotas obrero-patronales) intended for the support of social security—sickness and maternity insurance and disability, old age, and death insurance—, our legal system has a singularity. Indeed, it is constitutional numeral 73 that creates the parafiscal contribution by providing for a mandatory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies that the law determines. Immediately thereafter, the constitutional text establishes that the administration and governance of these social security systems correspond to an autonomous institution: the Costa Rican Social Security Fund. Finally, and what is relevant here, the constitutional norm imposes the prohibition against transferring or using the funds and reserves of social security for purposes other than those that motivated their creation. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent Power, whereby, from the perspective of this Court, the maxim that there can be no taxation without representation is fulfilled. In other words, in the case at hand, adherence to the principles governing the exercise of the taxing power is satisfactorily achieved, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle we must overcome is related to fixing the amount of the contribution (cuota) to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Costa Rican Social Security Fund stipulates that contributions and benefits shall be determined by the Board of Directors, according to the cost of the services to be provided in each region and in accordance with the respective actuarial calculations. The contribution of the workers can never be greater than the contribution of their employers, except in cases of exception that the Regulation indicates, based on actuarial recommendations, to provide greater benefits to the former, and to obtain a fairer distribution of the burdens of mandatory social security. Seen in this way, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, objective parameters are imposed on the Board of Directors of the Costa Rican Social Security Fund when determining the amount of the contribution—the cost of the services it provides and the respective actuarial calculations—, so the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Litigation Judge. This same logic is followed by the Code of Tax Norms and Procedures (Código de Normas y Procedimientos Tributarios) in its numeral 5, regarding fees, as it allows their amount to be varied by way of Regulation so that their purpose is fulfilled in a more suitable manner, after the intervention of the body that by law is charged with regulating the rates of Public services.

Recapitulating, since the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is more than fulfilled, on the one hand, and by the legislator setting objective parameters to determine the amount of the parafiscal contribution, that principle is also respected” —emphasis added— In the same sense, the aforementioned judgment 2021-23611 refers in a profuse and absolutely clear manner to the relationship between the autonomy regime of the Costa Rican Social Security Fund, the principle of legal reservation, and the power the institution has to set social security contributions—including, of course, those relating to independent workers—, without this representing or implying the constitutional violations alleged in this action, so for the purposes of a comprehensive conclusion on all these aspects, it is particularly illustrative to expressly cite what is developed in said judgment 2021-23611. This judgment states that:

“V.- The Costa Rican Social Security Fund, its autonomy and social security.

Regarding Articles 73 and 74, located in the single chapter of Title V "Social Rights and Guarantees" of our Magna Carta, constitutional jurisprudence has extensively developed its content and its implications concerning the autonomy of the CCSS in relation to the administration and government of social insurance.

Thus, in judgment No. 2001-10545 of 14:58 hours on October 17, 2001, it was ordered:

**"II.- On the merits. The autonomy of the Caja Costarricense de Seguro Social.** –The second paragraph of Article 73 of the Political Constitution establishes: 'The Administration and government of social insurance shall be in charge of an autonomous institution, called the Caja Costarricense de Seguro Social.' Regarding the scope of what this provision establishes, the Chamber has repeatedly stated that the autonomy of the Caja is not subject to limits in matters of government. On this topic, analyzed in judgment 6256-94 of nine o'clock on October twenty-fifth, nineteen ninety-four, it was expressed:

"III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, basically following the original text of the 1871 Constitution; that is, the institution from the 1871 Constitution was transplanted, according to the 1943 modifications, to the 1949 Constitution. However, for the purposes of the consultation, the participations of Constituent Member Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: 'Moreover, the Caja, sooner or later, would have to assume the risk of unemployment, which will come to resolve the serious problem posed by joblessness. He insisted that he did not think it appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable course is to leave things as they are, giving the Caja full autonomy to thus make it independent from the Executive Branch'; and on page 36 idem it is added: 'In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Insurance will undoubtedly be an inexplicable step backward.' When the article was approved, a second paragraph was included that literally read: 'The administration and government of social insurance shall be in charge of an autonomous institution,' text that was later reformed by Law No. 2737 of May 12, 1961, remaining today as follows: 'The administration and government of social insurance shall be in charge of an autonomous institution, called the Caja Costarricense de Seguro Social.' In conclusion, the constituent power attributed the administration and government of social insurance to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has granted it and sharing the general principles derived from its condition as a decentralized entity.

Other judgments of this Chamber in which reference is made to the issue of the autonomy of the Caja Costarricense de Seguro Social are the following: 0236-94 of 9 hours 57 minutes on January fourteenth; 3403-94 of 15 hours 42 minutes on July 7th; 6471-94 of 9 hours and 39 minutes on November 4th, all from the year 1994). At a date subsequent to these, the Chamber has indicated:

"IV.- Article 73 of our Political Constitution establishes the existence of social insurance, which is regulated by the system of mandatory contribution from the State, employer, and workers, with the purpose of protecting them against the risks of illness, maternity, disability, old age, and death. The Caja Costarricense de Seguro Social is the autonomous entity charged with administering this type of insurance, with the autonomy that allows it to have its own initiative for its undertakings, as well as to execute its tasks and fulfill its legal obligations, setting goals and the means to achieve them. It guarantees, in this way, the establishment of social security and its nature, decrees the purpose of social insurance, and regulates the destination of the respective funds. Social security was born to protect the worker and their family, as the human beings they are, and is provided from conception until death, seeking health and assisting in unforeseen misfortunes such as disability and death, as well as in states of lack of protection due to their own condition such as old age and retirement." (Judgment 004636-98 of 15 hours 57 minutes on June 30, 1998) "…it is feasible for the different establishments of the Caja, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures for its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over particular interests." (Judgment 03065-98 of 18 hours 18 minutes on May 6, 1998) "…the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution for the Caja is not subject to limits in matters of government, as this court has reiterated in previous judgments (see for example: 3403-94, 6256-94, 6524-94, among others). The constituent power expressly instituted an entity in charge of the administration of social security endowed with maximum autonomy for the performance of its important function; reason for which the reform to constitutional Article 188 that instituted the administrative direction did not modify its legal regime." (Judgment 07379-99 of 10 hours and 36 minutes on September 24, 1999) When analyzing what was alleged by the claimant, the Chamber considers that –in effect-, the content of Transitional Provision IV of Law 6577 is harmful to the autonomy of government conferred upon the Caja Costarricense de Seguro Social by the second paragraph of Article 73 of the Political Constitution, since by ordering that provision the forced closure within a determined period of the retirement service -or even if it had ordered the contrary-, it is evident that the powers attributed to said institution by virtue of the autonomy of government are invaded, this being understood as the capacity to carry out its legal mission without subjection to another entity, to self-direct, self-govern, and dictate its own objectives and organize itself in the manner it deems convenient for the fulfillment of the purpose for which it was created." For its part, vote No. 2002-06384 of 15:27 hours on June 26, 2002, indicated:

**"VIII.- Subsection b) of Article 2 of the Law Creating the Budgetary Authority. Considerations of the Constitutional Chamber.** In relation to autonomous institutions, the Chamber ruled in favor of the power of the Budgetary Authority to formulate directives to decentralized institutions, but interpreted this power restrictively. Based on Article 188 of the Political Constitution, this Court considered in judgment No. 3309-94 that the power of the Budgetary Authority is constitutional insofar as:

“… it remains in the field of design and subsequent execution of general policy directives, but not, of course, to the extent that its application interferes with the concrete execution of those directives. The general character of this function means that the Budgetary Authority cannot, within its competence, give concrete orders or subject to approval the specific acts of execution that are part of the administrative autonomy of those entities.” If in the case of autonomous institutions in general the power must be interpreted restrictively, in the case of the Caja Costarricense de Seguro Social the power is totally unconstitutional. The Caja Costarricense de Seguro Social enjoys, as stated in judgment No. 3403-94, “a degree of autonomy distinct and superior to that which is defined in general terms in Article 188.” This higher degree of autonomy is derived from Article 73 of the Political Constitution. In judgment No. 6256-94 it was stated:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite mandatory contribution from the State, employers, and workers; b) the provision grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, distinct and superior to that which is defined in general form in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their mission. As seen in the preceding whereas clauses, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, 'with full autonomy to thus make it independent from the Executive Branch'.” By virtue of this full autonomy, any provision that obliges the Caja Costarricense de Seguro Social to comply with directives on the administration of the resources that are subject to its management is unconstitutional. Subsection b) of Article 2 of the Law Creating the Budgetary Authority suffers from that defect and, therefore, is declared unconstitutional solely with regard to the Caja Costarricense de Seguro Social.

(…)

**XIII.- On Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social. Considerations of the Constitutional Chamber.** On this point, this Chamber dissents from the claimant's thesis. Although the claimant is correct in stating that the Caja is constitutionally prohibited from allocating funds to purposes other than those imposed by the Constitution itself, Article 41 does not indicate such a thing. It is necessary to differentiate clearly between the regulation itself and the application that has been given to it in specific cases. As such, Article 41 is directed towards the investment of reserves; this is how this Court understands it, and a provision of this nature is not unconstitutional. To interpret it otherwise would be to oblige the Caja to keep idle resources that, otherwise, could generate resources that strengthen the fund itself. Another aspect is the possibility that the Caja may have used that article to invest funds, supposedly idle, when it remotely fulfills its purposes. If this is the case, it is possible to challenge in the legality jurisdiction the concrete actions that exceed the limits established by that same Article 41. It is also possible to evaluate the personal responsibility of those who did not adjust their decisions to the regulation, since they are obliged to interpret that Article 41 harmoniously with Constitutional Article 73. In summary, Article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social is not unconstitutional, as long as it refers to idle funds and not to funds necessary to satisfy the objectives constitutionally set for that institution.” Judgment No. 2003-03483 of 14:05 hours on May 2, 2003, ordered:

“On the social security regime. Article 73 of the Political Constitution, interpreted harmoniously with Article 50 idem, enshrines the Right to Social Security. The Chamber has repeatedly indicated that this right presupposes that the public powers will maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, with a mandatory character. The objective scope assumes the principle of generality, in that it protects situations of need, not to the extent that they have been foreseen and insured previously, but insofar as they effectively occur. Furthermore, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management must be public, in charge of the State, represented by the Caja Costarricense de Seguro Social, and the financing will respond to the cardinal principle of social solidarity, as it is based on the mandatory and tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are those of universality, generality, sufficiency of protection, and social solidarity.” What was decided in judgment No. 201007788 of 14:59 hours on April 28, 2010, must also be transcribed:

**“III.- On the merits.** (…) To resolve the present unconstitutionality action, it is necessary to take into consideration the precedents on the **autonomy of the Caja Costarricense de Seguro Social.** In judgment No. 1994-06256 of nine o'clock on October twenty-fifth, nineteen ninety-four, the Chamber establishes the following:

“Although it is not the subject of the consultation, for the purposes of the conclusion reached by the Chamber, it is necessary, at least, to point out some general guidelines of what administrative decentralization implies in our constitutional regime. Three forms of autonomy exist in our legal system: a) administrative, which is the legal possibility for an entity to carry out its legal mission by itself without subjection to another entity, known in doctrine as the capacity for self-administration; b) political, which is the capacity to self-direct politically, to self-govern, for the entity itself to dictate its own objectives; and, c) organizational, which is the capacity to self-organize, with the exclusion of any legislative power. In the first two cases, autonomy is vis-à-vis the Executive Branch, and in the third, also vis-à-vis the Legislative Branch. Organizational autonomy is characteristic of universities, as deduced from Article 84 of the Political Constitution, and therefore extraneous to the purposes of this consultation. The other two degrees of autonomy derive from Political Autonomy, the content of which will be proper to the law (foundational act) that creates the entity. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even extinguish it; but since decentralization implies that all the powers of the administrative hierarch correspond to the entity, this means that its legal personality encompasses all the administrative powers necessary to achieve its mission independently. Autonomy usually comprises the powers to formulate plans or set the entity's ends and goals, that of providing itself with internal mechanisms for functional and financial planning through budgets, and finally, the exercise of autonomous regulatory power. These general lines on autonomy are directed at administrative decentralization created by ordinary law.” Furthermore, the Chamber indicated that:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite mandatory contribution from the State, employers, and workers; b) the provision grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social insurance, a degree of autonomy that is, of course, distinct and superior to that which is defined in general form in Article 188 idem; c) the funds and reserves of social insurance cannot be transferred or used for purposes different from their mission. As seen in the preceding whereas clauses, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, 'with full autonomy to thus make it independent from the Executive Branch'” The Chamber maintains the same position with judgment No. 2003-02355, in that it establishes that:

“… it is concluded that the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution for the Caja is not subject to limits in matters of government, as this court has reiterated in previous judgments (see for example: 2001-7605, 6256-94, among others). The Caja is ultimately the entity in charge of the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the foregoing, through Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits proper to social security via regulation, such that it can define the conditions, benefits, and entry requirements for each protection regime, supported by actuarial studies, in order not to break the system.” The Chamber must consider the question of whether the regulation effectively implies a reversal of the decentralization that operates from the Political Constitution, or what amounts to the same thing, an interference (sic) with the capacity of the Caja Costarricense de Seguro Social to administer and govern social insurance. The acts of the National Constituent Assembly justify the formation of autonomous entities with the criterion of specialization of state functions, to organize the State and increase its administrative efficiency, therefore it is not legitimate to depart from that purpose, therefore it must give a pro-active response to public interests in matters that are vital for the human being and socially important. The administrative autonomy and autonomy of government that the Political Constitution grants to the Caja Costarricense de Seguro Social is circumscribed to social insurance, to what is indicated in the 1st paragraph of Article 73 of the Political Constitution, as well as to what is recognized by the Law (Article 1). However, institutional autonomy is not an insurmountable limit; according to the precedents, legislation can be enacted on other topics distinct from the indicated competence, complying of course with the guarantee established in Article 190 of the Political Constitution, which establishes the prior hearing of the Institution in the event that the provisions of a bill affect it, but this is not the issue to be analyzed in the unconstitutionality lawsuit.” Likewise, judgment No. 2018013658 of 9:15 hours on August 22, 2018, held:

**“I.- ON ARTICLE 23 OF THE CONSTITUTIVE LAW OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL.** In the case at hand, the claimant's main reproach is directed against Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, in that it establishes that: “The quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution may never be greater than the contribution of their employers, except in cases of exception that the Regulation indicates, based on actuarial recommendations, to give greater benefits to the former, and to obtain a fairer distribution of the burdens of mandatory social insurance.” The claimant essentially alleges that said article infringes Article 121, subsection 13), of the Political Constitution, in that it affirms that the contested provision confers upon the Caja Costarricense de Seguro Social a tax or levy power in violation of the cited constitutional provision.

The question of parafiscal contributions –in this case, contributions to social security– has provoked no small controversy in the doctrinal and jurisprudential sphere. Regarding the constitutional legal controversy before us, from the perspective of this Chamber, two theses are plausible. The first, which considers that being a tax –see in this regard judgment 2006-009568 of this Court– its structural elements –generating event, rate, calculation base, active and passive subject, etc.– must inevitably be defined by formal Law -; this last consequence has not been validated by the Constitutional Chamber. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality would be violated, especially considering that in the struggle of the English barons to obtain tax power, some find the origin of Parliament and democracy – there is no democracy without Parliament, nor the latter without the Opposition.

In summary, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court – see, among others, judgments numbers 1994-003819 and 1998-007393 – is the one that considers that we are not in the presence of a parafiscal levy (contribución parafiscal) and, consequently, the principle of tax legality should not be applied. "The payment of the fee or contribution, as the case may be, is not a tax, as stated in previous paragraphs, but rather the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the taxpayers themselves…".

According to the most authoritative doctrine in tax matters, parafiscal levies are a tax, since they contain the material elements of obligatoriness – the duty to pay them by those who fall under the assumption of the creating norm –, of singularity because it affects a specific and unique social or economic group, and of sectoral allocation because what is collected through this mandatory payment is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a sovereign power of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law – tributum sine lege -.

Now, in the case of worker-employer fees (cuotas obrero-patronales) destined for the support of social security – sickness and maternity insurance (seguro de enfermedad y maternidad) and disability, old-age, and death insurance (seguro de invalidez, vejez y muerte) –, our legal system has a singularity. Indeed, it is constitutional numeral 73 that creates the parafiscal levy by providing for a mandatory contribution from the State, employers, and workers, in order to protect these against the mentioned risks and other contingencies that the law may determine. Immediately thereafter, the constitutional text establishes that the administration and government of these social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, in what is relevant, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes other than those that motivated their creation. As can be observed, we are, then, before a parafiscal levy created by the original Constituent Power, with which, from the perspective of this Court, the maxim that there can be no taxation without representation – no taxation without representation – is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of tax authority is satisfactorily fulfilled, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal levy.

A second obstacle we must overcome is that related to setting the amount of the fee to be paid by employers and workers. In this regard, Article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social establishes that the fees and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution can never be greater than their employers' contribution, except in those exceptional cases which, to give greater benefits to the former, and to obtain a fairer distribution of the burdens of mandatory social insurance, are indicated by the Regulations (Reglamento), based on actuarial recommendations. Seeing things this way, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through formal Law, the Board of Directors of the Caja Costarricense de Seguro Social is imposed objective parameters when determining the amount of the fee – the cost of the services it provides and the respective actuarial calculations –, whereby the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Litigation Judge. This same logic is followed by the Código de Normas y Procedimientos Tributarios in its numeral 5, in relation to rates (tasas), since it allows their amount to be varied through Regulations (Reglamento) so that their purpose is fulfilled more suitably, with the prior intervention of the body that by law is responsible for regulating public service tariffs.

Recapitulating, since the parafiscal levy was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on one hand, and as the legislator set objective parameters to determine the amount of the parafiscal levy fee, that principle is also respected.

II.- Nor can it be interpreted that Article 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social infringes, per se, Article 177 of the Constitution, in the terms expressed by the plaintiff, since such numeral, far from preventing the Caja Costarricense de Seguro Social from setting – in the exercise of its powers, derived from constitutional ordinal 73 – the fees paid by employers and workers, imposes, on the contrary, the obligation to create sufficient revenues in favor of that institution, in order to achieve the universalization of social insurances and reliably guarantee the payment of the State's contribution as such and as employer. Ergo, the unconstitutionality action filed must be rejected on the merits, regarding the cited ordinal 23 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, as is hereby done.

In addition, judgment No. 2018019511 of 21:45 hours on November 23, 2018, reads:

"Given the constitutional rank of the CCSS itself, it is necessary to analyze the budgetary rules pertaining to it. The Chamber emphasizes that the Constitution itself establishes – within the budgetary regulations – a specific regime for the CCSS, as regulated by the third paragraph of numeral 177 of the Political Constitution:

'To achieve the universalization of social insurances and reliably guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to insufficient revenues, the State shall assume it, for which the Executive Branch must include in its next draft Budget the respective item determined as necessary by the cited Institution to cover all of the State's fees.' Likewise, the Constitution provides, in its Article 73, an additional guarantee for the funds and reserves of social insurances, by providing:

'(…) The funds and reserves of the social insurances may not be transferred or used for purposes other than those that motivated their creation. (…)' The importance of these texts lies in the fact that the Political Constitution is a norm of direct application, as this Tribunal has sustained on multiple occasions (for example, judgments Nos. 2016-017376 of 11:41 hours on November 23, 2016, and 2015-006787 of 15:45 hours on May 12, 2015). That is, the fact that the Constitution is the parameter against which other norms are measured or that its precepts are developed in infra-constitutional norms, does not diminish or inhibit the full, direct, prevailing, and immediate application of certain constitutional postulates.

With this in mind, the Chamber observes that the aforementioned Article 177 guarantees that the State will ensure that the CCSS has sufficient revenues for the fulfillment of the assigned constitutional tasks. Therefore, the Executive Branch is compelled by the Fundamental Law itself to budget for this insuring entity sufficient revenues to cover its needs. In the event of failure to do so, the same norm defines the corrective mechanism, since it obliges the Executive Branch to cover in the following period the deficit that may occur. Even though said norm omits assigning the mentioned entity a specific percentage of the budget, unlike the Judicial Branch and public education, the truth is that it does impose an express and determinable constitutional mandate.

This first constitutional safeguard must be read in conjunction with the second guarantee transcribed, prescribed in numeral 73. The third paragraph of said norm prevents any fund or reserve of the social insurances from being used for objectives different from the reason for its creation.

Such norms entail, on one hand, the State's obligation to provide sufficient revenues for the CCSS (Article 177) and, on the other, the impossibility of using the resources of one insurance for different purposes (numeral 73). This means that, in the case of insurances with tripartite contributions, such as sickness and maternity insurance (cuestioned by the consultants), all the resources of said fund are covered by constitutional protection, making it impossible to affect them through the proposed fiscal measures.

As stated, the aforementioned guarantees are of direct and prevailing application with respect to the CCSS. In this way, even though the questioned norms make only two exceptions (the resources of the Disability, Old-Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) and the Non-Contributory Regime (Régimen No Contributivo)), the truth is that the constitutional impossibility of transferring or using the funds of the sickness and maternity insurance constitutes an exception emanating from our Magna Carta, in defense of the government autonomy of the CCSS and the appropriate use of that insurance's resources.

The direct application of the Political Constitution with respect to the CCSS is not new for the Constitutional Chamber:

'VI.- THE SPECIFIC CASE.- The Caja Costarricense de Seguro Social finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of mandatory tripartite contribution from the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of the social insurances, a degree of autonomy that is, of course, different from and superior to that generally defined in Article 188 idem; c) the funds and reserves of the social insurances may not be transferred or used for purposes other than their task. As seen in the preceding recitals (considerandos), the National Constituent Assembly opted to leave things, regarding this institution, as they were in the 1871 Constitution, "with full autonomy to thus make it independent from the Executive Branch". Now, according to what has been said, among the characteristic notes of autonomous institutions is included, without a doubt, budgetary autonomy (see intervention in the National Constituent Assembly of Name35481 in recital (considerando) II).- The inclusion of the necessary budget items for the State to pay its contributions to the Caja Costarricense de Seguro Social forms part of the ordinary resources created in the same Article 73 of the Constitution, so that it is not possible for the Legislative Assembly to include and approve them in an ordinary or extraordinary budget of the Republic, with the definition, at the same time, of the corresponding expenditure, thus substituting the powers granted by the Constitution to the Caja Costarricense de Seguro Social itself, without violating Articles 73 and 188 of the Political Constitution and the principles indicated herein. Being ordinary resources, only the institution, in accordance with its own organization, can exercise constitutional autonomy freely (definition of legality reasons with opportunity and discretion) through the entity's budgets, which must be approved and supervised by the Contraloría General de la República. That is, it is the Political Constitution itself that has defined what the own and ordinary financial resources of the Caja Costarricense de Seguro Social are, by indicating that they are composed of the mandatory contributions that must be paid by the State, employers, and workers, funds that are administered and governed by the institution itself. The case of extraordinary contributions from the State or third parties in favor of social insurances is different, which can indeed carry, as they are donations, contributions, or participations (gratuities in the end), the specific purposes those special resources are directed to, such as the construction of a hospital, a clinic, or the purchase of specialized equipment. But regarding ordinary resources, the legislator cannot substitute the head of the institution in defining spending priorities, because doing so is part of the essence of exercising the entity's autonomy, according to the characteristics, principles, and notes that have been indicated here. All of this leads us to the conclusion that the budget transfers that have been consulted are unconstitutional, for violating Articles 73, 188, and 189 of the Political Constitution.' (Judgment No. 6256-94 of 9:00 hours on October 25, 1994. The underlining is added)." In the same direction, judgment No. 2020010608 of 14:00 hours on June 10, 2020, warns:

"A.- The jurisprudence on the Social State of Law, the Caja Costarricense de Seguro Social, and benefit rights (derechos prestacionales). This Tribunal has said much about the Social State of Law, especially related to the rights that the human person has regarding the essential services provided by the State, such as those related to the rights to health, to a pension, among others, provided by the Caja Costarricense de Seguro Social. These topics have been addressed with the content of Article 50, Constitutional, which establishes:

'The State shall seek the greatest well-being for all the country's inhabitants, organizing and stimulating production and the most adequate distribution of wealth.' In this formula, the Constituent Power established the basic general principle of the Social State of Law that will later be reinforced with other provisions that establish, in concrete terms, the way in which the Costa Rican State materializes this principle transversally among the different social sectors.

In Judgment of this Chamber No. 2005-11132 of 8:49 hours on August 26, 2005, it was stated that:

'… the State shall seek the greatest well-being for all the country's inhabitants, organizing and stimulating production and the most adequate distribution of wealth, which, together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in Article 74 ibidem, determines the very essence of the political and social system we have chosen for our country and that defines it as a Social State of Law (see judgment number 1441-92 of fifteen hours forty-five minutes on June second, nineteen ninety-two). In that sense, this Constitutional Tribunal also expressed itself as follows:' '"One of the basic connotations of the Costa Rican State and, in general, of any 'social' State of Law, is the intervention – increasingly frequent – of the rulers, to solve social problems.- The Political Constitution itself obliges the State to actively participate, not only in production processes (Article 50), but also in those related to the development of fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantee a dignified and useful existence for society".- (Judgment No. 5058-98 of fourteen hours twenty minutes on October fourteenth, nineteen ninety-three).' Similarly, by Judgment of this Chamber No. 2005-13205 of 15:13 hours on September 27, 2005, this Chamber ordered that:

'III.- On the Social State of Law, Equality, and Human Dignity. The Social State of Law, a fundamental element of our constitutional order, entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations. In that sense, constitutional numeral 74 explicitly establishes the duty to seek a permanent policy of national solidarity based on the Christian principle of social justice, which makes it a first-order constitutional value (see judgment number 2170-93 of 10:12 hours on May 21, 1993). Consequently, based on the Social State of Law, our Political Constitution contemplates a set of benefit rights relating to the protection of the family, workers, vulnerable sectors of the population, education, the environment, and goods of the Nation such as cultural heritage. This duty to be subject according to the guidelines of the Social State of Law is not constrained to the Administration, but rather extends to the entire national community, as it is a fundamental rule of citizen coexistence in our political system. In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of Law. Specifically concerning constitutionality control, the Principle of the Social State of Law is useful as a parameter of normative validity, a hermeneutic criterion, and an integrating functional instrument of the legal system.' On the other hand, Judgment No. 2003-09880 of 11:10 hours on September twelfth, 2003, established that:

'"As an element proper to the Social and Democratic State of Law, Social Security stands as its standard, being that it is founded on the principle of social solidarity, and is complemented by the right to equality and the principle of human dignity, as it is a benefit right. Within our Political Constitution, the social insurance regime, despite being a universal regime accessible to all inhabitants of the Republic, starts from the fundamental premise for its economic support of tripartite contribution, that is, State, employer, and workers. Article 73 of the Constitution establishes that social insurances are created for the benefit of manual and intellectual workers, regulated by a system of mandatory contribution from the State, employers, and workers, in order to protect these against the risks of illness, disability, maternity, old age, death, and other contingencies that the law may determine. As can be observed, the Constitution itself, in its eagerness to establish a financing mechanism for social security in favor of active and retired workers, establishes a mandatory tripartite contribution system, from which it is concluded that those workers or pensioners who regularly contribute to the regime in accordance with what is established in the Constitution will have access to social security services, without any additional cost.'" Within the manifestations of state intervention is social security, one of the most palpable being the pay-as-you-go pension regime (régimen de pensiones de reparto), through which, pensioned or retired persons, upon meeting the regime's requirements, receive economic benefits when they have had to cease productive activities, either due to old age or disability. In these cases, the decline of a worker's productivity cycle has arrived, they stop receiving the respective income for the work performed, and it is when the principle of social solidarity begins, to provide the benefits proper to the pension, which, if not occurring, would not allow them to continue fending for themselves – themselves and their dependents – and would fall into social and economic risk. In this manner, in a pay-as-you-go social security system, a fund is formed with a mandatory contribution from workers, employers, and the State, in accordance with Article 73, Constitutional. On this topic, it is important to highlight that when the system was challenged because it was considered a tax obligation, the Constitutional Chamber dismissed that argument. Precisely, in Judgment No. 2018-13658 of 9:15 hours on August 22, 2018, which will be partially transcribed, the Chamber reviewed the jurisprudence on the legal nature of the fees and benefits, which it identified as a parafiscal levy to deliver those contributions, in development of Article 23, of the Ley Constitutiva de la Caja Costarricense de Seguridad Social.

The Chamber established that:

"[...] According to the most authoritative doctrine in tax matters, parafiscal contributions (contribuciones parafiscales) are a tax, since they contain the material elements of obligatoriness—the duty to pay them by those who fall within the assumption of the creating norm—of singularity because they affect a determined and unique social or economic group, and of sectoral allocation because what is collected through this mandatory payment is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a power of imperium of the State that imposes pecuniary payments for the fulfillment of social or economic ends. Ergo, they can only be created through a formal Law—tributum sine lege.

Now then, in the case of the worker-employer quotas destined for the support of social security—sickness and maternity insurance (seguro de enfermedad y maternidad) and disability, old-age, and death insurance (seguro de invalidez, vejez y muerte)—our legal system has a singularity. Indeed, it is constitutional numeral 73 that creates the parafiscal contribution by providing a compulsory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies that the law may determine. Immediately thereafter, the constitutional text establishes that the administration and governance of those social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, as relevant here, the constitutional norm imposes the prohibition against transferring or using for purposes different from those that motivated their creation, the funds and reserves of the social insurances. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent Power, with which, from the perspective of this Tribunal, the maxim that there can be no taxation without representation is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of the taxing power is satisfactorily achieved, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.

A second obstacle that we must overcome relates to the fixing of the amount of the quota to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social provides that the quotas and benefits shall be determined by the Board of Directors (Junta Directiva), in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The contribution of the workers may never be greater than the contribution of their employers, except in the cases of exception that, to give greater benefits to the former and to obtain a fairer distribution of the burdens of compulsory social insurance, the Regulation may indicate, based on actuarial recommendations. Seen in this light, this Tribunal concludes that the principle of tax legality is not violated, for the elementary reason that through a formal Law, the Board of Directors of the Caja Costarricense de Seguro Social is imposed objective parameters when determining the amount of the quota—the cost of the services it provides and the respective actuarial calculations—whereby the legislator set for the administrative collegial body the objective elements it must observe when fixing the respective amounts, administrative acts that must also adhere to the general principles of Law and are controllable through the Administrative Contentious Judge. This same logic is followed by the Code of Tax Norms and Procedures in its numeral 5, in relation to fees, since it allows their amount to be varied by way of Regulation so that their purpose is fulfilled in a more suitable manner, with the prior intervention of the body that by law is charged with regulating the rates of Public services.

Recapitulating, since the parafiscal contribution was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on the one hand, and when the legislator sets objective parameters to determine the amount of the parafiscal contribution quota, that principle is also respected.

II.- Neither can it be interpreted that Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social infringes, per se, Article 177 of the Constitution, in the terms set forth by the claimant, since that numeral, far from preventing the Caja Costarricense de Seguro Social from fixing—in the exercise of its competencies, derived from constitutional numeral 73—the quotas paid by employers and workers, imposes, on the contrary, the obligation to create in favor of that institution the sufficient revenues, in order to achieve the universalization of social insurances and to guarantee, fully, the payment of the State's contribution as such and as employer." In this way, as the precedent clearly indicates, the powers of the Board of Directors of the Caja Costarricense de Seguridad Social are to establish compulsory quotas for Employers and Workers, and the State's contribution, with objective parameters, such as the costs of the services and the actuarial studies to maintain the benefits that the Constituent Power granted under its competence.

As part of the basis for Article 9, of session 8856, held on July 28, 2016, in which the Board of Directors of the Caja Costarricense de Seguro Social takes several measures, such as the elimination of the early retirement option, and it was agreed to reform the Regulation of Disability, Old-Age, and Death Insurance (Reglamento del Seguro de Invalidez, Vejez y Muerte), it was indicated—among other things—that:

"[...] 2 There is a significant percentage of pensioners for whom, without the application of any type of early retirement, the calculation of the pension amount—with the application of the formula—results in an amount lower than the minimum pension amount, such that due to such existence of minimum protections, they must be raised to the minimum pension amount. This situation costs the pension fund around 54 billion colones per year.

[...]

5. Even though the Long-Term Actuarial Valuations, prepared by the Actuarial and Economic Directorate, place the financial sustainability of the IVM Regime in time horizons that range between one and two decades—depending on the scenario—there are conjunctural situations and short-term pressures that the Disability, Old-Age, and Death Insurance is facing, and which are largely reflected in the cash flow and in the use of interest for the payment of the year-end bonus. Given that situation, it is advisable to inject new resources through an acceleration in the magnitude of the contribution premium.

[...]

C. That, based on the foregoing, it was recommended to eliminate early retirement with reduction and also so that, in all those cases where the global pension amount generated with the application of the current calculation formula is lower than the minimum pension amount, the State in its subsidiary capacity contributes the difference.

D. That in accordance with what was recommended above, it is in Article 31 of Session No. 8803, held on October 1, 2015, that the Board of Directors ordered—among other aspects—the following:

'... the Board of Directors, as will be set forth below, AGREES:

• 1)Early Retirement: eliminate [...]
• 2)State Subsidy: accept what was proposed regarding the establishment of a State subsidy for the minimum pension, for which purpose the Pension Management is instructed, in coordination with the Legal Directorate and the Actuarial and Economic Directorate, to make the appropriate adjustments to the Regulation of Disability, Old-Age, and Death Insurance.

(...)'." Having said the foregoing, which serves as the reason for the regulatory reform, it is important to highlight that, within a Social State of Law, like ours, there are certain inescapable obligations of the State, which, by the political and legal direction that this concept contains, conditions the other constitutional organs to act in a certain sense within an economic reality, as is well noted in Judgment No. 2018-19511 of 21:45 hours on November 23, 2018, which stated:

"...In this context, a harmonious interpretation of the principle of budget balance (principio de equilibrio presupuestario) and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there inexorably must be a balance between benefit rights and state economic solvency, since the former depend on the material possibilities fostered by the latter, while the purpose of the latter is to strengthen the development of a solidary political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. In other words, the 'ideal' Social State of Law is the 'possible' Social State of Law, against which precisely one acts when the principle of budget balance is violated, since, in the medium term, that puts at serious risk or entirely prevents obtaining the necessary resources to sustain a 'real' Social State of Law, one that the most vulnerable can truly and effectively enjoy. Watching, then, that we do not fall into a failed or paper Constitution, where constitutional benefit rights cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competencies allows.

It must be noted, indeed, that all constitutional principles, values, and precepts must be observed in any circumstances, which the constitutional jurisdiction is permanently responsible for monitoring. Now, in the context of the balancing or optimization exercise that the constitutional judge performs to resolve a collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of what has been expressed: non-observance of the principle of budget balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of that principle and to emphasize its real implementation for the sake of the principle of the Social State of Law. Emphasis is placed on the observation of the State of the Nation Program (Programa del Estado de la Nación): 'This [referring to the structural imbalance in public finances] has put the future of the social welfare state built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient.' Precisely, the hermeneutics of the general principles for resolving the sub examine, such as that of budget balance and that of the Social State of Law, cannot be detached from the parameters of constitutional relevance inferred from the measures consulted and the abundant technical references to the economic situation, which are fundamental elements for ruling out arbitrary or unreasonable action." Now then, it is true that the judgment outlines the obligation of the State to link itself to the economic and social reality, which implies that the State cannot deny the existence of the economic realities that the State is going through, but also the social security systems for all the social sectors to which the constitutional provision is directed. In this sense, when establishing a general jurisprudential theoretical framework for these rights, it is important to recognize that there is a strong mandate, from the Political Constitution, when it establishes the existence of legal mechanisms to demand the payment of premiums for social insurances, as well as the manner to determine them.

B.- On the principle of social solidarity (principio de la solidaridad social) and the Caja Costarricense de Seguro Social. The Chamber had the opportunity to review the constitutionality of the maximum caps granted by the contributory social security system in Costa Rica, on the part of a professional sector that contributes to the regime. Among other grounds for dismissing the action, the principle of social solidarity was cited, which in a Social State of Law acts transversally throughout society.

By Judgment No. 2013-06638 of 16:00 hours on May 15, 2013, this Chamber ruled as follows:

"B.- The principle of social solidarity. The main multiplying agent of wealth distribution in the Social State of Law resides in this principle, which in our country resides especially from the mandates contained in Articles 1, 50, 73, and 74 of the Political Constitution. Through the entire administrative framework (centralized and decentralized) and distribution of the Powers of the State, one must attempt to eradicate the most pressing social inequalities; it implies that state activity has the need to reasonably link itself with the administered person who has greater needs and must satisfy the most urgent demands with the powers of imperium of the State, even to impose itself in very qualified circumstances against the will of the governed, but which allows—the State—to establish mechanisms that make society a more just and stable place. This principle promotes social equity, which consists of the obligation of those who have more to help those who have less. It is inspired, consequently, by an ought-to-be of society or the collectivity, to provide support to those who do not have sufficient means of subsistence or who find themselves in a social and economic risk, and where society steps forward through the State or the mechanisms it creates, to satisfy the need of persons who fall into a social and economic risk: for this reason, it promotes greater justice and equity. As social security is born of human necessity, all of this entails a sacrifice by the better-off sectors in favor of the most dispossessed, which is precisely the spirit of what is regulated in Articles 1, 50, 73, and 74 of the Political Constitution (since they are those who have or had access to education, to better personal and social conditions, and who by reason of such benefits would be expected to have conduct tending to favor those with lesser luck, etc.). Precisely, social security systems promote the fight against extreme poverty for the most disadvantaged; it becomes, then, a system of economic and social distribution that must be recognized as inherently entailing the sacrifice of certain better-advantaged social groups in society, but which greatly contributes to security and social peace. Well stated by Nombre35482: 'An empty stomach is not a good political advisor,' and that must be the principal concern of the State when it exists in the lowest social strata of Costa Rican society." It is important to bring up the case, since the constitutionality of the contribution and the benefit received was questioned, arising from the tripartite compulsory contribution established by Article 73 of the Political Constitution, in which employers, workers, and the State contribute obligatorily to a pension fund, and which redistributes the quotas of those who contribute more to those who have less. While it is not proportional for either extreme (maximum and minimum), it is with the former that a greater sacrifice is evident, justified by the principle of social solidarity in favor of those who contributed less to the system because they belong to the lowest social stratum. In this way, the social security system must seek mechanisms that compensate for the differences from a minimum level to raise benefits to an amount that ensures the survival of all individuals. In the supra-cited judgment, the Chamber is clear in pointing out that:

"One must not lose sight of the fact that it is based on a basic social protection regime, or what is the same, the international obligation is with the establishment and maintenance of a social floor. It is thus how, being a basic coverage system, it encompasses a horizontal dimension of the system that requires minimum levels of protection to achieve or maintain the universality of that protection (including even to sustain an elevation of levels for those who do not have them, according to the principle of social solidarity), but that, without a doubt, progressivity in the protection regimes must be recognized, that is, in their vertical dimension, where these must be in tune with the international guidelines and obligations that our country has accepted before the ILO. From the reports, it is clear that a very sensitive contraction in the regime would occur, due to the dynamics and pressures that the pension fund or reserve must face." In conclusion, the maximum cap and the minimum amount are technically interrelated, in such a way that they need, as referents, the most recent actuarial calculations, so that they allow for financial sustainability and the soundness of the fund. It is clear that they depend on the former to give validity to the latter; and that, as technical criteria of actuarial mathematics, they would be subject to periodic review according to the behavior of the reserve. In the case before us, Report No. DAE-735-17 of October 2, 2017, established:

"It is worth mentioning that although within the Disability, Old-Age, and Death Insurance, solidarity manifests itself in multiple ways, one of the most significant being the risk of death and disability. The existence of a maximum cap allows the pension amount of those who receive less to be reinforced; however, the number of people on the maximum pension is significantly reduced, as they barely represent 1%, so it is not sustainable to think that the contributions of high-income earners—maximum pension—finance the total solidarity for low-income earners." Hence, the need to decree an increase in compulsory contributions is confirmed, and the importance of recognizing the competence of the Board of Directors of the Caja Costarricense de Seguro Social to decree the increase in the compulsory contribution from the State.

Nombre5650.- The prerogatives of the Executive Branch in the preparation of the national budget and the specialization of the Caja Costarricense de Seguro Social in the regime of social insurances. The Executive Branch has, in the formation of the Republic's budget, certain prerogatives that constitutionally authorize it to preserve the financial order of the State, whether in its revenues or expenditures, which are powers that the Minister of Finance claims to oppose executing the agreement of the Board of Directors of the Caja Costarricense de Seguro Social, contained in Article 9, of session No. 8856, as well as to the claims deduced in this unconstitutionality action. The implications of that agreement entail the expenditure of fifty-six billion colones annually from the National Budget, money that would imply greater indebtedness for the Costa Rican State, since a difficult fiscal situation is recognized. Despite its opposition expressed in official letters DM-2293-2015 of December 10, 2015, and DM-0129-2016 of January 26, 2016, and because it considers that there was no endorsement from the Finance portfolio, nor attention to the relevance of a national dialogue to endow the State with new revenues with which it could meet the obligation. In this sense, the report of the Procuraduría General de la República, which serves as an advisor to this Constitutional Chamber, concludes that, despite the indicated historic fiscal problem, the lack of liquidity, the lack of consultation by the Caja; and, furthermore, the absence at that time of the generation of fresh resources by the Legislative Assembly, the Caja Costarricense de Seguro Social has no limit other than the technical criteria for agreeing to a decreed increase.

That is to say, the criterion of the Attorney General's Office (Procuraduría General de la República) is that, despite the claimed prerogatives of the Executive Branch, these cannot be opposed to the administrative and government autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguros Social) in the matter of social insurance, especially when its actions are founded on mathematical-actuarial criteria.

The Chamber agrees with the Attorney General's Office, but in particular, because although the Executive Branch finds in articles 176, 177, and 179 of the Political Constitution the powers of direction over the majority of institutional budgets, including the Branches of the State, the Constituent excepted certain matters from such controls by creating exceptions and legal remedies to substantiate them. Hence, this Chamber has established criteria such as that of constitutionally tied resources, since they are directed by the constituent himself to solve a priority problem of distribution of State resources, such as, for example, the expenses budgeted by the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to give effect to suffrage, the possible issue of the economic and operational independence of the Judicial Branch, and the State's contribution to social insurance, in paragraph 3 of article 177 of the Political Constitution. Said provision states:

“To achieve the universalization of social insurance and fully guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Costa Rican Social Security Fund, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to the insufficiency of said revenues, the State shall assume it, for which the Executive Branch must include in its next Budget proposal the respective item that the aforementioned Institution determines as necessary to cover the totality of the State's quotas” (boldface is not from the original).

Within the transcribed norm, it is clear that the Constituent established the goal of universalization of social insurance, on which the Costa Rican Social Security Fund has had outstanding work, which has allowed it to achieve a high percentage through the administration of social insurance, and in which the Constituent established as a pivot the State's contributions as employer and as State, which undeniably contains the Constituent's mandate that obliges it to assume part of the equation of national solidarity expected of a social State under the rule of law. Note that the norm does not establish a percentage, but rather allows that determinable constitutional obligation to be established at a given moment, to ensure the necessary current and future income, typical of a fund whose objective is always to maintain its sustainability over time and as the coverage of social insurance progresses. This Chamber notes that this contribution is much lower than that which existed at the creation of the Regime, and that it has been thus maintained for twenty-five years, as indicated by the report of the Actuarial Directorate (Dirección Actuarial) of the Fund. The Costa Rican Social Security Fund demonstrates that the State is the one making the smallest contribution percentage compared to that of employers and workers. In this order of ideas, it is worth noting that the jurisprudence of this Chamber has established that it corresponds to the Fund to set the sufficient revenues, calculated in such a way as to cover the Institution's current and future needs. All the institutions party to this action have agreed that these calculations correspond to the Costa Rican Social Security Fund, which the Ministry of Finance (Ministerio de Hacienda) itself acknowledges. It has been clearly stated that it corresponds to the institution of constitutional rank, because it has administrative and government autonomy in the realm of social insurance administration. Thus, it was indicated in Judgment No. 2001-0378 of 14:37 hours on January 16, 2001 (as in other previous ones, No. 1993-3853 of 9:09 hours on August 11, 1993, and No. 1994-1059 of 15:39 hours on February 22, 1994) that:

“IV.- On the violation of the principle of legal reserve. The plaintiff's first argument is that the challenged norm violates the principle of legal reserve, by imposing, through a regulation, a substantial requirement to exercise the right to a pension. The regulation of fundamental rights is reserved to the law, from which it results that only by means of a formal law, emanating from the Legislative Branch and by the procedure provided in the Political Constitution for the issuance of laws, is it possible to regulate, and in any case, restrict fundamental rights, all -of course- to the extent that the nature and regime of these allow it, and within the applicable constitutional limitations. However, the norm questioned here does not contravene the Political Constitution by virtue of the fact that article 73 of the Political Constitution entrusts the administration and government of social insurance to the Costa Rican Social Security Fund, for which reason the Constitution establishes in favor of this autonomous institution a degree of autonomy -administrative and of government- that allows it to regulate, via regulation, matters relating to social insurance. Said constitutional norm is developed in the Constitutive Law of the Costa Rican Social Security Fund, especially in articles 1, 2 and 3, which provide:

Article 1.- The institution created to apply mandatory social insurance shall be called Costa Rican Social Security Fund and, for the purposes of this law and its regulations, CAJA.

The Fund is an autonomous institution to which corresponds the government and administration of social insurance. The funds and reserves of these insurances may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited. Except for matters relating to public employment and salaries, the Fund is not and may not be subject to orders, instructions, circulars, or directives emanating from the Executive Branch or the Budgetary Authority, in matters of government and administration of said insurances, their funds, or reserves.

“Article 2.- Mandatory Social Insurance comprises the risks of illness, maternity, disability, old age, and involuntary unemployment; it also entails participation in the burdens of maternity, family, widowhood, and orphanhood, and the provision of a quota for burial according to the scale set by the Fund, provided that death is not due to the occurrence of a professional risk.” “Article 3.- The coverage of Social Insurance - and entry thereto - is mandatory for all manual and intellectual workers who receive a salary or wage. The amount of the quotas to be paid under this law shall be calculated on the total of the remunerations that under any denomination are paid, on the occasion of or derived from the worker-employer relationship. (…)

The Fund shall determine by regulation the requirements for entry to each protection regime, as well as the benefits and conditions under which these shall be granted.” The transcribed norms confer upon the Costa Rican Social Security Fund the power to administer everything relating to social insurance, which implies determining by regulation the requirements for entry to each protection regime, its benefits and conditions, for which reason the Regulation of Disability, Old Age, and Death issued by the Board of Directors (Junta Directiva), as well as its reforms, have been made in the exercise of this competence, derived from constitutional numeral 73. Consequently, article 9, subsection a) of the Regulation of the Disability, Old Age, and Death Regime of the Costa Rican Social Security Fund does not violate the principle of legal reserve.” Now then, for the Chamber, in accordance with the provisions of article 14, subsection f), of the Constitutive Law of the Costa Rican Social Security Fund, it corresponds to the Institution's Board of Directors to issue the regulations for its operation, so that, coupled with the transcribed jurisprudence, is sufficient to determine that, in the case of ensuring the funds that the State must guarantee for the maintenance of the regime, it has no restrictions other than those established by technical criteria. In this sense, it has been the Fund itself that has determined that amount to the State, by reform to article 29 of the Regulation of Disability, Old Age, and Death, and although it may be recognized that the economic situation due to the structural financing problems of the Costa Rican State exists and is real, it must be noted that it has been the will of the Constituent to specify the legal mechanism when those revenues are insufficient for the fund, as well as the manner of determining the economic commitments and the way in which the Executive Branch must resolve it, when it states that “must include in its next Budget proposal the respective item that the aforementioned Institution determines as necessary to cover the totality of the State's quotas.” Finally, this Court, in judgment No. 2021017098 of 23:15 hours on July 31, 2021, recorded:

“2) Jurisprudential Background on the Government Autonomy of the Costa Rican Social Security Fund On repeated occasions, as indicated in judgment No. 2011-14624 of 15:50 hours on October 26, 2011, this Court stated that the Costa Rican Social Security Fund (CCSS) enjoys administrative and government autonomy, in accordance with article 73 of the Political Constitution, and therefore may issue provisions related to its internal regime. The Constitutive Law of the Costa Rican Social Security Fund itself, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, in article 70 establishes the following:

“The Administrative Career of the Costa Rican Social Security Fund is hereby created, to regulate which (sic), the Board of Directors shall establish the conditions regarding the entry of employees to the service of the Institution, guarantees of stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for judging infractions, and other necessary provisions…”.

Furthermore, article 14, subsection f) endows the Board of Directors of the CCSS with the authority to regulate the functioning of the institution, in such a way that it confers the power to issue norms, even to regulate the regime of the officials the institution requires to fulfill the responsibilities assigned to it by the Political Constitution and its Constitutive Law, and this is constitutional, as indicated in said precedent:

“…In that context, the possibility for the Institution to establish by itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, such as the case of the Regulation on Recruitment and Selection of Professionals in Pharmacy, Dentistry, and Social Work, is not unconstitutional. The Costa Rican Social Security Fund can establish the rules for the selection of officials who occupy positions in said institution, but respecting the specific aims in the provision of the public service of the Costa Rican Social Security Fund (articles 73, 191, and 192 of the Political Constitution). By virtue of this, article 21 of the Constitutive Law establishes the following: 'Article 21.- The Staff of the Fund shall be integrated based on proven suitability, and promotions in category shall be granted taking into account the worker's merits primarily and then, seniority in service.' From the foregoing, as well as from the reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in the fact that public officials must be governed by a statutory employment relationship, that is, by norms imposed by the Administration in its capacity as employer, in consideration of the efficient and effective provision of the public services that each administrative instance is called upon to offer. Even though the constituent may have thought of a single statutory system, the truth is that the final wording given to article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting in nineteen forty-nine, makes it valid in our times for diverse statutory relationships to exist in the Administration, in consideration of the functional independence and administrative autonomy that the legal system ensures for several public institutions.” The foregoing is in agreement with the very autonomy granted by the Constituent to certain institutions, in the specific case, that conferred on the Costa Rican Social Security Fund in article 73, defined as government autonomy, which is necessary so that it can fulfill the special tasks assigned and without interference from the Executive Branch.

In judgment No. 2011-15665 of 12:40 hours on November 11, 2011, reiterated in 2017-4797, particularly in relation to the CCSS, the following was indicated:

“…In this case, we are facing a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is grade two, which must be understood to include the powers to formulate plans or set the aims and goals of the entity, to provide itself with internal mechanisms of functional and financial planning through budgets, and the exercise of autonomous regulatory power. Which translates, in the specific case of the administration of the pension regime under the charge of the Costa Rican Social Security Fund -at least- into the power to define by itself, to the exclusion of all legislative power, three fundamental aspects regarding pensions: the amount of the contribution quotas, the number of quotas that workers must pay to access the pension, and the retirement age. Precisely this higher degree of autonomy that the Costa Rican Social Security Fund has compared to the rest of the autonomous institutions is what explains how it has been excluded from the application of laws such as the “Law of Financial Administration of the Republic and Public Budgets”, law No. 8131 of September 18, 2001. See article 1 of said law:

“Article 1.- Scope of application This Law regulates the economic-financial regime of the organs and entities that administer or are custodians of public funds. It shall be applicable to:

• a)The Central Administration, constituted by the Executive Branch and its dependencies.
• b)The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies and auxiliary bodies, without prejudice to the principle of separation of Branches established in the Political Constitution.
• c)The Decentralized Administration and public enterprises of the State.
• d)The state universities, the municipalities, and the Costa Rican Social Security Fund, solely regarding compliance with the principles established in title II of this Law, in matters of responsibilities, and in providing the information required by the Ministry of Finance for its studies. In all other respects, they are exempt from the scope and application of this Law (…)” Which demonstrates that the Costa Rican Social Security Fund is always placed in a special category within autonomous institutions, because unlike these, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, that is, government autonomy. This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS does not escape the law, the latter cannot “modify or alter” the constitutionally granted competence and autonomy of the CCSS, defining aspects that are its exclusive domain. The Costa Rican Social Security Fund, being basically an autonomous institution of constitutional creation, has its constitutionally granted field of competence outside the action of the law. Stated another way, the legislator, in the case of the administration and government of social insurance, has limitations, and must respect what the Constituent established. Just as the legislator would be prohibited from issuing a law stipulating that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS in the administration and government of social insurance. In this regard, see what this Chamber provided through resolution number 2001-010545 of 14:58 hours on October 17, 2001:

“… It is clear that the law cannot interfere in matters of government of the Costa Rican Social Security Fund by virtue of the full autonomy that this institution enjoys…” (Criterion reiterated in resolution number 2001-011592 of 09:01 hours on November 9, 2011).

As an additional argument, it should be highlighted that the norm that defines the functions and aims of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while what relates to Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, upon creating the social security institution, seeks to provide solidary and priority protection to the person by their own condition; evidently it is an institution that assumes the solidary spirit that inspires article fifty and seventy-four of the Constitution. What is intended is for each person to have the guarantee that the supportive State ensures them health, pension, disability benefits, and everything related to social security.

This provision becomes not only a goal or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine that constitutional competence.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Then, in judgment No. 2007-18484, reiterated in 2018-6549, this Court addressed the scope of the different types of autonomy, in the following sense:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">A) Scope of the administrative autonomy (autonomía administrativa) of autonomous institutions, and their subjection to the law in matters of government</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> (…). </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">The degree of administrative autonomy—minimal and of the first degree—is characteristic of autonomous institutions; of government autonomy (autonomía de gobierno)—of the second degree—characteristic of municipalities and the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) regarding the administration of social insurance</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">; and of organizational autonomy (autonomía de organización)—full or of the third degree—characteristic of the state universities. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify and even extinguish it; but since decentralization entails that the entity holds all the powers of the administrative chief, this means that its legal personality encompasses all the administrative powers necessary to achieve its purpose independently. Thus, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">the Political Constitution guarantees, in its article 188, every minor public entity, distinct from the State, a minimum or first-degree administrative autonomy, that is, the power of self-administration (auto-administrarse), without subjection to any other public entity and without the need for a legal norm that so provides, to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the duties and purposes assigned to it.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> In this way, the central power has several limitations regarding its interference in autonomous institutions; thus, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">it cannot act as chief of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of expediency; nor can it act as director of the autonomous entity's management by imposing guidelines or basic programs.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> However, as expressed in the same Article 188 of the Constitution, autonomous institutions are subject to the law in matters of government. In accordance with the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the laws; thus, the objectives, purposes, and goals of the entity are provided by the legislator” (Emphasis not in original).</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">As indicated in the cited jurisprudential text, the CCSS, in addition to enjoying administrative autonomy, also holds political or government autonomy (autonomía política o de gobierno). Hence, the Executive Branch has several limitations regarding its interference in the CCSS. It cannot act as its chief, it cannot control it by limiting its activity for reasons of expediency; nor can it act as director of that entity's management by imposing guidelines or basic programs. Similarly, regarding the autonomy of this particular institution, the Court in judgment No. 1994-6256 issued a criterion reiterated in judgments 2011-15665 and 2017-4797, which states:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">III.- THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DE SEGURO SOCIAL).-</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Costa Rican Social Security Fund, following, basically, the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the 1943 modifications, to the 1949 Constitution. However, for the purposes of the consultation, the participations of Constituent Member Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: \"Furthermore, the Fund, sooner or later, would have to assume the risk of unemployment, which will come to resolve the serious problem posed by severance. He insisted that it did not seem appropriate to weaken the Fund. The prudent thing is to strengthen it. Hence, the most advisable course is to leave things as they are, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">giving the Fund full autonomy (plena autonomía) in order to make it independent from the Executive Branch\";</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> and on page 36 ibid. it is added: \"In that sense, the most appropriate course is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Security will undoubtedly be an inexplicable setback.\" When the article was approved, a second paragraph was included that literally stated: \"The administration and government of social insurance shall be in charge of an autonomous institution,\" a text that was later reformed by Law No. 2737 of May 12, 1961, and today reads as follows: \"The administration and government of social insurance shall be in charge of an autonomous institution, called the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social).\" In conclusion, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">the constituent attributed the administration and government of social insurance to the Costa Rican Social Security Fund, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has itself granted it and sharing the general principles derived from its condition as a decentralized entity</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…Doctrinally, there is coincidence in affirming that any form of preventive intervention prior to the issuance of the act by the autonomous entity is prohibited, except for functions of prior control (control previo), as a requirement for the validity of those acts (authorizations); the Central Power cannot act as chief of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of expediency; nor can it act as director of the autonomous entity's management by imposing guidelines or basic programs. All these characteristic features of decentralized entities, which have their origin in a reinforced law (article 189, subsection 3) of the Political Constitution), are equally applicable, as pertinent, to autonomous institutions created by the Political Constitution itself, except that the conditions that the latter has specially and exclusively given the entity prevail.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Hence, even regarding the hiring of its personnel, it has that power of self-administration, since the fulfillment of the constitutionally assigned purposes also depends on it. As an example of the particularities and needs of the service, in judgment 2019-11130 at 10:30 a.m. on June 19, 2019, this Court stated the following:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“In this regard, this Court verifies that indeed that article states that “for the qualification of credentials (atestados) and assignment of scores, the Technical Nursing Commission will grade the competitions in accordance with (…) One point will be given for each year of service or fraction greater than six months, up to a maximum of ten points in zones outside the central plateau (…)”. However, it is not considered that this provision violates the principle of equality and, therefore, becomes unconstitutional; rather, </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">this decision has a reasonable justification, which consists of incentivizing nursing professionals to accept positions outside the central plateau, with the incentive that in future competitions for positions located in more coveted areas, they will have a better score. Thus, what the regulation seeks is not only the most suitable candidate, but rather it seeks to incentivize nursing professionals to agree to work in remote and less desirable places and, in this way, promote the provision of nursing services, necessary for an adequate provision of medical services, in all sectors of the country. This is in accordance with the principles of social solidarity.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It is clear, then, that the Constituent granted such autonomy, allowing it the selection of its personnel under the conditions it requires to fulfill its purposes, while respecting the constitutional principles established in articles 191 and 192 of the Constitution. Criterion reiterated by this Court in judgment numbers 03065-98, 10545-01, and 12494-11, stating:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“…it is feasible for the different establishments of the Fund, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures for their services for their improvement, in order to achieve the best satisfaction of their users and the general interest, which by its nature could never fail to prevail over private interests.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The autonomy that the original legislator grants to the Costa Rican Social Security Fund protects it from the intrusion of the Executive Branch and the Legislative Branch, as evidenced in Judgment 03065-98 at 6:18 p.m. on May 6, 1998 (reiterated in 2001-10545), stating:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“…Which shows that the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike them, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy that municipalities enjoy, which is, government autonomy. This means a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Although certainly the CCSS does not escape the law, the latter cannot “modify or alter” the competence and autonomy constitutionally given to the CCSS, defining aspects that are its exclusive purview.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The Costa Rican Social Security Fund, being basically an autonomous institution of constitutional creation, has its area of competence, constitutionally given, outside the action of the law. In other words, the legislator, in the case of the administration and government of social insurance, has limitations, and must respect what the Constituent established. Just as it would be prohibited for the legislator to issue a law stating that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that intrudes into aspects pertaining to or corresponding to the CCSS's own definition, in the administration and government of social insurance… As an additional argument, it must be highlighted that the norm defining the functions and purposes of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while matters referring to Autonomous Institutions are located in another Title XIV; the difference in placement reflects, from a systematic and systemic interpretation, that the fundamental norm itself, in creating the institution of social security, intends to provide solidary and priority protection to the person by their very condition; evidently it is an institution that assumes the solidary spirit that inspires article fifty-four of the Constitution. The intention is that every person has the guarantee that the solidary State ensures them health, pension, disability benefits, and everything related to social security. This provision becomes not only a goal or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine that constitutional competence.”</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From the foregoing, it follows that the Costa Rican Social Security Fund (CCSS), by constitutional provision (Art. 73), enjoys administrative and government autonomy. This means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, and the existence of a special regulatory framework for its statutory relationship, which attends to and ensures its degree of autonomy, is valid in this case. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); to give itself its own internal organization; to set goals, targets, and types of means to achieve them; to issue autonomous service or activity regulations, in accordance with provisions normally called general policy. Thus, as an autonomous institution of constitutional creation and with a greater degree of autonomy (administrative and government), it allows it to be protected against interference from the Executive Branch and from limitations when the Legislative Branch legislates (which cannot modify its degree of autonomy via legal means). Thus, the Executive Branch cannot act as director or in a hierarchical relationship vis-à-vis this institution; it cannot impose guidelines on it, nor give orders, nor control the timeliness of its activities.”</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Thus, there is also no injury to the Law of the Constitution regarding this point, because it was the Constituent Power that determined, in a sovereign and democratic manner, the creation of the parafiscal contribution (contribución parafiscal) for the benefit of the social security regime governed by the CCSS, thereby complying with the principles that regulate the exercise of the tax power. Along the same lines, tax legality is not injured either, because it is the Constitutive Law of the CCSS that imposes on its Board of Directors objective parameters for determining the amount of the fee to be paid by members of the system; furthermore, in that determination, all action must observe and adjust to the general principles of Law referred to herein, both systemic ones such as legal certainty, and sectoral ones such as universality and solidarity regarding social security, all of which can be reviewed and controlled by the contentious-administrative jurisdiction</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Consequently, the constitutional violation alleged by the claimant regarding the parafiscal nature of the insurance fees (cuotas de aseguramiento) set by the Board of Directors of the Costa Rican Social Security Fund for the different categories of workers, whether salaried or independent, is far from occurring, since as repeatedly explained, both the power granted to the Board of Directors of the Fund and the setting itself that it carries out find direct support and basis in the constitutional text itself and in the Constitutive Law of the institution, so that both the principle of legal reserve and that of tax legality are fully complied with.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">…</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">XVIII.- By way of conclusion. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">This Court has widely recognized the powers of the Costa Rican Social Security Fund, derived from Article 73 of the Political Constitution, and which were granted to it by the constituent when providing that this institution would be in charge of administering and governing social insurance, which necessarily implies that the Fund must have all the appropriate mechanisms to carry out that management. Within those faculties, there is no doubt that the regulatory power (potestad reglamentaria) is included so that the institution can establish the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted, but also to adopt the measures that are necessary for the exercise of its functions and its sustainability. In that sense, it should be remembered that subsection f) of Article 14 of the Constitutive Law of the Costa Rican Social Security Fund confers on the Board of Directors the authority to issue regulations for the functioning of the institution, while Article 232 of the same Law indicates that this Board is competent to determine the fees and benefits in accordance with the cost of the services, all of which will be done based on the actuarial calculations necessary for determining such items. On this point, for this Court, it is undeniable that the power of the Board of Directors of the CCSS to establish the obligation to affiliate independent workers, as well as the amount of fees and benefits, comes from the Political Constitution itself and is due to its technical specialty, which means that all determination must necessarily be made on the basis of actuarial recommendations; this means that the regulatory power of the Board of Directors of the CCSS has constitutional justification and must be used as a development of the law and with actuarial technical foundations—see in that sense judgment No. 2002-4881-.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">This Court has affirmed that said article 23 of the Constitutive Law is consistent with the Political Constitution, so that the powers it confers on the Board of Directors do not imply delegation of the exercise of Legislative Branch functions, but rather find support in the cited Article 73 of the Constitution.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Likewise, the Court has recognized that the Board of Directors, within the powers it possesses, can establish that the conditions of some workers and others, the mandatory nature of their affiliation, the characteristics of the contribution they must pay, as well as the necessary mechanisms to compel them to pay the sums due, are faculties that likewise derive from that Article 73 of the Political Constitution, as it encompasses the powers to administer everything related to social insurance.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">From this perspective, the mandatory inclusion of independent workers within the CCSS regime is not contrary to the Constitution, and in this matter, the legislator has discretion, for it should be remembered that the Constitutive Law of the CCSS provides in Article 3 challenged herein, that the Fund will determine, by regulation, the entry requirements for each protection regime, as well as the benefits and conditions under which they will be granted, and, as stated, Article 14 subsection f) of that Law confers on the Board of Directors the authority to issue regulations for the functioning of the institution.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">For that reason, if the legislator, in the exercise of that discretionary power, determined that anyone who freely exercises a profession or trade must be mandatorily affiliated to the Fund's regime, this does not injure the Political Constitution, and that discretion escapes the control of this Court, so that if the claimant disagrees with the fact that the independent worker is forced to affiliate to the Fund's regime, this is nothing more than a disagreement with the legislator's criterion, but not a constitutionality matter—see judgments numbers 2000-643 and 2008-17304-.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The challenged norms, in short, establish obligations for members of the system, for the sake of fulfilling the institutional function of administering and governing social insurance, as well as regarding the financing of the regime for the benefit of the beneficiaries, so it is improper to consider that they injure the Law of the Constitution in the terms affirmed by the claimant when, on the contrary, they establish a series of minimum guarantees and the obligation of independent workers to be part of the system, without this Court having found any reason to exclude the insurance of independent workers</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">&#xa0;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">from the regulatory powers of the CCSS—see judgments numbers 2000-002571 and 2022-23208.</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Consequently, the unconstitutionality action must be dismissed, as ordered, but not without first noting—as was already done supra—that the regulatory provisions challenged in this proceeding—Articles 1 and 2 of the Regulation for the Affiliation of Independent Workers to the CCSS (Reglamento para la Afiliación de los Trabajadores Independientes de la CCSS), No. 7877 of August 5, 2004—are not only repealed as of this date, but have also been complemented by the promulgation by the Legislative Assembly of new legislation called «Independent Worker Law (Ley del Trabajador Independiente)», number 10363 of May 3, 2023, and the reform to the «Regulation for the Contributory Insurance of Independent Workers (Reglamento para el aseguramiento contributivo de los trabajadores independientes)», adopted by the Board of Directors of the Costa Rican Social Security Fund, and published in Alcance No. 212 to the Official Gazette La Gaceta, No. 205, of October 31, 2023. </span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:center; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Por tanto</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="width:1.2pt; text-indent:0pt; display:inline-block">&#xa0;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The action is declared without merit. Judge Cruz Castro records additional reasons. Judge Rueda Leal records separate reasons…</span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">…Separate reasons of Judge Rueda Leal. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In the sub examine, I concur with the dismissal of the action, but for the following reasons. </span></p><p style="margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">First, regarding social security and the autonomy of the Costa Rican Social Security Fund (CCSS), the Court, in resolution No. 2021023611 at 5:50 p.m. on October 20, 2021, held: </span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">V.- The Costa Rican Social Security Fund, its autonomy, and social security.</span> In relation to numerals 73 and 74, located in the sole chapter of Title V “Social Rights and Guarantees” of our Magna Carta, constitutional jurisprudence has extensively developed its content and implications regarding the autonomy of the CCSS in the administration and government of social security.

Thus, in judgment No. 2001-10545 of 14:58 hours on October 17, 2001, it was ordered:

**“II.- On the merits. The autonomy of the Caja Costarricense de Seguro Social.** –Article 73 of the Political Constitution establishes in its second paragraph ‘The Administration and government of social security shall be entrusted to an autonomous institution, called the Caja Costarricense de Seguro Social.’ Regarding the scope of what this norm establishes, the Chamber has repeatedly stated that the autonomy of the Caja is not subject to limits in matters of government. On this topic, analyzed in judgment 6256-94 of nine o’clock on October twenty-fifth, nineteen ninety-four, it was expressed:

“III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, following, basically, the original text of the 1871 Constitution; that is, the institution from the 1871 Constitution was transplanted, according to the 1943 modifications, into the 1949 Constitution. However, for the purposes of the consultation, the interventions of Constituent Member Nombre35480 on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: ‘Furthermore, the Caja, sooner or later, would have to assume the risk of unemployment, which will solve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable thing is to leave things as they are, giving the Caja full autonomy to thus make it independent from the Executive Branch’; and on page 36 ibidem it is added: ‘In that sense, the most appropriate thing is to maintain the wording of article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Security will undoubtedly be an inexplicable step backward.’ When the article was approved, a second paragraph was included that literally stated: ‘The administration and government of social security shall be entrusted to an autonomous institution,’ a text that was later reformed by Law No. 2737 of May 12, 1961, remaining today as follows: ‘The administration and government of social security shall be entrusted to an autonomous institution, called the Caja Costarricense de Seguro Social.’ In conclusion, the constituent attributed the administration and government of social security to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has granted it and sharing the general principles derived from its condition as a decentralized entity.

Other judgments of this Chamber in which allusion is made to the issue of the autonomy of the Caja Costarricense de Seguro Social are the following: 0236-94 of 9 hours 57 minutes on January fourteenth; 3403-94 of 15 hours 42 minutes on July 7; 6471-94 of 9 hours 39 minutes on November 4, all from the year 1994). In a date subsequent to these, the Chamber has indicated:

“IV.- Article 73 of our Political Constitution establishes the existence of social security, which is regulated by the system of compulsory contribution by the State, employer, and workers, in order to protect the latter against the risks of illness, maternity, disability, old age, and death. The Caja Costarricense de Seguro Social is the autonomous entity entrusted with administering this type of insurance, with the autonomy that allows it to have its own initiative for its proceedings, as well as to execute its tasks and fulfill its legal obligations, setting goals and the means to achieve them. It guarantees, in this way, the establishment of social security and its nature, decrees the purpose of social security, and regulates the destination of the respective funds. Social security was born to protect the worker and his family, as the human beings they are, and is provided from conception until death, seeking health and helping in unforeseen misfortunes such as disability and death, as well as in states of vulnerability due to their very condition such as old age, pension, and retirement.” (Judgment 004636-98 of 15 hours 57 minutes on June 30, 1998) “…it is possible for the different establishments of the Caja, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures for their services for their improvement, in order to achieve the best satisfaction of their users and the general interest, which by its nature could never fail to prevail over private interests.” (Judgment 03065-98 of 18 hours 18 minutes on May 6, 1998) “…the autonomy recognized in article 73 in relation to article 177 of the Political Constitution to the Caja is not subject to limits in matters of government, as this court has reiterated in preceding judgments (see for example: 3403-94, 6256-94, 6524-94, among others) The constituent expressly instituted an entity in charge of the administration of social security endowed with maximum autonomy for the performance of its important function; which is why the reform to constitutional numeral 188 that instituted administrative direction did not modify its legal regime.” (Judgment 07379-99 10 hours 36 minutes on September 24, 1999) When analyzing what was alleged by the petitioner, the Chamber considers that –in effect– the content of Transitory Provision IV of Law 6577 is harmful to the autonomy of government that the second paragraph of article 73 of the Political Constitution confers on the Caja Costarricense de Seguro Social, because by ordering that norm the forced closure within a determined period of the pensioner service –or even if it had ordered the contrary–, it is evident that the attributions that by virtue of the autonomy of government are attributed to said institution are invaded, understanding this as the capacity to carry out its legal purpose without subjection to another entity, to self-direct, self-govern and dictate its own objectives and organize itself in the manner it deems convenient for the fulfillment of the purpose for which it was created.” For its part, vote No. 2002-06384 of 15:27 hours on June 26, 2002, pointed out:

**“VIII.- Subsection b) of article 2 of the Law of Creation of the Budgetary Authority. Considerations of the Constitutional Chamber.** In relation to autonomous institutions, the Chamber ruled in favor of the power of the Budgetary Authority to formulate directives to decentralized institutions, but interpreted this power restrictively. Based on article 188 of the Political Constitution, this Court considered in judgment No. 3309-94 that the power of the Budgetary Authority is constitutional insofar as:

“… it remains in the field the design and subsequent execution of general policy directives, but not, of course, to the extent that its application interferes in the concrete execution of those directives. The general nature of this function means that the Budgetary Authority cannot, within its competence, give concrete orders or submit for approval the specific acts of execution that are part of the administrative autonomy of those entities.” If in the case of autonomous institutions in general the power must be interpreted restrictively, in the case of the Caja Costarricense de Seguro Social the power is totally unconstitutional. The Caja Costarricense de Seguro Social enjoys, as stated in judgment No. 3403-94, “a degree of autonomy distinct from and superior to that defined in general terms in article 188”. This greater degree of autonomy derives from article 73 of the Political Constitution. In judgment No. 6256-94 it was stated:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in constitutional article 73, with the following particularities: a) the system that supports it is that of solidarity, creating a system of compulsory tripartite contribution by the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social security, a degree of autonomy that is, of course, distinct from and superior to that defined in general terms in article 188 ibidem; c) the funds and reserves of social security cannot be transferred or used for purposes different from their purpose. As seen in the preceding recitals, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, ‘with full autonomy to thus make it independent from the Executive Branch.’ By virtue of this full autonomy, any provision that obliges the Caja Costarricense de Seguro Social to comply with directives on the administration of the resources that are subject to its management is unconstitutional. Subsection b) of article 2 of the Law of Creation of the Budgetary Authority suffers from that defect and, therefore, is declared unconstitutional only insofar as it refers to the Caja Costarricense de Seguro Social.

(…)

**XIII.- Regarding article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social. Considerations of the Constitutional Chamber.** On this point, this Chamber dissents from the petitioner’s thesis. Although he is right in that constitutionally the Caja is prohibited from allocating funds to other purposes different from those imposed by the Constitution itself, article 41 does not indicate such a thing. One must clearly differentiate between the norm itself and the application that may have been given to it in specific cases. As such, article 41 is aimed at the investment of reserves; this is how this Court understands it, and a provision of this nature is not unconstitutional. Interpreting otherwise would be to oblige the Caja to keep idle resources that, in another way, could generate resources that strengthen the fund itself. Another aspect is the possibility that the Caja has used that article to invest funds, supposedly idle, when it far from fulfills its purposes. If so, it is possible to challenge in the legality jurisdiction the concrete actions that exceed the limits established by that same article 41. It is also possible to evaluate the personal responsibility of those who did not adjust their decisions to the norm, as they are obliged to interpret that article 41 harmoniously with Constitutional article 73. In summary, article 41 of the Constitutive Law of the Caja Costarricense de Seguro Social is not unconstitutional, as long as it refers to idle funds and not to funds necessary to satisfy the objectives constitutionally assigned to that institution.” Judgment No. 2003-03483 of 14:05 hours on May 2, 2003, ordered:

“Regarding the social security regime. Article 73 of the Political Constitution, interpreted harmoniously with article 50 ibidem, enshrines the Right to Social Security. The Chamber has repeatedly indicated that this right presupposes that the public authorities shall maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, with a compulsory nature. The objective scope assumes the principle of generality, insofar as it protects situations of need, not to the extent that they have been previously foreseen and insured, but insofar as they actually occur. Furthermore, it incorporates the principles of sufficiency of protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management must be public, under the responsibility of the State, represented by the Caja Costarricense de Seguro Social, and financing shall respond to the cardinal principle of social solidarity, as it is based on the compulsory and tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are those of universality, generality, sufficiency of protection, and social solidarity.” What was decided in judgment No. 201007788 of 14:59 hours on April 28, 2010, must also be transcribed:

**“III.- On the merits.** (…) To resolve the present action of unconstitutionality, it is necessary to take into consideration the precedents on the **autonomy of the Caja Costarricense de Seguro Social.** By judgment No. 1994-06256 of nine o’clock on October twenty-fifth, nineteen ninety-four, the Chamber establishes the following:

“Although it is not the subject matter of the consultation, for the purposes of the conclusion reached by the Chamber, it is necessary, at least, to point out some general guidelines of what administrative decentralization implies in our constitutional regime. There exist in our legal system three forms of autonomy: a) administrative, which is the legal possibility for an entity to carry out its legal purpose by itself without subjection to another entity, known in doctrine as the capacity for self-administration; b) political, which is the capacity to self-direct politically, to self-govern, for the entity to dictate its own objectives to itself; and, c) organizational, which is the capacity to self-organize, excluding all legislative power. In the first two cases, autonomy is vis-à-vis the Executive Branch and in the third, also vis-à-vis the Legislative Branch. Organizational autonomy is characteristic of the universities as deduced from article 84 of the Political Constitution and therefore foreign to the purposes of this consultation. The other two degrees of autonomy derive from Political Autonomy, the content of which will be specific to the law (foundational act) that creates the entity. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even extinguish it; but since decentralization implies that all the powers of the administrative superior correspond to the entity, it means that its legal personality encompasses the totality of the administrative powers necessary to achieve its purpose independently. Autonomy usually comprises the powers to formulate plans or set the purposes and goals of the entity, to provide itself with the internal mechanisms for functional and financial planning through budgets, and finally, the exercise of autonomous regulatory power. These general guidelines on autonomy are directed at administrative decentralization created by ordinary law.” Furthermore, the Chamber pointed out that:

“The Caja Costarricense de Seguro Social finds its guarantee of existence in constitutional article 73, with the following particularities: a) the system that supports it is that of solidarity, creating a system of compulsory tripartite contribution by the State, employers, and workers; b) the norm grants, exclusively to the Caja Costarricense de Seguro Social, the administration and government of social security, a degree of autonomy that is, of course, distinct from and superior to that defined in general terms in article 188 ibidem; c) the funds and reserves of social security cannot be transferred or used for purposes different from their purpose. As seen in the preceding recitals, the National Constituent Assembly chose to leave things, regarding this institution, just as they were in the 1871 Constitution, ‘with full autonomy to thus make it independent from the Executive Branch.’” The Chamber maintains the same position with judgment No. 2003-02355, insofar as it establishes that:

“… it is concluded that the autonomy recognized in article 73 in relation to article 177 of the Political Constitution to the Caja is not subject to limits in matters of government, as this court has reiterated in preceding judgments (see for example: 2001-7605, 6256-94, among others). The Caja is in short the entity in charge of the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the foregoing, through articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits specific to social security via regulation, so that it can define the conditions, benefits, and entry requirements of each protection regime, supported by actuarial studies, in order not to bankrupt the system.” The Chamber must pose the question of whether the norm effectively implies a reversion of the decentralization that operates from the Political Constitution, or what is the same, an interference (sic) with the capacity of the Caja Costarricense de Seguro Social to administer and govern social security. The acts of the National Constituent Assembly justify the formation of autonomous entities with the criterion of specialization of state functions, to organize the State and increase its administrative efficiency, therefore it is not legitimate to depart from that purpose, therefore it must give a pro-active response to public interests in matters that are vital for the human being and socially important. The administrative and governmental autonomy that the Political Constitution grants to the Caja Costarricense de Seguro Social is circumscribed to social security, to what is indicated in paragraph 1 of article 73 of the Political Constitution, as well as to what is recognized by Law (article 1). Notwithstanding institutional autonomy, it is not an insurmountable limit; according to precedents, legislation can be enacted on other matters distinct from the indicated competence, complying of course with the guarantee established in article 190 of the Political Constitution, which establishes the prior hearing of the Institution in case the provisions of a bill affect it, but that is not the issue to be analyzed in the unconstitutionality lawsuit.” Likewise, judgment No. 2018013658 of 9:15 hours on August 22, 2018, held:

**“I.- REGARDING ARTICLE 23 OF THE CONSTITUTIVE LAW OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL.** In the sub lite, the main reproach of the petitioner is directed against article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social, insofar as it establishes that: “The quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers’ contribution may never be greater than the contribution of their employers, except for the cases of exception that, to give greater benefits to the former, and to obtain a fairer distribution of the burdens of compulsory social security, the Regulation may indicate, based on actuarial recommendations.” The petitioner essentially alleges that said numeral infringes article 121, subsection 13), of the Political Constitution, insofar as he affirms that the contested norm confers on the Caja Costarricense de Seguro Social a tax or levy power in violation of the cited constitutional provision.

The question of parafiscal contributions –in this case, contributions to social security– has provoked no small controversy in the doctrinal and jurisprudential spheres. Regarding the constitutional legal controversy at hand, from the perspective of this Chamber, two theses are plausible. The first, which considers that since it is a tax –see in this regard judgment 2006-009568 of this Court– its structural elements –taxable event, rate, calculation base, active and passive subject, etc.– must inevitably be defined by formal Law; –this last consequence that has not been validated by the Constitutional Chamber–. In this direction, if the structural elements of the parafiscal contribution were not established by formal Law, the principle of tax legality would be violated, especially if one takes into account that in the struggle of the English barons to seize the tax power, some find the origin of Parliament and democracy – there is no democracy without Parliament, nor of the latter without the Opposition–.” In summary, in this specific case, the principle of tax legality must be applied. The second thesis, which has been upheld by this Court—see, among others, rulings numbers 1994-003819 and 1998-007393—is the one that considers that we are not in the presence of a parafiscal contribution (contribución parafiscal) and, consequently, the principle of tax legality should not be applied. "The payment of the fee or contribution, as the case may be, is not a tax, as stated in previous paragraphs, but rather the payment of a legal obligation, which is an essential condition for the very existence of the regime, created precisely for the benefit of the taxpayers themselves …".

According to the most authoritative doctrine in tax matters, parafiscal contributions (contribuciones parafiscales) are a tax, because they contain the material elements of obligatoriness—the duty to pay them by those who fall under the assumption of the creating norm—, of singularity because it affects a determined and unique social or economic group, and of sectoral allocation because what is collected through this mandatory payment is used for the exclusive benefit of the group that paid the tax. We are, therefore, before the exercise of a sovereign power of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law—tributum sine lege.

Now, in the case of worker-employer fees intended for the support of social security—sickness and maternity insurance and disability, old-age, and death insurance—our legal system has a peculiarity. Indeed, it is that constitutional number 73 is the one that creates the parafiscal contribution (contribución parafiscal) by providing a forced contribution from the State, employers, and workers, in order to protect them against the cited risks and other contingencies that the law determines. Immediately, the constitutional text establishes that the administration and government of these social insurances corresponds to an autonomous institution: the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). Finally, as relevant here, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes different from those that motivated their creation. As can be observed, we are, then, before a parafiscal contribution (contribución parafiscal) created by the original Constituent Power, by which, from the perspective of this Court, the maxim that there can be no imposition without representation—no taxation without representation—is fulfilled. In other words, in the case at hand, adherence to the principles governing the exercise of the tax power is satisfactorily fulfilled, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution (contribución parafiscal).

A second obstacle we must overcome relates to setting the amount of the fee to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense de Seguro Social) stipulates that the fees and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution can never be greater than the contribution of their employers, except in cases of exception that the Regulation may indicate, based on actuarial recommendations, to give greater benefits to them and to obtain a fairer distribution of the burdens of mandatory social insurance. Viewing matters thus, this Court concludes that the principle of tax legality is not violated, for the elementary reason that through a formal Law, objective parameters are imposed on the Board of Directors of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) when determining the amount of the fee—the cost of the services it provides and the respective actuarial calculations—, by which the legislator set for the administrative collegiate body the objective elements it must observe when setting the respective amounts, administrative acts that must also adhere to the general principles of Law and are reviewable through the Administrative Litigation Judge. This same logic is followed by the Code of Tax Norms and Procedures in its number 5, in relation to fees, as it allows their amount to be varied by means of Regulation so that their purpose is fulfilled in a more suitable manner, with prior intervention of the body that by law is responsible for regulating the rates of Public services.

Recapitulating, since the parafiscal contribution (contribución parafiscal) was created by the original Constituent Power, the principle of tax legality is amply fulfilled, on one hand, and by the legislator setting objective parameters to determine the amount of the parafiscal contribution (contribución parafiscal) fee, that principle is also respected.

II.- Neither can it be interpreted that Article 23 of the Constitutive Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense de Seguro Social) infringes, per se, Article 177 of the Constitution, in the terms expressed by the claimant, since such numeral, far from preventing the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) from setting—in the exercise of its competences, derived from constitutional number 73—the fees paid by employers and workers, imposes, on the contrary, the obligation to create sufficient revenues in favor of that institution, in order to achieve the universalization of social insurances and guarantee, fully, the payment of the State's contribution as such and as employer. Ergo, the unconstitutionality action filed must be rejected on the merits, regarding the cited number 23 of the Constitutive Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense de Seguro Social), as is hereby done.

In addition, ruling No. 2018019511 of 21:45 hours on November 23, 2018, reads:

"Given the constitutional rank of the CCSS itself, it is necessary to analyze the budgetary norms pertaining to it. The Chamber emphasizes that the Constitution itself establishes—within the budgetary regulations—a specific regime for the CCSS, as regulated by the third paragraph of number 177 of the Political Constitution:

'To achieve the universalization of social insurances and fully guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), calculated in such a way as to cover the current and future needs of the Institution. If a deficit arises due to insufficiency of these revenues, the State shall assume it, for which the Executive Branch must include in its next Budget proposal the respective item that the cited Institution determines as necessary to cover the totality of the State's fees.' Likewise, the Constitution provides, in its Article 73, an additional guarantee for the funds and reserves of the social insurances, by stipulating:

'(…)

The funds and reserves of the social insurances may not be transferred or used for purposes different from those that motivated their creation. (…)' The importance of these texts lies in the fact that the Political Constitution is a norm of direct application, as this Court has held on multiple occasions (for example, rulings Nos. 2016-017376 of 11:41 hours on November 23, 2016, and 2015-006787 of 15:45 hours on May 12, 2015). That is, the fact that the Constitution is the parameter against which other norms are measured or that its precepts are developed in infra-constitutional norms, does not detract from nor inhibit the full, direct, prevalent, and immediate application of certain constitutional postulates.

With this in mind, the Chamber observes that the aforementioned Article 177 guarantees that the State shall ensure that the CCSS has sufficient revenues for the fulfillment of the assigned constitutional duties. Therefore, the Executive Branch is compelled by the Fundamental Law itself to budget sufficient revenues for that insuring entity to cover its needs. In case of not doing so, the same norm defines the corrective mechanism, since it obliges the Executive Branch to cover the deficit that may arise in the following period. Although such norm omits assigning a specific percentage of the budget to said entity, unlike the Judicial Branch and public education, the truth is that it does impose an express and determinable constitutional mandate.

This first constitutional safeguard must be read together with the second transcribed guarantee, prescribed in number 73. The third paragraph of said norm prevents any fund or reserve of the social insurances from being used for objectives different from the reason for their creation.

Such norms entail, on one hand, the State's obligation to provide sufficient revenues for the CCSS (Article 177) and, on the other, the impossibility of using the resources of an insurance for different purposes (number 73). This means that, in the case of insurances with tripartite contributions, such as sickness and maternity insurance (challenged by the consultants), all the resources of said fund are covered by constitutional protection, making it impossible for them to be affected by the proposed fiscal measures.

As stated, the aforementioned guarantees are of direct and prevalent application with respect to the CCSS. Thus, although the challenged norms make only two exceptions (the resources of the Disability, Old-Age, and Death Regime and the Non-Contributory Regime), the truth is that the constitutional impossibility of transferring or using the funds of the sickness and maternity insurance constitutes an exception stemming from our Magna Carta, in defense of the governmental autonomy of the CCSS and the appropriate use of said insurance's resources.

The direct application of the Political Constitution with respect to the CCSS is not new for the Constitutional Chamber:

'VI.- THE SPECIFIC CASE.- The Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) finds its guarantee of existence in Article 73 of the Constitution, with the following particularities: a) the system that supports it is that of solidarity, creating a system of tripartite forced contribution from the State, employers, and workers; b) the norm grants, exclusively to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), the administration and government of social insurances, a degree of autonomy that is, of course, different from and superior to that defined generally in Article 188 idem; c) the funds and reserves of social insurances cannot be transferred or used for purposes different from their purpose. As seen in the previous recitals, the National Constituent Assembly chose to leave things, regarding this institution, as they were in the Constitution of 1871, "with full autonomy to thus make it independent from the Executive Branch". Now, as stated, among the characteristic notes of autonomous institutions, budgetary autonomy is undoubtedly included (see intervention in the National Constituent Assembly of Name35481 in recital II).- The inclusion of the necessary budget items for the State to pay its contributions to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) forms part of the ordinary resources created in the same Article 73 of the Constitution, so it is not possible for the Legislative Assembly to include and approve them in an ordinary or extraordinary budget of the Republic, with the definition, at the same time, of the corresponding expenditure, thus substituting the powers granted by the Constitution to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) itself, without violating Articles 73 and 188 of the Political Constitution and the principles indicated herein. Being ordinary resources, only the institution, according to its own organization, can freely exercise its constitutional autonomy (definition of the reasons of legality with opportunity and discretion) through the entity's budgets, which must be approved and audited by the Comptroller General of the Republic. That is, it is the Political Constitution itself that has defined which are the own and ordinary financial resources of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), by indicating that they are composed of the forced contributions that the State, employers, and workers must pay, funds that are administered and governed by the institution itself. Different is the case of extraordinary contributions from the State or third parties in favor of social insurances, which may indeed carry, being donations, contributions, or participations (liberalities ultimately), the specific purposes to which those special resources are directed, such as the construction of a hospital, a clinic, or the purchase of specialized equipment. But in the case of ordinary resources, the legislator cannot substitute the head of the institution in defining spending priorities, because doing so is part of the essence of exercising the entity's autonomy, according to the characteristics, principles, and notes that have been indicated here. All of this leads us to the conclusion that the budget transfers that have been consulted are unconstitutional, for violating Articles 73, 188, and 189 of the Political Constitution.' (Ruling No. 6256-94 of 9:00 hours on October 25, 1994. Emphasis added).

In the same direction, it is noted in ruling No. 2020010608 of 14:00 hours on June 10, 2020:

'A.- The jurisprudence on the Social State of Law, the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), and welfare rights. This Court has said much about the Social State of Law, especially related to the rights that the human person has regarding the essential services provided by the State, such as those related to the rights to health, to a pension, among others, provided by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). These topics have been addressed with the content of Article 50 of the Constitution, which establishes:

"The State shall seek the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth." In this formula, the Constituent Power established the basic general principle of the Social State of Law, which will later be reinforced with other provisions that establish, specifically, the way in which the Costa Rican State materializes this principle transversally among the different social sectors.

In Ruling No. 2005-11132 of 8:49 hours on August 26, 2005, from this Chamber, it was stated that:

"… the State shall seek the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth, which, together with the declaration of the Costa Rican State's adherence to the Christian principle of social justice, included in Article 74 ibidem, determines the very essence of the political and social system we have chosen for our country and which defines it as a Social State of Law (see ruling number 1441-92 of fifteen hours forty-five minutes on June second, nineteen ninety-two). In that sense, this Constitutional Court also stated the following:

'One of the basic connotations of the Costa Rican State and, in general, of any "Social" State of Law, is the intervention—increasingly frequent—of the rulers, to provide solutions to social problems.- The Political Constitution itself obliges the State to actively participate, not only in production processes (Article 50), but also in those related to the development of fundamental rights of the individual (housing, education, clothing, food, etc.) that guarantee a dignified and useful existence for society.'- (Ruling No. 5058-98 of fourteen hours twenty minutes on October fourteenth, nineteen ninety-three)." Similarly, through Ruling No. 2005-13205 of 15:13 hours on September 27, 2005, from this Chamber, it was ordered that:

"III.- On the Social State of Law, Equality, and Human Dignity. The Social State of Law, a fundamental element of our constitutional order, entails an orientation of our political regime towards social solidarity, that is, towards equity in societal relations, the promotion of social justice, and the equality of all citizens in the exercise of their rights, discarding arbitrary and unreasonable discriminations. In this regard, constitutional number 74 explicitly establishes the duty to pursue a permanent policy of national solidarity based on the Christian principle of social justice, which makes it a constitutional value of the first order (see ruling number 2170-93 of 10:12 hours on May 21, 1993). Consequentially, based on the Social State of Law, our Political Constitution contemplates a set of welfare rights relating to the protection of the family, workers, vulnerable sectors of the population, education, the environment, and assets of the Nation such as cultural heritage. This duty to conform to the guidelines of the Social State of Law is not restricted to the Administration, but extends to the entire national community, as it is a fundamental rule of citizen coexistence in our political system. In its condition as a general principle, it emanates a particular normative projection in all areas of creation, interpretation, and execution of Law. Specifically concerning the control of constitutionality, the Principle of the Social State of Law is useful as a parameter of normative validity, hermeneutic criterion, and functional integrating instrument of the legal system." On the other hand, Ruling No. 2003-09880 of 11:10 hours on September 12, 2003, established that:

"As an element proper to the Social and Democratic State of Law, Social Security stands as a standard of the same, being that it is founded on the principle of social solidarity, and is complemented by the right to equality and the principle of human dignity, as a welfare right that it is. Within our Political Constitution, the social insurance regime, despite being a universal regime and accessible to all inhabitants of the Republic, starts from the fundamental premise for its economic support of tripartite contribution, that is, State, employer, and workers. Article 73 of the Constitution establishes that social insurances are created for the benefit of manual and intellectual workers, regulated by the system of forced contribution from the State, employers, and workers, in order to protect them against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law determines. As can be observed, the Constitution itself, in the desire to establish a financing mechanism for social security in favor of active and retired workers, establishes a tripartite forced contribution system, from which it is concluded that those workers or pensioners who regularly contribute to the regime in accordance with the provisions of the Constitution shall have access to social security services, without any additional cost." Among the manifestations of state intervention is social security, one of the most palpable being the pay-as-you-go pension regime, through which retired or pensioned persons, upon meeting the regime's requirements, receive economic benefits when they have had to leave productive activities, whether due to old age or disability. In these cases, the twilight of a worker's productivity cycle has arrived, they stop receiving the respective income for the work performed, and it is when the principle of social solidarity begins, to provide the benefits of the pension, which, if it did not occur, would not allow them to continue fending for themselves—they and their dependents—, and would fall into social and economic risk. In this way, in a pay-as-you-go social security system, a fund is formed with a mandatory contribution from workers, employers, and the State, in accordance with Article 73 of the Constitution. On this topic, it is important to highlight that when the system was challenged for considering that it was a tax obligation, the Constitutional Chamber dismissed that argument. Precisely, in Ruling No. 2018-13658 of 9:15 hours on August 22, 2018, which will be partially transcribed, the Chamber reviewed the jurisprudence on the legal nature of the fees and benefits, which it identified as a parafiscal contribution (contribución parafiscal) to deliver those contributions, in development of Article 23 of the Constitutive Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense de Seguridad Social).

The Chamber established that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">\"[...] According to the most authoritative doctrine in tax matters, parafiscal contributions (contribuciones parafiscales) are a tax, since they contain the material elements of obligatoriness—the duty to pay them by those who fall within the assumption of the creating norm—of singularity because they affect a specific and unique social or economic group, and of sectoral destination because what is collected through this obligatory payment is used for the exclusive benefit of the group that paid the tax. We are, then, faced with the exercise of a power of imperium of the State that imposes pecuniary payments for the fulfillment of social or economic purposes. Ergo, they can only be created through a formal Law—tributum sine legge.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Now, in the case of the employer-employee quotas (cuotas obrero-patronales) destined for the support of social security—sickness and maternity insurance (seguro de enfermedad y maternidad) and disability, old-age, and death insurance (seguro de invalidez, vejez y muerte)—our legal system has a singularity. Indeed, constitutional numeral 73 is the one that creates the parafiscal contribution by providing for a compulsory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies that the law may determine. Immediately after, the constitutional text establishes that the administration and governance of those social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, as relevant here, the constitutional norm imposes the prohibition of transferring or using the funds and reserves of the social insurances for purposes other than those that motivated their creation. As can be observed, we are, then, faced with a parafiscal contribution created by the original Constituent Power, whereby, from this Tribunal's perspective, the maxim of no taxation without representation is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of the taxing power is satisfactorily met, given that a representative, plural body, which exercises the maximum power in a democratic and social State of Law, such as the exercise of the constituent power, sovereignly and democratically determined to create the parafiscal contribution.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">A second obstacle that we must overcome relates to the setting of the amount of the quota to be paid by employers and workers. In this regard, Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social provides that the quotas and benefits shall be determined by the Board of Directors, in accordance with the cost of the services to be provided in each region and in conformity with the respective actuarial calculations. The workers' contribution can never be greater than the contribution of their employers, except in cases of exception that, to provide greater benefits to the former and to obtain a more just distribution of the burdens of compulsory social insurance, the Regulations may indicate based on actuarial recommendations. Seen in this light, this Tribunal concludes that the principle of tax legality (principio de legalidad tributaria) is not violated, for the elementary reason that through a formal Law, the Board of Directors of the Caja Costarricense de Seguro Social is given objective parameters when determining the amount of the quota—the cost of the services it provides and the respective actuarial calculations—such that the legislator set for the administrative collegiate body the objective elements it must observe when fixing the respective amounts, administrative acts that must also adhere to the general principles of Law and are reviewable through the Administrative Litigation Judge (Juez de lo Contencioso Administrativo). This same logic is followed by the Tax Code of Norms and Procedures in its numeral 5, in relation to fees, as it allows their amount to be varied by way of Regulations so that their purpose is fulfilled in a more suitable manner, with the prior intervention of the body that, by law, is in charge of regulating the rates of Public services.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Recapitulating, by virtue of the parafiscal contribution being created by the original Constituent Power, the principle of tax legality is amply met, on one hand, and by the legislator setting objective parameters to determine the amount of the quota of the parafiscal contribution, that principle is also respected.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">II.-</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> Nor can it be interpreted that Article 23 of the Constitutive Law of the Caja Costarricense de Seguro Social infringes, per se, Article 177 of the Constitution, in the terms set forth by the claimant, since such numeral, far from preventing the Caja Costarricense de Seguro Social from setting—in the exercise of its powers, derived from constitutional ordinal 73—the quotas paid by employers and workers, imposes, on the contrary, the obligation to create sufficient revenues in favor of that institution, in order to achieve the universalization of the social insurances and to guarantee, fully, the payment of the State's contribution as such and as an employer".</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Thus, as the precedent clearly indicates, the powers of the Board of Directors of the Caja Costarricense de Seguro Social are to establish compulsory quotas for Employers and Workers, and the contribution of the State, with objective parameters, such as the costs of the services and the actuarial studies, to maintain the benefits that the Constituent Power granted it under its competence.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">As part of the basis for Article 9, of session 8856, held on July 28, 2016, in which the Board of Directors of the Caja Costarricense de Seguro Social took various measures, such as the elimination of the early retirement option (pensión anticipada), and it was agreed to reform the Regulations of the Disability, Old-Age, and Death Insurance (Reglamento del Seguro de Invalidez, Vejez y Muerte), it was indicated—among other things—that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“[…] 2 There is a significant percentage of pensioners for whom, without the application of any type of early retirement reduction, the calculation of the pension amount—</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">with the application of the formula—</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">results in an amount lower than the minimum pension amount (cuantía mínima de pensión), and given the existence of such minimum protections, these must be brought up to the minimum pension amount. Such a situation costs the pension fund around 54 billion colones per year.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">[…]</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">5. Even though the Long-Term Actuarial Valuations, prepared by the Actuarial and Economic Directorate (Dirección Actuarial y Económica), place the financial sustainability of the IVM Regime in time horizons that range between one and two decades—depending on the scenario—there are conjunctural situations and short-term pressures that the Disability, Old-Age, and Death Insurance is facing, which are greatly reflected in the cash flow and in the use of interest for the payment of the Christmas bonus. Given that situation, it is convenient to inject new resources by accelerating the magnitude of the contribution premium.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">[…]</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">C. That, based on the foregoing, it was recommended to eliminate early retirement with reduction and also so that in all those cases where the global pension amount generated by applying the current calculation formula is less than the minimum pension amount, the State, in its subsidiary capacity, contribute the difference.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">D. That, in accordance with the previously recommended, it is in Article 31 of Session No. 8803, held on October 1, 2015, that the Board of Directors ordered –among other aspects– the following:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“… the Board of Directors, as will be stated hereinafter, AGREES:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">1) Early Retirement: eliminate […]</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">2) State Subvention (Subvención Estatal): accept what was proposed regarding the establishment of a State subvention with respect to the minimum pension, for which purpose the Pension Management (Gerencia de Pensiones), in coordination with the Legal Directorate (Dirección Jurídica) and the Actuarial and Economic Directorate, is instructed to make the appropriate adjustments to the Regulations of the Disability, Old-Age, and Death Insurance.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">(…)”.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Having said the foregoing, which serves as the motive for the reform of the Regulations, it is important to highlight that, within a Social State of Law (Estado Social de Derecho), such as ours, there exist certain inescapable obligations of the State, which, by the political and juridical direction that this concept contains, condition the other constitutional organs to act in a certain sense within an economic reality, as is aptly noted in Judgment No. 2018-19511 of 9:45 p.m. on November 23, 2018, which states:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“…In this context, a harmonious interpretation of the principle of budget balance (principio de equilibrio presupuestario) and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, inexorably there must be a balance between benefit rights and state economic solvency, since the former depend on the material possibilities enabled by the latter, while the sense of the latter is to strengthen the development of a political system based on solidarity, one in which the least favored strata of society find protection for their human dignity and their right to progress. In other words, the ‘ideal’ Social State of Law is the ‘possible’ Social State of Law, against which precisely one acts when the principle of budget balance is violated, given that, in the medium term, this seriously jeopardizes or altogether prevents obtaining the necessary resources to sustain a ‘real’ Social State of Law, one that the most vulnerable can truly and effectively enjoy. Watching over ensuring that we do not end up with a failed or paper Constitution, where constitutional benefit rights cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its powers permits it.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It must be warned, however, that all constitutional principles, values, and precepts must be observed in any circumstance, which the constitutional jurisdiction is permanently responsible for watching over. Now, by reason of the balancing or optimization exercise that the constitutional judge performs to resolve some collision among such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Corollary of what has been expressed: the non-observance of the principle of budget balance has been one of the causes of the deteriorated current state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and to emphasize its real implementation for the sake of the principle of the Social State of Law. The observation from the State of the Nation Program is insisted upon: “This [referring to the structural imbalance in public finances] has put the future of the social welfare state built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient”.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Precisely, the hermeneutics of the general principles for resolving the sub examine, such as that of budget balance and that of the Social State of Law, cannot be separated from the parameters of constitutional relevance inferred from the consulted measures and the abundant technical references to the economic situation, which are fundamental elements for ruling out arbitrary or unreasonable action”.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Now, the truth is that the judgment outlines the State's obligation to link itself to the economic and social reality, which implies that the State cannot deny the existence of the economic realities the State is going through, but also the pension systems for all social sectors to which the constitutional provision is directed. In this sense, by establishing a general jurisprudential theoretical framework for these rights, it is important to recognize that there is a strong mandate, from the Political Constitution, when it establishes the existence of juridical mechanisms to demand the payment of premiums for social insurances, in addition to the way to determine them.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0; </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">B.- On the principle of social solidarity and the Caja Costarricense de Seguro Social.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub"> The Chamber had the opportunity to review the constitutionality of the maximum caps granted by the contributory social security system in Costa Rica, challenged by a professional sector that contributes to the system. Among other grounds for dismissing the action, the principle of social solidarity was noted, which in a Social State of Law acts transversally throughout society.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Through Judgment No. 2013-06638 at 4:00 p.m. on May 15, 2013, this Chamber ruled as follows:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“</span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">B.- The principle of social solidarity. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The main multiplying agent of wealth distribution in the Social State of Law lies in this principle, which in our country resides especially from the mandates contained in Articles 1, 50, 73, and 74 of the Political Constitution. Through the entire administrative framework (centralized and decentralized) and the distribution of the Powers of the State, one must attempt to eradicate the most pressing social inequalities; it implies that state activity has the necessity to link itself reasonably with the administered who has greater needs and must satisfy the most urgent demands with the powers of imperium of the State, even to impose in very qualified circumstances against the will of the governed, but which allows—the State—to establish mechanisms that make society a more just and stable place. This principle promotes social equity, which consists of the obligation of those who have more to help those who have less. It is inspired, consequently, by a duty-to-be of society or the community, to provide support to those who do not have sufficient means of subsistence or those who are at social and economic risk, and where society steps forward through the State or the mechanisms it creates, to satisfy the need of persons who fall into social and economic risk: therefore it promotes greater justice and equity. Since social security is born from human necessity, all of this entails a sacrifice by the better-off sectors in favor of the most dispossessed, which is precisely the spirit of what is regulated in Articles 1, 50, 73, and 74 of the Political Constitution (since they are those who have or had access to education, to better personal and social conditions, and who by reason of such benefits would be expected to behave in a manner tending to favor those with less luck, etc.). Precisely, social security systems promote the fight against extreme poverty for the most disadvantaged; it thus becomes a system of economic and social distribution that must be recognized as inherently carrying the sacrifice of certain better-advantaged social groups of society, but which contributes greatly to security and social peace.</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0; </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Well stated by Nombre35482: “An empty stomach is not a good political advisor”, and that must be the main concern of the State when it exists in the lowest social strata of Costa Rican society”.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">It is important to bring up the case, given that the constitutionality of the contribution and the benefit received from the tripartite compulsory contribution established by Article 73 of the Political Constitution was questioned, in which employers, workers, and the State mandatorily contribute to a pension fund, and which redistributes the quotas of those who contribute more to those who have less. Although it is not proportional for either extreme (maximum and minimum), it is with the former that a greater sacrifice is evidenced, justified by the principle of social solidarity in favor of those who contributed less to the system because they belong to the lowest social stratum. In this way, the social security system must seek mechanisms that compensate for the differences from a minimum in order to raise the benefits to an amount that ensures the survival of all individuals. In the aforementioned judgment, the Chamber is clear in stating that:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0;</span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“One must not lose sight of the fact that it is sustained on a basic social protection system (régimen básico de protección social), or what is the same, the international obligation is with the establishment and maintenance of a social floor. Thus, being a basic coverage system, it encompasses a horizontal dimension of the system that demands minimum levels of protection to achieve or maintain the universality of that protection (even to support an elevation of the levels for those who do not have them, according to the principle of social solidarity), but which, without a doubt, must recognize the progressiveness in the protection systems, that is, in their vertical dimension, where these must be in tune with the international guidelines and obligations that our country has accepted before the ILO. From the reports, it is clear that a very sensitive contraction of the system would occur, due to the dynamics and pressures that the pension fund or reserve must face”.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">In conclusion, the maximum cap and the minimum amount are technically interrelated, such that they need, as references, the most recent actuarial calculations, so that they allow for financial sustainability and the soundness of the fund. It is clear that the latter depends on the former to give it validity; and that, as technical criteria of actuarial mathematics, they would be subject to periodic review according to the behavior of the reserve. In the case before us, Report No. DAE-735-17 of October 2, 2017, established:</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">“It is worth mentioning that although internally within the Disability, Old-Age, and Death Insurance, solidarity manifests itself in multiple ways, one of the most significant being the risk of death and disability. The existence of a maximum cap allows reinforcing the pension amount of those who receive less; however the number of persons at the maximum pension is significantly reduced, as they barely represent 1%, so it is not sustainable to think that the contributions of high-income earners—maximum pension—finance the total solidarity for those of low income”.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">Hence, the necessity of decreeing an increase in compulsory contributions is confirmed, as well as the importance of recognizing the competence of the Board of Directors of the Caja Costarricense de Seguro Social to decree the increase in the compulsory contribution of the State.</span></p><p style="margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff"><span style="font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces">&#xa0; </span><span style="font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub">Nombre5650.- The prerogatives of the Executive Branch in the preparation of the national budget and the specialization of the Caja Costarricense de Seguro Social in the social insurances system. </span><span style="font-size:9.33pt; font-style:italic; vertical-align:sub">The Executive Branch has, in the formation of the Republic's budget, certain prerogatives that constitutionally authorize it to preserve the financial order of the State, whether in its revenues and expenses, which are powers claimed by the Minister of Finance to oppose the execution of the agreement of the Board of Directors of the Caja Costarricense de Seguro Social, contained in Article 9, of session No. 8856, as well as the claims deduced in this unconstitutionality action. The implications of that agreement entail the disbursement of fifty-six billion colones annually against the National Budget, money that would imply greater indebtedness of the Costa Rican State, given that a difficult fiscal situation is recognized. Despite its opposition manifested in official letters DM-2293-2015 of December 10, 2015, and DM-0129-2016 of January 26, 2016, and because it considers that there was neither an endorsement from the Finance portfolio nor attention to the pertinence of a national dialogue to provide the State with new revenues with which it could meet the obligation. In this sense, the report of the Office of the Attorney General (Procuraduría General de la República), which constitutes an advisor to this Constitutional Chamber, concludes that, despite the noted historic fiscal problem, the lack of liquidity, the lack of consultation by the Caja; and, in addition, the absence at that time of the generation of fresh resources by the Legislative Assembly, the Caja Costarricense de Seguro Social has no limit other than the technical criteria to agree to a decreed increase.</span></p> That is, the criterion of the Procuraduría General de la República is that, despite the claimed prerogatives of the Executive Branch, these cannot be opposed to the administrative and governmental autonomy of the Caja Costarricense de Seguros Social in the matter of social insurance, especially when its actions are based on mathematical-actuarial criteria.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The Chamber agrees with the Procuraduría General de la República, but especially because, although the Executive Branch finds in Articles 176, 177, and 179 of the Political Constitution the powers of direction over most institutional budgets, including the Branches of Government, the Constituent Power excepted certain matters from such controls by creating exceptions and legal remedies to substantiate them.</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Hence, this Chamber has established criteria such as that of constitutionally tied resources, since they are directed by the Constituent Power itself to solve a priority problem of distribution of State resources, such as, for example, the expenses budgeted by the Tribunal Supremo de Elecciones to give effect to suffrage, the possible issue of the economic and operational independence of the Judicial Branch, and the State's contribution to social insurance, in paragraph 3 of Article 177 of the Political Constitution. Said provision states:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“To achieve the universalization of social insurance and to fully guarantee the payment of the State's contribution as such and as an employer, </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way that</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">they cover the current and future needs of the Institution.</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">If a deficit arises due to the insufficiency of those revenues, the State shall assume it, for which purpose the Executive Branch must include in its next Budget proposal the respective item determined as necessary by the aforementioned Institution to cover the totality of the State's quotas</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">” (bold text is not from the original).</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Within the transcribed norm, it is clear that the Constituent Power established the goal of the universalization of social insurance, on which the Caja Costarricense de Seguro Social has had an outstanding role, allowing it to achieve a high percentage through the administration of social insurance, and in which the Constituent Power established as a pivot the contributions of the State as employer and as State, which unquestionably contains the mandate of the Constituent Power that obliges it to assume part of the equation of national solidarity expected of a social State governed by the Rule of Law. It should be noted that the norm does not establish a percentage, but rather allows that constitutional obligation to be determinable at a given moment, to ensure the necessary current and projected future income, characteristic of a fund whose objective is always to maintain its sustainability over time and as the coverage of social insurance progresses. This Chamber notes that this contribution is much lower than what existed at the creation of the Regime, and that it has been maintained for twenty-five years, as indicated in the report of the Dirección Actuarial of the Caja. The Caja Costarricense de Seguro Social shows that the State contributes the smallest percentage compared to that of employers and</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">workers. In this regard, it should be noted that the jurisprudence of this Chamber has established that it corresponds to the Caja to set the sufficient revenues, calculated in such a way that they cover the current and future needs of the Institution. All the institutions party to this action have concurred in that these calculations correspond to the Caja Costarricense de Seguro Social, a fact that the Ministerio de Hacienda itself recognizes. It has been clearly stated that this corresponds to the institution of constitutional rank, because it has administrative and governmental autonomy in the order of the administration of social insurance. Thus, it was indicated in Judgment No. 2001-0378 of 14:37 hours on January 16, 2001 (as in earlier Judgments No. 1993-3853 of 9:09 hours on August 11, 1993, and No. 1994-1059 of 15:39 hours on February 22, 1994) that:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“</span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">IV.- On the infringement of the principle of legal reserve. </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The first argument of the plaintiff is that the impugned norm violates the principle of legal reserve, by imposing, through a regulation, a substantial requirement to exercise the right to a pension. The regulation of fundamental rights is reserved to the law</span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">, </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">from which it follows that only by means of a formal law, issued by the Legislative Branch and through the procedure provided in the Political Constitution for the issuance of laws, is it possible to regulate, and in any case, restrict fundamental rights, all -of course- to the extent that the nature and regime of these rights allow it, and within the applicable constitutional limitations. However, the norm questioned here does not contravene the Political Constitution by virtue of the fact that Article 73 of the Political Constitution entrusts the administration and government of social insurance to the Caja Costarricense del Seguro Social, for which reason the Constitution establishes in favor of this autonomous institution a degree of autonomy -administrative and governmental- that allows it to regulate, by way of regulation, matters relating to social insurance. Said constitutional norm is developed in the Ley Constitutiva de la Caja Costarricense del Seguro Social, especially in Articles 1, 2, and 3, which provide:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Article 1.-</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The institution created to apply mandatory social insurance shall be called Caja Costarricense de Seguro Social and, for the effects of this law and its regulations, CAJA.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The Caja is an autonomous institution</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">to which corresponds the government and administration of social insurance. The funds and reserves of these insurances may not be transferred nor used for purposes other than those that motivated their creation. The latter is expressly prohibited. Except for matters relating to public employment and salaries, the Caja</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">is not subject</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">nor may it be subject to orders, instructions, circulars</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">or directives emanating from the Executive Branch or the Budgetary Authority, in matters of government and administration of said insurances, their funds, or reserves.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">\"Article 2.-</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Mandatory Social Insurance comprises the risks of illness, maternity, disability, old age, and involuntary unemployment; furthermore, it entails participation in the burdens of maternity, family, widowhood, and orphanhood, and the provision of a quota for burial according to the scale set by the Caja, provided that death is not due to the occurrence of a professional risk.\"</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">\"Article 3.-</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Social Insurance coverage – and enrollment in it – is mandatory for all manual and intellectual workers who receive a wage or salary. The amount of the quotas to be paid under this law shall be calculated on the total of the remunerations that, under any denomination, are paid by reason of or derived from the employer-worker relationship. (…)</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The Caja shall determine, by regulation, the requirements for enrollment in each protection regime, as well as the benefits and conditions under which they shall be granted.\"</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The transcribed norms confer upon the Caja Costarricense del Seguro Social the power</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0; </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">to administer everything regarding social insurance, which implies determining, by regulation, the requirements for enrollment in each protection regime, its benefits, and conditions, therefore the Reglamento de Invalidez, Vejez y Muerte issued by the Junta Directiva, as well as its reforms, have been done in exercise of this competence, derived from constitutional numeral 73. Consequently, Article 9, subsection a) of the Reglamento del Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense del Seguro Social does not violate the principle of legal reserve.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Now, for the Chamber, in accordance with the provisions of Article 14, subsection f) of the Ley Constitutiva de la Caja Costarricense de Seguro Social, it corresponds to the Junta Directiva of the Institution to issue the regulations for its operation, so that, coupled with the transcribed jurisprudence, it is sufficient to determine that, in the case of ensuring the funds that the State must guarantee for the support of the regime, it has no further restrictions than those established by technical criteria. In this sense, it has been the Caja itself that has determined that amount for the State, through the reform of Article 29 of the Reglamento de Invalidez, Vejez y Muerte, and although it can be recognized that the economic situation due to the structural financing problems of the Costa Rican State exists and is real, it must be pointed out that it has been the will of the Constituent Power to specify the legal mechanism when those revenues are insufficient for the fund, as well as the way to determine the economic commitments and the manner in which the Executive Branch must solve it, when it indicates that it “must include in its next Budget proposal the respective item determined as necessary by the aforementioned Institution to cover the totality of the State's quotas.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Finally, this Tribunal, in judgment No. 2021017098 of 23:15 hours on July 31, 2021, stated:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">“2) Jurisprudential Background on the Governmental Autonomy of the Caja Costarricense de Seguro Social</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">On repeated occasions, as indicated in judgment No. 2011-14624 of 15:50 hours on October 26, 2011, this Tribunal noted that the Caja Costarricense de Seguro Social (CCSS) enjoys administrative and governmental autonomy, in accordance with Article 73 of the Political Constitution, and therefore may issue provisions related to its internal regime. The Ley Constitutiva de la Caja Costarricense de Seguro Social itself, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, in Article 70 establishes the following:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“The Administrative Career of the Caja Costarricense de Seguro Social is hereby created, to regulate which (sic), the Junta Directiva shall establish the conditions regarding the entry of employees into the service of the Institution, guarantees of stability, duties and rights thereof, the manner of filling vacancies, promotions, grounds for removal, scale of sanctions, procedure for the prosecution of infractions, and other necessary provisions…”.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">On the other hand, Article 14, subsection f) grants the Junta Directiva of the CCSS the power to regulate the functioning of the institution, in such a way that it confers the authority to issue norms, including to regulate the regime of the officials the institution requires for the fulfillment of the responsibilities assigned to it by the Political Constitution and its Ley Constitutiva, and this is constitutional, as indicated in said precedent:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“…In that context, the possibility for the Institution to establish for itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, as in the case of the Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, is not unconstitutional. </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">The Caja Costarricense de Seguro Social may establish the rules for the selection of officials</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> who occupy positions in said institution, but respecting the specific purposes in the provision of the public service of the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution). By virtue of this, Article 21 of the Ley Constitutiva establishes the following: \"Article 21.- The Personnel of the Caja shall be integrated on the basis of proven suitability, and promotions in category shall be granted taking into account the merits of the worker in the first place and then, seniority in service.\" Based on the foregoing, as well as a reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in that public officials must be governed by a statutory labor relationship, that is, by norms imposed by the Administration in its capacity as employer, in attention to the efficient and effective provision of the public services that each administrative body is called to offer. Even (sic) though the Constituent Power may have thought of a single statutory system, </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">the truth is that the wording finally given to Article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting in nineteen forty-nine, makes the existence of various statutory relationships in the Administration valid today, in attention to the functional independence and administrative autonomy that the legal system assures to various public institutions</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The foregoing is consistent with the very autonomy granted by the Constituent Power to certain institutions, in the specific case, that conferred upon the Caja Costarricense de Seguro Social in Article 73, defined as governmental autonomy, which is necessary so that it may fulfill the special tasks assigned and without interference from the Executive Branch.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">In judgment No. 2011-15665 of 12:40 hours on November 11, 2011, reiterated in 2017-4797, particularly in relation to the C.C.S.S., the following was indicated:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“…In this case, we are before a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the Magna Carta itself, is of degree two, which must be understood to include the powers to formulate plans or set the ends and goals of the entity, to provide for itself the internal mechanisms of functional and financial planning through budgets, and the exercise of autonomous regulatory power. Which translates, in the specific case of the administration of the pension regime under the responsibility of the Caja Costarricense de Seguro Social -at least- into the power to define by itself, to the exclusion of all legislative power, three fundamental aspects regarding pensions: the amount of the contribution quotas, the number of quotas that workers must pay to access a pension, and the retirement age. </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">It is precisely this greater degree of autonomy that the Caja Costarricense de Seguro Social has compared to other autonomous institutions that explains how it has been excluded from the application of laws such as the “Ley de la Administración Financiera de la República y Presupuestos Públicos</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">”, Law No. 8131 of September 18, 2001. See Article 1 of said law:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“Article 1.-</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Scope of Application</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">This Law regulates the economic-financial regime of the organs and entities that administer or are custodians of public funds. It shall be applicable to:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">a) The Central Administration, constituted by the Executive Branch and its dependencies.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">b) The Legislative and Judicial Branches, the Tribunal Supremo de Elecciones, their dependencies and auxiliary organs, without prejudice to the principle of separation of Powers established in the Political Constitution.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">c) The Decentralized Administration and public enterprises of the State.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">d) The state universities, the municipalities, and the Caja Costarricense de Seguro Social, solely with respect to compliance with the principles established in Title II of this Law, in matters of responsibilities, and to provide the information required by the Ministerio de Hacienda for its studies. In everything else, they are exempted from the scope and application of this Law (…)”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">Which demonstrates that the Caja Costarricense de Seguro Social is always placed in a special category within autonomous institutions, because unlike them, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is governmental autonomy. This implies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch.</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> Although the CCSS certainly does not escape the law, the latter cannot “modify or alter” the competence and autonomy constitutionally granted to the CCSS, defining aspects that are its exclusive purview. The Caja Costarricense de Seguro Social, being fundamentally an autonomous institution of constitutional creation, the matter of its competence, constitutionally given, is beyond the reach of the law. Stated another way, the legislator, in the case of the administration and government of social insurance, has limitations, having to respect what the Constituent Power established. Just as the legislator would be prohibited from issuing a law providing that the administration and government of social insurance no longer corresponds to the Caja Costarricense de Seguro Social, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS in the administration and government of social insurance. In this regard, see what this Chamber provided through Resolution No. 2001-010545 of 14:58 hours on October 17, 2001:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“… It is clear that the law cannot interfere in matters of government of the Caja Costarricense de Seguro Social by virtue of the full autonomy enjoyed by this institution…” (Criterion reiterated in Resolution No. 2001-011592 of 09:01 hours on November 9, 2011).</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">As an additional argument, it must be highlighted that the norm defining the functions and purposes of the Caja Costarricense de Seguro Social is located in our Magna Carta in the chapter on social rights and guarantees, while matters referring to Autonomous Institutions are located in another Title, XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, upon creating the institution of social security, seeks to provide it with solidarity-based and priority protection for the person by their very condition; evidently, it is an institution that assumes the solidary spirit that inspires Article fifty and seventy-four of the Constitution. What is intended is that each person has the guarantee that the solidary State assures them health, pension, disability benefits, and everything related to social security.</span></p> This provision becomes not only an end or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could impair said constitutional competence.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Later, in judgment No. 2007-18484, reiterated in No. 2018-6549, this Court addressed the scope of the different types of autonomy, in the following sense:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“</span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">A) Scope of the administrative autonomy of autonomous institutions, and their subjection to the law in matters of government</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> (…). </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">The degree of administrative autonomy—minimum and first-degree—is characteristic of autonomous institutions; of government—second-degree—characteristic of municipalities and the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) with respect to the administration of social insurance programs; and of organization—full or third-degree, characteristic of the State universities. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify it and even extinguish it; but since decentralization implies that the entity holds all the powers of the administrative superior, it means that its legal personality encompasses the totality of administrative powers necessary to achieve its purpose independently. Thus then, </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">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 subjection to any other public entity and without the need for a legal norm to so provide, to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the purposes and ends assigned to it.</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> In this way, the central power has various limitations regarding its interference with autonomous institutions, thus </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">it cannot act as the superior of the decentralized entity; it cannot control it by limiting the entity's activity for reasons of opportunity; and it cannot, either, act as the director of the autonomous entity's management through the imposition of guidelines or basic programs.</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> However, as the same Article 188 of the Constitution expresses, autonomous institutions are subject to the law in matters of government. In accordance with the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the laws; thus then, the objectives, purposes, and goals of the entity are given by the legislator” (Emphasis is not from the original).</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">As indicated in the cited jurisprudential text, the CCSS, in addition to enjoying administrative autonomy, also holds political or government autonomy. Hence, the Executive Branch has various limitations regarding its interference with the CCSS. It cannot act as its superior, it cannot control it by limiting its activity for reasons of opportunity; and it cannot, either, act as the director of that entity's management through the imposition of guidelines or basic programs. Likewise, regarding the autonomy of this particular institution, the Chamber in judgment No. 1994-6256 issues a criterion reiterated in judgments 2011-15665 and 2017-4797, stating:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“</span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">III.- THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DE SEGURO SOCIAL).-</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Costa Rican Social Security Fund, basically following the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the modifications of 1943, to the 1949 Constitution. However, for the purposes of the consultation, the interventions of Constituent Member Nombre35480 on the topic are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: \"Furthermore, the Fund (Caja), sooner or later, would have to assume the risk of unemployment, which will resolve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Fund. The prudent thing is to strengthen it. Hence, the most advisable course is to leave things as they are, </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">giving the Fund full autonomy to thus make it independent from the Executive Branch\";</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> and on page 36 idem it is added: \"In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Security will undoubtedly be an inexplicable step backwards.\" Upon the article's approval, a second paragraph was included that literally stated: \"The administration and government of social insurance programs shall be in charge of an autonomous institution,\" a text that was later reformed by Law No. 2737 of May 12, 1961, today appearing as follows: \"The administration and government of social insurance programs shall be in charge of an autonomous institution, called the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social).\" In conclusion, </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">the constituent power assigned the administration and government of social insurance programs to the Costa Rican Social Security Fund, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it itself has granted and sharing the general principles derived from its condition as a decentralized entity</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">…</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">…Doctrinally, there is consensus in affirming that any form of preventive intervention prior to the issuance of an act by the autonomous entity is prohibited, except for prior control functions as a requirement for the validity of those acts (authorizations); the Central Power cannot act as the superior of the decentralized entity; it cannot control it by limiting the entity's activity for reasons of opportunity; and it cannot, either, act as the director of the autonomous entity's management through the imposition of guidelines or basic programs. All these characteristic notes of decentralized entities, which have their origin in a reinforced law (Article 189 subsection 3) of the Political Constitution), are equally applicable, as pertinent, to the autonomous institutions created by the Political Constitution itself, except where the conditions that the Constitution, in a special and exclusive manner, has given to the entity prevail.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Hence, even for matters relating to the hiring of its personnel, it has that power of self-administration, for the fulfillment of the constitutionally assigned ends also depends upon it. As an example of the particularities and needs of the service, for instance, in judgment 2019-11130 at 10:30 hours on June 19, 2019, this Court stated the following:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“In this regard, this Court confirms that indeed that article states that “for the qualification of credentials and assignment of scores, the Technical Nursing Commission (Comisión Técnica de Enfermería) shall qualify the competitions according to (…) One point shall be given for each year of service or fraction greater than six months, up to a maximum of ten points in zones outside the central plateau (…)”. However, this provision is not considered to violate the principle of equality and, therefore, become unconstitutional, but rather </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">this decision has a reasonable justification, which consists of incentivizing nursing professionals to accept positions outside the central plateau, with the incentive that in future competitions for positions located in more coveted zones, they will have a better score. Thus, what the regulation seeks is not only the position of best suitability, but it seeks to incentivize nursing professionals to accept working in remote and little desired places and, in this way, promote the provision of nursing services, necessary for adequate provision of medical services, in all sectors of the country. This in accordance with the principles of social solidarity.</span></span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">It is clear, then, that the Constituent Power granted such autonomy, allowing it the selection of its personnel under the parameters it requires to fulfill its ends, while of course respecting the constitutional principles established in Articles 191 and 192 of the Constitution. Criterion reiterated by this Chamber in judgments No. 03065-98, 10545-01 and 12494-11, stating:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“…it is permissible for the different establishments of the Fund (Caja), in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures of its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over particular interests.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The autonomy that the original legislator grants to the Costa Rican Social Security Fund protects it from intrusion by the Executive Branch and the Legislative Branch, as evidenced in Judgment 03065-98 at 18:18 hours on May 6, 1998 (reiterated in 2001-10545), stating:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“…Which shows that the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but it also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is, government autonomy. Which means a degree of protection against the interference of the Executive Branch, but also limitations on the intervention of the Legislative Branch. </span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">Although certainly the CCSS does not escape the law, the latter cannot “modify or alter” the competence and autonomy constitutionally granted to the CCSS, defining aspects that are its exclusive domain.</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> The Costa Rican Social Security Fund, because it is basically an autonomous institution of constitutional creation, the matter of its competence, constitutionally granted, is beyond the action of the law. In other words, the legislator, in the case of the administration and government of social insurance programs, has limitations, and must respect what the Constituent Power established. Just as the legislator would be prohibited from issuing a law providing that the administration and government of social insurance programs no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that intrudes upon aspects that belong or correspond to the definition of the CCSS, in the administration and government of social insurance programs…As an additional argument, it should be highlighted that the norm defining the functions and purposes of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while matters relating to Autonomous Institutions are located in another Title XIV; the difference in placement reflects, from a systematic and systemic interpretation, that the fundamental norm itself, upon creating the institution of social security, intends to provide solidary and priority protection to the person due to their very condition; evidently it is an institution that assumes the solidary spirit that inspires Article seventy-four of the Constitution. What is intended is for every person to have the guarantee that the solidary State ensures health, pension, disability benefits, and everything related to social security. This provision becomes not only an end or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could impair said constitutional competence.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">From the foregoing, it follows that the Costa Rican Social Security Fund (CCSS), by constitutional provision (Art. 73), enjoys administrative and government autonomy. Which means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, the existence of a special normative framework for its statutory relationship being valid in this case, one that serves and ensures its degree of autonomy. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); to give itself its own internal organization; the setting of ends, goals, and types of means to achieve them; the issuance of autonomous service or activity regulations (reglamentos autónomos de servicio), in accordance with provisions normally called general policy. Thus then, as an autonomous institution of constitutional creation and with a greater degree of autonomy (administrative and government), it is allowed to be protected against interference from the Executive Branch and from limitations at the time of legislating by the Legislative Branch (which cannot modify via law its degree of autonomy). Thus, the Executive Branch cannot act as director or in a hierarchical relationship with this institution, cannot impose guidelines on it, give orders, or control the timeliness (oportunidad) of its activities.”</span></p><p style=\"margin-top:10pt; margin-left:35.4pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">In addition, regarding the regulatory power of the CCSS, this Court, in judgment No. 2022012512 at 9:20 hours on June 1, 2022, stated:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">“III.- ON THE REGULATORY POWER OF THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DE SEGURO SOCIAL).- </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">On several occasions, this Court has ruled on the exclusive character of the governmental power held by the Costa Rican Social Security Fund, in relation to the insurance programs under its charge. This Chamber has defined the topic in a jurisprudential line that began with judgment No. 1994-1059, at 15:39 hours on February 22, 1994, in which it stated:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“[…] the Costa Rican Social Security Fund has a constitutional</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">&#xad;</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> competence for the 'administration' of social insurance programs, so that the Regulation on Disability, Old Age, and Death (Reglamento de Invalidez, Vejez y Muerte) issued by the Board of Directors (Junta Directiva), as well as its reforms, has been done in exer</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">&#xad;</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">cise of that competence”.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0;</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Likewise, the Court in judgment No. 2001-9734 at 14:23 hours on September 26, 2001, indicated:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“III.-</span><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\"> </span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> ON THE COMPETENCE OF THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DEL SEGURO SOCIAL). By virtue of the provisions of Article 73 of the Political Constitution, the Costa Rican Social Security Fund is responsible for \"the administration and the government of social insurance programs\", a competence that is developed in Article 3 of the Constitutive Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense del Seguro Social), No. 17 of October twenty-second, nineteen hundred and forty-three, such that its Board of Directors has full authority to establish, via regulation, the scope of the benefits inherent to social insurance programs, both regarding the definition of conditions and benefits, as well as the entry requirements for each protection regime. Likewise, Article 23 of the same Law establishes as one of the parameters to be taken into account in this definition, the actuarial studies and calculations, in order to maintain the system's sustainability. From what has been said, it is clear that the Costa Rican Social Security Fund has full competence to issue norms such as those challenged, inasmuch as they respond to the constitutional mandate of Article 73, since they refer to an aspect of the organization and administration of social insurance programs”.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub; -aw-import:spaces\">&#xa0;</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Subsequently, in judgment No. 2355-2003, at 14:48 hours on February 19, 2003, the Chamber analyzed the constitutionality of the Regulation to Health Insurance (Reglamento al Seguro de Salud) and of the Instructions for the Registration, Control, and Payment of Incapacities (Instructivo para el Registro, Control y Pago de Incapacidades), an opportunity in which it indicated, as pertinent:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution [means] the Fund (Caja) is not subject to limitations in matters of government, as this Court has reiterated in preceding judgments (see for example: 2001-7605, 6256-94, among others). The Fund is definitively the entity charged with the administration of social security and is endowed with maximum autonomy for the performance of its important function. In harmony with the foregoing, by means of Articles 3 and 23 of the Constitutive Law of the Costa Rican Social Security Fund, its Board of Directors has full competence to establish the scope of the benefits inherent to social security via regulation, so that it can define the conditions, benefits, and entry requirements of each protection regime, based on actuarial studies, so as not to break the system”.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">In judgment No. 2010-005893, at 14:56 hours on March 24, 2010, when analyzing the constitutionality of the Regulation to Verify Compliance with Employer and Insured Obligations (Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados)—in which one of the grievances was, precisely, the infringement of the principle of legal reserve—the Court specified the following:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-weight:bold; font-style:italic; vertical-align:sub\">III.- ON THE REGULATORY POWER OF THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DE SEGURO SOCIAL).</span><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\"> This Chamber has already ruled on the regulatory power of the Costa Rican Social Security Fund to issue autonomous regulations of service and organization (reglamentos autónomos de servicio y organización), for which its Board of Directors is empowered to issue the norms necessary for the administration and government of the social insurance programs that the Political Constitution itself entrusts to it in Article 73, which is not contrary to the provisions of Article 140 subsection 3) of the Constitution. In this regard, in judgment No. 2000-02571 at fourteen hours thirty-eight minutes on March twenty-second, two thousand, this Chamber indicated:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“Regarding the injury to Article 140 subsection 3 of the Political Constitution. As for the appellant's argument, in the sense that the challenged norm exceeds the limits of the regulatory power and that the matter regulated cannot be contained in an autonomous regulation, the Chamber agrees with the Office of the Attorney General of the Republic (Procuraduría General de la República), in the sense that Article 10 of the Regulation of Voluntary Insurance (Reglamento de Seguro Voluntario) is not unconstitutional for that reason. The Organic Law of the Costa Rican Social Security Fund (Ley Orgánica de la Caja Costarricense de Seguro Social) provides in its Article 3, paragraph 5, that the Fund (Caja) shall determine by regulation the entry requirements for each protection regime, as well as the benefits and conditions under which these will be granted. Article 14 subsection f) confers on the Board of Directors the power to issue the regulations for the functioning of the institution, and Article 23 states that the Board of Directors is the competent body to determine the quotas and benefits in accordance with the cost of services, according to actuarial calculations. This Chamber has referred to such powers in ruling (voto) No. 3403-94 at 15:42 hours on June 15, 1994, and in No. 7393-98 at 9:45 hours on October 16, 1998, declared that Article 23 of the Constitutive Law of the Fund (Caja) is in accordance with the Political Constitution, in view of the fact that the powers it confers on the Board of Directors do not imply a delegation of the exercise of functions of the Legislative Branch, but rather are based on Article 73 of the Constitution. That norm entrusts the government and administration of social insurance programs to the Fund (Caja), and therefore it is competent to issue autonomous regulations such as the voluntary insurance regulation. Consequently, it is not found that the Regulation in which the challenged provision is contained violates Article 140 subsection 3) of the Political Constitution.”</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">So that in that exercise of administration and government of social insurance programs that the Constitution entrusts to the Costa Rican Social Security Fund (Article 73 paragraph 2 of the Constitution), and in accordance with its Constitutive Law, the Fund's Board of Directors is empowered to issue regulations of an executive nature such as the Regulation to Verify Compliance with Employer and Insured Obligations, in order to ensure compliance with worker-employer obligations in relation to social insurance programs and to be able to take the pertinent measures in case of non-compliance or evasion of those rights to compel the offender to fulfill those obligations and make the respective collections. Otherwise, it could not fulfill the constitutional mandate. In this regard, the Chamber has also stated:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">“…Article 73 of the Political Constitution entrusts the administration and government of social insurance programs to the Costa Rican Social Security Fund (sic), so the Constitution establishes in favor of this autonomous institution a degree of autonomy—administrative and government—that allows it to regulate, via regulation, matters related to social insurance programs. Said constitutional norm is developed in the Constitutive Law of the Costa Rican Social Security Fund, especially in Articles 1, 2, and 3, which provide:</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">Article 1.-</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The institution created to apply mandatory social insurance programs shall be called Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) and, for the purposes of this law and its regulations, CAJA.</span></p><p style=\"margin-top:10pt; margin-left:70.8pt; margin-bottom:10pt; text-indent:35.4pt; text-align:justify; font-size:14pt; background-color:#ffffff\"><span style=\"font-size:9.33pt; font-style:italic; vertical-align:sub\">The Fund (Caja) is an autonomous institution to which the government and administration of social insurance programs corresponds. The funds and reserves of these insurance programs may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited (sic).</span></p> Except for matters relating to public employment and salaries, the Fund is not subject to, nor may it be subject to, orders, instructions, circulars, or directives issued by the Executive Branch or the Budgetary Authority, regarding the governance and administration of said insurance, its funds, or reserves.

"Article 2.- Mandatory Social Insurance covers the risks of illness, maternity, disability, old age, and involuntary unemployment; furthermore, it entails a share in the burdens of maternity, family, widowhood, and orphanhood, and the provision of a burial allowance according to the scale established by the Fund, provided that death is not due to the occurrence of an occupational risk." "Article 3.- Social Insurance coverage—and enrollment therein—are mandatory for all manual and intellectual workers who receive a wage or salary. The amount of the contributions payable under this law shall be calculated on the total remuneration, under any denomination, paid by reason of or arising from the employer-worker relationship. (...)

The Fund shall determine, by regulation, the entry requirements for each protection regime, as well as the benefits and conditions under which they are granted." The provisions transcribed above confer upon the Caja Costarricense del Seguro Social the power to administer all matters related to social insurance, which entails determining by regulation the entry requirements for each protection regime, its benefits, and conditions; therefore, the Reglamento de Invalidez, Vejez y Muerte issued by the Board of Directors, as well as its amendments, have been issued in exercise of this competence, derived from Constitutional provision 73. Consequently, Article 9, subsection a) of the Reglamento del Régimen de Invalidez, Vejez y Muerte of the Caja Costarricense del Seguro Social (sic) does not violate the principle of legal reserve." (Judgment number 2001-00378 of 14:37 hrs. on January 16, 2001) What was stated in the partially transcribed judgment above is applicable to the constitutional objections raised by the petitioner regarding the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, which does not violate the provisions of Article 140, subsection 3) of the Political Constitution, nor does it violate, based on the cited judgments, the principle of legal reserve, nor any other constitutional principle or norm, nor does it imply any excess in the exercise of the Institution's own regulatory power. There are numerous votes in which this Chamber has recognized that regulatory power of the Caja Costarricense de Seguro Social in the specific matter entrusted to it by the Constituent Assembly, among them, numbers 3853-93, 1059-94, 3403-94, 7393-98, 9580-01, 9734-01, 10546-01, and Telf2955. More recently, this Chamber, in judgment number 2003-02355 of fourteen hours forty-eight minutes on February nineteenth, two thousand three, stated:

“III.- On the merits. The Caja Costarricense de Seguro Social as an autonomous institution in charge of the administration and governance of social insurance. The plaintiff alleges that Article 34 of the Reglamento de Salud and Chapter Two, point 2.2.1 called “Derecho al pago de subsidio de incapacidades por enfermedad” of the Instructivo para el Registro, Control y Pago de las Incapacidades de los Empleados de la C.C.S.S. violate the principle of legal reserve by conditioning, via regulation, the insured's right to the subsidy on having paid six monthly contributions within the twelve months preceding the start date of the incapacity, provided the last three are continuous and immediately prior to the start date of the incapacity. Regarding the matter of the competence of the Caja Costarricense del Seguro Social to issue provisions with the challenged content, in its capacity as an autonomous institution in charge of the administration and governance of social insurance, this Chamber, based on the provisions of Constitutional Article 73, indicated through judgment 01-9734 of 14:23 hours on September 26, 2001, that:

“III.- REGARDING THE COMPETENCE OF THE CAJA COSTARRICENSE DEL SEGURO SOCIAL. By virtue of the provisions of Article 73 of the Political Constitution, the Caja Costarricense del Seguro Social is responsible for \"the administration and governance of social insurance,\" a competence that is developed in Article 3 of the Ley Constitutiva de la Caja Costarricense del Seguro Social, number 17 of October twenty-second, nineteen hundred forty-three, such that its Board of Directors has full authority to establish, via regulation, the scope of the benefits inherent to social insurance, both in terms of defining the conditions and benefits, as well as the entry requirements of each protection regime. Likewise, Article 23 of the same Law establishes as one of the parameters to be considered in this definition, actuarial studies and calculations, in order to maintain the system's sustainability. From the above, it is clear that the Caja Costarricense del Seguro Social has full competence to issue regulations such as those challenged, as they respond to the constitutional mandate of Article 73, since they refer to an aspect of the organization and administration of social insurance.” From the transcribed citation, it is concluded that the autonomy recognized in Article 73 in relation to Article 177 of the Political Constitution is not subject to limits regarding governance, as this court has reiterated in prior judgments (see, for example: 2001-7605, 6256-94, among others). The Fund is, in short, the entity in charge of the administration of social security and is endowed with maximum autonomy for the performance of its important function. Consistent with the above, through Articles 3 and 23 of the Ley Constitutiva de la Caja Costarricense del Seguro Social, its Board of Directors has full competence to establish the scope of the benefits inherent to social security via regulation, such that it can define the conditions, benefits, and entry requirements of each protection regime, supported by actuarial studies, in order not to break the system. Consequently, it is appropriate to reject on the merits the action regarding the aforementioned point.” Thus, contrary to what the plaintiff alleges, the regulatory power exercised by the Fund when its Board of Directors issued the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, as well as the provisions of Article 6 of that regulation, falls within the powers of administration and governance in matters of social security granted to it in the second paragraph of Article 73 of the Political Constitution and, therefore, is in accordance with the Law of the Constitution. This regulatory power is different from that granted to the Executive Branch by subsections 3 and 18, which refer to the regulations for the organization and services of the Administration. But the Executive Branch cannot regulate matters related to the administration and governance of social insurance, a matter in which the Fund has full independence and autonomy granted by the Constitution itself. The regulation in question is nothing but the exercise of those powers, and the determination of the presumptive basis as an exceptional procedure when, due to certain actions or omissions by the employer or the insured, in the cases provided for in the various subsections of Article 6, the exact amount of the obligation cannot be established, is a legitimate mechanism that does not violate the Law of the Constitution, particularly the principle of legal reserve; rather, it is aimed at allowing the Fund to fulfill the purpose constitutionally entrusted to it, without it being necessary for this to be established by a law emanating from the Legislative Assembly.” The exercise of the regulatory power by the Caja Costarricense de Seguro Social, with the characteristics indicated in the transcribed judgments, has been endorsed by this Court for the case of self-employed workers. Thus, in Judgment No. 2008-017304, of 14:57 hours on November 19, 2008, it held:

“VI.- INSURANCE FOR SELF-EMPLOYED WORKERS. Contrary to the plaintiff's opinion, this Court has found no reason to exclude insurance for self-employed workers—and, indeed, non-contributory regimes—from the regulatory powers of the CAJA COSTARRICENSE DE SEGURO SOCIAL. On this matter, it pronounced in judgment No. 2000-02571, of 14:38 hrs. on March 22, 2000:

«Regarding the petitioner's argument that the challenged rule exceeds the limits of regulatory power and that the regulated matter cannot be contained in an autonomous regulation, the Chamber agrees with the Procuraduría General de la República in that Article 10 of the Reglamento de Seguro Voluntario is not unconstitutional on that ground. The Ley Orgánica de la Caja Costarricense de Seguro Social provides in its Article 3, paragraph 5, that the Fund shall determine by regulation the entry requirements for each protection regime, as well as the benefits and conditions under which they are granted. Article 14, subsection f), confers upon the Board of Directors the power to issue regulations for the functioning of the institution, and provision 23 indicates that the Board of Directors is competent to determine contributions and benefits in accordance with the cost of services, based on actuarial calculations. This Chamber has referred to such powers in vote No. 3403-94 of 15:42 hours on June 15, 1994, and in No. 7393-98 of 9:45 hours on October 16, 1998, it declared that provision 23 of the Ley Constitutiva de la Caja is in accordance with the Political Constitution, considering that the powers it confers on the Board of Directors do not imply a delegation of the exercise of Legislative Branch functions but are based on Article 73 of the Constitution. That norm entrusts the governance and administration of social insurance to the Fund, and for this reason, it is competent to issue autonomous regulations such as that for voluntary insurance. Consequently, it is not found that the Regulation containing the challenged provision breaches Article 140, subsection 3) of the Political Constitution.» As is evident from the cited judgment, the point raised by the plaintiff is not new. This Court has already ruled on the matter, and there is no reason to change its criterion.” Pursuant to the foregoing precedents, the Caja Costarricense de Seguro Social is empowered to issue regulations for the insurance under its administration, and the exercise of that power does not, in itself, imply any constitutional violation. By virtue thereof, the Chamber does not consider that the Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes is unconstitutional under the argument raised by the plaintiff—the principle of legal reserve—and therefore the action must be dismissed on this point, given that the CCSS is the entity in charge of the administration of social security and is endowed with maximum autonomy for that purpose, and consequently has full competence to establish the scope of the benefits inherent to social security via regulation, such that it can define the conditions, benefits, and entry requirements of each protection regime.” Regarding the universalization of social insurance and its mandatory nature, the Chamber, in resolution 2021023611 of 17:50 hours on October 20, 2021, held:

“For the purposes of the corresponding analysis, provisions 73 and 74 of the Political Constitution are transcribed:

“ARTICLE 73.- Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of mandatory contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of social insurance shall be the responsibility of an autonomous institution, called the Caja Costarricense de Seguro Social.

The funds and reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Insurance against occupational risks shall be the exclusive responsibility of employers and shall be governed by special provisions.” (As amended by the sole article of law No. 2737 of May 12, 1961).

ARTICLE 74.- The rights and benefits referred to in this Chapter are inalienable and cannot be waived. Their enumeration does not exclude others that derive from the Christian principle of social justice and are indicated by law; they shall be equally applicable to all factors participating in the production process and regulated in social and labor legislation, in order to promote a permanent national solidarity policy.” From the cited text, it is inferred that our Magna Carta configured social insurance as an inalienable and non-waivable benefit for working persons in the event of illness, disability, maternity, old age, death, and other contingencies determined by law, whose financing is regulated by the tripartite mandatory contribution system of the State, employers, and workers. Likewise, it is important to note the constitutional mandate to the CCSS for the administration and governance of social insurance (express reference to the institution introduced in 1961), in addition to the fact that the funds and reserves thereof cannot be transferred or used for purposes other than those that motivated their creation.

In addition to the foregoing, from the examination of the cited regulations, as explained below, it is gathered that social insurance was established for the benefit of all workers. In this sense, uncovering the “spirit of the law” in a constitutional norm requires a hermeneutical task that encompasses both the will of the original constituent assembly and that of the derivative one, as well as a systemic analysis of the regulatory body.

Within this perspective, it is first useful to bring up the minutes of the Asamblea Nacional Constituyente of 1949, such that:

“MINUTE No. 125 No. 125.- One hundred twenty-fifth minute of the session held by the Asamblea Nacional Constituyente at fifteen hundred hours on August eighth, nineteen hundred forty-nine, under the Presidency of Dr. Nombre35483, Present the following Deputies: Nombre35484 and Nombre35485, Secretaries; Nombre35486, Nombre35487, Nombre29739, Nombre35488, Nombre35489, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35336, Nombre35378, Nombre23243, Nombre35379, Nombre35380, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre35498 and the substitutes: Nombre2656, Nombre8269, Nombre35499, Nombre35500 and Nombre19774.

(…)

Article 4.- The discussion of the Social Guarantees chapter of the 1871 Constitution continued.

It was agreed to postpone the debate on the motion of Deputy Nombre2145, whose discussion had remained pending in the previous session, due to the proponent's absence.

In relation to Article 63 of the 1871 Charter, concerning social insurance, motions were presented by the Social Democrat faction, Nombre35501, Nombre35526, and by Messrs. Nombre35382, Nombre18690, Nombre35527, and Nombre35336, which are published in “La Gaceta.” They are as follows:

“All inhabitants of the Republic have the right to live protected against social and occupational risks. For this purpose, the State shall establish, through Autonomous Institutions, a mandatory social security system, which shall be financed by its contributions and those of employers and workers in the case of social risks, and exclusively by those of employers in the case of occupational risks.” Nombre35502 and associates.

“Social Insurance is established for the benefit of manual and intellectual workers who belong exclusively to the economically weak and vulnerable classes of the population. This Insurance shall be regulated by the system of triple MANDATORY contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of Social Insurance shall be the responsibility of a permanent and autonomous institution called the Caja Costarricense de Seguro Social. The funds or reserves of Social Insurance may not be transferred or used for purposes other than those that motivated their creation, and their management shall be carried out by the Fund in accordance with its constituting law. Insurance against occupational risks shall be the exclusive responsibility of employers and shall be governed by special provisions (Law No. 24 of July 2, 1943.)” Nombre35383 “Social Insurance is established for the benefit of manual and intellectual workers who belong to the economically weak and vulnerable classes of the population. This Insurance shall be regulated by the system of triple mandatory contribution from the State, employers, and workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies determined by law.

The administration and governance of Social Insurance shall be the responsibility of the State through the autonomous Institutions existing for that purpose.

The funds or reserves of Social Insurance may not be transferred or used for purposes other than those of a technical nature that determine their creation, and their management shall be the exclusive responsibility of those Institutions, in accordance with their constituting laws.” Nombre35384.

“All inhabitants of the Republic have the right to live protected against social and occupational risks.

For this purpose, the State shall establish a mandatory social insurance system to be regulated by law, whose economic base shall be formed by contributions from the State, employers, and workers in the case of social risks; and exclusively by those of employers in the case of occupational risks. The State shall protect and encourage the creation and development of private organizations that fulfill the same purpose.” Nombre35503.– Nombre35504.– Nombre35505.– Nombre35506.

Licenciado Nombre35528 indicated that the motions presented on Social Insurance really differed very little. At heart, they all say the same thing, as they accept the social security regime. However, he thinks that the one presented by them is somewhat broader. It fully embraces Article 63 of the 1871 Charter, with some variations, which he proceeded to briefly enumerate. He added that the motions by Messrs. Nombre35529 and Nombre35526 established insurance for manual and intellectual workers but limited them to the economically weak and vulnerable classes of the population.

[He] expresses the opinion that the exception is unacceptable because the Social Guarantees must protect all workers, without discrimination of any kind. In that sense, the general principle of social insurance in favor of all manual and intellectual workers must be maintained, just as the text of the 71 [Constitution] indicates. The representative Nombre35526 also warned that the motions differed very little, later going on to refer specifically to his own.

The deputy Nombre35480 stated (…) Secondly, it is well known that the greatest number of members is what guarantees the success of social insurance.

For this reason, he opposes limiting the sphere of action of the Caja. It is proper to adopt the wording of the text of Article 63, but in no way to introduce into it the exception raised by Nombre35501, which limits insurance to the economically weak and vulnerable classes of the population (…).

The deputy Nombre35529 analyzed the various motions presented, one of which—that of the Social Democrat faction—tends to generalize insurance to the entire population, and others—his and that of Mr. Nombre35526—limit insurance to the economically weak and vulnerable classes of the population. (…) He added that his motion corresponded entirely to the text of Article 63, with the exception that it limits insurance to the economically weak classes of the population, who in reality cannot afford a private physician. But first, it is worth asking, for whom is social insurance beneficial? The establishment of social insurance in a country has been due to the desire to favor those groups of the population with limited economic capacity, who cannot pay for medical services as is desirable. Therefore, social insurance must focus on providing aid and protection to those groups. (…) Mr. Nombre35529 concluded by insisting on the need to limit insurance to the economically weak and vulnerable classes of the population.

Deputy Nombre35525 then took the floor to defend the thesis of the motion of fellow member Nombre35529, which limits insurance to the economically weak and vulnerable classes of the population. With that sole limitation, he thinks that the Social Insurance will be able to fulfill its mission well in our country.

The representative Nombre35480 intervened in the debate again. He indicated that his colleagues had referred only to Sickness Insurance—certainly the most important—but they forget other fundamentally important insurances, which sooner or later will be established in Costa Rica, such as those for disability, old age, and death. The problem of involuntary unemployment must also be resolved through adequate insurance. In this way, he believes the problem should not be minimized. He was among the first to recognize the deficiency of the Social Insurance, which is largely due to the lack of essential resources. The insurance was established in Costa Rica prematurely. However, it got underway. But what does five years of existence mean for an institution of this magnitude? They have meant a great effort. Instead of discouraging us, of weakening the institution—he added—we must give it all kinds of support, strengthen it, so that it better fulfills its mission. It is true that the Social Insurance was created for the weak and most disadvantaged classes of the country. The ideal, however, would be to extend it to all the country's inhabitants, an ambitious plan that will not be easily realized in our country. On the other hand, Social Insurance is based on mutuality, that is, on the cooperation of all to achieve the good of the greatest number. In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for a trial period. Anything that means limiting the resources of the Social Insurance will undoubtedly be an inexplicable step backward.

Licentiate Nombre35528 stated that he agreed to definitively approve the text of the 71 Constitution—in accordance with the purposes of Mr. Nombre35480—with some small modifications. He said that the idea that moved them to present the motion regarding social insurance was to give a better, broader wording to Article 63, but not because they considered it deficient or inadequate. He then proceeded to list these variations. (…). The new formula presented by Licentiate Nombre35528 is the following:

"Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple compulsory contribution from the State, the employers, and the workers, in order to protect the latter against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine.

The administration and governance of social insurance shall be in charge of the State by means of the autonomous institutions that the law may determine.

The funds or reserves of social insurance may not be transferred or used for purposes other than those of a technical nature that determined their creation, and their management shall be exclusively in charge of those institutions, in accordance with their constitutive laws.

Insurance against occupational risks shall be exclusively at the expense of the employers." Due to the late hour, it was agreed to postpone the discussion of the previous motion until each one of the Deputies has a copy of it. (…)

MINUTES Nº 126 Nº 126.– One hundred twenty-sixth minutes of the session held by the National Constituent Assembly at fifteen hundred hours on August ninth, nineteen hundred and forty-nine, under the Presidency of Dr. Nombre35483. Present were the Deputies: Nombre35484 and Nombre35507, Secretaries; Nombre35486, Nombre35487, Nombre35508, Nombre35509, Nombre35510, Nombre35480, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35379, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre30798, Nombre4511, Nombre35527, and the substitutes: Nombre35526, Nombre35512, Nombre35513, and Nombre35514 (…)

Article 3º.– The Social Democrat faction presented a new formula, so that Article 63 of the 71 Charter would read as follows:

"Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple compulsory contribution from the State, the employers, and the workers, in order to protect the latter against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine.

The administration and governance of social insurance shall be in charge of a permanent institution, of an autonomous nature, which shall perform its functions with absolute independence from the Executive Branch.

The funds or reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Insurance against occupational risks shall be exclusively at the expense of the employers and shall be governed by special provisions." Licentiate Nombre35528 explained that the motion, save for some variations of simple form, conforms entirely to the text of the 71 [Constitution].

(…)

The Nombre35515 referred to the importance of the article under discussion, which must be studied more before voting on it. He explained that in Costa Rica there currently exist two institutions, with intermingled functions: the Caja Costarricense de Seguro Social and the Instituto Nacional de Seguros. Sickness and maternity insurance—he thinks—must belong to the Caja. The others—disability, old age, death, and unemployment—to the Institute. He then insisted that social insurance has no reason to be general. It must be confined to the economically weak and vulnerable classes of the population, just as the motion of fellow member Nombre35529 proposes.

(…)

The Nombre35501 stated that none of the arguments given had convinced him regarding his motion, which he still considers the most reasonable and just. On the other hand, the Social Democrat motion only modifies the form—but not the substance—of the text of Article 63. He added that the part of his motion that limits social insurance to the economically weak and vulnerable classes of the population, far from harming them, benefits them.

(…)

The debate regarding the Social Democrat motion having concluded, it was put to a vote and was approved.

(…)

MINUTES No. 171 No. 171.- One hundred seventy-first minutes of the session held by the National Constituent Assembly at fifteen hundred hours on October twentieth, nineteen hundred and forty-nine, under the Presidency of Dr. Nombre35516. Present were the Deputies Nombre35484 and Nombre35507, Secretaries; Nombre35487, Nombre35508, Nombre2145, Nombre35488, Nombre35489, Nombre35517, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35518, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre8269, Nombre12068, Nombre35519, Nombre30798, Nombre4511, Nombre35527, and the substitutes: Nombre19774, Nombre35520, Nombre35521, Nombre35522, and Nombre18807.

(…)

Regarding Article 74, Deputy Nombre35492 presented a motion so that paragraph 2 would read as follows: "The administration and governance of social insurance shall be in charge of an autonomous institution." The previous motion was approved.

Deputy Nombre35523 presented a motion to add the word "unemployment" after the word "maternity." The proponent explained that he presented the previous motion at the suggestion of Mr. Nombre35381, who has expressed his desires regarding unemployment insurance that the Caja de Seguro Social must assume.

Deputy Nombre30798 indicated that it will be the law that will establish when the Caja is in a position to assume the risk of unemployment. For that reason, he will not vote for the proposed motion, which was rejected.

Article 74 was approved, with the noted modifications, which shall read as follows:

Article 74.- "Social insurance is established for the benefit of manual and intellectual workers, regulated by the system of triple compulsory contribution from the State, the employers, and the workers, in order to protect the latter against the risks of sickness, disability, maternity, old age, death, and other contingencies that the law may determine.

The administration and governance of social insurance shall be in charge of an autonomous institution.

The funds or reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Occupational risk insurance shall be exclusively at the expense of the employers and shall be governed by special provisions." (The underlining and result is not original).

In this way, two positions are observed with complete clarity in the transcribed minutes: 1) the intention to establish social insurance for the benefit of the entire working class; 2) to set such insurance only for the benefit of the laboring population in an economically vulnerable condition. Precisely, deputy Nombre35529 himself frankly acknowledged both stances when he made reference to a motion from the Social Democrat faction that "tends to generalize insurance to the entire population," and to other motions proposed by him (together with deputy Nombre35526) that "limit insurance to the economically weak and vulnerable classes of the population." Now, after the corresponding discussion, the position that prevailed was that of establishing social insurance for the benefit of all workers, so that, for logical reasons, the constitutional interpretation must start from the arguments of the constituents who promoted that thesis.

In the first place, deputy Nombre35528 affirmed that the social guarantees must protect all workers without any discrimination. Furthermore, he pointed out that the general principle of social insurance in favor of all workers must be maintained.

On the other hand, although deputy Nombre35480 mentioned that social insurance was created for the weak and most disadvantaged classes of the country, he also noted that the ideal was to extend it to all the country's inhabitants. He added that social insurance was based on mutuality; that is, on the cooperation of all to achieve the good of the greatest number.

In view of the foregoing, there is no doubt that the spirit of section 73 of the Political Constitution extends to all working persons and, even further, to all the country's inhabitants, which aligns with the principle of the universalization of social insurance.

Along that same path, in 1961, the derived constituent power reformed section 177 of our Fundamental Law and expressly introduced the universalization of social insurance, in the following terms:

"ARTICLE 177.

(…).

To achieve the universalization of social insurance and to fully guarantee the payment of the State's contribution as such and as employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit were to occur due to the insufficiency of those revenues, the State shall assume it, for which purpose the Executive Branch must include in its next Budget proposal the respective item determined as necessary by the cited Institution to cover the totality of the State's quotas.

(…)

Article 177 (third paragraph) - Transitional.- The Caja Costarricense del Seguro Social must carry out the universalization of the various insurances placed under its charge, including family protection in the sickness and maternity regime, within a period of no more than ten years, counted from the promulgation of this constitutional reform.

(As amended by the sole article of Law N 2738 of May 12, 1961) It is important to highlight that, prior to the constitutional reform that formally included the obligation to universalize the social insurance placed under the charge of the CCSS, the constitutive law of that institution had already imposed on its board of directors the mandate to set the date for the entry into force of the "social insurance of independent workers and the conditions of this insurance" (article 3 of the Constitutive Law of the CCSS of October 22, 1943). That is, the social insurance of independent workers unfailingly formed part of such universalization and, consequently, its implementation in the country has constitutional grounding.

Within this context, it is not superfluous to reiterate that, by provision of constitutional section 73, the administration and governance of social insurance is in charge of the CCSS, and that the funds and reserves of social insurance may not be transferred or used for purposes other than those that motivated their creation.

Likewise, as mentioned supra, through the constitutional reforms set forth in Laws No. 2737 and 2738 of May 12, 1961, explicit reference to the CCSS was introduced in Article 73 of the Magna Carta (as the entity responsible for the administration and governance of social insurance), and, in constitutional provision 177, that institution was expressly assigned the universalization of the social insurance under its charge. The foregoing undoubtedly includes the social insurance of independent workers, since they have been under the charge of the CCSS since 1943.

Consequently, the fundamental right to social security encompasses **all persons (salaried and independent workers)** who engage in any type of activity in the country and are governed by the national legal system, since they must not only contribute in a spirit of solidarity to the sustainability of social insurance, but correlatively are covered by the protection established at the constitutional level.

In that sense, it is worth reiterating that this Chamber, in judgment No. 2003-03483 of 2:05 p.m. on May 2, 2003, recognized that the right to social security incorporates the principle of universality, as it extends to all citizens on a mandatory basis:

“Regarding the social security system. Article 73 of the Political Constitution, interpreted harmoniously with Article 50 thereof, enshrines the Right to Social Security. This Chamber has repeatedly indicated that this right presupposes that public authorities will maintain a public social security system for all citizens at the highest level, in such a way as to guarantee assistance and provide sufficient social benefits in situations of need to preserve health and life. The subjective scope of application of the right to social security incorporates the principle of universality, as it extends to all citizens, on a mandatory basis. The objective scope assumes the principle of generality, in that it protects situations of need, not to the extent that they have been foreseen and insured previously, but insofar as they effectively occur. Furthermore, it incorporates the principles of sufficient protection, according to quantitative and qualitative modules, and of protective automaticity, which translates into adequate and immediate protection in matters of illness, disability, old age, and death. By express constitutional provision, this management must be public, under the responsibility of the State, represented by the Caja Costarricense de Seguro Social, and financing shall respond to the cardinal principle of social solidarity, as it is based on the mandatory tripartite contribution made by workers, employers, and the State. Consequently, the principles of the Right to Social Security are those of universality, generality, sufficient protection, and social solidarity.” (Emphasis not original).

Thus, it is possible to conclude that both the aforementioned norms and the jurisprudence of this Chamber have recognized the constitutional protection of social insurance for all working persons. Precisely, the universalization of social insurance is what pervasively and extensively permeates the social insurance under the charge of the CCSS and, therefore, they enjoy constitutional protection.” In addition, in judgment No. 2011-10893 of 2:33 p.m. on August 17, 2011, it was held:

“**IV.- ON THE OBLIGATORY AFFILIATION OF INDEPENDENT WORKERS.** Even (sic) though the action is inadmissible, as analyzed in the preceding considerando, it is worth mentioning that on repeated occasions, this Chamber has pronounced on the issue of the mandatory affiliation of independent workers to the social security system, opportunities in which it has considered that it is not contrary to the Law of the Constitution, based on the following considerations. In the first place, the Caja Costarricense de Seguro Social is an autonomous institution constitutionally created for the administration of insurance, and is therefore endowed with political autonomy for the performance of that function. Likewise, Articles 3 and 23 of the Constitutive Law of the Caja Costarricense del Seguro Social provide that the Board of Directors of the Caja has full competence to establish, via regulation, the scope of the benefits inherent to social security, so that it can define the conditions, benefits, and entry requirements of each of the systems. Secondly, the regulations contained in Articles 63, 73, and 74 of the Political Constitution, in relation to social security, constitute minimums and not maximums, so that the legislator, in the exercise of its discretionary powers, may develop those precepts and even extend them, in order to make them applicable to other sectors of the population, and therefore it is not up to this Tribunal to exercise control over such discretion; only in those cases in which that power is exceeded to the direct detriment of the fundamental rights of persons may this Chamber validly hear and pronounce on the matter. However, this is not the case, since contrary to what the petitioner asserts, Article 73 of the Political Constitution creates social insurance under the charge of the Caja Costarricense de Seguro Social for the benefit of workers, in order to protect them against the risks of illness, disability, maternity, old age, death, and other contingencies that the law may determine. For its part, Article 74 of the Constitution contains the principles of social justice and social solidarity. The former is understood as the authorization for the Law to intervene in social relations in order to correct and compensate for inequalities among persons that are contrary to their dignity, so as to ensure the minimum conditions required for a human being to live. The second principle, that of social solidarity, consists of the duty of communities to assist members of the group in the face of contingencies that place them in a more vulnerable position, such as old age, illness, poverty, and disabilities. For their part, Articles 22, 23, 24, and 25 of the Universal Declaration of Human Rights, Articles 11, 16, and 35 of the American Declaration of the Rights and Duties of Man, and Articles 9 and 12(d) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, recognize the right of every person to social security that protects them against the consequences of old age and illness, as well as other conditions that prevent them from obtaining the means to lead a dignified and decent life. In this way, and based on the harmonious interpretation of all these constitutional and international precepts, the entire social security system is integrated. Moreover, although initially social security protected only salaried workers who contributed to the system, the fact is that this caused economic helplessness for the rest of the population, and therefore, following the promulgation of the Political Constitution of 1949 and the progressive evolution of fundamental rights in this field, the principle of universality of insurance emerged, which seeks to incorporate the entire population within the coverage of insurance, as the cornerstone of any social democratic state governed by the rule of law and as an instrument for the development of persons and society. Thus, the social security system is conceived as a set of norms, principles, policies, and instruments designed to protect and grant benefits to persons at the moment when states of vulnerability arise that prevent them from satisfying their basic needs and those of their dependents. It is thus that, in our country, different pension systems arise whose provisions, requirements, and resources differ in consideration of those special conditions according to the recipient in question. For all of the foregoing, this Tribunal considers that the obligatory inclusion of independent workers – including those practicing a liberal profession – within the system of the Caja Costarricense de Seguro Social is not contrary to the Constitution. Now, the fact that the petitioner works both as a salaried worker and as an independent worker, and contributes in both capacities, does not imply double taxation, since these are different labors that the legislator, in the exercise of its discretion, shall determine as insurable activities. (See in the same sense judgments Nos. 643-2000, 2571-2000, 16404-2005, 1591-2006, 5743-2006, and 14460-2006).” Based on the foregoing, the CCSS, as the institution responsible for the governance and administration of social insurance, has the power to regulate the mandatory insurance of independent workers and the contributions they must pay. In that sense, it has sufficient autonomy to define the scope of the benefits inherent to social security, such as conditions, benefits, and entry requirements for each system. Precisely, the challenged norms allow the Board of Directors of the CCSS to set the conditions (coverages, contributions, and requirements) applicable to independent workers, which prima facie does not exceed the regulatory power granted to that institution. Furthermore, provision 23 of the Constitutive Law of the CCSS grants that collegiate body the competence to determine contributions and benefits, in relation to the contributions and charges of social insurance. Consequently, the principle of legislative reserve is not considered violated in the terms intended. Likewise, as noted by the Procuraduría General de la República, the regulatory competence derives from the autonomy of the CCSS, which is recognized in provision 73 of our Fundamental Law.

In relation to the foregoing, social security contributions constitute parafiscal contributions of constitutional origin (canon 73 of the Magna Carta), whose elements must be established by the Board of Directors of the CCSS (precept 23 of its constitutive law). That is, based on the autonomy of the institution, the legislator attributed to that body the power to determine contributions and benefits, which entails defining the elements necessary for their calculation and regulation. Consequently, the alleged violation of Articles 9 and 121, subsection 12, of the Magna Carta is not substantiated.

Regarding freedom of enterprise and the right to work (provisions 46 and 56 of the Political Constitution, respectively), I do not observe any violation susceptible of being declared, given that what is involved is the regulation of the economic activities of persons by the CCSS (with due legal and constitutional support). In that sense, as stated by the PGR, provision 3 of the Constitutive Law of the CCSS itself expressly contemplates independent workers as obligated parties. Now, canon 74 of the same law provides that “persons who perform, totally or partially, independent or non-salaried activities must be up to date in the payment of their obligations with the Caja Costarricense de Seguro Social (CCSS), as well as with other social contributions that this Institution collects in accordance with the law,” which is not openly contrary to the concept developed in the challenged precept 1 of the regulation. Rather, a legal definition is observed that encompasses persons who perform independent or non-salaried activities, such that, for the purposes of the constitutional review that may be conducted in this venue, it is not absolutely essential that there exist some concept of “independent worker” in the terms intended. Ergo, I do not perceive any omission susceptible of being declared in the terms raised, since both the work and the business activities carried out by persons are subject to regulation, by virtue of the aforementioned powers recognized to the CCSS ut supra.

Regarding the violation of the principles of proportionality and reasonableness, as well as the alleged violation of Article 28 of the Political Constitution, I do not observe any development or foundation, and therefore, prima facie, they are not amenable to analysis.

Furthermore, concerning the alleged violation of the “principle of unity of social security,” I do not observe any development that would allow it to be considered as such and integrated as a parameter of constitutionality; rather, what is alleged is that, in consideration of the principle of equality, similar benefits should be provided to persons protected by the same system, which, it is mentioned, is not fulfilled because independent workers are charged more for the same benefits. However, although the challenged norms contain provisions for setting the contributions of independent workers, it is no less true that the claimant did not specify the extracts challenged, nor did they establish (or develop) elements of comparison with respect to the parameters and conditions established for salaried workers. Indeed, the arguments were not even individualized in relation to the challenged legal norm and the questioned regulatory provisions. The foregoing prevents an analysis of whether this is a problem of constitutionality, or rather, of the application of the norms (an aspect that would not be susceptible of being declared in this action venue). Now, independent workers, like salaried workers, have the duty to contribute to the system (in consideration of the principles of universality and solidarity), which grants them benefits without limiting coverage to their particular condition, the amounts contributed, or the type of worker.

Neither do I verify any violation of the principle of prohibition of arbitrariness. It should be noted that the establishment of a discretionary power for the Board of Directors of the CCSS to set more onerous contributions for independent workers compared to those for salaried workers is challenged; however, the normative parameters that regulate the latter are not set forth. Rather, what is challenged is that the Board of Directors has powers to establish a more onerous tax regime for independent workers; however, in addition to what was pointed out ut supra, arguments were also not individualized with respect to the questioned articles. In any event, this Chamber has recognized the power of the legislator to extend the scope of social security to independent workers (with the consequent regulation by the institution, always within the framework established in the Magna Carta and constitutional jurisprudence); however, no clear arguments of constitutional relevance demonstrating any violation were developed. Ergo, prima facie I dismiss this argument.

Finally, there is no development whatsoever regarding the alleged violation of the principle of legal certainty. In this regard, the claimant merely transcribes an excerpt from a vote and states that the norms do not establish “the taxpayer, the taxable event, the tax base, or the rate of the parafiscal levy they create to the detriment of the so-called ‘independent worker’.” Precisely, the relationship between that principle and the failure to establish such specific aspects is not specified. It should be noted that it is only justified that the foregoing is established by “the fundamental principles of Tax Law”…

**…Additional Reasons of Magistrate Cruz Castro**.- **The principle of social solidarity and, in any case, the parafiscality created by the Constituent** In this acción de inconstitucionalidad, various regulations related to the payment of social insurance contributions by independent workers were challenged. In their arguments, they start from the tax nature of social security contributions and, based on that, challenge that such norms do not meet the requirements that taxes must meet, thereby creating a disguised income tax. Arguing the violation of the principle of legal reserve; Articles 46 and 56 of the Constitution; 9 and 121.13 of the Constitution; 28 of the Constitution; the principle of unity of social security; the principle of prohibition of arbitrariness; and the principle of legal certainty.

The reasons this Chamber gives for dismissing this action refer to: the degree of autonomy of the CCSS that allows it to issue regulations to govern the scope of the benefits inherent to social insurance; the constitutionality of mandatory affiliation to the CCSS based on Article 73 of the Constitution; the constitutionality of the compulsory affiliation of independent workers; no unreasonable differentiation between salaried and independent workers is configured, since both are constituted as affiliates to the system and receive equal benefits by reason of their condition, regardless of the amount they contribute or the subscription status in which they find themselves; the parafiscal nature of social security contributions, by constitutional provision, since it was the Constituent Power that determined, in a sovereign and democratic manner, the creation of the parafiscal contribution for the benefit of the social security regime administered by the CCSS, thereby fulfilling the principles that regulate the exercise of tax authority; and furthermore, the additional regulations adopted legally and administratively consolidate the constitutional conformity of the authority of the Board of Directors of the Caja Costarricense de Seguro Social to determine the contributions that must be covered by the different sectors of insured working persons, without this in any way implying an impact on the principles of legal reserve, tax legality, legal certainty, universality and solidarity of social security, nor on Articles 46 and 56 of the Political Constitution.

In addition to all of the above, I have considered adding reasons, referring to two aspects: the parafiscal contribution and the constitutional principle of solidarity.

I have considered in previous cases that the employer-worker contributions destined for the maintenance of social security –sickness and maternity insurance and disability, old-age, and death insurance– are not a tax in the strict sense (see different reasons in Voto n° 2018-013658), since the social security regime protects and benefits the contributors themselves, and is nourished by the mandatory contributions established by law. Thus, for its very existence, the contribution is an essential obligation, since its purpose is the strengthening of the fund that sustains the regime. The ratio legis of the norm, referring to the mandatory nature of the contribution to the social security regime fund, is adequate to the principle of social justice that our Constitution establishes. Therefore, since it does not constitute a tax, in the technical legal sense, the fixing of employer and worker contributions by the Caja Costarricense de Seguro Social cannot be subjected to the arguments and allegations as if it were one. That said, I agree with the current position that, in any case, if considered a parafiscal contribution, it was created by the Constituent Power. As stated in the vote, it is Constitutional Article 73 that creates the parafiscal contribution by establishing a compulsory contribution from the State, employers, and workers, in order to protect the latter against the cited risks and other contingencies determined by law. Immediately thereafter, the constitutional text establishes that the administration and governance of these social insurances corresponds to an autonomous institution: the Caja Costarricense de Seguro Social. Finally, as relevant here, the constitutional norm imposes a prohibition on transferring or using the funds and reserves of the social insurances for purposes other than those that motivated their creation. As can be observed, we are, then, before a parafiscal contribution created by the original Constituent Power, with which the maxim that there can be no taxation without representation is fulfilled. In other words, in the case before us, adherence to the principles governing the exercise of tax authority is satisfactorily fulfilled, since a representative, plural body, which exercises the maximum power in a democratic and social State of Law, as is the exercise of constituent power, sovereignly and democratically determined to create the parafiscal contribution.

On the other hand, in this case, under the constitutional principle of solidarity, which applies to social security, it must be understood that the entire population, to the extent of their possibilities, must contribute economically to the financing of the system. No one should be excluded, nor would any regulation be unconstitutional that rightly seeks to establish a universal obligation to contribute to social security. This vision is reinforced by the phrase of Article 73 of the Constitution, when it indicates that it is a compulsory contribution, therefore, it does not admit exemptions.

It is appropriate to recall what this Chamber has indicated regarding the progressivity of the mandatory nature of social security (see judgment n° 2000-2571):

"VI.- It is clear that to comply with the constitutional precepts and the international regulations cited supra, the Caja Costarricense de Seguro Social had to draw up plans for the implementation and extension of social insurance, which in a first stage were frustrated because the State, the main employer, did not pay the contributions it owed in a timely manner. Fifteen years after the principle of universality of social insurance was elevated to constitutional rank in favor of the 'manual and intellectual workers' of Costa Rica, they had not been extended beyond a minority of Costa Ricans. The previous situation motivated the reform of Article 177 of the Political Constitution –approved by Law N°2738 of May 12, 1961– to achieve the definitive economic consolidation of Social Insurance in Costa Rica, through the establishment of a norm that guarantees the payment of the contributions that the State must obligatorily pay to finance and develop the social security system. The explanatory statement of the constitutional reform bill indicates that as of December 31, 1959, the State's debt, accumulated in favor of the Caja Costarricense de Seguro Social, was estimated at twenty-one million nine hundred sixty-five thousand seven hundred thirty-nine colones and six centimos. The special commission appointed by the Legislative Assembly to study the bill to reform Article 177 of the Constitution cited in its report a report from the Caja according to which, based on a study conducted in 1958 –with data from 1957–, 66% of possible workers nationwide and 89% of the family members of these workers who could be covered by social insurance throughout the country remained to be insured. The reform of Article 177 of the Political Constitution constituted a way to assure the Caja that the State would honor its obligations. In this way, the third paragraph was included, which provides:

'To achieve the universalization of the insurances and fully guarantee the payment of the State's contribution as such and as an employer, sufficient revenues shall be created in favor of the Caja Costarricense de Seguro Social, calculated in such a way as to cover the current and future needs of the Institution. If a deficit occurs due to the insufficiency of said revenues, the State shall assume it, for which the Executive Branch must include in its next budget bill the respective item determined as necessary by the aforementioned institution to cover the totality of the State's contributions.' Likewise, the Constituent Power included a transitory article to the third paragraph of Article 177, which indicates:

'The Caja Costarricense de Seguro Social must carry out the universalization of the various insurances under its charge, including family protection in the sickness and maternity regime, within a period not exceeding ten years, counted from the promulgation of this constitutional reform.' The constituent power set a deadline for the institution in charge of the administration and governance of social insurance to achieve its universalization, in protection of the rights of its beneficiaries, and considered ten years a reasonable period for workers and their families to be protected against the risks of sickness, disability, old age, death, 'and the other contingencies that the Law may determine.' The truth is that the Caja Costarricense de Seguro Social has since directed its effort towards achieving total coverage of workers subject to labor relations and their families, and this has borne fruit, given that coverage percentages are very high, and the Costa Rican social security system is among the best in Latin America. At the historical moment when social guarantees were included in the Political Constitution, the population group intended to be protected was that of manual and intellectual workers regulated by the system of compulsory contribution from the State, employers, and workers, and the constituent power itself considered that this group should be covered in the decade of the 1970s. A later stage in the evolution of social insurance constitutes its gradual expansion to other groups in society, such as independent or own-account workers –who are not subject to an employment relationship– and those insured on behalf of the State –who cannot access social security due to their precarious economic situation–. Thus, current efforts must be directed towards ensuring that the entire national population must be covered by the social security system, since if their quality of life is raised, an improvement in the economy in general will occur. (…)" In this way, it is understood that a later stage in the evolution of social insurance constitutes its gradual expansion to other groups in society, such as independent or own-account workers –who are not subject to an employment relationship– and those insured on behalf of the State –who cannot access social security due to their precarious economic situation–. Thus, current efforts must be directed towards ensuring that the entire national population must be covered by the social security system, since if their quality of life is raised, an improvement in the economy in general will occur.

Finally, the progressive weakening of social security is a path that does not harmonize with the historical and political transcendence of social guarantees. Some legislative decisions or omissions by the Executive Branch evidence an economic weakening of the CCSS, but such a trend cannot translate into contravening the Constituent Power's definition of universal, accessible, and solidary medical insurance. There are many reasons and circumstances for which we now face a financial weakening of the CCSS, but that transformation, perhaps inconvenient for the well-being of the majorities, cannot disregard the constitutional norms that privileged social insurance." **VI.- On the alleged violation of the principle of equality before the law, reasonableness, and proportionality.** The petitioner argues that the contravention of Article 33 of the Political Constitution arises at the moment when the institution's regulatory norms apply two different standards, one for employees or workers who receive a wage or salary and another for independent workers; and this distinction is made without there being an objective parameter for differentiation, since one cannot discriminate or differentiate between the nature of the work or the functions performed by one group or the other, given that both equally carry out productive activities. They also note that it is contrary to the principle of equality before the law that, for independent workers, the regulation is attributed entirely to the Board of Directors; while, on the contrary, for salaried workers, the regulation is dictated by the legal norm itself. Thus, in the judgment of the petitioner, it is unreasonable and contrary to the aforementioned principle of equality that the independent worker –who does not have an economic structure to support them, but rather assumes all the risks and burdens of exercising their own activity– must contribute more –in terms of the contribution amount and percentage– than a salaried worker. The latter, by contrast, assumes no risk from the company's organization, and only has to contribute their work to the system of production factors.

In relation to this type of allegation, the Chamber has indicated that, in order to carry out the intended analysis, the petitioner must substantiate their argument by applying the due reasonableness test to the challenged regulation, which is omitted in this case. This Chamber, on repeated occasions, has indicated the following:

"To undertake a reasonableness test of a norm, the Constitutional Court requires that the party provide evidence or at least elements of judgment on which to base its argument, and the same procedural burden corresponds to whoever rebuts the arguments of the action, and the failure to fulfill these requirements makes the allegations of unconstitutionality unacceptable. The foregoing, because it is not possible to carry out an analysis of 'reasonableness' without the existence of a coherent argumentative line that is evidentially supported. This, of course, when it does not involve cases whose 'unreasonableness' is evident and manifest" (Judgment N° 1999-5236 of 14:00 hours on July 7, 1999, reiterated in judgments 2016-14392 of 9:05 hours on October 5, 2016, 2019-6935 of 11:20 hours on April 24, 2019, and 2021-11995 of 16:31 hours on May 26, 2021).

Without carrying out the respective test, the petitioner's argumentative line lacks foundation. It must be remembered that what is not necessarily identical cannot be equated, and that not every distinction is discriminatory, only that which is not duly justified under the principles of reasonableness and proportionality. Hence, as indicated in the transcribed judgment, this Court would require, to undertake a reasonableness test of a norm, that the party provide sufficient evidence or elements of judgment to support its argumentation, and the same procedural burden would correspond to whoever questions them. Without this, it is not possible to carry out an analysis of "reasonableness" without the existence of a coherent argumentative line that is evidentially supported.

In any case, in the aforementioned judgment, the petitioner also alleged that the challenged regulation discriminates between independent workers and salaried workers, in such a way that the burden on the former far exceeds that borne by the latter, which is a product of the subjective will of the Board of Directors; and, in this regard, the Chamber considered the following:

"**XIV.- On the alleged injury to the principle of unity of social security and the prohibition of arbitrariness.** According to this principle, the social security system as a whole must function with congruent and coordinated criteria, as well as grant similar benefits or services to the different groups that are protected. What is emphasized with this principle is that there must be consistency in the management of the different entities that participate in the administration of the social security system, and in the benefits granted by them, so that the multiplicity of instances or departments does not imply a breakdown of unity as a whole and also does not produce an impact on the principle of equality.

As has been indicated, Article 73 of the Political Constitution, interpreted harmoniously with Article 50 of the same Constitution, enshrines the right to social security, regarding which, the Chamber has repeatedly indicated that it supposes that public authorities will maintain a public social security regime for all citizens at the highest level, so as to guarantee assistance and provide sufficient social benefits in situations of need to preserve life and health, which, then, guarantees the effective exercise of the principle of unity of social security.

Now, it cannot be forgotten that this principle is closely related to: a) the principle of universality, according to which the application of the right to social security extends to all citizens, with a mandatory nature; b) the principle of solidarity, which is the other side of the previous one, in the sense that, if universality seeks protection for the entire population because rights derived from social security are granted to all inhabitants, with the principle of solidarity it must be understood that the entire population, to the extent of their possibilities, must contribute economically to the financing of the system; c) the principle of generality, insofar as it protects situations of need, not to the extent that they have been foreseen and insured previously, but insofar as they actually occur –see judgment number 2003-3483–. Regarding the principle of universality of insurance, through judgment number 2011-10892, the Chamber indicated that said principle:

'[S]eeks to incorporate the entire population within the coverage of the insurances, as the cornerstone of any democratic social state of law and as an instrument for the development of persons and society. In this way, the social security system is conceived as a set of norms, principles, policies, and instruments intended to protect and recognize benefits for persons at the moment when states of vulnerability arise, which prevent them from satisfying their basic needs and those of their dependents.'.

In such a way, with the situation under study, no violation of the principle of unity of social security occurs, since, as stated, the system is also based on universality and solidarity, so that, when the contribution is made by the State, employers, and workers on a mandatory basis, with the payment of contributions according to the economic capacity and income of each one, the participants in the insurance regime are guaranteed the same benefits and services, which are granted to them not based on the amount of the contribution each one makes, but solely by belonging to the regime.

**From this perspective, the unity of social security is guaranteed because everyone, regardless of their status as employers or workers, salaried or independent, will receive benefits and services under similar conditions according to their particular health situation, which also guarantees the principle of equality, in the sense that the same treatment will be given to all persons who are in the same situation which, in this case, is being beneficiaries of one and the same single system, and not by reason of the amount of their contribution.** **It is precisely for these reasons that no impact on the principle of the prohibition of arbitrariness occurs either, because contrary to the petitioner's criteria, no unreasonable differentiation is configured between salaried and independent workers, since both are constituted as affiliates to the system and receive equal benefits by reason of their condition, regardless of the amount they contribute or the subscription status in which they find themselves, which, as stated, is a characteristic inherent to the CCSS and the Costa Rican social security regime, as a universal and solidary system.** Consequently, it is not observed that regarding this point, there is an injury to the Constitution." In accordance with the criteria set forth highlighted in bold, this Court dismissed the existence of discriminatory treatment between the manner in which the social security systems have been constituted, whether between salaried persons and independent workers, since although differentiated treatment exists, it is not unreasonable, given that in both cases, they are affiliated with the system and receive equal benefits, by reason of their condition, regardless of the amount they contribute or the subscription status in which they find themselves, which, as the aforementioned precedent indicated, is a product of the principles of solidarity and the universal social security regime that governs our country.

**VII.- Conclusion.** As a corollary of the foregoing, it is appropriate to dismiss this action on the merits regarding the points indicated, as is hereby ordered.

**VIII.- NOTE FROM MAGISTRATE GARRO VARGAS.** In the present judgment, I must note that I did not vote for the precedent cited to dismiss this action on the merits, namely, judgment N° 2024-3228 of 12:17 hours on February 7, 2024.

**IX.- Documentation submitted 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 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, as provided in the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Corte Plena in session No. 27-11 of August 22, 2011, article XXVI and published in the Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session No. 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

The action is denied on the merits. Judge Garro Vargas records a note.

| |  Fernando Castillo V.

| | |  Fernando Cruz C.

| |  Luis Fdo.

Salazar A.

Digitally Signed Document -- Verification Code --  Telephones: 2549-1500 / 800-SALA-4TA (800-7252-482). Fax: Telf07 / Telf08. Electronic address: www.poder-judicial.go.cr/salaconstitucional. Address: (Dirección09, Dirección05, 100 mts. South of the Perpetuo Socorro church). Reception of matters from vulnerable groups: Supreme Court of Justice Building, San José, Catedral District, González Lahmann Neighborhood, 19th and 21st streets, Dirección1786

Revisión del Documento  Res. Nº 2025005942 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las nueve horas veinte minutos del veintiseis de febrero de dos mil veinticinco .

Acción de inconstitucionalidad promovida por Nombre35477, mayor, casada una vez, con cédula de identidad nro. CED16242, contra los artículos 3, párrafos segundo y cuarto, y 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social; 1, 2 y 3 del Reglamento para la Afiliación de los Trabajadores Independientes de la Junta Directiva de la Caja Costarricense de Seguro Social; y -por conexidad- el Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes de la Junta Directiva de la Caja Costarricense de Seguro Social.

Resultando:

1.- Por escrito incorporado en el Sistema de Gestión de este Tribunal el 11 de noviembre de 2021, se solicita que se declaren inconstitucionales los artículos 3, párrafos segundo y cuarto, y 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social; 1, 2 y 3 del Reglamento para la Afiliación de los Trabajadores Independientes de la Junta Directiva de la Caja Costarricense de Seguro Social; y -por conexidad- del Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes de la Junta Directiva de la Caja Costarricense de Seguro Social, esta última en el tanto y en el cuanto se refiera a los trabajadores independientes, por lesionar la libertad de empresa, el derecho al trabajo, la seguridad jurídica, la igualdad ante la ley, el principio de reserva de ley tributaria, de razonabilidad y proporcionalidad y la inviolabilidad de la propiedad privada. Refiere como asunto base el expediente que se conoce bajo el caso n.° 1246-2020-00015, mediante el cual se pretende el cobro coactivo de una serie de sumas presuntamente omitidas, correspondientes al pago del Seguro de Trabajador Independiente. Refiere que, dentro de ese expediente administrativo, la Dirección de Inspección de la Caja Costarricense de Seguro Social dictó el Informe de Inspección n.° 1246-00015-2020-1, del 14 de mayo de 2020, por medio del cual se determinó una obligación de pago del Seguro de Trabajador Independiente, en su contra, por la suma de doce millones doscientos ochenta y un mil ciento cinco colones con cero céntimos (¢ ). El 11 de enero de 2021, interpuso recurso de revocatoria con apelación en subsidio en contra del citado informe de inspección. El 23 de abril de 2021, la Dirección de Inspección de la Caja Costarricense de Seguro Social, le notificó la resolución n.° 1246-00174-202l-R, tomada a las 8:00 horas del 09 de febrero de 2021, mediante la cual se rechazó el recurso de revocatoria y se elevó la apelación a la Gerencia Financiera de la institución, donde se encuentra en fase de agotamiento de la vía administrativa. En relación con la acusada violación al principio de seguridad jurídica y reserva de ley en materia tributaria, señala entre otras cosas, que, a pesar de que la CCSS es la institución rectora de la materia de la Seguridad Social, y a pesar de que ciertamente tiene una autonomía administrativa y funcional amparada por el propio texto constitucional; ello no la autoriza a que ejerza potestades tributarias, sin el recurso y remisión -al menos- a postulados generales que debe prever el texto legal, el em debe determinar aspectos medulares del tributo, como lo son el hecho generador, el sujeto activo y el pasivo, así como los parámetros temporales, espaciales, actuariales, financieros y matemáticos, para que las autoridades de la institución fijen o modifiquen las cuotas correspondientes. Y es que las normas legales y reglamentarias actualmente en vigor, consagran atribuciones a la Junta Directiva de la CCSS excesivamente amplias y genéricas; lo cual genera importantes roces de constitucionalidad, precisamente porque nos encontramos en materia tributaria, donde las normas deben resultar lo más acotadas y restringidas posibles, para evitar que el intérprete no se atribuya -en perjuicio del contribuyente- facultades no previstas o que excedan el núcleo central (duro) del derecho fundamental. En este mismo sentido, la redacción del artículo 3 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, incurre en esas falencias -específicamente en sus párrafos segundo y cuarto-:

“Artículo 3.- Las coberturas del Seguro Social -y el ingreso al mismo- son obligatorias para todos los trabajadores manuales e intelectuales que perciban sueldo o salario. El monto de las cuotas que por esta ley se deban pagar, se calculará sobre el total de las remuneraciones que bajo cualquier denominación se paguen, con motivo o derivados de la relación obrero-patronal.

La Junta Directiva fijará la fecha en que entrará en vigencia el Seguro Social de las trabajadoras independientes y las condiciones de este seguro; sin embargo, todos aquellos trabajadores independientes que en forma voluntaria desearen asegurarse antes de entrar en vigencia el Seguro Social en forma general para ese sector, podrán hacerlo mediante la solicitud correspondiente a la Caja Costarricense de Seguro Social. la cual, para tales efectos dictará la reglamentación pertinente. Los trabajadores independientes estarán exentos de pago de la cuota patronal. La posibilidad de reingreso de aquellos trabajadores independientes que voluntariamente se hubieren afiliado al amparo del párrafo segundo de este artículo, y que posteriormente se desafiliaren, será reglamentada por la Caja.

La Junta Directiva queda autorizada para tomar las medidas tendientes a coadyuvar en la atención médica a los indigentes, en los riesgos y accidentes profesionales, y en la campaña de medicina preventiva.

La Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán. (.. .)”. (Lo resaltado y subrayado no pertenece al original).

Indica que, no es posible, ni constitucional -como se menciona en el párrafo segundo de la norma citada-, que simplemente se indique que la Junta Directiva tiene atribuida la facultad de definir condiciones del seguro de trabajador independiente. La doctrina como la jurisprudencia de esta misma Sala Constitucional, ha sido conteste en el dato de que las obligaciones relativas a la seguridad social, constituyen una modalidad de las obligaciones tributarias denominadas "contribuciones parafiscales". Las contribuciones parafiscales comparten, junto con los tributos, sus notas de generalidad y de coercitividad, en el sentido de que su cumplimiento no es voluntario u optativo para el obligado tributario; no obstante, los destinos de estas contribuciones generalmente van encaminados a un fin específico, por lo que -en general- no se trata de tributos que administre o que recaude el aparato central del Estado. En este nivel de apreciaciones, por ejemplo, la doctrina internacional se ha expresado de la siguiente forma: “Por lo tanto, todas las obligaciones que nacen de una imposición legal del Estado cuyos ingresos no forman parte del presupuesto público y tienen como destino haciendas paralelas reciben el nombre de contribuciones parafiscales. Desde otra perspectiva, frente a su creciente proliferación, es de destacar que en los últimos años se ha dado un desarrollo doctrinario que considera la presencia de ciertos aspectos formales que encierran a los demás tributos, es decir el cumplimiento de los principios tributarios: generalidad, legalidad y progresividad. Así, se trata de tributos establecidos par autoridad de la ley que están a cargo de los miembros de un determinado sector o grupo económico o social con destino a financiar una actividad que interesa al mismo grupo o sector en beneficio de todos los aportantes, la administración de los recursos puede hacerse tanto por organismos públicos, semipúblicos o privados” (Cf. Nombre35478. Tributos vinculados y parafìscalidad, en Dirección1964 (coord.). "Del Derecho de la Hacienda Pública al Derecho Tributario" (201 I). 2° ed. Bogotá, Colombia: Nombre35524, p. 581. Esta misma Sala Constitucional tuvo oportunidad de expresarse, en la sentencia 2018-13658, sobre la caracterización de las cuotas de la Seguridad Social como una "contribución parafiscal". Así, no puede quedar duda en doctrina de que las cuotas y contribuciones a la Seguridad Social tienen naturaleza tributaria, aunque ciertamente no se trata de impuestos. Su carácter tributario se percibe en algunas de sus características; como, por ejemplo, su coactividad, la circunstancia de ser impuestas por un órgano de la Administración Pública, y la consideración de que su destino va dirigido a la satisfacción de necesidades colectivas, en específico, para la cobertura del régimen de Seguridad Social. Esto se concretiza, para el sistema de la Seguridad Social costarricense, en el pago de cuotas obligatorias periódicas, y coercitivamente exigibles, a las cuales vienen obligados los patronos y los trabajadores. La exigencia de estas cuotas como una de las principales fuentes de financiamiento del sistema, se percibe ya en el párrafo primero del artículo 3 de esta normativa legal. A partir de lo anterior, y quedando claro que las cuotas son los aportes de patronos y trabajadores mediante los cuales se concretiza la contribución parafiscal; resulta como consecuencia, que en virtud del principio de reserva de ley que rige la materia tributaria, las mismas cuotas deben ser establecidas y predefinidas por el legislador, y no por dependencias administrativas del Poder Ejecutivo o de instituciones autónomas. Y es que, en desarrollo del tantas veces referenciado principio de reserva de ley en materia tributaria, el artículo 5 del Código de Normas y Procedimientos Tributarios, impone que solo la ley y no un acuerdo o un reglamento emitido por un órgano administrativo, pueden crear, modificar o suprimir tributos, definir el hecho generador de la obligación tributaria, establecer las tarifas de los tributos y sus bases de cálculo, e indicar cuál es el sujeto pasivo de la obligación impositiva. Nada de lo cual se cumple para el caso concreto, porque tanto los elementos medulares del Seguro de Trabajador Independiente, como su hecho generador, la metodología de cálculo de las tarifas y de la base imponible, el sujeto pasivo; en fin, todos los aspectos sustanciales del tributo, son definidos por un cuerpo colegiado de una institución autónoma del Estado, y no por la ley formal. El reproche de inconstitucionalidad por violación al principio de reserva de ley que se acusa, radica en el hecho de que toda la disciplina de las cuotas del Seguro de Trabajador Independiente se regula en el Reglamento para la Afiliación de los Trabajadores Independientes; es decir, en una disposición normativa infralegal se establece el quantum y prácticamente la totalidad de las condiciones de los tributos parafiscales a la seguridad social que deben pagar los administrados. Y la acusación de inconstitucionalidad del artículo 3 de la Ley Constitutiva de la CCSS descansa, a su vez, en el punto de que esta norma legal intenta legitimar o validar una remisión normativa excesiva y, por ende, irrazonable y desproporcionada; lo anterior, con el confesado propósito de que sea la Junta Directiva de la CCSS la que defina todos los elementos de este tributo, lo cual representa una violación a la doctrina constitucional que se plasma en la Ley General de la Administración Pública, en el entendido de que las competencias esenciales de los órganos y entes públicos serán irrenunciables, intransmisibles e imprescriptibles. Pero, además, ello significa en la práctica, que el legislador está renunciando de antemano al ejercicio de absolutamente toda competencia de fijación o de regulación de las mencionadas cuotas, lo cual no solo representa una técnica legislativa violatoria del principio de igualdad (porque para los trabajadores asalariados sí se fijan estándares desde la propia ley), sino una violación a los principios de seguridad jurídica y de reserva de ley, porque -en quebranto a las reglas de los artículos 9 y 121 inciso l3) de la Constitución Política-, el Poder Legislativo está delegando en la CCSS, la definición de absolutamente todas las condiciones referentes a la regulación del Seguro de Trabajador Independiente. Igualmente, señala que resulta inconstitucional el párrafo cuarto del aludido artículo 3 de la Ley Constitutiva de la CCSS no por el hecho de que se le otorguen determinadas competencias o atribuciones a la Junta Directiva de la CCSS; sino, más bien, porque no se le establece límite o condicionamiento alguno desde el texto legal, para que dicho órgano administrativo ejercite la labor de determinación de las contribuciones parafiscales a la seguridad social, puesto que la norma no le impone ningún criterio temporal o sustancial claro a la CCSS, para que ejercite la labor de emitir las reglamentaciones que correspondan. Refiere que también se lesiona el principio de reserva de ley, porque no existe una definición legal de qué es un "trabajador independiente". La única enunciación normativa que refiere siquiera tangencialmente al ámbito de cobertura de la acción de la CCSS, es el Reglamento para la Afiliación de los Trabajadores Independientes, el cual -no obstante- es abiertamente desproporcionado, al extender inadmisiblemente el marco de este seguro a "toda actividad productiva generadora de ingresos". Refiere que el hecho de que se pueda definir qué es y qué no es exactamente un trabajador independiente, permitiría comprender un elemento del tributo tan importante como lo es el sujeto pasivo de la obligación tributaria, de manera tal que, la indefinición patente sobre qué es un trabajador independiente, en definitiva, lo que hace es atribuir inapropiadamente a la CCSS una serie de potestades de las que este ente no está conferido, pues las mismas pertenecen en exclusiva al legislador. Aduce que la Junta Directiva de la CCSS obra sin ningún parámetro claro ni estandarizado en la norma, para emitir las sucesivas normativas reglamentarias con las cuales regula el tema de la afiliación de los trabajadores independientes. Por ejemplo, no se conocen reglas técnicas precisas ni unívocas que determinen cómo debe realizarse esta fijación, y esto se ejemplifica claramente en el hecho de que la cuota de los trabajadores independientes ha venido incrementándose porcentualmente en el tiempo, desde cerca de un 10% en 2005, hasta cerca de un 22% en la actualidad, como promedio de todos los niveles de cotización. Situación que involucra, una afrenta contra los términos del artículo 34 de la Constitución Política, ya que, con estas variaciones tan extremas en las diversas escalas de cotización, provoca que el particular no sepa a qué atenerse en su planificación económica y en sus relaciones con los órganos del poder público. Luego de referirse a la jurisprudencia de este Tribunal en relación con el principio de igualdad, señala que las normas impugnadas son inconstitucionales, ya que, al no establecer limitaciones o condicionantes expresas a la CCSS, permite que esta última haga las determinaciones de las cuotas de Seguro de Trabajador Independiente de manera desigual, si se las compara con las cuotas obrero-patronales. De esta forma, la norma legal cuestionada como inconstitucional es contraria al principio de igualdad ante la ley en materia tributaria, porque permite que la Junta Directiva de la CCSS incurra en tratos discriminatorios como los que finalmente determina mediante sus resoluciones y acuerdos, dado que no existe ningún patrón objetivo y realmente verificable de diferenciación, que permita explicar la razón del porqué los trabajadores independientes deben cotizar a escalas porcentuales mayores que las de los asalariados. Es decir, ante una misma manifestación de capacidad económica por parte de asalariados y de trabajadores independientes, los montos de cotización que se establecen por parte de las autoridades de la Caja Costarricense de Seguro Social son distintos. Por ende, la contravención al numeral 33 de la Constitución Política surge en el momento en el que la normativa reglamentaria de la institución aplica dos raseros distintos, uno para los empleados o trabajadores que perciben sueldo o salario y, otro para los trabajadores independiente; y esta distinción se realiza sin que exista un parámetro objetivo de diferenciación, pues no se puede discriminar o diferenciar entre la naturaleza del trabajo o de las funciones que ejecutan unos u otros, dado que ambos ejercitan actividades productivas por igual. Tanto asalariados como independientes ponen a disposición su intelecto y su actividad manual para la transformación beneficiosa de su ambiente y de su entorno. También advierte que, resulta contrario al mencionado principio de igualdad ante la ley, el hecho de que para los trabajadores independientes la regulación se atribuya por completo a la Junta Directiva; mientras que, por el contrario, para los trabajadores asalariados la regulación la dicta la propia norma legal. Así, a juicio del accionante, resulta irrazonable y contrario al mencionado principio de igualdad, que el trabajador independiente -quien no tiene una estructura económica que lo respalde, sino que asume todos los riesgos y las cargas del ejercicio de su propia actividad- tenga que cotizar más -en términos de la cuota y del porcentaje- que un trabajador asalariado. Este último, por contrapartida, no asume ningún riesgo de la organización de la empresa, y solo tiene que aportar su trabajo al sistema de factores de producción. Indica que, claramente son dos tipos distintos de trabajadores, pero lo que no se puede producir, es que existan regulaciones normativas que no reconozcan las condiciones y la naturaleza propia de las labores que realizan los trabajadores independientes, pues de esta forma, paralelamente se dejarían de reconocer las diferencias que se presentan entre unos y otros. Considera que correspondía a la misma ley, fijar un mínimo de cotización que respete la particularidad de la situación del trabajador independiente. La forma en la cual la CCSS trata -injustificadamente- de manera diferenciada a trabajadores asalariados e independientes, se puede visualizar en la regulación del artículo 33 del Reglamento del Seguro de Invalidez, Vejez y Muerte. Aduce que, la misma enunciación de ese artículo, introduce una distinción indebida, por cuanto los montos de contribución son diametralmente distintos entre asalariados y trabajadores independientes, sin que exista un criterio objetivo y medible que justifique un tratamiento tan diferenciado cuando se persigue un mismo objetivo. Y es que la finalidad a la que propenden los distintos regímenes de seguridad social resulta, a fin de cuentas, proveer servicios de salud y la posibilidad de acceso a una jubilación a toda la ciudadanía, en condiciones de igualdad para todos, por lo que no se justifica, en ningún momento, por qué la norma establece un tratamiento tan diferenciado a las cotizaciones de los trabajadores independientes -frente a la situación jurídica de los trabajadores asalariados-, cuando la idea es garantizar condiciones elementales para el acceso de la población -en igualdad de condiciones- a servicios de salud y seguridad social. En relación con el artículo 23 de la Ley Constitutiva de la CCSS, señala que este determina claramente que el costo de los servicios médicos que hayan de brindarse a los asegurados, será el criterio determinante para definir el monto de las respectivas contribuciones. De lo expuesto entonces se denota, que no hay base razonable para realizar diferencias tan abultadas en el porcentaje de cotización correspondiente a los asalariados y el de los trabajadores independientes; dado que, por ejemplo, el grado de utilización de servicios médicos es presumiblemente comparable entre los asalariados y los independientes. Luego, no hay razón alguna para sostener que el conglomerado de trabajadores independientes requiera los servicios de salud o las prestaciones de jubilación en una mayor proporción a los asalariados. ni viceversa. Así, al menos de la previsión inicial que contiene la norma citada, la contribución de los asalariados -para dotar de recursos al Régimen IVM- será sobre el 4,50% de sus ingresos salariales; en el tanto, y por contrapartida, la contribución de los trabajadores independientes se establece en un 10.25% sobre sus correspondientes ingresos mensuales. Esta diferenciación, está totalmente desprovista de una base razonable y objetiva de diferenciación, tanto así, que en ninguno de los textos normativos que regulan las contribuciones de los ingresos de los trabajadores se explica el porqué, o la causa justificante de esta divergencia, lo cual obliga a tacharla como inconstitucional. Y es que, con determinaciones como las adoptadas a este respecto por la CCSS, se entroniza una diferenciación que no encuentra ninguna justificación en la propia norma jurídica, ni en la realidad o contexto social propio de la aplicación de la norma, porque nada justifica que se grave bajo diferente tratamiento jurídico, e imponiendo cargas tributarias diferenciadas, un conjunto de actividades que en el fondo resultan equiparables -y cuya única diferencia reside tan solo en el sujeto agente de las mismas-. Por ende, solicita la inconstitucionalidad de los artículos 3 párrafos segundo y cuarto de la Ley Constitutiva de la Caja Costarricense de Seguro Social, l y 2 del Reglamento de Afiliación de Trabajadores independientes de la CCSS, y -por conexidad- el Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes; dado que estas normas no garantizan ni aseguran, de la manera más conveniente, el principio de igualdad ante la ley. Indica que, en el presente caso, las normas acusadas como inconstitucionales quebrantan también los básicos estándares del principio de proporcionalidad (necesidad, idoneidad y proporcionalidad en sentido estricto), que han sido diseñados y expuestos por la jurisprudencia. Lo anterior, por cuanto para solventar una problemática ciertamente digna de la más pronta atención del Estado y -en particular- de la Caja Costarricense de Seguro Social, se toman medidas sumamente gravosas, y completamente lesivas de los derechos constitucionales de todos los trabajadores independientes. Reconoce que las finanzas del Régimen de Enfermedad y Maternidad y, principalmente del Régimen de Invalidez, Vejez y Muerte experimentan un duro momento, y que ello amerita tomar las medidas necesarias para garantizar la sostenibilidad futura del sistema. Sin embargo, estas necesidades no pueden tomarse como una vía libre o carta blanca para atentar contra los derechos constitucionales de la ciudadanía, o para imponer el pago de contribuciones que puedan lesionar la capacidad económica de los contribuyentes. Además, destaca que -tal como se ha argumentado con ocasión de los motivos de inconstitucionalidad antecedentes-, las imposiciones que se realizan a los trabajadores independientes son porcentualmente mayores a aquellas que se exigen a los trabajadores asalariados, lo cual se ve exacerbado, por cuanto en el caso de los trabajadores por cuenta propia, no existe un patrono, los porcentajes que deben asumir los trabajadores y el Estado son comparativamente mayores (esto último, para intentar compensar el porcentaje global de cotización, con el que aplica para el caso de las trabajadores que perciben salario). Por ello, indica que las normas impugnadas no satisfacen los criterios o subprincipios de necesidad e idoneidad que forman parte del más genérico principio de proporcionalidad. Ello se manifiesta en el hecho de que, entre un abanico de medidas posibles, que permitirían solventar las falencias y las debilidades de los regímenes de pensiones que administra la CCSS; inadmisiblemente la Junta Directiva de la Caja de Seguro Social toma un conjunto de medidas sumamente gravosas y arbitrarias, que otorgan un ejercicio abusivo de competencias públicas a los propios órganos administrativos de la institución y, en particular, a la Dirección de Inspección, lo cual se traduce en que las cargas tributarias impuestas a los trabajadores independientes se tornan verdaderamente como confiscatorias. Lo anterior, por cuanto el quantum porcentual de las cuotas impuestas, efectivamente distrae un porcentaje importante de la renta neta de cada uno de los sujetos pasivos obligados a contribuir con la sostenibilidad de estos regímenes. Así las cosas, el tolerar o admitir como conclusión posible, la constitucionalidad de una serie de normas administrativas que se han verificado tan gravosas para los derechos de los administrados y de todos aquellos sujetos de derecho que perciban algún tipo de ingresos, equivaldría llegar a permitir o admitir -siquiera implícitamente- que se abran resquicios o portillos para el ejercicio de cotas arbitrariedad en la actuación de los órganos administrativos del Estado. No es posible admitir que sea un órgano administrativo del Estado el que se atribuya competencias de carácter tributario, sin que medie el control político y el debate propio de los órganos de carácter parlamentario, y sin ninguna sujeción a limitaciones materiales, temporales o espaciales. La Junta Directiva ni siquiera tiene delimitadas por ley esas presuntas prerrogativas de modificar los montos de cotización que deben pagar los trabajadores independientes; tanto así, que incluso puede definir modificaciones a sus propios acuerdos en cualquier tiempo y cuantas veces lo considere necesario. Indica que resulta irrazonable y desproporcionado que no exista una definición de qué exactamente comprende la figura del "Trabajador Independiente". El artículo 1° del Reglamento para la Afiliación de los Trabajadores Independientes -norma aquí alegada como inconstitucional- señala que las obligaciones de cotizar para el Seguro de Trabajador Independiente, se erigen sobre los ingresos percibidos por el trabajo e incluso “por cualquier actividad generadora de ingresos"; lo cual da pie para que la institución autónoma rectora de la seguridad social, pueda eventualmente extralimitarse, considerando que, absolutamente toda actividad privada que la imaginación pueda concebir, deba estar sujeta a este tipo de contribuciones, lo cual es irrazonable, pues ya se han visto los efectos de tal nivel de generalidad y de imprecisión normativa. La CCSS ha iniciado procedimientos administrativos contra personas que únicamente perciben rentas de tipo pasivo, como arrendamiento de muebles o inmuebles, incluso se han abierto investigaciones contra personas que forman parte de juntas directivas y representación de sociedades mercantiles, o que reciban intereses por certificados bancarios y otros activos depositados en instituciones financieras, todo lo cual obedece simplemente a que no existe una norma que defina qué es “trabajar" de forma independiente. Siguiendo la tesis bosquejada por la CCSS, se llegaría fácilmente al absurdo de que, incluso cualquier disposición patrimonial en favor de otro convierta a este último en un caso de interés para la CCSS y sería también materia del Seguro de Trabajador Independiente; lo anterior, por cuanto verificarían dentro del amplísimo marco de "actividad generadora de ingresos" que prevé el artículo 1 del Reglamento para la Afiliación de los Trabajadores Independientes. No se ha definido cuáles son los perfiles o actividades que, eventualmente, permitirían a la CCSS considerar que esas actividades son trabajo independiente, máxime que no hay definición de un conjunto de labores y medios para desarrollarlas que, de modo permanente y voluntario, se realizan para generar ingresos. Esa falta de definición se torna contraria a los principios de razonabilidad y proporcionalidad, pues podría llegarse a convertir en fuente de potenciales abusos en contra del administrado. Refiere que, las normas aducidas contrarían los principios de seguridad, reserva de ley, de igualdad ante la ley, de inviolabilidad de la propiedad privada de los ciudadanos y de razonabilidad y proporcionalidad. Pide que se declare la inconstitucionalidad del artículo 3, párrafos segundo y cuarto, y 23 de la Ley n.° 17, "Ley Constitutiva de la Caja Costarricense del Seguro Social", del 22 de octubre de 1943, los artículos 1, 2 y 3 del "Reglamento de Afiliación de los Trabajadores independientes", aprobado mediante el artículo 21° de la sesión n.° 7877, de la Junta Directiva de la Caja Costarricense de Seguro Social, celebrada el 5 de agosto de 2004; y por conexidad, el "Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes", aprobado mediante el artículo 30 de la sesión nro. 8051, de la Junta Directiva de la Caja Costarricense de Seguro Social, celebrada el 27 de abril de 2006, en el tanto este último se refiera a la regulación de las presuntas obligaciones de los trabajadores independientes.

2.- Por resolución de las 14:37 horas del 19 de noviembre de 2021, se solicitó al Gerente Financiero de la Caja Costarricense de Seguro Social, remitir a este Tribunal copia certificada del expediente correspondiente al caso nro. 1246-2020-00015, donde se indica pende de resolución el recurso de apelación planteado por Nombre35479, en su condición de apoderado especial de la aquí accionante, contra la resolución de las 14:00 horas del 14 de mayo de 2020, denominado Informe de Inspección nro. 1246-00015-2020-I.

3.- El 1 de diciembre de 2021, la Gerencia Financiera de la Caja Costarricense de Seguro Social, remitió a este Tribunal la copia certificada del expediente correspondiente al caso nro. 1246-2020-00015.

4.- Por escrito del 5 de enero de 2021, el magistrado Jorge Isaac Solano Aguilar planteó su inhibitoria para conocer este proceso, en virtud de que él también ostenta la condición de trabajador independiente.

5.- Mediante resolución de las 7:48 horas del 6 de enero de 2022, el presidente de esta Sala aceptó la inhibitoria planteada por el magistrado suplente Jorge Isaac Solano Aguilar.

6.- Según sorteo 9659, realizado por la Presidencia de la Corte, se designó al magistrado suplente José Roberto Garita Navarro para sustituir al magistrado Jorge Isaac Solano Aguilar.

7.- Por resolución nro. 2022-11626, de las 9:20 horas del 25 de mayo de 2022, la Mayoría de este Tribunal dispuso rechazar de plano la acción respecto a la impugnación del artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, del ordinal 3 del Reglamento para la Afiliación de Trabajadores Independientes y de la alegada violación del derecho al trabajo, la libertad de empresa y la inviolabilidad de la propiedad privada. En cuanto a lo demás, se suspendió la tramitación de esta acción hasta tanto no fuera resuelta la que bajo expediente nro. 18-004106-0007-CO se tramitó ante esta Sala.

8.- Por sentencia nro. 2024-03228 de las 12:17 horas del 7 de febrero de 2024, este Tribunal resolvió la acción de inconstitucionalidad nro. 18-004106-0007-CO, con la siguiente parte dispositiva: “Se declara sin lugar la acción. El magistrado Cruz Castro consigna razones adicionales. El magistrado Rueda Leal consigna razones particulares.”.

9.- Por resolución de las 12:13 horas del 18 de febrero de 2025, el presidente de esta Sala dejó sin efecto el nombramiento del magistrado suplente José Roberto Garita Navarro y declaró habilitada a la magistrada Hess Herrera para conocer esta acción de inconstitucionalidad.

10.- 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.- Cuestión preliminar. Se advierte de previo, que este Tribunal por resolución nro. 2022-11626, de las 9:20 horas del 25 de mayo de 2022, la Mayoría de este Tribunal dispuso rechazar de plano la acción respecto a la impugnación del artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, del ordinal 3 del Reglamento para la Afiliación de Trabajadores Independientes y de la alegada violación del derecho al trabajo, la libertad de empresa y la inviolabilidad de la propiedad privada. En cuanto a lo demás, se suspendió la tramitación de esta acción hasta tanto no fuera resuelta la que bajo expediente nro. 18-004106-0007-CO se tramitó ante esta Sala. De modo que el pronunciamiento de este Tribunal, se circunscribirá únicamente respecto de la acusada inconstitucionalidad del artículo 3 párrafo segundo y cuarto de la Ley Constitutiva de la Caja Costarricense de Seguro Social y los ordinales 1 y 2 del Reglamento para la Afiliación de Trabajadores Independientes, por la vulneración a los principios de seguridad jurídica y reserva de ley en materia tributaria, de igualdad ante la ley y de razonabilidad y proporcionalidad.

II.- Sobre la legitimación. La parte accionante se tiene como legitimada para interponer esta acción, con base en el artículo 75, párrafo 1°, de la Ley de la Jurisdicción Constitucional, toda vez que señaló como asunto base el procedimiento administrativo tramitado en el expediente nro. 1246-2020-00015, donde se indica que pende de resolución el recurso de apelación planteado por la aquí accionante, ante la Gerencia Financiera de la CCSS, dentro del cual invocó la inconstitucionalidad de las normas aquí impugnadas.

III.- Objeto de esta acción. La gestionante interpone esta acción de inconstitucionalidad contra el artículo 3 párrafo segundo y cuarto de la Ley Constitutiva de la Caja Costarricense de Seguro Social y los ordinales 1 y 2 del Reglamento para la Afiliación de Trabajadores Independientes, por la vulneración a los principios de seguridad jurídica y reserva de ley en materia tributaria, de igualdad ante la ley y de razonabilidad y proporcionalidad.

IV.- Sobre el trámite. Esta acción estuvo suspendida a la espera de lo que se resolviera en la acción de inconstitucionalidad número 18-004106-0007-CO, en la cual se cuestionó la constitucionalidad del párrafo segundo del artículo 3 de la Ley Constitutiva de la CCSS, nro. 17 de 22 de octubre de 1943 y sus reformas, así como también de los artículos 1 y 2 del Reglamento para la Afiliación de los Trabajadores Independientes de la CCSS, nro. 7877 de 5 de agosto de 2004. Dicha acción de inconstitucionalidad fue resuelta por sentencia nro. 2024-03228 de las 12:17 horas del 7 de febrero de 2024, que dispuso lo siguiente:

“Por tanto:

Se declara sin lugar la acción. El magistrado Cruz Castro consigna razones adicionales. El magistrado Rueda Leal consigna razones particulares.”.

Visto que, en el caso que nos ocupa, se alegaron similares agravios de constitucionalidad contra la normativa aquí impugnada, se procede a rechazar por el fondo esta acción con base en las consideraciones expuestas en la sentencia mencionada, como a continuación se indica.

V.- Sobre la alegada violación de las normas impugnadas al principio de reserva de ley y seguridad jurídica. La accionante aduce que, en virtud del principio de reserva de ley que rige la materia tributaria, las cuotas que la CCSS impone al trabajador independiente, son contribuciones parafiscales y como tales, deben ser establecidas y predefinidas por el legislador, no por dependencias administrativas del Poder Ejecutivo o de instituciones autónomas. Nada de lo cual se cumple para el caso concreto, porque tanto los elementos medulares del Seguro de Trabajador Independiente, como su hecho generador, la metodología de cálculo de las tarifas y de la base imponible, el sujeto pasivo; en fin, todos los aspectos sustanciales del tributo, son definidos por un cuerpo colegiado de una institución autónoma del Estado, y no por la ley formal, conforme al artículo 3 de la Ley Constitutiva de la CCSS y el reglamento impugnado, lo cual no solo violenta el principio de reserva de ley, sino también el de seguridad jurídica.

Tal como ya se indicó, en relación con esta disposición y el argumento invocado por la aquí parte accionante, esta Sala en sentencia nro. 2024-03228 de las 12:17 horas del 7 de febrero de 2024, en lo que interesa, dispuso lo siguiente:

“XI.- Sobre la constitucionalidad de la normativa impugnada. La alegada vulneración al principio de reserva de ley. Los cuestionamientos de constitucionalidad en relación con el principio de reserva de ley que se están planteando en esta acción, ya han sido objeto de discusión de este Tribunal en anteriores ocasiones y, en todas ellas, la Sala ha concluido que lo aducido respecto de la vulneración del principio de reserva de ley, dista de lesionar el Derecho de la Constitución, partiendo, precisamente, del alto grado de autonomía que ostenta la CCSS, lo cual es una razón de gran relevancia para justificar esa decisión.

En ese sentido, es reiterada la jurisprudencia de este Tribunal, reconociendo que, precisamente por el grado de autonomía que le otorgó el Constituyente, la institución cuenta con amplia potestad reglamentaria para ser ejercida en la materia propia de su competencia, la cual -como se ha venido diciendo- le fue encomendada por la propia Constitución Política, potestad con la que no se lesiona el principio de reserva de ley y, por ende, tampoco el Derecho de la Constitución -ver sentencia número 2010-5893, reiterada en sentencia número 2022-23208; además, se pueden consultar las sentencias números 2003-2355, 2001-9580, 2001-9734, 2001-546, 2002-4881, 7393-98, 1059-94, 3853-93 y 3403-94, entre otras-.

Esta Sala, con base en lo dispuesto en el artículo 73 constitucional, indicó en la sentencia número 2001-009734, reiterada en la número 2003-002355, en lo que interesa:

“III.- DE LA COMPETENCIA DE LA CAJA COSTARRICENSE DEL SEGURO SOCIAL. En virtud de lo dispuesto en el artículo 73 de la Constitución Política, a la Caja Costarricense del Seguro Social le corresponde "la administración y el gobierno de los seguros sociales", competencia que es competencia que es (sic) desarrollada en el artículo 3 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, número 17 de veintidós de octubre de mil novecientos cuarenta y tres, de manera que su Junta Directiva tiene plenas facultades para establecer, vía reglamento, los alcances de las prestaciones propias de los seguros sociales, tanto en lo que se refiere a la definición de las condiciones y beneficios, así como los requisitos de ingreso de cada régimen de protección. Asimismo, el artículo 23 de la misma Ley, establece como uno de los parámetros a tomar en cuenta en esta definición, los estudios y cálculos actuariales, a fin de mantener la sostenibilidad del sistema. De lo dicho queda claro que la Caja Costarricense del Seguro Social tiene plena competencia para dictar normas como las impugnadas, en cuanto responden al mandato constitucional del artículo 73, toda vez se refieren a un aspecto de la organización y administración de los seguros sociales”. -énfasis agregado- Así las cosas, la potestad reglamentaria en materia de trabajadores independientes que se ejerce por la Caja a través de su Junta Directiva, se enmarca dentro de las potestades de administración y gobierno que, en materia de seguridad social, se le ha otorgado en el párrafo segundo del artículo 73 de la Constitución Política y, por ello, resulta acorde con el Derecho de la Constitución; esta potestad reglamentaria no debe ser confundida con la establecida en el artículo 140 incisos 3) y 18) de la Constitución Política, por la que se otorga al Poder Ejecutivo la facultad de emitir los reglamentos de organización y servicio de la Administración. Debe tenerse presente que, precisamente por la autonomía de que goza la CCSS examinada supra, el Poder Ejecutivo no puede reglamentar lo relativo a la administración y gobierno de los seguros sociales, porque ello es materia reservada para la Caja, la que tiene plena independencia y autonomía para regularla y gestionarla, según así le fue otorgado y reconocido por la propia Constitución Política.

Desde esta perspectiva, lo relativo al aseguramiento obligatorio de los trabajadores independientes y las cuotas que deben pagar, es materia propia del ejercicio de esas atribuciones y un mecanismo legítimo que no viola el Derecho de la Constitución, en particular el principio de reserva de ley; antes bien, está dirigido a permitir a la Caja cumplir el fin que constitucionalmente se le ha encomendado, sin que para ello sea necesario que se establezca por una ley emanada de la Asamblea Legislativa. En tal sentido, en la sentencia número 2008-017304, esta Sala dispuso expresamente:

“VI.- SEGUROS DE TRABAJADORES INDEPENDIENTES. Contrario a la opinión del accionante, este Tribunal no ha encontrado razón para excluir los seguros de trabajadores independientes —e, incluso de regímenes no contributivos— de las potestades reglamentarias de la CAJA COSTARRICENSE DE SEGURO SOCIAL. Sobre el particular, se pronunció en sentencia No. 2000-02571, de las 14:38 hrs. del 22 de marzo del 2000:

«En cuanto al alegato del recurrente, en el sentido de que la norma impugnada excede los límites de la potestad reglamentaria y que la materia regulada no puede estar contenida en un reglamento autónomo, la Sala concuerda con la Procuraduría General de la República, en el sentido de que el artículo 10 del Reglamento de Seguro Voluntario no resulta inconstitucional por ese motivo. La Ley Orgánica de la Caja Costarricense de Seguro Social dispone en su artículo 3º párrafo 5º que la Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán. El artículo 14 inciso f), confiere a la Junta Directiva la atribución de dictar los reglamentos para el funcionamiento de la institución y el numeral 23 le señala que la Junta Directiva es la competente para determinar las cuotas y prestaciones de conformidad con el costo de los servicios, según los cálculos actuariales. Esta Sala se ha referido a tales atribuciones en el voto Nº3403-94 de las 15:42 horas del 15 de junio de 1994, y en el Nº7393-98 de las 9:45 horas del 16 de octubre de 1998 declaró que la norma 23 de la Ley Constitutiva de la Caja, es acorde con la Constitución Política, en atención de que las atribuciones que le confiere a la Junta Directiva, no implica delegación del ejercicio de funciones del Poder Legislativo, sino que se funda en el artículo 73 de la Constitución. Esa norma encarga el gobierno y administración de los seguros sociales a la Caja, y por ello es competente para dictar reglamentos autónomos como el de seguro voluntario. En consecuencia, no se constata que el Reglamento en el cual está contenida la disposición impugnada quebrante el artículo 140 inciso 3) de la Constitución Política».

Como se desprende de la sentencia citada, el punto planteado por el accionante no es nuevo. Este Tribunal ya se ha pronunciado al respecto y no hay ninguna razón para cambiar de criterio. Para excluir los seguros de trabajadores independientes, debe existir alguna característica de éstos que los distinga de los otros seguros. El actor argumentó que la diferencia radica en que restringe la libertad de comercio. Sin embargo, no considera este Tribunal que tal argumento sea de recibo. En primer término, la norma no impide ejercer una actividad lucrativa, sino que le impone una carga, igual que constituye una carga para los patronos la contribución obligatoria al seguro de sus empleados. En consecuencia, el primer motivo de inconstitucionalidad no es atendible”.

De conformidad con lo señalado en los precedentes anteriores, la CCSS está facultada para emitir los reglamentos de los seguros bajo su administración, sin que el ejercicio de esa facultad implique, por sí mismo, infracción alguna de orden constitucional en general, ni mucho menos del principio de reserva de ley, en particular. Así se reconoció en sentencia de esta Sala, número 2022-23208, al definir que:

“En virtud de ello, no estima la Sala que el Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes sea inconstitucional, bajo el argumento planteado por la parte accionante -principio al principio de reserva de ley- por lo que la acción debe ser desestimada en cuanto a este extremo, toda vez que la CCSS es el ente encargado de la administración de la seguridad social y está dotada de máxima autonomía para ese fin, por lo que tiene a su vez plena competencia para establecer los alcances de las prestaciones propias de la seguridad social vía reglamento, de manera que puede definir las condiciones, beneficios y requisitos de ingreso de cada régimen de protección (…)”. -el resaltado no es del original- Así las cosas, el hecho de que las normas impugnadas permitan a la CCSS y específicamente a su Junta Directiva, establecer las condiciones, requisitos y cuotas aplicables a los trabajadores independientes, no implica un exceso de los límites de la potestad reglamentaria, toda vez, que, como se ha venido señalando, la Caja tiene la potestad para determinar reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán y, en ese sentido, el artículo 14 inciso f) de su Ley Constitutiva, le confiere a la Junta Directiva la atribución de dictar los reglamentos para el funcionamiento de la institución, mientras que el numeral 23 de la misma Ley, señala que la Junta Directiva es la competente para determinar las cuotas y prestaciones de conformidad con el costo de los servicios, según los cálculos actuariales.

Como se desprende de las anteriores transcripciones, la Sala se ha referido a tales atribuciones y ha declarado que la norma 23 de la Ley Constitutiva de la Caja, es acorde con la Constitución Política en el sentido de que las atribuciones que le confiere a la Junta Directiva, no implican delegación del ejercicio de funciones del Poder Legislativo, sino que se fundan en el artículo 73 de la Constitución Política, que encarga el gobierno y administración de los seguros sociales a esa institución y, por ello, es competente para dictar reglamentos autónomos -como sería el relativo a la afiliación y cuotas de los trabajadores independientes-, sin que con ello se quebrante lo dispuesto en el artículo 140 inciso 3) de la Constitución Política -ver en sentido similar, sentencias números 2000-2571 y 2008-17304-. En consecuencia, este alegato debe ser desestimado por cuanto no se configura vulneración alguna al principio de reserva de ley”.

Asimismo, dado que el aquí accionante invoca también el carácter de parafiscalidad de la contribución forzosa que se impone a los trabajadores independientes, resulta conveniente citar lo que en esa misma sentencia se dispuso al respecto:

“…XVI.- Sobre los alegatos en torno a la parafiscalidad de las cuotas que se paga a la seguridad social. Según el accionante, las contribuciones de la seguridad social se conciben como tributos en tanto pertenecen a la categoría de contribuciones parafiscales, por lo que, para su aplicación, deben observarse los principios que se aplican a los tributos, como son la reserva de ley, la capacidad económica e igualdad tributaria, siendo que, en el caso de la Caja Costarricense de Seguro Social, su Junta Directiva se encuentra autorizada -por el párrafo 2 del artículo 3 de la Ley Constitutiva de la Caja que impugna-, para crear esa contribución parafiscal sin el cumplimiento de los indicados principios, por lo que se lesiona el Derecho de la Constitución.

Más allá de lo ya expuesto en esta sentencia sobre la no afectación al principio de reserva de ley, en este punto interesa señalar que la Sala ha analizado este tema de la parafiscalidad en varios pronunciamientos en los que ha reconocido expresamente, que las cuotas de la seguridad social, son contribuciones parafiscales, pero de origen constitucional. Así, en la sentencia número 2018-13658 -reiterada, entre muchas otras, por sentencias números 2019-9190, 2021-2161, 2021-23611, 2021-27052 y 2023-3593-, señaló la Sala expresamente que:

“La cuestión de las contribuciones parafiscales –en este caso las aportaciones a la seguridad social- ha provocado no poca polémica en el ámbito doctrinario y jurisprudencial. En lo que atañe a la controversia jurídica constitucional que tenemos entre manos, desde la perspectiva de esta Sala, son plausibles dos tesis. La primera, que considera que al ser un tributo –véase al respecto la sentencia 2006-009568 de este Tribunal- irremediablemente sus elementos estructurales –hecho generador, tarifa, base de cálculo, sujeto activo y pasivo, etc.- deben ser definidos por Ley formal-; esta última consecuencia que no ha sido validada por la Sala Constitucional-. En esta dirección, si los elementos estructurales de la contribución parafiscal no estuviesen establecidos por Ley formal, se estaría vulnerando el principio de legalidad tributaria, máxime si se toma en cuenta que en la lucha de los barones ingleses por hacerse de la potestad tributaria algunos encuentran el origen del Parlamento y la democracia – no hay democracia sin Parlamento, ni de éste sin la Oposición-. En resumidas cuentas, en este caso específico, se debe de aplicar el principio de legalidad tributaria. La segunda tesis, la cual ha sido sostenida por este Tribunal –véanse, entre otras, las sentencias números 1994-003819 y 1998-007393-, es la que considera que no estamos en presencia de una contribución parafiscal y, por consiguiente, no se debe aplicar el principio de legalidad tributaria. “El pago de la cuota o contribución, según sea el caso, no es un tributo, como quedó dicho en párrafos anteriores, sino el pago de una obligación legal, que es condición esencial para la existencia misma del régimen, creada precisamente, en beneficio de los mismos contribuyentes …”.

Según la doctrina más autorizada en materia tributaria las contribuciones parafiscales son un tributo, pues contienen los elementos materiales de la obligatoriedad –el deber de pagarlas quienes se encuentren en el supuesto de la norma creadora-, de singularidad debido a que afecta un determinado y único grupo social o económico y la destinación sectorial a causa de lo que se recauda a través de esta prestación obligatoria se utiliza en beneficio exclusivo del grupo que pagó el tributo. Estamos, pues, ante el ejercicio de una potestad de imperio del Estado que impone prestaciones pecuniarias para el cumplimiento de fines sociales o económicos. Ergo, solo a través de una Ley formal se pueden crear –tributum sine legge -.

Ahora bien, en el caso de las cuotas obrero-patronales destinadas al sostenimiento de la seguridad social –seguro de enfermedad y maternidad y seguro de invalidez, vejez y muerte-, nuestro ordenamiento jurídico tiene una singularidad. En efecto, y es que el numeral 73 constitucional es el que crea la contribución parafiscal al disponer una contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos citados y demás contingencias que la ley determine. Acto seguido, el texto constitucional establece que la administración y el gobierno de esos seguros sociales corresponde a una institución autónoma: la Caja Costarricense de Seguro Social. Finalmente, en lo que interesa, la norma constitucional impone la prohibición de transferir o emplear en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. Como puede observarse, estamos, pues, ante una contribución parafiscal creada por el Constituyente originario, con lo que, desde la perspectiva de este Tribunal, se cumple la máxima de que no puede haber imposición sin representación – no taxation without representation-. En otras palabras, en el caso que nos ocupa, el apego a los principios que regentan el ejercicio de la potestad tributaria se cumple satisfactoriamente, toda vez que un órgano representativo, plural, que ejerce el máximo poder en un Estado democrático y social de Derecho, como lo es el ejercicio de la potestad constituyente, determinó soberana y democráticamente crear la contribución parafiscal.

Un segundo escollo que debemos superar, es el relativo a la fijación del monto de la cuota a pagar por patronos y trabajadores. Al respecto, el artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social estatuye que las cuotas y prestaciones serán determinadas por la Junta Directiva, de acuerdo con el costo de los servicios que hayan de prestarse en cada región y de conformidad con los respectivos cálculos actuariales. La contribución de los trabajadores no puede ser nunca mayor de la contribución de sus patronos, salvo los casos de excepción que para dar mayores beneficios a aquéllos, y para obtener una más justa distribución de las cargas del seguro social obligatorio señale el Reglamento, con base en recomendaciones actuariales. Vista así las cosas, concluye este Tribunal que no se vulnera el principio de legalidad tributaria, por la elemental razón que mediante Ley formal se le impone a la Junta Directiva de la Caja Costarricense de Seguro Social parámetros objetivos a la hora de determinar el monto de la cuota –el costo de los servicios que presta y los respectivos cálculos actuariales-, por lo que el legislador le fijó al órgano colegiado administrativo los elementos objetivos que debe observar a la hora de fijar los respectivos montos, actos administrativos que también deben ceñirse a los principios generales de Derecho y son controlables a través del Juez de lo Contencioso Administrativo. Esta misma lógica sigue el Código de Normas y Procedimientos Tributarios en su numeral 5, en relación con las tasas, pues permite variar su monto por vía de Reglamento para que se cumpla su destino en forma más idónea, previa intervención del organismo que por ley sea el encargado de regular las tarifas de los servicios Públicos.

Recapitulando, al ser creada la contribución parafiscal por el Constituyente originario, se cumple, con creces, el principio de legalidad tributaria, por un lado, y al fijar el legislador parámetros objetivos para determinar monto de la cuota de la contribución parafiscal, también se respeta ese principio” -énfasis agregados- En el mismo sentido, la mencionada sentencia 2021-23611, refiere de forma profusa y absolutamente clara, la relación entre el régimen de autonomía de la Caja Costarricense de Seguro Social, el principio de reserva de ley y la potestad que tiene la institución de fijar las cuotas de la seguridad social -incluida, por supuesto, la relativa a los trabajadores independientes-, sin que ello represente o implique las vulneraciones constitucionales aducidas en esta acción, por lo que a los efectos de una comprehensiva conclusión sobre todos estos aspectos, resulta especialmente ilustrativo citar de manera expresa lo desarrollado en dicha sentencia 2021-23611. Señala esta sentencia que:

“V.- La Caja Costarricense de Seguro Social, su autonomía y la seguridad social. En relación con los numerales 73 y 74, ubicados en el capítulo único del Título V “Derechos y Garantías Sociales” de nuestra Carta Magna, la jurisprudencia constitucional ha desarrollado ampliamente su contenido y sus implicaciones en cuanto a la autonomía de la CCSS en lo relativo a la administración y el gobierno de los seguros sociales.

Así, en la sentencia n.º 2001-10545 de las 14:58 horas de 17 de octubre de 2001 se dispuso:

“II.- Sobre el fondo. La autonomía de la Caja Costarricense de Seguro Social. –El artículo 73 de la Constitución Política establece en su párrafo segundo "La Administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". Sobre los alcances de lo que establece dicha norma, la Sala en reiteradas oportunidades ha manifestado que la autonomía de la Caja no se encuentra sujeta a límites en materia de gobierno. Sobre este tema, analizado en la sentencia 6256-94 de las nueve horas del veinticinco de octubre de mil novecientos noventa y cuatro, se expresó:

"III.- LA CAJA COSTARRICENSE DE SEGURO SOCIAL.- La Asamblea Nacional Constituyente, como consta en las Actas Nos. 125 y 126, aprobó la inclusión de la Caja Costarricense de Seguro Social, siguiendo, básicamente, el texto original de la Constitución de 1871; esto es, se trasplantó la institución de la Constitución de 1871, según las modificaciones de 1943 a la Constitución de 1949. Sin embargo, a los efectos de la consulta, resultan sugestivas las participaciones del Constituyente Nombre35480 sobre el tema. De la página 34 del Tomo III de la Actas de la Asamblea Nacional Constituyente, se transcribe lo siguiente: "Además, la Caja, tarde o temprano, tendría que asumir el riesgo de desocupación, que vendrá a resolver el grave problema planteado por la cesantía. Insistió en que no le parecía adecuado debilitar la Caja. Lo prudente es fortalecerla. De ahí que lo más aconsejable es dejar las cosas como están, dándole a la Caja plena autonomía para independizarla así del Poder Ejecutivo"; y en la página 36 idem se agrega : "En ese sentido, lo más adecuado es mantener la redacción del artículo 63, que es buena por lo menos para el tiempo de ensayo. Todo lo que signifique limitar los recursos del Seguro Social, indudablemente será un retroceso inexplicable". Al ser aprobado el artículo, se incluyó un segundo párrafo que literalmente decía: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma", texto que luego fue reformado por Ley No. 2737 de 12 de mayo de 1961, quedando hoy día de la siguiente manera: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". En conclusión, el constituyente atribuyó la administración y gobierno de los seguros sociales a la Caja Costarricense de Seguro Social, como institución autónoma creada por la misma Constitución Política, con las especiales características que ella misma le ha otorgado y compartiendo los principios generales derivados de su condición de ente descentralizado.

Otras sentencias de esta Sala en las que se hace alusión al tema de la autonomía de la Caja Costarricense de Seguro Social son las siguientes: 0236-94 de las 9 horas 57 minutos del catorce de enero; 3403-94 de las 15 horas 42 minutos del 7 de julio; 6471-94 de las 9 horas con 39 minutos del 4 de noviembre, todas del año 1994). En fecha posterior a éstas, la Sala ha señalado:

"IV.- El artículo 73 de nuestra Constitución Política establece la existencia de los seguros sociales, los cuales se regulan por el sistema de contribución forzosa del Estado, patrono y trabajadores, con el fin de proteger a éstos contra los riesgos de enfermedad, maternidad, invalidez, vejez y muerte. La Caja Costarricense de Seguro Social, es la entidad autónoma encargada de administrar este tipo de seguros, con la autonomía que le permite tener iniciativa propia para sus gestiones, así como para ejecutar sus tareas y dar cumplimiento a sus obligaciones legales, fijándose metas y los medios para cumplirlas. Garantiza de esta forma, el establecimiento de la seguridad social y su naturaleza, decreta la finalidad de los seguros sociales y regula el destino de los fondos respectivos. La seguridad social nació en protección del trabajador y de su familia, como seres humanos que son, y se brinda desde su concepción hasta su muerte, procurando la salud y ayudando en infortunios imprevistos como la incapacidad y la muerte, así como en los estados de desprotección por su misma condición como son los de vejez, pensión y jubilación." (Sentencia 004636-98 de las 15 horas 57 minutos del 30 de junio de 1998) "…es dable a los diferentes establecimientos de la Caja, en aplicación del principio constitucional de autonomía de administración y gobierno, dictar las medidas de reorganización necesarias de sus servicios para su mejoramiento, con el fin de lograr la mejor satisfacción de sus usuarios y del interés general, que por su naturaleza nunca podría dejar de prevalecer ante los intereses particulares." (Sentencia 03065-98 de las 18 horas 18 minutos del 6 de mayo de 1998) "…la autonomía reconocida en el artículo 73 en relación con el 177 de la Constitución Política a la Caja no se encuentra sujeta a límites en materia de gobierno, como ha reiterado este tribunal en sentencias precedentes (ver por ejemplo: 3403-94, 6256-94, 6524-94, entre otras) El constituyente expresamente instituyó un ente encargado de la administración de la seguridad social dotado de máxima autonomía para el desempeño de su importante función; razón por la cual la reforma al numeral 188 constitucional que instituyó la dirección administrativa no modificó su régimen jurídico." (Sentencia 07379-99 las 10 horas con 36 minutos del 24 de setiembre de 1999) Al analizar lo alegado por el accionante, considera la Sala que –en efecto-, el contenido del Transitorio IV de la Ley 6577 es lesivo a la autonomía de gobierno que le confiere a la Caja Costarricense de Seguro Social el párrafo segundo del artículo 73 de la Constitución Política, pues al disponer esa norma el cierre forzoso en un plazo determinado del servicio de pensionado -o aún si hubiese dispuesto lo contrario-, es evidente que se invaden las atribuciones que en virtud de la autonomía de gobierno se le atribuye a dicha institución, entendiéndose ésta como la capacidad para realizar su cometido legal sin sujeción a otro ente, de autodirigirse, autogobernarse y dictar sus propios objetivos y organizarse en la forma en que lo estime conveniente para el cumplimiento de la finalidad para la cual fue creada”.

Por su parte, el voto n.º 2002-06384 de las 15:27 horas de 26 de junio de 2002 señaló:

“VIII.- El inciso b) del artículo 2 de la Ley de Creación de la Autoridad Presupuestaria. Consideraciones de la Sala Constitucional. En relación con las instituciones autónomas la Sala se pronunció a favor de la facultad de la Autoridad Presupuestaria de formular directrices a las instituciones descentralizadas, pero interpretó esta facultad de manera restrictiva. Con base en el artículo 188 de la Constitución Política, este Tribunal consideró en sentencia No. 3309-94 que la facultad de la Autoridad Presupuestaria es constitucional en tanto:

“… permanezca en el campo el diseño y posterior ejecución de las directrices generales sobre política, pero no desde luego en la medida en que su aplicación interfiera en la ejecución concreta de esas directrices. El carácter general de esta función significa que la Autoridad Presupuestaria no puede, dentro de su competencia, dar órdenes concretas o someter aprobación los actos específicos de ejecución que son parte de la autonomía administrativa de esas entidades.” Si en el caso de las instituciones autónomas en general se debe interpretar la facultad de manera restrictiva, en el caso de la Caja Costarricense de Seguro Social la facultad es totalmente inconstitucional. La Caja Costarricense de Seguro Social goza, como se dijo en sentencia No. 3403-94, de “un grado de autonomía distinto y superior al que se define en términos generales en el artículo 188”. Este grado mayor de autonomía se deriva del artículo 73 de la Constitución Política. En sentencia No. 6256-94 se dijo:

“La Caja Costarricense de Seguro Social encuentra su garantía de existencia en el artículo 73 constitucional, con las siguientes particularidades: a) el sistema que le da soporte es el de la solidaridad, creándose un sistema de contribución forzosa tripartita del Estado, los patronos y los trabajadores; b) la norma le concede, en forma exclusiva a la Caja Costarricense de Seguro Social, la administración y gobierno de los seguros sociales, grado de autonomía que es, desde luego, distinto y superior al que se define en forma general en el artículo 188 idem; c) los fondos y las reservas de los seguros sociales no pueden ser transferidos ni empleados en finalidades distintas a su cometido. Como se vio en los considerandos anteriores, la Asamblea Nacional Constituyente optó por dejar las cosas, en cuanto a esta institución, tal y como estaban en la Constitución de 1871, "con plena autonomía para independizarla así del Poder Ejecutivo".

En virtud de esta autonomía plena, toda disposición que obligue a la Caja Costarricense de Seguro Social a acatar directrices sobre la administración de los recursos que están sometidos a su manejo es inconstitucional. El inciso b) del artículo 2 de la Ley de Creación de la Autoridad Presupuestaria adolece de ese vicio y, por ende, se declara inconstitucional únicamente en lo que se refiere a la Caja Costarricense de Seguro Social.

(…)

XIII.- Sobre el artículo 41 de la Ley Constitutiva de la Caja Costarricense de Seguro Social. Consideraciones de la Sala Constitucional. En este punto, esta Sala disiente de la tesis del accionante. Si bien tiene razón en cuanto a que constitucionalmente le está vedado a la Caja destinar fondos a otros fines distintos a los que la misma Constitución impone, el artículo 41 no indica tal cosa. Se debe diferenciar nítidamente entre la normativa en sí misma y la aplicación que se le haya dado en casos concretos. Como tal, el artículo 41 está dirigido a la inversión de reservas; así lo entiende este Tribunal y una disposición de esta índole no resulta inconstitucional. Interpretar de otra manera, sería obligar a la Caja a mantener ociosos recursos que, de otra manera, podrían generar recursos que fortalezcan el fondo mismo. Otro aspecto es la posibilidad de que la Caja haya utilizado ese artículo para invertir fondos, supuestamente ociosos, cuando lejanamente cumple con sus fines. De ser así, cabe la posibilidad de impugnar en la vía de legalidad las actuaciones concretas que sobrepasen los límites que establece ese mismo artículo 41. Cabe también la posibilidad de evaluar la responsabilidad personal de quienes no ajustaron sus decisiones a la normativa, pues están obligados a interpretar ese artículo 41 armoniosamente con el 73 Constitucional. En síntesis, el artículo 41 de la Ley Constitutiva de la Caja Costarricense de Seguro Social no resulta inconstitucional, siempre y cuando se refiera a fondos ociosos y no a fondos necesarios para satisfacer los objetivos constitucionalmente fijados a esa institución”.

La sentencia n.º 2003-03483 de las 14:05 horas de 2 de mayo de 2003 dispuso:

“Sobre el régimen de la seguridad social. El artículo 73 de la Constitución Política, interpretado armónicamente con el artículo 50 ídem, consagra el Derecho de la Seguridad Social. La Sala ha señalado reiteradamente que este derecho supone que los poderes públicos mantendrán un régimen público de seguridad social para todos los ciudadanos en el más alto rango, de manera que garantice la asistencia y brinde las prestaciones sociales suficientes ante situaciones de necesidad para preservar la salud y la vida. El ámbito subjetivo de aplicación del derecho de la seguridad social incorpora el principio de universalidad, pues se extiende a todos los ciudadanos, con carácter de obligatoriedad. El ámbito objetivo asume el principio de generalidad, en tanto protege situaciones de necesidad, no en la medida en que éstas hayan sido previstas y aseguradas con anterioridad, sino en tanto se produzcan efectivamente. Además, incorpora los principios de suficiencia de la protección, según módulos cuantitativos y cualitativos y de automaticidad protectora, lo que se traduce en la adecuada e inmediata protección en materia de enfermedad, invalidez, vejez y muerte. Por expresa disposición constitucional, esta gestión ha de ser pública, a cargo del Estado, representado por la Caja Costarricense de Seguro Social, y la financiación responderá al principio cardinal de solidaridad social, pues se funda en la contribución forzosa y tripartita que realizan trabajadores, patronos y el Estado. En consecuencia, los principios del Derecho a la Seguridad Social, son, los de universalidad, generalidad, suficiencia de la protección y solidaridad social”.

También se debe transcribir lo decidido en la sentencia n.º 201007788 de las 14:59 horas de 28 de abril de 2010:

“III.- Sobre el fondo. (…) Para resolver la presente acción de inconstitucionalidad, resulta necesario tomar en consideración los precedentes sobre la autonomía de la Caja Costarricense de Seguro Social. Por sentencia No. 1994-06256 de las nueve horas del veinticinco de octubre de mil novecientos noventa y cuatro, establece la Sala lo siguiente:

“Aunque no es materia de la consulta, a los efectos de la conclusión a que llega la Sala, se hace necesario, por lo menos, señalar algunos lineamientos generales de lo que implica la descentralización administrativa en nuestro régimen constitucional. Existen en nuestro ordenamiento jurídico, tres formas de autonomía : a) administrativa, que es la posibilidad jurídica de que un ente realice su cometido legal por sí mismo sin sujeción a otro ente, conocida en doctrina como la capacidad de autoadministración; b) política, que es la capacidad de autodirigirse políticamente, de autogobernarse, de dictarse el ente a sí mismo sus propios objetivos; y, c) organizativa, que es la capacidad de autorganizarse, con exclusión de toda potestad legislativa. En los dos primeros casos, la autonomía es frente al Poder Ejecutivo y en el tercero, también frente al Poder Legislativo. La autonomía organizativa es propia de las universidades según se desprende del artículo 84 de la Constitución Política y por ello ajena a los fines de esta consulta. Los otros dos grados de autonomía se derivan de la Autonomía Política, cuyo contenido será propio de la ley (acto fundacional) que crea al ente. El ente descentralizado creado por ley ordinaria, está subordinado a su contenido e involucra la potestad legislativa para modificarlo y hasta extinguirlo; pero como la descentralización implica que le corresponden al ente todos los poderes del jerarca administrativo, quiere decir que su personalidad abarca la totalidad de los poderes administrativos necesarios para lograr su cometido en forma independiente. La autonomía, usualmente, comprende las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y por último, el ejercicio de la potestad reglamentaria autónoma. Estas líneas generales sobre la autonomía, están dirigidas a la descentralización administrativa creada por la ley ordinaria.” Además señaló la Sala que:

“La Caja Costarricense de Seguro Social encuentra su garantía de existencia en el artículo 73 constitucional, con las siguientes particularidades : a) el sistema que le da soporte es el de la solidaridad, creándose un sistema de contribución forzosa tripartita del Estado, los patronos y los trabajadores; b) la norma le concede, en forma exclusiva a la Caja Costarricense de Seguro Social, la administración y gobierno de los seguros sociales, grado de autonomía que es, desde luego, distinto y superior al que se define en forma general en el artículo 188 idem; c) los fondos y las reservas de los seguros sociales no pueden ser transferidos ni empleados en finalidades distintas a su cometido. Como se vio en los considerandos anteriores, la Asamblea Nacional Constituyente optó por dejar las cosas, en cuanto a esta institución, tal y como estaban en la Constitución de 1871, "con plena autonomía para independizarla así del Poder Ejecutivo"” La Sala mantiene la misma posición con la sentencia No. 2003-02355, en cuanto establece que:

“… se concluye que la autonomía reconocida en el artículo 73 en relación con el 177 de la Constitución Política la Caja no se encuentra sujeta a límites en materia de gobierno, como ha reiterado este tribunal en sentencias precedentes (ver por ejemplo: 2001-7605, 6256-94, entre otras). La Caja es en definitiva el ente encargado de la administración de la seguridad social y está dotada de máxima autonomía para el desempeño de su importante función. En armonía con lo anterior, mediante los artículos 3 y 23 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, su Junta Directiva tiene plena competencia para establecer los alcances de las prestaciones propias de la seguridad social vía reglamento, de manera que puede definir las condiciones, beneficios y requisitos de ingreso de cada régimen de protección, con sustento en estudios actuariales, a fin de no quebrar el sistema.” La Sala debe plantearse la cuestión de si la normativa efectivamente implica una reversión a la descentralización que opera desde la Constitución Política, o lo que es lo mismo, una ingerencia (sic) con la capacidad de la Caja Costarricense de Seguro Social de administrar y gobernar los seguros sociales. Las actas de la Asamblea Nacional Constituyente justifican la formación de entes autónomos con el criterio de especialización de funciones estatales, para organizar al Estado e incrementar su eficiencia administrativa, por lo tanto no le es legítimo apartarse de ese fin, por lo tanto debe dar una respuesta pro-activa a los intereses públicos en temas que son vitales para el ser humano y socialmente importantes. La autonomía administrativa y de gobierno que la Constitución Política otorga a la Caja Costarricense de Seguro Social, se encuentra circunscrita a los seguros sociales, a lo señalado en el párrafo 1° del artículo 73 de la Constitución Política, como también a lo reconocido por la Ley (artículo 1°). No obstante la autonomía institucional, no es un límite infranqueable, conforme a los precedentes se puede legislar en otros temas distintos a la competencia señalada, cumpliendo claro está con la garantía establecida en el artículo 190 de la Constitución Política, que establece la audiencia previa a la Institución en caso de que las disposiciones de un proyecto de ley la afecten, pero no es el tema que debe analizarse en la demanda de inconstitucionalidad”.

Asimismo, la sentencia n.º 2018013658 de las 9:15 horas de 22 de agosto de 2018 sostuvo:

“I.- SOBRE EL ARTÍCULO 23 DE LA LEY CONSTITUTIVA DE LA CAJA COSTARRICENSE DE SEGURO SOCIAL. En el sub lite, el principal reproche del accionante se dirige contra el artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, en cuanto establece que: “Las cuotas y prestaciones serán determinadas por la Junta Directiva, de acuerdo con el costo de los servicios que hayan de prestarse en cada región y de conformidad con los respectivos cálculos actuariales. La contribución de los trabajadores no podrá ser nunca mayor que la contribución de sus patronos, salvo los casos de excepción que para dar mayores beneficios a aquéllos, y para obtener una más justa distribución de las cargas del seguro social obligatorio señale el Reglamento, con base en recomendaciones actuariales.” El accionante alega, esencialmente, que dicho numeral infringe el artículo 121, inciso 13), de la Constitución Política, en tanto afirma que la norma impugnada le confiere a la Caja Costarricense de Seguro Social una potestad tributaria o impositiva en infracción de la citada disposición constitucional.

La cuestión de las contribuciones parafiscales –en este caso las aportaciones a la seguridad social- ha provocado no poca polémica en el ámbito doctrinario y jurisprudencial. En lo que atañe a la controversia jurídica constitucional que tenemos entre manos, desde la perspectiva de esta Sala, son plausibles dos tesis. La primera, que considera que al ser un tributo –véase al respecto la sentencia 2006-009568 de este Tribunal- irremediablemente sus elementos estructurales –hecho generador, tarifa, base de cálculo, sujeto activo y pasivo, etc.- deben ser definidos por Ley formal-; esta última consecuencia que no ha sido validada por la Sala Constitucional-. En esta dirección, si los elementos estructurales de la contribución parafiscal no estuviesen establecidos por Ley formal, se estaría vulnerando el principio de legalidad tributaria, máxime si se toma en cuenta que en la lucha de los barones ingleses por hacerse de la potestad tributaria algunos encuentran el origen del Parlamento y la democracia – no hay democracia sin Parlamento, ni de éste sin la Oposición-. En resumidas cuentas, en este caso específico, se debe de aplicar el principio de legalidad tributaria. La segunda tesis, la cual ha sido sostenida por este Tribunal –véanse, entre otras, las sentencias números 1994-003819 y 1998-007393-, es la que considera que no estamos en presencia de una contribución parafiscal y, por consiguiente, no se debe aplicar el principio de legalidad tributaria. “El pago de la cuota o contribución, según sea el caso, no es un tributo, como quedó dicho en párrafos anteriores, sino el pago de una obligación legal, que es condición esencial para la existencia misma del régimen, creada precisamente, en beneficio de los mismos contribuyentes …”.

Según la doctrina más autorizada en materia tributaria las contribuciones parafiscales son un tributo, pues contienen los elementos materiales de la obligatoriedad –el deber de pagarlas quienes se encuentren en el supuesto de la norma creadora-, de singularidad debido a que afecta un determinado y único grupo social o económico y la destinación sectorial a causa de lo que se recauda a través de esta prestación obligatoria se utiliza en beneficio exclusivo del grupo que pagó el tributo. Estamos, pues, ante el ejercicio de una potestad de imperio del Estado que impone prestaciones pecuniarias para el cumplimiento de fines sociales o económicos. Ergo, solo a través de una Ley formal se pueden crear –tributum sine legge -.

Ahora bien, en el caso de las cuotas obrero-patronales destinadas al sostenimiento de la seguridad social –seguro de enfermedad y maternidad y seguro de invalidez, vejez y muerte-, nuestro ordenamiento jurídico tiene una singularidad. En efecto, y es que el numeral 73 constitucional es el que crea la contribución parafiscal al disponer una contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos citados y demás contingencias que la ley determine. Acto seguido, el texto constitucional establece que la administración y el gobierno de esos seguros sociales corresponde a una institución autónoma: la Caja Costarricense de Seguro Social. Finalmente, en lo que interesa, la norma constitucional impone la prohibición de transferir o emplear en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. Como puede observarse, estamos, pues, ante una contribución parafiscal creada por el Constituyente originario, con lo que, desde la perspectiva de este Tribunal, se cumple la máxima de que no puede haber imposición sin representación – no taxation without representation-. En otras palabras, en el caso que nos ocupa, el apego a los principios que regentan el ejercicio de la potestad tributaria se cumple satisfactoriamente, toda vez que un órgano representativo, plural, que ejerce el máximo poder en un Estado democrático y social de Derecho, como lo es el ejercicio de la potestad constituyente, determinó soberana y democráticamente crear la contribución parafiscal.

Un segundo escollo que debemos superar, es el relativo a la fijación del monto de la cuota a pagar por patronos y trabajadores. Al respecto, el artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social estatuye que las cuotas y prestaciones serán determinadas por la Junta Directiva, de acuerdo con el costo de los servicios que hayan de prestarse en cada región y de conformidad con los respectivos cálculos actuariales. La contribución de los trabajadores no puede ser nunca mayor de la contribución de sus patronos, salvo los casos de excepción que para dar mayores beneficios a aquéllos, y para obtener una más justa distribución de las cargas del seguro social obligatorio señale el Reglamento, con base en recomendaciones actuariales. Vista así las cosas, concluye este Tribunal que no se vulnera el principio de legalidad tributaria, por la elemental razón que mediante Ley formal se le impone a la Junta Directiva de la Caja Costarricense de Seguro Social parámetros objetivos a la hora de determinar el monto de la cuota –el costo de los servicios que presta y los respectivos cálculos actuariales-, por lo que el legislador le fijó al órgano colegiado administrativo los elementos objetivos que debe observar a la hora de fijar los respectivos montos, actos administrativos que también deben ceñirse a los principios generales de Derecho y son controlables a través del Juez de lo Contencioso Administrativo. Esta misma lógica sigue el Código de Normas y Procedimientos Tributarios en su numeral 5, en relación con las tasas, pues permite variar su monto por vía de Reglamento para que se cumpla su destino en forma más idónea, previa intervención del organismo que por ley sea el encargado de regular las tarifas de los servicios Públicos.

Recapitulando, al ser creada la contribución parafiscal por el Constituyente originario, se cumple, con creces, el principio de legalidad tributaria, por un lado, y al fijar el legislador parámetros objetivos para determinar monto de la cuota de la contribución parafiscal, también se respeta ese principio.

II.- Tampoco puede interpretarse que artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social infrinja, per se, el artículo 177 constitucional, en los términos expuestos por el accionante, pues tal numeral, lejos de impedir que la Caja Costarricense de Seguro Social fije –en el ejercicio de sus competencias, derivadas del ordinal 73 constitucional- las cuotas que pagan los patronos y trabajadores, lo que impone, por el contrario, es la obligación de crear a favor de esa institución las rentas suficientes, a fin de lograr la universalización de los seguros sociales y garantizar, cumplidamente, el pago de la contribución del Estado como tal y como patrono. Ergo, la acción de inconstitucionalidad incoada debe ser rechazada por el fondo, en cuanto al citado ordinal 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, como en efecto se hace”.

En adición, se lee en la sentencia n.º 2018019511 de las 21:45 horas de 23 de noviembre de 2018:

“Dado el rango constitucional de la propia CCSS, es necesario analizar las normas presupuestarias atinentes a ella. La Sala subraya que la propia Constitución establece –dentro de la normativa presupuestaria- un régimen propio para la CCSS, tal como regula el párrafo tercero del numeral 177 de la Constitución Política:

“Para lograr la universalización de los seguros sociales y garantizar cumplidamente el pago de la contribución del Estado como tal y como patrono, se crearán a favor de la Caja Costarricense de Seguro Social rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Si se produjere un déficit por insuficiencia de esas rentas, el Estado lo asumirá, para lo cual el Poder Ejecutivo deberá incluir en su próximo proyecto de Presupuesto la partida respectiva que le determine como necesaria la citada Institución para cubrir la totalidad de las cuotas del Estado.” Asimismo, la Constitución prevé, en su artículo 73, una garantía adicional para los fondos y reservas de los seguros sociales, al disponer:

“(…)

No podrán ser transferidos ni empleados en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. (…)” La importancia de estos textos radica en el hecho de que la Constitución Política es una norma de aplicación directa, tal como lo ha sostenido este Tribunal es múltiples ocasiones (verbigracia, sentencias n.os 2016-017376 de las 11:41 horas del 23 de noviembre de 2016 y 2015-006787 de las 15:45 horas del 12 de mayo de 2015). Es decir, el hecho de que la Constitución sea el parámetro frente al cual se miden otras normas o que sus preceptos se encuentren desarrollados en normas infra constitucionales, no resta ni inhibe la aplicación plena, directa, prevalente e inmediata de determinados postulados constitucionales.

Con esto en mente, la Sala observa que el antedicho artículo 177 garantiza que el Estado velará por que la CCSS tenga rentas suficientes para el cumplimiento de los cometidos constitucionales asignados. Por eso, el Poder Ejecutivo se encuentra conminado por la propia Ley Fundamental a presupuestarle a ese ente asegurador rentas suficientes para cubrir sus necesidades. En caso de no hacerlo, la misma norma define el mecanismo correctivo, toda vez que obliga al Poder Ejecutivo a cubrir en el siguiente periodo el déficit que se produjere. Si bien tal norma omite asignar a la entidad en mención un porcentaje concreto del presupuesto, a diferencia del Poder Judicial y la educación pública, lo cierto es que sí impone un mandato constitucional expreso y determinable.

Esta primera salvaguardia constitucional debe leerse en conjunto con la segunda garantía transcrita, preceptuada en el numeral 73. El párrafo tercero de dicha norma evita que cualquier fondo o reserva de los seguros sociales sean utilizados en objetivos diferentes al motivo de su creación.

Tales normas conllevan, por un lado, la obligación del Estado de brindar rentas suficientes para la CCSS (artículo 177) y, por otro, la imposibilidad de utilizar los recursos de un seguro para fines distintos (numeral 73). Esto significa que, tratándose de seguros con aportes tripartitos, como el de enfermedad y maternidad (cuestionado por los consultantes), todos los recursos de dicho fondo se encuentran cubiertos por la protección constitucional, imposibilitando su afectación por medio de las medidas fiscales propuestas.

Según se expuso, las garantías antes mencionadas son de aplicación directa y prevalente con respecto a la CCSS. De este modo, si bien las normas cuestionadas efectúan solo dos salvedades (los recursos del Régimen de Invalidez, Vejez y Muerte y del Régimen No Contributivo), lo cierto es que la imposibilidad constitucional de transferir o emplear los fondos del seguro de enfermedad y maternidad constituye una excepción dimanada de nuestra Carta Magna, en defensa de la autonomía de gobierno de la CCSS y del apropiado uso de los recursos de dicho seguro.

La aplicación directa de la Constitución Política con respecto a la CCSS no es nueva para la Sala Constitucional:

“VI.- EL CASO CONCRETO.- La Caja Costarricense de Seguro Social encuentra su garantía de existencia en el artículo 73 constitucional, con las siguientes particularidades : a) el sistema que le da soporte es el de la solidaridad, creándose un sistema de contribución forzosa tripartita del Estado, los patronos y los trabajadores; b) la norma le concede, en forma exclusiva a la Caja Costarricense de Seguro Social, la administración y gobierno de los seguros sociales, grado de autonomía que es, desde luego, distinto y superior al que se define en forma general en el artículo 188 idem; c) los fondos y las reservas de los seguros sociales no pueden ser transferidos ni empleados en finalidades distintas a su cometido. Como se vio en los considerandos anteriores, la Asamblea Nacional Constituyente optó por dejar las cosas, en cuanto a esta institución, tal y como estaban en la Constitución de 1871, "con plena autonomía para independizarla así del Poder Ejecutivo". Ahora bien, según lo dicho, entre las notas características de las instituciones autónomas, está incluida, a no dudarlo, la autonomía presupuestaria (véase intervención en la Asamblea Nacional Constituyente de Nombre35481 en el considerando II).- La inclusión de las partidas presupuestarias necesarias para que el Estado cancele sus aportes a la Caja Costarricense de Seguro Social, forman parte de los recursos ordinarios creados en el mismo artículo 73 constitucional, de manera que no es posible que la Asamblea Legislativa los incluya y apruebe en un presupuesto ordinario o extraordinario de la República, con la definición, a la vez, del gasto correspondiente, sustituyendo así las facultades otorgadas por Constitución a la propia Caja Costarricense de Seguro Social, sin violar los artículos 73 y 188 de la Constitución Política y los principios aquí señalados. Tratándose de recursos ordinarios, sólo la institución, conforme con su propia organización, puede ejercer la autonomía constitucional libremente (definición de las razones de legalidad con la oportunidad y la discrecionalidad) por medio de los presupuestos del ente, que deberán ser aprobados y fiscalizados por la Contraloría General de la República. Es decir, es la propia Constitución Política la que ha definido cuáles son los recursos financieros propios y ordinarios de la Caja Costarricense de Seguro Social, al señalar que lo componen las contribuciones forzosas que deben pagar el Estado, los patronos y los trabajadores, fondos que son administrados y gobernados por la propia institución. Distinto es el caso de contribuciones extraordinarias del Estado o de terceros en favor de los seguros sociales, que sí pueden llevar, por tratarse de donaciones, contribuciones o participaciones (liberalidades al fin), los fines específicos a los que están dirigidos esos recursos especiales, como por ejemplo la construcción de un hospital, una clínica o la compra de equipo especializado. Pero tratándose de los recursos ordinarios, el legislador no puede sustituir al jerarca de la institución en la definición de las prioridades del gastos, porque el hacerlo es parte de lo esencial del ejercicio de la autonomía del ente, según las características, principios y notas que aquí se han señalado. Todo ello nos lleva a la conclusión que las transferencias presupuestarias que se han consultado, resultan inconstitucionales, por ser violatorias de los artículos 73, 188 y 189 de la Constitución Política.” (Sentencia n.° 6256-94 de las 9:00 horas del 25 de octubre de 1994. El subrayado es agregado)”.

En la misma dirección, se advierte en la sentencia n.º 2020010608 de las 14:00 horas de 10 de junio de 2020:

“A.- La jurisprudencia sobre el Estado social de Derecho, la Caja Costarricense de Seguro Social y los derechos prestacionales. Mucho ha dicho este Tribunal sobre el Estado Social de Derecho, especialmente, relacionado con los derechos que tienen la persona humana frente a los servicios esenciales que presta el Estado, como aquellos que están relacionados con los derechos a la salud, a la pensión, entre otros, prestados por la Caja Costarricense de Seguro Social. Estos temas han sido abordados con el contenido del artículo 50, Constitucional, que establece:

“El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza”.

En esta fórmula, el Constituyente estableció el principio general básico del Estado Social de Derecho que posteriormente se verá reforzado con otras disposiciones que establecen, en concreto, el modo en que el Estado costarricense materializa este principio transversalmente entre los diferentes sectores sociales.

En la Sentencia de esta Sala N° 2005-11132 de las 8:49 horas del 26 de agosto de 2005, se señaló que:

“… el Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza, lo que unido a la declaración de adhesión del Estado costarricense al principio cristiano de justicia social, incluido en el artículo 74 ibídem, determina la esencia misma del sistema político y social que hemos escogido para nuestro país y que lo definen como un Estado social de Derecho (ver sentencia número 1441-92 de las quince horas cuarenta y cinco minutos del dos de junio de mil novecientos noventa y dos). En ese sentido, también se manifestó este Tribunal Constitucional de la siguiente manera:

“Una de las connotaciones básicas del Estado costarricense y, en general, de todo Estado “social” de Derecho, lo constituye la intervención -cada vez más frecuente- de los gobernantes, para dar solución a la problemática social.- La propia Constitución Política obliga al Estado a participar activamente, no solo en los procesos de producción (Artículo 50), sino también en los relativos al desarrollo de derechos fundamentales del individuo (vivienda, educación, vestido, alimentación, etc.) que garantice una existencia digna y útil para la sociedad”.- (Sentencia N° 5058-98 de las catorce horas veinte minutos del catorce de octubre de mil novecientos noventa y tres)”.

De igual manera, por Sentencia de esta Sala N° 2005-13205 de las 15:13 horas del 27 de septiembre del 2005, esta Sala dispuso que:

“III.- Sobre el Estado Social de Derecho, la Igualdad y la Dignidad Humana. El Estado Social de Derecho, elemento fundamental de nuestro orden constitucional, entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables. En tal sentido, el numeral 74 constitucional establece, explícitamente, el deber de procurar una política permanente de solidaridad nacional con asidero en el principio cristiano de justicia social, lo que hace de ella un valor constitucional de primer orden (ver sentencia número 2170-93 de las 10:12 horas del 21 de mayo de 1993). En forma consecuente, con sustento en el Estado Social de Derecho, nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de la familia, los trabajadores, sectores vulnerables de la población, la educación, el ambiente y bienes de la Nación como el patrimonio cultural. Este deber de sujetarse según los lineamientos del Estado Social de Derecho no está constreñido a la Administración, sino que se extiende a toda la comunidad nacional, pues se trata de una regla fundamental de la convivencia ciudadana en nuestro sistema político. En su condición de principio general, emana una particular proyección normativa en todos los ámbitos de creación, interpretación y ejecución del Derecho. Propiamente en lo concerniente al control de constitucionalidad, el Principio del Estado Social Derecho resulta útil como parámetro de validez normativa, criterio hermenéutico e instrumento funcional integrador del ordenamiento jurídico”.

Por otra parte, la Sentencia N° 2003-09880 de las 11:10 horas del doce de septiembre de 2003, estableció que:

"Como elemento propio del Estado Social y Democrático de Derecho, la Seguridad Social se erige como un estandarte del mismo, siendo que éste se funda en el principio de solidaridad social, y se complementa con el derecho a la igualdad y el principio de la dignidad humana, como derecho prestacional que es. Dentro de nuestra Constitución Política, el régimen de seguro social, no obstante ser un régimen universal y de acceso a todos los habitantes de la República, parte de la premisa fundamental para su sustento económico de la cotización tripartita, sea Estado, patrono y trabajadores. El artículo 73 constitucional establece que los seguros sociales se crean en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine. Como se puede observar, la propia Constitución, con el afán de establecer un mecanismo de financiamiento de la seguridad social a favor de los trabajadores activos y pensionados, establece un sistema de contribución forzosa tripartita, de lo que se concluye que tendrán acceso a los servicios de seguridad social, sin costo adicional alguno, aquellos trabajadores o pensionados que coticen regularmente para el régimen de conformidad con lo establecido en la Constitución".

Dentro de las manifestaciones de la intervención estatal está la seguridad social, siendo una de las más palpables el régimen de pensiones de reparto, mediante el cual, las personas pensionadas o jubiladas, al cumplir con los requisitos del régimen, reciben prestaciones económicas cuando han tenido que dejar las actividades productivas, sea por vejez o invalidez. En estos casos, ha sobrevenido el ocaso al ciclo de productividad de un trabajador, dejan de recibir el respectivo ingreso por el trabajo desempeñado, y es cuando inicia el principio de la solidaridad social, para proporcionar las prestaciones propias de la pensión, que, de no ocurrir, no se le permitiría seguir valiéndose por sí mismo -él y sus dependientes-, y se caería en riesgo social y económico. De esta manera, en un sistema de seguridad social de reparto, se forma un fondo con un aporte obligatorio de los trabajadores, patrones y el Estado, de conformidad con el artículo 73, Constitucional. Sobre este tema, es importante destacar que cuando el sistema ha sido impugnado por considerarse que se trataba de una obligación tributaria, la Sala Constitucional desestimó dicha argumentación. Precisamente, en la Sentencia N° 2018-13658 de las 9:15 horas del 22 de agosto de 2018, que se transcribirá parcialmente, la Sala revisó la jurisprudencia sobre la naturaleza jurídica de las cuotas y prestaciones, las que identificó como una contribución parafiscal de entregar esos aportes, en desarrollo del artículo 23, de la Ley Constitutiva de la Caja Costarricense de Seguridad Social. La Sala estableció que:

"[...] Según la doctrina más autorizada en materia tributaria las contribuciones parafiscales son un tributo, pues contienen los elementos materiales de la obligatoriedad -el deber de pagarlas quienes se encuentren en el supuesto de la norma creadora-, de singularidad debido a que afecta un determinado y único grupo social o económico y la destinación sectorial a causa de lo que se recauda a través de esta prestación obligatoria se utiliza en beneficio exclusivo del grupo que pagó el tributo. Estamos, pues, ante el ejercicio de una potestad de imperio del Estado que impone prestaciones pecuniarias para el cumplimiento de fines sociales o económicos. Ergo, solo a través de una Ley formal se pueden crear -tributum sine legge-.

Ahora bien, en el caso de las cuotas obrero-patronales destinadas al sostenimiento de la seguridad social -seguro de enfermedad y maternidad y seguro de invalidez, vejez y muerte-, nuestro ordenamiento jurídico tiene una singularidad. En efecto, y es que el numeral 73 constitucional es el que crea la contribución parafiscal al disponer una contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos citados y demás contingencias que la ley determine. Acto seguido, el texto constitucional establece que la administración y el gobierno de esos seguros sociales corresponde a una institución autónoma: la Caja Costarricense de Seguro Social. Finalmente, en lo que interesa, la norma constitucional impone la prohibición de transferir o emplear en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. Como puede observarse, estamos, pues, ante una contribución parafiscal creada por el Constituyente originario, con lo que, desde la perspectiva de este Tribunal, se cumple la máxima de que no puede haber imposición sin representación -no taxation without representation-. En otras palabras, en el caso que nos ocupa, el apego a los principios que regentan el ejercicio de la potestad tributaria se cumple satisfactoriamente, toda vez que un órgano representativo, plural, que ejerce el máximo poder en un Estado democrático y social de Derecho, como lo es el ejercicio de la potestad constituyente, determinó soberana y democráticamente crear la contribución parafiscal.

Un segundo escollo que debemos superar, es el relativo a la fijación del monto de la cuota a pagar por patronos y trabajadores. Al respecto, el artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social estatuye que las cuotas y prestaciones serán determinadas por la Junta Directiva, de acuerdo con el costo de los servicios que hayan de prestarse en cada región y de conformidad con los respectivos cálculos actuariales. La contribución de los trabajadores no puede ser nunca mayor de la contribución de sus patronos, salvo los casos de excepción que para dar mayores beneficios a aquéllos, y para obtener una más justa distribución de las cargas del seguro social obligatorio señale el Reglamento, con base en recomendaciones actuariales. Vista así las cosas, concluye este Tribunal que no se vulnera el principio de legalidad tributaria, por la elemental razón que mediante Ley formal se le impone a la Junta Directiva de la Caja Costarricense de Seguro Social parámetros objetivos a la hora de determinar el monto de la cuota -el costo de los servicios que presta y los respectivos cálculos actuariales-, por lo que el legislador le fijó al órgano colegiado administrativo los elementos objetivos que debe observar a la hora de fijar los respectivos montos, actos administrativos que también deben ceñirse a los principios generales de Derecho y son controlables a través del Juez de lo Contencioso Administrativo. Esta misma lógica sigue el Código de Normas y Procedimientos Tributarios en su numeral 5, en relación con las tasas, pues permite variar su monto por vía de Reglamento para que se cumpla su destino en forma más idónea, previa intervención del organismo que por ley sea el encargado de regular las tarifas de los servicios Públicos.

Recapitulando, al ser creada la contribución parafiscal por el Constituyente originario, se cumple, con creces, el principio de legalidad tributaria, por un lado, y al fijar el legislador parámetros objetivos para determinar monto de la cuota de la contribución parafiscal, también se respeta ese principio.

II.- Tampoco puede interpretarse que artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social infrinja, per se, el artículo 177 constitucional, en los términos expuestos por el accionante, pues tal numeral, lejos de impedir que la Caja Costarricense de Seguro Social fije -en el ejercicio de sus competencias, derivadas del ordinal 73 constitucional- las cuotas que pagan los patronos y trabajadores, lo que impone, por el contrario, es la obligación de crear a favor de esa institución las rentas suficientes, a fin de lograr la universalización de los seguros sociales y garantizar, cumplidamente, el pago de la contribución del Estado como tal y como patrono”.

De este modo, conforme indica con claridad el precedente, las atribuciones de la Junta Directiva de la Caja Costarricense de Seguridad Social son las de establecer cuotas obligatorias para Patronos y Trabajadores, y la contribución del Estado, con parámetros objetivos, como los costos de los servicios y los estudios actuariales para mantener las prestaciones que el Constituyente le otorgó bajo su competencia.

Como parte del fundamento del artículo 9°, de la sesión 8856, celebrada el 28 de julio del año 2016, en el que la Junta Directiva de la Caja Costarricense de Seguro Social toma varias medidas, como la eliminación de la opción de pensión anticipada, y se acordó reformar el Reglamento del Seguro de Invalidez, Vejez y Muerte, se indicó -entre otras cosas- que:

“[…] 2 Existe un porcentaje importante de pensionados que sin la aplicación de ningún tipo de anticipo, el cálculo del monto de pensión - con la aplicación de la fórmula- resulta inferior a la cuantía mínima de pensión, siendo que por tal existencia de mínimos de protección, deben llevarse al monto de pensión mínima. Tal situación le cuesta al fondo de pensiones alrededor de 54 mil millones de colones al año.

[…]

5. Aún y cuando las Valuaciones Actuariales Largo Plazo, elaboradas por la Dirección Actuarial y Económica, ubican la sostenibilidad financiera del Régimen de IVM en horizontes de tiempo que oscilan entre una y dos décadas -según escenario- existen situaciones coyunturales y presiones de corto plazo que está enfrentando al Seguro de Invalidez, Vejez y Muerte, y que en mucho se ven reflejadas en el flujo de efectivo y en la utilización de intereses para el pago del aguinaldo. Ante esa situación, resulta conveniente inyectar nuevos recursos mediante un aceleramiento en la magnitud de la prima de contribución.

[…]

C. Que, con fundamento en lo anterior, se recomendó eliminar el retiro anticipado con reducción y también para que en todos aquellos casos en donde el monto de pensión global generado con la aplicación de la fórmula de cálculo vigente resulta inferior al monto de pensión mínima, el Estado en su condición subsidiaria aporte la diferencia.

D. Que de conformidad con lo recomendado anteriormente, es que en el artículo 31° de la Sesión No. 8803, celebrada el 1° de octubre del 2015, la Junta Directiva dispuso –entre otros aspectos- los siguientes:

“… la Junta Directiva, conforme en adelante se consignará ACUERDA:

• 1)Retiro Anticipado: eliminar […]
• 2)Subvención Estatal: acoger lo propuesto en cuanto al establecimiento de una subvención Estatal respecto de la pensión mínima, para lo cual se instruya a la Gerencia de Pensiones, en coordinación con la Dirección Jurídica y la Dirección Actuarial y Económica, para realizar los ajustes que procedan al Reglamento del Seguro de Invalidez, Vejez y Muerte.

(…)”.

Dicho lo anterior, que sirve de motivo a la reforma del Reglamento, es importante resaltar que, dentro de un Estado Social de Derecho, como el nuestro, existen ciertas obligaciones ineludibles del Estado, que por la dirección política y jurídica que contiene este concepto, condiciona a los demás órganos constitucionales a actuar en determinado sentido dentro de una realidad económica, como bien se hace ver en la Sentencia N° 2018-19511 de las 21:45 horas del 23 de noviembre de 2018, que:

“…En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otra forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serio riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. Vigilar entonces que no se llegue a caer en una Constitución fallida o de papel, donde los derechos prestacionales de rango constitucional no puedan ser efectivos, es tarea fundamental de esta Sala, estrictamente dentro de lo que el marco de sus competencias se lo permite.

Se debe advertir, eso sí, que todos los principios, valores y preceptos constitucionales deben ser observados en cualesquiera circunstancias, lo que permanentemente le corresponde vigilar a la jurisdicción constitucional. Ahora, con motivo del ejercicio de ponderación u optimización que el juez constitucional realiza para resolver alguna colisión entre tales principios, valores y preceptos, el contexto que rodea al conflicto no puede pasar desapercibido.

Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho. Se insiste en la observación del Programa del Estado de la Nación: “Esto [refiriéndose al desbalance estructural en las finanzas públicas] ha puesto en jaque el futuro del Estado de bienestar social construido a lo largo de la segunda mitad del siglo XX, ya que su financiamiento y la eficiencia de su gasto no son suficientes”.

Justamente, la hermenéutica de los principios generales para resolver el sub examine, como el del equilibrio presupuestario y el del Estado Social de Derecho, no puede desligarse de los parámetros de relevancia constitucional que se colige de las medidas consultadas y las abundantes referencias técnicas a la coyuntura económica, que son elementos fundamentales para descartar una actuación arbitraria o irrazonable”.

Ahora bien, es lo cierto que la sentencia esboza la obligación del Estado de vincularse a la realidad económica y social, lo que implica que el Estado no puede negar la existencia de las realidades económicas por las que pasa el Estado, pero también los sistemas previsionales para todos los sectores sociales a las que se dirige la disposición constitucional. En este sentido, al establecer un marco teórico jurisprudencial general de estos derechos, es importante reconocer que existe un fuerte mandato, desde la Constitución Política, cuando establece la existencia de mecanismos jurídicos para exigir el pago de primas para los seguros sociales, además de la forma para determinarlos.

B.- Sobre el principio de la solidaridad social y la Caja Costarricense de Seguro Social. La Sala tuvo la oportunidad de revisar la constitucionalidad de los topes máximos que otorga el sistema contributivo de la seguridad social en Costa Rica, por parte de un sector profesional que aporta al régimen. Entre otros fundamentos para desestimar la acción, se señaló el principio de solidaridad social, que en un Estado Social de Derecho actúa transversalmente en toda la sociedad.

Por Sentencia N° 2013-06638 de las 16:00 horas del 15 de mayo de 2013, esta Sala se pronunció de la siguiente manera:

“B.- El principio de la solidaridad social. El principal agente multiplicador de la distribución de la riqueza en el Estado Social de Derecho radica en este principio, que en nuestro país reside especialmente a partir de los mandatos contenidos en los artículos 1, 50, 73 y 74 de la Constitución Política. A través de todo el entramado administrativo (centralizado y descentralizado) y de distribución de los Poderes del Estado, se debe intentar erradicar las desigualdades sociales más imperiosas; implica que la actividad estatal tiene necesidad de vincularse razonablemente con el administrado que tiene mayores necesidades y debe satisfacer las demandas más apremiantes con las potestades de imperio del Estado, incluso para imponerse en circunstancias muy calificadas en contra de la voluntad del gobernado, pero que permite -al Estado- establecer mecanismos que hacen de la sociedad un lugar más justo y estable. Con este principio se promueve la equidad social, el cual consiste en la obligación de quienes tienen más a ayudar a los que menos tienen. Se inspira, en consecuencia, en un deber-ser de la sociedad o de la colectividad, para brindar soporte a quienes no tienen suficientes medios de subsistencia o quienes se encuentran en un riesgo social y económico, y donde la sociedad da un paso adelante a través del Estado o de los mecanismos que éste crea, para satisfacer la necesidad de las personas que caen en un riesgo social y económico: por ello promueve mayor justicia y equidad. Como la seguridad social nace de la necesidad humana, todo esto conlleva a un sacrificio de los sectores mejor acomodadas a favor de los más desposeídos, que es precisamente el espíritu de lo que se regula en los artículos 1, 50, 73 y 74 de la Constitución Política (pues son quienes tienen o tuvieron acceso a la educación, a mejores condiciones personales y sociales, y que en razón de tales beneficios se esperaría una conducta tendente a favorecer a aquellos con menor suerte, etc.). Precisamente, los sistemas de seguridad social promueven el combate a la pobreza extrema para los más desfavorecidos, se convierte entonces en un sistema de distribución económica y social que debe reconocerse conlleva inherentemente el sacrificio de ciertos grupos sociales mejor aventajados de la sociedad, pero que contribuye grandemente a la seguridad y paz social. Bien señalado por Nombre35482: “Un estómago vacío no es buen consejero político”, y ello debe ser la principal preocupación del Estado cuando existe en los estratos sociales más bajos de la sociedad costarricense”.

Es importante traer a colación el caso, toda vez que se cuestionó la constitucionalidad del aporte y la prestación que se recibía a partir de la contribución forzosa tripartita que establece el artículo 73, de la Constitución Política, en la cual, patronos, trabajadores y el Estado aportan obligatoriamente a un fondo de pensiones, y que redistribuye las cuotas de quienes aportan más a quienes tienen menos. Si bien, no es proporcional para ninguno de los extremos (máximo y mínimo), es con los primeros que se evidencia un mayor sacrificio, justificado en el principio de solidaridad social a favor de quienes aportaron menos al sistema por pertenecer al menor estrato social. De esta manera, el sistema de seguridad social debe buscar mecanismos que compensen las diferencias desde un mínimo para elevar las prestaciones a un monto que asegure la supervivencia de todos los individuos. En la sentencia supra-citada, la Sala es clara en señalar que:

“No se debe perder de vista que está sustentada en un régimen básico de protección social, o lo que es lo mismo, la obligación internacional está con el establecimiento como sostenimiento de un piso social. Es así como, al ser un sistema básico de cobertura abarca una dimensión horizontal del sistema que exige niveles mínimos de protección para lograr o mantener la universalidad de esa protección (incluso hasta para sustentar una elevación de los niveles a quien no los tiene, según el principio de solidaridad social), pero que, sin duda, debe reconocerse la progresividad en los regímenes de protección, es decir, en su dimensión vertical, donde éstos deben estar en sintonía con las pautas y obligaciones internacionales que nuestro país ha aceptado frente a la OIT. De los informes es claro que se produciría una contracción muy sensible en el régimen, por la dinámica y presiones que debe afrontar el fondo o reserva de pensiones”.

En conclusión, el tope máximo y el monto mínimo se encuentran técnicamente interrelacionados, de manera que necesitan, como referentes, los cálculos actuariales más recientes, para que permitan una sustentabilidad financiera y la solidez del fondo. Está claro, que dependen del primero para darle vigencia al segundo; y que, como criterios técnicos de la matemática actuarial, estarían sujetos a la revisión periódica conforme al comportamiento de la reserva. En el caso que nos ocupa, el Informe N° DAE-735-17 de 02 de octubre de 2017, estableció:

“Conviene mencionar que aunque a lo interno del Seguro de Invalidez, Vejez y Muerte, la solidaridad se manifiesta de múltiples formas, siendo una de las más significativas el riesgo de muerte y de invalidez. La existencia de un tope máximo permite reforzar el monto de pensión de los que menos reciben; sin embargo la cantidad de personas en la pensión máxima es significativamente reducida, ya que apenas representan el 1%, por lo que no es sostenible pensar que los aportes de los de altos ingresos pensión máxima- financian la solidaridad total para los de bajo ingreso”.

De ahí que, se confirma la necesidad de decretar un aumento en los aportes obligatorios, y la importancia de reconocer la competencia de la Junta Directiva de la Caja Costarricense de Seguro Social para decretar el incremento del aporte forzoso del Estado.

Nombre5650.- Las prerrogativas del Poder Ejecutivo en la elaboración del presupuesto nacional y la especialización de la Caja Costarricense de Seguro Social en el régimen de los seguros sociales. El Poder Ejecutivo tiene, en la formación del presupuesto de la República, determinadas prerrogativas que le autorizan, constitucionalmente, preservar el orden financiero del Estado, sea en sus ingresos y gastos, que son potestades que reclama el Ministro de Hacienda para oponerse a ejecutar el acuerdo de la Junta Directiva de la Caja Costarricense de Seguro Social, contenido en el artículo 9°, de la sesión N° 8856, así como a las pretensiones deducidas en esta acción de inconstitucionalidad. Las implicaciones de ese acuerdo conllevan la erogación de cincuenta y seis mil millones de colones anuales sobre el Presupuesto Nacional, dinero que implicaría un endeudamiento mayor del Estado costarricense, toda vez que se reconoce una difícil situación fiscal. A pesar de su oposición manifestada en los oficios DM-2293-2015 del 10 de diciembre de 2015 y DM-0129-2016 del 26 de enero de 2016, y porque considera que no hubo un aval de la cartera de Hacienda, ni atención a la pertinencia de un diálogo nacional para dotar al Estado de nuevas rentas con las que pudiera hacer frente a la obligación. En este sentido, el informe de la Procuraduría General de la República, que se constituye en un asesor de esta Sala Constitucional, concluye que, a pesar del señalado problema fiscal histórico, la falta de liquidez, la falta de consulta por parte de la Caja; y, además, ausencia en ese momento de la generación de los recursos frescos por parte de la Asamblea Legislativa, la Caja Costarricense de Seguro Social no tiene ningún límite más que los criterios técnicos para acordar un incremento decretado. Es decir, el criterio de la Procuraduría General de la República es que, a pesar de las prerrogativas reclamadas del Poder Ejecutivo, estas no pueden oponerse a la autonomía administrativa y de gobierno de la Caja Costarricense de Seguros Social en el tema de los seguros sociales, especialmente, cuando sus actuaciones están fundadas en criterio matemáticos-actuariales.

La Sala coincide con la Procuraduría General de la República, pero en especial, porque si bien, el Poder Ejecutivo encuentra en los artículos 176, 177 y 179, de la Constitución Política, los poderes de dirección sobre la mayor parte de los presupuestos institucionales, incluidos los Poderes del Estado, el Constituyente exceptuó de tales controles ciertas materias al crear excepciones y remedios jurídicos para sustanciarlos. De ahí que esta Sala ha establecido criterios como el de los recursos atados constitucionalmente, toda vez que están dirigidos por el propio constituyente a solventar un problema prioritario de distribución de los recursos del Estado, como por ejemplo, los gastos presupuestados por el Tribunal Supremo de Elecciones para dar efectividad al sufragio, el posible tema de la independencia económica y operacional del Poder Judicial, y la contribución del Estado en los seguros sociales, en el párrafo 3°, del artículo 177, de la Constitución Política. Dicha disposición señala:

“Para lograr la universalización de los seguros sociales y garantizar cumplidamente el pago de la contribución del Estado como tal y como patrono, se crearán a favor de la Caja Costarricense de Seguro Social rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Si se produjere un déficit por insuficiencia de esas rentas, el Estado lo asumirá, para lo cual el Poder Ejecutivo deberá incluir en su próximo proyecto de Presupuesto la partida respectiva que le determine como necesaria la citada Institución para cubrir la totalidad de las cuotas del Estado” (la negrita no es del original).

Dentro de la norma transcrita, es claro que el Constituyente estableció la meta de la universalización de los seguros sociales, sobre la cual ha tenido una labor destacada la Caja Costarricense de Seguro Social, que le ha permitido alcanzar un alto porcentaje a través de la administración de los seguros sociales, y en el cual, el Constituyente estableció como pivote los aportes del Estado como patrón y como Estado, el cual, indiscutiblemente, contiene el mandato del Constituyente que le obliga a asumir parte de la ecuación de la solidaridad nacional que se espera de un Estado social de Derecho. Véase, que la norma no establece un porcentaje, sino que deja que se establezca esa obligación constitucional determinable en un momento dado, para asegurar los ingresos necesarios actuales y previstos hacia el futuro, propios de un fondo cuyo objetivo es siempre mantener su sustentabilidad en el tiempo y conforme va progresando la cobertura de los seguros sociales. Llama la atención de esta Sala, que este aporte es muy inferior al que existió con la creación del Régimen, y que así se ha mantenido por veinticinco años, conforme lo señala el informe de la Dirección Actuarial de la Caja. La Caja Costarricense de Seguro Social evidencia que el Estado es el que efectúa el menor porcentaje de aporte comparado con el de los patronos y trabajadores. En este orden de ideas, cabe señalar, que la jurisprudencia de esta Sala ha establecido que le corresponde a la Caja fijar las rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Todas las instituciones partes en esta acción, han sido contestes en que estos cálculos corresponden a la Caja Costarricense de Seguro Social, misma que el propio Ministerio de Hacienda reconoce. Se ha señalado con claridad, que le corresponde a la institución de rango constitucional, porque tiene la autonomía administrativa y de gobierno en el orden de la administración de los seguros sociales. De este modo, se indicó en la Sentencia N° 2001-0378 de las 14:37 horas del 16 de enero de 2001 (como en otras anteriores N° 1993-3853 de las 9:09 horas del 11 de agosto de 1993 y N° 1994-1059 de las 15:39 horas del 22 de febrero de 1994) que:

“IV.- Sobre la infracción al principio de reserva de ley. El primer argumento de la accionante es que la norma impugnada lesiona el principio de reserva legal, al imponer, mediante un reglamento, un requisito sustancial para ejercer el derecho a pensión. La regulación de los derechos fundamentales está reservada a la ley, del cual resulta que solamente mediante ley formal, emanada del Poder Legislativo y por el procedimiento previsto en la Constitución Política para la emisión de las leyes, es posible regular, y en todo caso, restringir los derechos fundamentales, todo -por supuesto- en la medida en que la naturaleza y régimen de éstos lo permita, y dentro de las limitaciones constitucionales aplicables. Sin embargo, la norma aquí cuestionada no contraviene la Constitución Política en virtud que el artículo 73 de la Constitución Política confía la administración y el gobierno de los seguros sociales a la Caja Costarricense del Seguro Social, por lo que la Constitución establece a favor de esta institución autónoma, un grado de autonomía -administrativa y de gobierno- que le permite regular, por vía de reglamento lo relativo a los seguros sociales. Dicha norma constitucional es desarrollada en la Ley Constitutiva de la Caja Costarricense del Seguro Social, en especial en los artículos 1, 2 y 3, que disponen:

Artículo 1.- La institución creada para aplicar los seguros sociales obligatorios se llamará Caja Costarricense de Seguro Social y, para los efectos de esta ley y sus reglamentos, CAJA.

La Caja es una institución autónoma a la cual le corresponde el gobierno y la administración de los seguros sociales. Los fondos y las reservas de estos seguros no podrán ser transferidos ni empleados en finalidades distintas de las que motivaron su creación. Esto último se prohíbe expresamente. Excepto la materia relativa a empleo público y salarios, la Caja no está sometida ni podrá estarlo a órdenes, instrucciones, circulares ni directrices emanadas del Poder Ejecutivo o la Autoridad Presupuestaria, en materia de gobierno y administración de dichos seguros, sus fondos ni reservas.

"Artículo 2.- El Seguro Social obligatorio comprende los riesgos de enfermedad, maternidad, invalidez, vejez y desempleo involuntario; además, comporta una participación en las cargas de maternidad, familia, viudedad y orfandad y el suministro de una cuota para entierro de acuerdo con la escala que fije la Caja, siempre que la muerte no se deba al acaecimiento de un riesgo profesional".

"Artículo 3.- La cobertura del Seguro Social - y el ingreso al mismo - son obligatorias para todos los trabajadores manuales e intelectuales que perciban sueldo o salario. El monto de las cuotas que por esta ley se deban pagar, se calculará sobre el total de las remuneraciones que bajo cualquier denominación se paguen, con motivo o derivadas de la relación obrero - patronal. (…)

La Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán".

Las normas transcritas confieren a la Caja Costarricense del Seguro Social la potestad de administrar todo lo referente a seguros sociales, lo que implica determinar reglamentariamente los requisitos de ingreso a cada régimen de protección, sus beneficios y condiciones, por lo que el Reglamento de Invalidez, Vejez y Muerte emitido por la Junta Directiva, así como sus reformas lo ha sido en ejercicio de esta competencia, derivada del numeral 73 constitucional. En consecuencia, el artículo 9 inciso a) del Reglamento del Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social no viola el principio de reserva legal”.

Ahora bien, para la Sala, de conformidad con lo dispuesto por el artículo 14, inciso f), de la Ley Constitutiva de la Caja Costarricense de Seguro Social, corresponde a la Junta Directiva de la Institución dictar los reglamentos para su funcionamiento, de manera que, aunado a la jurisprudencia transcrita, es suficiente para determinar que, en tratándose del aseguramiento de los fondos que el Estado debe garantizar para el sostenimiento del régimen, ésta no tiene más restricciones que los que establezcan los criterios técnicos. En este sentido, ha sido la propia Caja la que ha determinado ese monto al Estado, por reforma al artículo 29, del Reglamento de Invalidez, Vejez y Muerte, y que si bien, se puede reconocer que la coyuntura económica por los problemas estructurales de financiamiento del Estado costarricense, existen y son reales, se debe señalar que ha sido voluntad del Constituyente especificar el mecanismo jurídico cuando esas rentas son insuficientes para el fondo, así como la forma de determinar los compromisos económicos y el modo en el que el Poder Ejecutivo debe solucionarlo, cuando indica que “deberá incluir en su próximo proyecto de Presupuesto la partida respectiva que le determine como necesaria la citada Institución para cubrir la totalidad de las cuotas del Estado”.

Finalmente, este Tribunal, en la sentencia n.º 2021017098 de las 23:15 horas de 31 de julio de 2021, consignó:

“2) Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de la Caja Costarricense de Seguro Social En reiteradas ocasiones, tal como se indicó en la sentencia n°2011-14624 de las 15:50 horas del 26 de octubre de 2011, este Tribunal señaló que la Caja Costarricense de Seguro Social (CCSS) goza de autonomía administrativa y de gobierno, de conformidad con el artículo 73 de la Constitución Política, por lo que puede emitir las disposiciones relacionadas con su régimen interior. La propia Ley Constitutiva de la Caja Costarricense de Seguro Social, número 17 de 22 de octubre de 1943, publicada en La Gaceta número 329 de 27 de octubre de 1943, en el artículo 70 establece lo siguiente:

“Créase la Carrera Administrativa de la Caja Costarricense de Seguro Social, para regular la cual (sic), la Junta Directiva establecerá las condiciones referentes al ingreso de los empleados al servicio de la Institución, garantías de estabilidad, deberes y derechos de los mismos, forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, trámite para el juzgamiento de infracciones y demás disposiciones necesarias…”.

Por otro lado, el artículo 14 inciso f) dota a la Junta Directiva de la CCSS, la atribución de reglamentar el funcionamiento de la institución, de tal modo que le confiere la potestad para dictar normas, incluso para regular el régimen de los funcionarios que requiere la institución para el cumplimiento de las responsabilidades que le señala la Constitución Política y su Ley Constitutiva, y ello resulta constitucional, según se indicó en dicho precedente:

“…En ese contexto, la posibilidad de que la Institución establezca por si misma los diferentes tipos de relaciones laborales con sus funcionarios, ya sea por relación estatutaria o sujetos a figuras especiales, como el caso del Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, no es inconstitucional. La Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política). En virtud de ello, el artículo 21 de la Ley Constitutiva, establece lo siguiente: "Artículo 21.- El Personal de la Caja será integrado a base de idoneidad comprobada, y los ascensos de categoría se otorgarán tomando en cuenta los méritos del trabajador en primer término y luego, la antigüedad en el servicio." A partir de lo anterior, así como de la lectura del numeral 191 constitucional, es claro que la regla ineludible consiste precisamente en que los funcionarios públicos deben estar regidos por una relación laboral estatutaria, es decir, por normas impuestas por la Administración en su calidad de empleador, en atención a la eficiente y eficaz prestación de los servicios públicos que cada instancia administrativa esté llamada a ofrecer. Aún (sic) cuando el constituyente haya pensado en un sistema estatutario único, lo cierto es que la redacción finalmente dada al artículo 191, así como el proceso de profunda descentralización que experimentó el Estado costarricense a partir de mil novecientos cuarenta y nueve, hace que en nuestros días resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” Lo anterior es conteste con la misma autonomía concedida por el Constituyente a determinadas instituciones, para el caso concreto, la conferida a la Caja Costarricense de Seguro Social en el artículo 73, definida como autonomía de gobierno, que resulta necesaria a fin de que pueda cumplir con los cometidos especiales asignados y sin injerencias del Poder Ejecutivo.

En sentencia n°2011-15665 de las 12:40 horas del 11 de noviembre de 2011, reiterada en la 2017-4797, particularmente en relación con la C.C.S.S. se indicó lo siguiente:

“…En este caso, estamos frente a un ente descentralizado creado por Constitución, y cuyo grado de autonomía, definido también por la misma Carta Magna, es de grado dos, la cual debe entenderse que incluye las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y, el ejercicio de la potestad reglamentaria autónoma. Lo cual se traduce en el caso concreto de la administración del régimen de pensiones a cargo de la Caja Costarricense de Seguro Social -al menos- en la potestad de definir por sí misma, con exclusión de toda potestad legislativa, tres aspectos fundamentales sobre las pensiones: el monto de las cuotas de cotización, el número de cuotas que deben pagar los trabajadores para acceso a la pensión y la edad para jubilarse. Justamente este grado de autonomía mayor que tiene la Caja Costarricense de Seguro Social respecto del resto de instituciones autónomas, es lo que explica cómo se le ha excluido de la aplicación de leyes tales como “Ley de la Administración Financiera de la República y Presupuestos Públicos”, ley No. 8131 de 18 de setiembre del 2001. Véase el artículo 1° de dicha ley:

“Artículo 1.- Ámbito de aplicación La presente Ley regula el régimen económico-financiero de los órganos y entes administradores o custodios de los fondos públicos. Será aplicable a:

• a)La Administración Central, constituida por el Poder Ejecutivo y sus dependencias.
• b)Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, sus dependencias y órganos auxiliares, sin perjuicio del principio de separación de Poderes estatuido en la Constitución Política.
• c)La Administración Descentralizada y las empresas públicas del Estado.
• d)Las universidades estatales, las municipalidades y la Caja Costarricense de Seguro Social, únicamente en cuanto al cumplimiento de los principios establecidos en el título II de esta Ley, en materia de responsabilidades y a proporcionar la información requerida por el Ministerio de Hacienda para sus estudios. En todo lo demás, se les exceptúa de los alcances y la aplicación de esta Ley (…)” Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales. En este sentido, véase lo que dispuso esta Sala mediante la resolución número 2001-010545 de las 14:58 horas del 17 de octubre del 2001:

“… Queda claro que la ley no puede interferir en materia de gobierno de la Caja Costarricense de Seguro Social en virtud de la autonomía plena de que goza esta institución…” (Criterio reiterado en la resolución número 2001-011592 de las 09:01 horas del 09 de noviembre del 2011).

Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Titulo XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” Luego, en sentencia n°2007-18484, reiterada en la 2018-6549, este Tribunal se refirió a los alcances de los distintos tipos de autonomía, en el siguiente sentido:

“A) Alcances de la autonomía administrativa de las instituciones autónomas, y la sujeción de éstas a la ley en materia de gobierno (…). El grado de autonomía administrativa -mínima y de primer grado-, es propia de las instituciones autónomas; de gobierno -de segundo grado-, propia de las municipalidades y de la Caja Costarricense del Seguro Social en lo relativo a la administración de los seguros sociales; y de organización - plena o de tercer grado, propia de las universidades del Estado. El ente descentralizado creado por ley ordinaria, está subordinado a su contenido e involucra la potestad legislativa para modificarlo y hasta extinguirlo; pero como la descentralización implica que le corresponden al ente todos los poderes del jerarca administrativo, quiere decir que su personalidad abarca la totalidad de los poderes administrativos necesarios para lograr su cometido en forma independiente. Así entonces, 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. De este modo, el poder central tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Sin embargo, tal como lo expresa el mismo artículo 188 Constitucional, las instituciones autónomas están sujetas a la ley en materia de gobierno. Conforme a lo anteriormente dicho, la autonomía administrativa no es incompatible con la sujeción de las instituciones autónomas a las leyes, así entonces los objetivos, fines y metas del ente vienen dados por el legislador” (El énfasis no es del original).

Tal como se indica en el texto jurisprudencial citado, la CCSS además de gozar de la autonomía administrativa, también ostenta la autonomía política o de gobierno. De ahí que el Poder Ejecutivo tiene varias limitaciones respecto de su injerencia sobre la CCSS. No puede actuar como jerarca de esta, no puede controlarla limitando su actividad por razones de oportunidad; y, tampoco puede, actuar como director de la gestión de ese ente mediante la imposición de lineamientos o de programas básicos. Igualmente, respecto de la autonomía de esta institución en particular, la Sala en sentencia n°1994-6256, emite un criterio reiterado en las sentencias 2011-15665 y 2017-4797, que dice:

“III.- LA CAJA COSTARRICENSE DE SEGURO SOCIAL.- La Asamblea Nacional Constituyente, como consta en las Actas Nos. 125 y 126, aprobó la inclusión de la Caja Costarricense de Seguro Social, siguiendo, básicamente, el texto original de la Constitución de 1871; esto es, se trasplantó la institución de la Constitución de 1871, según las modificaciones de 1943 a la Constitución de 1949. Sin embargo, a los efectos de la consulta, resultan sugestivas las participaciones del Constituyente Nombre35480 sobre el tema. De la página 34 del Tomo III de la Actas de la Asamblea Nacional Constituyente, se transcribe lo siguiente: "Además, la Caja, tarde o temprano, tendría que asumir el riesgo de desocupación, que vendrá a resolver el grave problema planteado por la cesantía. Insistió en que no le parecía adecuado debilitar la Caja. Lo prudente es fortalecerla. De ahí que lo más aconsejable es dejar las cosas como están, dándole a la Caja plena autonomía para independizarla así del Poder Ejecutivo"; y en la página 36 idem se agrega: "En ese sentido, lo más adecuado es mantener la redacción del artículo 63, que es buena por lo menos para el tiempo de ensayo. Todo lo que signifique limitar los recursos del Seguro Social, indudablemente será un retroceso inexplicable". Al ser aprobado el artículo, se incluyó un segundo párrafo que literalmente decía: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma", texto que luego fue reformado por Ley No. 2737 de 12 de mayo de 1961, quedando hoy día de la siguiente manera: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". En conclusión, el constituyente atribuyó la administración y gobierno de los seguros sociales a la Caja Costarricense de Seguro Social, como institución autónoma creada por la misma Constitución Política, con las especiales características que ella misma le ha otorgado y compartiendo los principios generales derivados de su condición de ente descentralizado…

…Doctrinariamente existe coincidencia en afirmar que está prohibida toda forma de intervención preventiva y anterior a la emisión del acto por el ente autónomo, salvo las funciones de control previo, como requisito para la validez de esos actos (autorizaciones); el Poder Central no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Todas estas notas características de los entes descentralizados, que tienen su origen en una ley reforzada (artículo 189 inciso 3) de la Constitución Política), son igualmente aplicables, en lo pertinente, a las instituciones autónomas creadas por la propia Constitución Política, salvo que prevalecen las condiciones que ésta, en forma especial y exclusiva, le ha dado al ente.” De ahí que, incluso para lo relativo a la contratación de su personal tiene esa potestad de autoadministrarse, pues de ello también depende el cumplimiento de los fines asignados constitucionalmente. Como muestra de las particularidades y necesidades del servicio, por ejemplo, en la sentencia 2019-11130 de las 10:30 horas del 19 de junio de 2019, este Tribunal señaló lo siguiente:

“Al respecto, este Tribunal constata que efectivamente ese artículo señala que “para la calificación de atestados y asignación de puntajes, la Comisión Técnica de Enfermería hará la calificación de los concursos de acuerdo con (…) Se dará un punto por cada año de servicio o fracción mayor de seis meses, hasta un máximo de diez puntos en las zonas fuera de la meseta central (…)”. Sin embargo, no se considera que esta disposición vulnere el principio de igualdad y, por ende, devenga en inconstitucional, sino que esta decisión tiene una justificación razonable, que consiste en incentivar a los profesionales en enfermería para que acepten puestos fuera de la meseta central, con el aliciente de que en futuros concursos para puestos ubicados en zonas más codiciadas, cuenten con una mejor puntuación. Así, lo que busca la normativa no es únicamente la posición de mejor idoneidad, sino que busca incentivar que los profesionales enfermeros acepten trabajar en lugares alejados y poco apetecidos y, de esta forma, fomentar la prestación de servicios de enfermería, necesarios para una adecuada prestación de los servicios médicos, en todos los sectores del país. Esto acorde a los principios de solidaridad social.

Es claro, entonces, que el Constituyente le concedió tal autonomía, permitiéndole la selección de su personal bajo los estamentos que requiera para cumplir sus fines, eso sí respetando los principios constitucionales establecidos en los ordinales 191 y 192 constitucionales. Criterio reiterado por esta Sala en las sentencias números 03065-98, 10545-01 y 12494-11, al decir:

“…es dable a los diferentes establecimientos de la Caja, en aplicación del principio constitucional de autonomía de administración y gobierno, dictar las medidas de reorganización necesarias de sus servicios para su mejoramiento, con el fin de lograr la mejor satisfacción de sus usuarios y del interés general, que por su naturaleza nunca podría dejar de prevalecer ante los intereses particulares.” La autonomía que el legislador originario le concede a la Caja Costarricense de Seguro Social la protege de la intromisión del Poder Ejecutivo y del Legislativo, tal como se evidencia en la Sentencia 03065-98 de las 18:18 horas del 6 de mayo de 1998 (reiterada en la 2001-10545), al decir:

“…Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales…Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Título XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” De lo expuesto se deriva que, la Caja Costarricense de Seguro Social (CCSS), por disposición constitucional (art.73) goza de autonomía administrativa y de gobierno. Lo cual significa que, como ente descentralizado funcional, puede establecer las reglas para la selección de su personal, siendo válido en este caso la existencia de un marco normativo especial para su relación estatutaria, que atienda y asegure su grado de autonomía. Ese grado de autonomía le permite además, auto-administrarse (disponer de sus recursos humanos, materiales y financieros); darse su propia organización interna; la fijación de fines, metas y tipos de medios para realizarlas; la emisión de reglamentos autónomos de servicio o actividad, acorde con las disposiciones normalmente llamadas de política general. Así entonces, como institución autónoma de creación constitucional y con un grado de autonomía mayor (administrativa y de gobierno) le permite estar protegida frente a injerencias del Poder Ejecutivo y de limitaciones a la hora de legislar el Poder Legislativo (quien no puede modificar vía legal su grado de autonomía). Así el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a esta institución, no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades”.

Así las cosas, tampoco se configura lesión alguna al Derecho de la Constitución en cuanto a este extremo, porque ha sido el Poder Constituyente el que determinó, de manera soberana y democrática, la creación de la contribución parafiscal en beneficio del régimen de seguridad social que regenta la CCSS, con lo cual se cumplen los principios que regulan el ejercicio de la potestad tributaria. Bajo la misma línea, tampoco se lesiona la legalidad tributaria, porque es la Ley Constitutiva de la CCSS la que le impone a su Junta Directiva, parámetros objetivos para determinar el monto de la cuota a pagar por los afiliados al sistema; además, en esa fijación debe observarse y ajustarse toda actuación a los principios generales del Derecho aquí referidos, tanto los sistémicos como el de seguridad jurídica, como los sectoriales de universalidad y solidaridad en cuanto a la seguridad social refieren, todo lo cual puede ser revisado y controlado por la jurisdicción contencioso administrativa.

En consecuencia, dista de configurarse la vulneración constitucional aducida por el accionante, en torno a la condición de parafiscalidad de las cuotas de aseguramiento que fija la Junta Directiva de la Caja Costarricense de Seguro Social para las diferentes modalidades de los trabajadores, sean estos asalariados o independientes, ya que según lo explicado reiteradamente, tanto la potestad otorgada a la Junta Directiva de la Caja, como la fijación misma que esta realiza, encuentra sustento y fundamento directo en el propio texto constitucional, y en la Ley Constitutiva de la institución, por lo que tanto el principio de reserva de ley como el de legalidad tributaria se cumplen plenamente.

…XVIII.- A modo de conclusión. Esta Sala ha reconocido ampliamente las potestades de la Caja Costarricense de Seguro Social, derivadas del artículo 73 de la Constitución Política, y que le han sido otorgadas por el constituyente al disponer que sería esa institución la encargada de administrar y gobernar los seguros sociales, lo que implica, necesariamente, que la Caja debe contar con todos los mecanismos adecuados para llevar a cabo esa gestión. Dentro de esas facultades, no cabe duda alguna de que se encuentra la potestad reglamentaria para que la institución pueda establecer los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán, pero también adoptar las medidas que sean necesarias para el ejercicio de sus funciones y su sostenimiento. En ese sentido, recuérdese que el inciso f) del artículo 14 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, le confiere a la Junta Directiva la atribución de dictar los reglamentos para el funcionamiento de la institución, mientras que el artículo 232 de la misma Ley, señala que esa Junta es la competente para determinar las cuotas y prestaciones de conformidad con el costo de los servicios, todo lo cual se hará con sustento en los cálculos actuariales que sean necesarios para la determinación de tales rubros. En este punto, para esta Sala, es indudable que la potestad de la Junta Directiva de la CCSS para establecer la obligación de afiliar a los trabajadores independientes, así como el monto de cuotas y de las prestaciones, viene dada por la propia Constitución Política y obedece a su especialidad técnica, lo que supone que toda fijación deberá hacerse necesariamente sobre la base de recomendaciones actuariales; esto significa que la potestad reglamentaria de la Junta Directiva de la CCSS, tiene justificación constitucional y debe ser empleada como desarrollo de la ley y con fundamentos técnicos actuariales -ver en ese sentido sentencia número 2002-4881-.

Esta Sala ha afirmado que dicho numeral 23 de la Ley Constitutiva, es acorde con la Constitución Política, de modo que las atribuciones que le confiere a la Junta Directiva, no implican delegación del ejercicio de funciones del Poder Legislativo, sino que encuentran sustento en el citado artículo 73 constitucional.

De igual manera, la Sala ha reconocido que la Junta Directiva, dentro de las potestades con las que cuenta, puede establecer que las condiciones de unos y otros trabajadores, la obligatoriedad de su afiliación, las características de la contribución que deben cotizar, así como los mecanismos que sean necesarios para compelerlos al pago de las sumas a pagar, son facultades que, igualmente, derivan de ese artículo 73 de la Constitución Política, por cuanto comprende las competencias para administrar todo lo relativo a los seguros sociales.

Desde esta perspectiva, la inclusión obligatoria de los trabajadores independientes dentro del régimen de la CCSS, no es contraria a la Constitución y, en esa materia, el legislador tiene discrecionalidad, pues recuérdese que la Ley Constitutiva de la CCSS, dispone en el artículo 3 acá impugnado, que la Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán y, como se dijo, el artículo 14 inciso f) de esa Ley, confiere a la Junta Directiva la atribución de dictar los reglamentos para el funcionamiento de la institución.

Por esa razón, si el legislador, en ejercicio de esa facultad discrecional, determinó que quien ejerce liberalmente una profesión u oficio, debe afiliarse obligatoriamente al régimen de la Caja, ello no lesiona la Constitución Política, y aquella discrecionalidad escapa al control de este Sala, de modo que si la parte accionante no está de acuerdo con el hecho de que al trabajador independiente se le obligue a afiliarse al régimen de la Caja, ello no es más que un diferendo con el criterio del legislador, pero no un asunto de constitucionalidad -ver sentencias números 2000-643 y 2008-17304-.

Las normas impugnadas, en definitiva, establecen obligaciones para los afiliados al sistema, en aras del cumplimiento de la función institucional de administración y gobierno de los seguros sociales, así como en lo relativo al financiamiento del régimen en provecho de los beneficiarios, por lo que es impropio considerar que lesionan el Derecho de la Constitución en los términos en que lo afirma la parte accionante cuando, por el contrario, establecen una serie de garantías mínimas y la obligación de los trabajadores independientes de ser parte del sistema, sin que esta Sala haya encontrado razón alguna para excluir los seguros de trabajadores independientes de las potestades reglamentarias de la CCSS -ver sentencias números 2000-002571 y 2022-23208.

En consecuencia, la acción de inconstitucionalidad debe ser desestimada, conforme se dispone, no sin antes advertir -como ya se hizo supra-, que la normativa reglamentaria que se impugnó en este proceso -artículos 1 y 2 del Reglamento para la Afiliación de los Trabajadores Independientes de la CCSS, No. 7877 de 5 de agosto de 2004-, no solo está derogada a la fecha, sino que, además ha sido complementada con la promulgación por parte de la Asamblea Legislativa de una nueva legislación denominada «Ley del Trabajador Independiente», número 10363 de 3 de mayo de 2023, y la reforma al «Reglamento para el aseguramiento contributivo de los trabajadores independientes», adoptada por la Junta Directiva de la Caja Costarricense de Seguro Social, y publicada en el Alcance número 212 al Diario Oficial La Gaceta, número 205, de 31 de octubre de 2023.

Por tanto

Se declara sin lugar la acción. El magistrado Cruz Castro consigna razones adicionales. El magistrado Rueda Leal consigna razones particulares…

…Razones particulares del magistrado Rueda Leal. En el sub examine, concurro con la desestimatoria de la acción, pero por los siguientes motivos.

En primer lugar, con respecto a la seguridad social y la autonomía de la Caja Costarricense de Seguridad Social (CCSS), la Sala, en la resolución nro. 2021023611 de las 17:50 horas de 20 de octubre de 2021, dispuso:

“V.- La Caja Costarricense de Seguro Social, su autonomía y la seguridad social. En relación con los numerales 73 y 74, ubicados en el capítulo único del Título V “Derechos y Garantías Sociales” de nuestra Carta Magna, la jurisprudencia constitucional ha desarrollado ampliamente su contenido y sus implicaciones en cuanto a la autonomía de la CCSS en lo relativo a la administración y el gobierno de los seguros sociales.

Así, en la sentencia n.º 2001-10545 de las 14:58 horas de 17 de octubre de 2001 se dispuso:

“II.- Sobre el fondo. La autonomía de la Caja Costarricense de Seguro Social. –El artículo 73 de la Constitución Política establece en su párrafo segundo "La Administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". Sobre los alcances de lo que establece dicha norma, la Sala en reiteradas oportunidades ha manifestado que la autonomía de la Caja no se encuentra sujeta a límites en materia de gobierno. Sobre este tema, analizado en la sentencia 6256-94 de las nueve horas del veinticinco de octubre de mil novecientos noventa y cuatro, se expresó:

"III.- LA CAJA COSTARRICENSE DE SEGURO SOCIAL.- La Asamblea Nacional Constituyente, como consta en las Actas Nos. 125 y 126, aprobó la inclusión de la Caja Costarricense de Seguro Social, siguiendo, básicamente, el texto original de la Constitución de 1871; esto es, se trasplantó la institución de la Constitución de 1871, según las modificaciones de 1943 a la Constitución de 1949. Sin embargo, a los efectos de la consulta, resultan sugestivas las participaciones del Constituyente Nombre35480 sobre el tema. De la página 34 del Tomo III de la Actas de la Asamblea Nacional Constituyente, se transcribe lo siguiente: "Además, la Caja, tarde o temprano, tendría que asumir el riesgo de desocupación, que vendrá a resolver el grave problema planteado por la cesantía. Insistió en que no le parecía adecuado debilitar la Caja. Lo prudente es fortalecerla. De ahí que lo más aconsejable es dejar las cosas como están, dándole a la Caja plena autonomía para independizarla así del Poder Ejecutivo"; y en la página 36 idem se agrega : "En ese sentido, lo más adecuado es mantener la redacción del artículo 63, que es buena por lo menos para el tiempo de ensayo. Todo lo que signifique limitar los recursos del Seguro Social, indudablemente será un retroceso inexplicable". Al ser aprobado el artículo, se incluyó un segundo párrafo que literalmente decía: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma", texto que luego fue reformado por Ley No. 2737 de 12 de mayo de 1961, quedando hoy día de la siguiente manera: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". En conclusión, el constituyente atribuyó la administración y gobierno de los seguros sociales a la Caja Costarricense de Seguro Social, como institución autónoma creada por la misma Constitución Política, con las especiales características que ella misma le ha otorgado y compartiendo los principios generales derivados de su condición de ente descentralizado.

Otras sentencias de esta Sala en las que se hace alusión al tema de la autonomía de la Caja Costarricense de Seguro Social son las siguientes: 0236-94 de las 9 horas 57 minutos del catorce de enero; 3403-94 de las 15 horas 42 minutos del 7 de julio; 6471-94 de las 9 horas con 39 minutos del 4 de noviembre, todas del año 1994). En fecha posterior a éstas, la Sala ha señalado:

"IV.- El artículo 73 de nuestra Constitución Política establece la existencia de los seguros sociales, los cuales se regulan por el sistema de contribución forzosa del Estado, patrono y trabajadores, con el fin de proteger a éstos contra los riesgos de enfermedad, maternidad, invalidez, vejez y muerte. La Caja Costarricense de Seguro Social, es la entidad autónoma encargada de administrar este tipo de seguros, con la autonomía que le permite tener iniciativa propia para sus gestiones, así como para ejecutar sus tareas y dar cumplimiento a sus obligaciones legales, fijándose metas y los medios para cumplirlas. Garantiza de esta forma, el establecimiento de la seguridad social y su naturaleza, decreta la finalidad de los seguros sociales y regula el destino de los fondos respectivos. La seguridad social nació en protección del trabajador y de su familia, como seres humanos que son, y se brinda desde su concepción hasta su muerte, procurando la salud y ayudando en infortunios imprevistos como la incapacidad y la muerte, así como en los estados de desprotección por su misma condición como son los de vejez, pensión y jubilación." (Sentencia 004636-98 de las 15 horas 57 minutos del 30 de junio de 1998) "…es dable a los diferentes establecimientos de la Caja, en aplicación del principio constitucional de autonomía de administración y gobierno, dictar las medidas de reorganización necesarias de sus servicios para su mejoramiento, con el fin de lograr la mejor satisfacción de sus usuarios y del interés general, que por su naturaleza nunca podría dejar de prevalecer ante los intereses particulares." (Sentencia 03065-98 de las 18 horas 18 minutos del 6 de mayo de 1998) "…la autonomía reconocida en el artículo 73 en relación con el 177 de la Constitución Política a la Caja no se encuentra sujeta a límites en materia de gobierno, como ha reiterado este tribunal en sentencias precedentes (ver por ejemplo: 3403-94, 6256-94, 6524-94, entre otras) El constituyente expresamente instituyó un ente encargado de la administración de la seguridad social dotado de máxima autonomía para el desempeño de su importante función; razón por la cual la reforma al numeral 188 constitucional que instituyó la dirección administrativa no modificó su régimen jurídico." (Sentencia 07379-99 las 10 horas con 36 minutos del 24 de setiembre de 1999) Al analizar lo alegado por el accionante, considera la Sala que –en efecto-, el contenido del Transitorio IV de la Ley 6577 es lesivo a la autonomía de gobierno que le confiere a la Caja Costarricense de Seguro Social el párrafo segundo del artículo 73 de la Constitución Política, pues al disponer esa norma el cierre forzoso en un plazo determinado del servicio de pensionado -o aún si hubiese dispuesto lo contrario-, es evidente que se invaden las atribuciones que en virtud de la autonomía de gobierno se le atribuye a dicha institución, entendiéndose ésta como la capacidad para realizar su cometido legal sin sujeción a otro ente, de autodirigirse, autogobernarse y dictar sus propios objetivos y organizarse en la forma en que lo estime conveniente para el cumplimiento de la finalidad para la cual fue creada”.

Por su parte, el voto n.º 2002-06384 de las 15:27 horas de 26 de junio de 2002 señaló:

“VIII.- El inciso b) del artículo 2 de la Ley de Creación de la Autoridad Presupuestaria. Consideraciones de la Sala Constitucional. En relación con las instituciones autónomas la Sala se pronunció a favor de la facultad de la Autoridad Presupuestaria de formular directrices a las instituciones descentralizadas, pero interpretó esta facultad de manera restrictiva. Con base en el artículo 188 de la Constitución Política, este Tribunal consideró en sentencia No. 3309-94 que la facultad de la Autoridad Presupuestaria es constitucional en tanto:

“… permanezca en el campo el diseño y posterior ejecución de las directrices generales sobre política, pero no desde luego en la medida en que su aplicación interfiera en la ejecución concreta de esas directrices. El carácter general de esta función significa que la Autoridad Presupuestaria no puede, dentro de su competencia, dar órdenes concretas o someter aprobación los actos específicos de ejecución que son parte de la autonomía administrativa de esas entidades.” Si en el caso de las instituciones autónomas en general se debe interpretar la facultad de manera restrictiva, en el caso de la Caja Costarricense de Seguro Social la facultad es totalmente inconstitucional. La Caja Costarricense de Seguro Social goza, como se dijo en sentencia No. 3403-94, de “un grado de autonomía distinto y superior al que se define en términos generales en el artículo 188”. Este grado mayor de autonomía se deriva del artículo 73 de la Constitución Política. En sentencia No. 6256-94 se dijo:

“La Caja Costarricense de Seguro Social encuentra su garantía de existencia en el artículo 73 constitucional, con las siguientes particularidades: a) el sistema que le da soporte es el de la solidaridad, creándose un sistema de contribución forzosa tripartita del Estado, los patronos y los trabajadores; b) la norma le concede, en forma exclusiva a la Caja Costarricense de Seguro Social, la administración y gobierno de los seguros sociales, grado de autonomía que es, desde luego, distinto y superior al que se define en forma general en el artículo 188 idem; c) los fondos y las reservas de los seguros sociales no pueden ser transferidos ni empleados en finalidades distintas a su cometido. Como se vio en los considerandos anteriores, la Asamblea Nacional Constituyente optó por dejar las cosas, en cuanto a esta institución, tal y como estaban en la Constitución de 1871, "con plena autonomía para independizarla así del Poder Ejecutivo".

En virtud de esta autonomía plena, toda disposición que obligue a la Caja Costarricense de Seguro Social a acatar directrices sobre la administración de los recursos que están sometidos a su manejo es inconstitucional. El inciso b) del artículo 2 de la Ley de Creación de la Autoridad Presupuestaria adolece de ese vicio y, por ende, se declara inconstitucional únicamente en lo que se refiere a la Caja Costarricense de Seguro Social.

(…)

XIII.- Sobre el artículo 41 de la Ley Constitutiva de la Caja Costarricense de Seguro Social. Consideraciones de la Sala Constitucional. En este punto, esta Sala disiente de la tesis del accionante. Si bien tiene razón en cuanto a que constitucionalmente le está vedado a la Caja destinar fondos a otros fines distintos a los que la misma Constitución impone, el artículo 41 no indica tal cosa. Se debe diferenciar nítidamente entre la normativa en sí misma y la aplicación que se le haya dado en casos concretos. Como tal, el artículo 41 está dirigido a la inversión de reservas; así lo entiende este Tribunal y una disposición de esta índole no resulta inconstitucional. Interpretar de otra manera, sería obligar a la Caja a mantener ociosos recursos que, de otra manera, podrían generar recursos que fortalezcan el fondo mismo. Otro aspecto es la posibilidad de que la Caja haya utilizado ese artículo para invertir fondos, supuestamente ociosos, cuando lejanamente cumple con sus fines. De ser así, cabe la posibilidad de impugnar en la vía de legalidad las actuaciones concretas que sobrepasen los límites que establece ese mismo artículo 41. Cabe también la posibilidad de evaluar la responsabilidad personal de quienes no ajustaron sus decisiones a la normativa, pues están obligados a interpretar ese artículo 41 armoniosamente con el 73 Constitucional. En síntesis, el artículo 41 de la Ley Constitutiva de la Caja Costarricense de Seguro Social no resulta inconstitucional, siempre y cuando se refiera a fondos ociosos y no a fondos necesarios para satisfacer los objetivos constitucionalmente fijados a esa institución”.

La sentencia n.º 2003-03483 de las 14:05 horas de 2 de mayo de 2003 dispuso:

“Sobre el régimen de la seguridad social. El artículo 73 de la Constitución Política, interpretado armónicamente con el artículo 50 ídem, consagra el Derecho de la Seguridad Social. La Sala ha señalado reiteradamente que este derecho supone que los poderes públicos mantendrán un régimen público de seguridad social para todos los ciudadanos en el más alto rango, de manera que garantice la asistencia y brinde las prestaciones sociales suficientes ante situaciones de necesidad para preservar la salud y la vida. El ámbito subjetivo de aplicación del derecho de la seguridad social incorpora el principio de universalidad, pues se extiende a todos los ciudadanos, con carácter de obligatoriedad. El ámbito objetivo asume el principio de generalidad, en tanto protege situaciones de necesidad, no en la medida en que éstas hayan sido previstas y aseguradas con anterioridad, sino en tanto se produzcan efectivamente. Además, incorpora los principios de suficiencia de la protección, según módulos cuantitativos y cualitativos y de automaticidad protectora, lo que se traduce en la adecuada e inmediata protección en materia de enfermedad, invalidez, vejez y muerte. Por expresa disposición constitucional, esta gestión ha de ser pública, a cargo del Estado, representado por la Caja Costarricense de Seguro Social, y la financiación responderá al principio cardinal de solidaridad social, pues se funda en la contribución forzosa y tripartita que realizan trabajadores, patronos y el Estado. En consecuencia, los principios del Derecho a la Seguridad Social, son, los de universalidad, generalidad, suficiencia de la protección y solidaridad social”.

También se debe transcribir lo decidido en la sentencia n.º 201007788 de las 14:59 horas de 28 de abril de 2010:

“III.- Sobre el fondo. (…) Para resolver la presente acción de inconstitucionalidad, resulta necesario tomar en consideración los precedentes sobre la autonomía de la Caja Costarricense de Seguro Social. Por sentencia No. 1994-06256 de las nueve horas del veinticinco de octubre de mil novecientos noventa y cuatro, establece la Sala lo siguiente:

“Aunque no es materia de la consulta, a los efectos de la conclusión a que llega la Sala, se hace necesario, por lo menos, señalar algunos lineamientos generales de lo que implica la descentralización administrativa en nuestro régimen constitucional. Existen en nuestro ordenamiento jurídico, tres formas de autonomía : a) administrativa, que es la posibilidad jurídica de que un ente realice su cometido legal por sí mismo sin sujeción a otro ente, conocida en doctrina como la capacidad de autoadministración; b) política, que es la capacidad de autodirigirse políticamente, de autogobernarse, de dictarse el ente a sí mismo sus propios objetivos; y, c) organizativa, que es la capacidad de autorganizarse, con exclusión de toda potestad legislativa. En los dos primeros casos, la autonomía es frente al Poder Ejecutivo y en el tercero, también frente al Poder Legislativo. La autonomía organizativa es propia de las universidades según se desprende del artículo 84 de la Constitución Política y por ello ajena a los fines de esta consulta. Los otros dos grados de autonomía se derivan de la Autonomía Política, cuyo contenido será propio de la ley (acto fundacional) que crea al ente. El ente descentralizado creado por ley ordinaria, está subordinado a su contenido e involucra la potestad legislativa para modificarlo y hasta extinguirlo; pero como la descentralización implica que le corresponden al ente todos los poderes del jerarca administrativo, quiere decir que su personalidad abarca la totalidad de los poderes administrativos necesarios para lograr su cometido en forma independiente. La autonomía, usualmente, comprende las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y por último, el ejercicio de la potestad reglamentaria autónoma. Estas líneas generales sobre la autonomía, están dirigidas a la descentralización administrativa creada por la ley ordinaria.” Además señaló la Sala que:

“La Caja Costarricense de Seguro Social encuentra su garantía de existencia en el artículo 73 constitucional, con las siguientes particularidades : a) el sistema que le da soporte es el de la solidaridad, creándose un sistema de contribución forzosa tripartita del Estado, los patronos y los trabajadores; b) la norma le concede, en forma exclusiva a la Caja Costarricense de Seguro Social, la administración y gobierno de los seguros sociales, grado de autonomía que es, desde luego, distinto y superior al que se define en forma general en el artículo 188 idem; c) los fondos y las reservas de los seguros sociales no pueden ser transferidos ni empleados en finalidades distintas a su cometido. Como se vio en los considerandos anteriores, la Asamblea Nacional Constituyente optó por dejar las cosas, en cuanto a esta institución, tal y como estaban en la Constitución de 1871, "con plena autonomía para independizarla así del Poder Ejecutivo"” La Sala mantiene la misma posición con la sentencia No. 2003-02355, en cuanto establece que:

“… se concluye que la autonomía reconocida en el artículo 73 en relación con el 177 de la Constitución Política la Caja no se encuentra sujeta a límites en materia de gobierno, como ha reiterado este tribunal en sentencias precedentes (ver por ejemplo: 2001-7605, 6256-94, entre otras). La Caja es en definitiva el ente encargado de la administración de la seguridad social y está dotada de máxima autonomía para el desempeño de su importante función. En armonía con lo anterior, mediante los artículos 3 y 23 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, su Junta Directiva tiene plena competencia para establecer los alcances de las prestaciones propias de la seguridad social vía reglamento, de manera que puede definir las condiciones, beneficios y requisitos de ingreso de cada régimen de protección, con sustento en estudios actuariales, a fin de no quebrar el sistema.” La Sala debe plantearse la cuestión de si la normativa efectivamente implica una reversión a la descentralización que opera desde la Constitución Política, o lo que es lo mismo, una ingerencia (sic) con la capacidad de la Caja Costarricense de Seguro Social de administrar y gobernar los seguros sociales. Las actas de la Asamblea Nacional Constituyente justifican la formación de entes autónomos con el criterio de especialización de funciones estatales, para organizar al Estado e incrementar su eficiencia administrativa, por lo tanto no le es legítimo apartarse de ese fin, por lo tanto debe dar una respuesta pro-activa a los intereses públicos en temas que son vitales para el ser humano y socialmente importantes. La autonomía administrativa y de gobierno que la Constitución Política otorga a la Caja Costarricense de Seguro Social, se encuentra circunscrita a los seguros sociales, a lo señalado en el párrafo 1° del artículo 73 de la Constitución Política, como también a lo reconocido por la Ley (artículo 1°). No obstante la autonomía institucional, no es un límite infranqueable, conforme a los precedentes se puede legislar en otros temas distintos a la competencia señalada, cumpliendo claro está con la garantía establecida en el artículo 190 de la Constitución Política, que establece la audiencia previa a la Institución en caso de que las disposiciones de un proyecto de ley la afecten, pero no es el tema que debe analizarse en la demanda de inconstitucionalidad”.

Asimismo, la sentencia n.º 2018013658 de las 9:15 horas de 22 de agosto de 2018 sostuvo:

“I.- SOBRE EL ARTÍCULO 23 DE LA LEY CONSTITUTIVA DE LA CAJA COSTARRICENSE DE SEGURO SOCIAL. En el sub lite, el principal reproche del accionante se dirige contra el artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, en cuanto establece que: “Las cuotas y prestaciones serán determinadas por la Junta Directiva, de acuerdo con el costo de los servicios que hayan de prestarse en cada región y de conformidad con los respectivos cálculos actuariales. La contribución de los trabajadores no podrá ser nunca mayor que la contribución de sus patronos, salvo los casos de excepción que para dar mayores beneficios a aquéllos, y para obtener una más justa distribución de las cargas del seguro social obligatorio señale el Reglamento, con base en recomendaciones actuariales.” El accionante alega, esencialmente, que dicho numeral infringe el artículo 121, inciso 13), de la Constitución Política, en tanto afirma que la norma impugnada le confiere a la Caja Costarricense de Seguro Social una potestad tributaria o impositiva en infracción de la citada disposición constitucional.

La cuestión de las contribuciones parafiscales –en este caso las aportaciones a la seguridad social- ha provocado no poca polémica en el ámbito doctrinario y jurisprudencial. En lo que atañe a la controversia jurídica constitucional que tenemos entre manos, desde la perspectiva de esta Sala, son plausibles dos tesis. La primera, que considera que al ser un tributo –véase al respecto la sentencia 2006-009568 de este Tribunal- irremediablemente sus elementos estructurales –hecho generador, tarifa, base de cálculo, sujeto activo y pasivo, etc.- deben ser definidos por Ley formal-; esta última consecuencia que no ha sido validada por la Sala Constitucional-. En esta dirección, si los elementos estructurales de la contribución parafiscal no estuviesen establecidos por Ley formal, se estaría vulnerando el principio de legalidad tributaria, máxime si se toma en cuenta que en la lucha de los barones ingleses por hacerse de la potestad tributaria algunos encuentran el origen del Parlamento y la democracia – no hay democracia sin Parlamento, ni de éste sin la Oposición-. En resumidas cuentas, en este caso específico, se debe de aplicar el principio de legalidad tributaria. La segunda tesis, la cual ha sido sostenida por este Tribunal –véanse, entre otras, las sentencias números 1994-003819 y 1998-007393-, es la que considera que no estamos en presencia de una contribución parafiscal y, por consiguiente, no se debe aplicar el principio de legalidad tributaria. “El pago de la cuota o contribución, según sea el caso, no es un tributo, como quedó dicho en párrafos anteriores, sino el pago de una obligación legal, que es condición esencial para la existencia misma del régimen, creada precisamente, en beneficio de los mismos contribuyentes …”.

Según la doctrina más autorizada en materia tributaria las contribuciones parafiscales son un tributo, pues contienen los elementos materiales de la obligatoriedad –el deber de pagarlas quienes se encuentren en el supuesto de la norma creadora-, de singularidad debido a que afecta un determinado y único grupo social o económico y la destinación sectorial a causa de lo que se recauda a través de esta prestación obligatoria se utiliza en beneficio exclusivo del grupo que pagó el tributo. Estamos, pues, ante el ejercicio de una potestad de imperio del Estado que impone prestaciones pecuniarias para el cumplimiento de fines sociales o económicos. Ergo, solo a través de una Ley formal se pueden crear –tributum sine legge -.

Ahora bien, en el caso de las cuotas obrero-patronales destinadas al sostenimiento de la seguridad social –seguro de enfermedad y maternidad y seguro de invalidez, vejez y muerte-, nuestro ordenamiento jurídico tiene una singularidad. En efecto, y es que el numeral 73 constitucional es el que crea la contribución parafiscal al disponer una contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos (sic) contra los riesgos citados y demás contingencias que la ley determine. Acto seguido, el texto constitucional establece que la administración y el gobierno de esos seguros sociales corresponde a una institución autónoma: la Caja Costarricense de Seguro Social. Finalmente, en lo que interesa, la norma constitucional impone la prohibición de transferir o emplear en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. Como puede observarse, estamos, pues, ante una contribución parafiscal creada por el Constituyente originario, con lo que, desde la perspectiva de este Tribunal, se cumple la máxima de que no puede haber imposición sin representación – no taxation without representation-. En otras palabras, en el caso que nos ocupa, el apego a los principios que regentan el ejercicio de la potestad tributaria se cumple satisfactoriamente, toda vez que un órgano representativo, plural, que ejerce el máximo poder en un Estado democrático y social de Derecho, como lo es el ejercicio de la potestad constituyente, determinó soberana y democráticamente crear la contribución parafiscal.

Un segundo escollo que debemos superar, es el relativo a la fijación del monto de la cuota a pagar por patronos y trabajadores. Al respecto, el artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social estatuye que las cuotas y prestaciones serán determinadas por la Junta Directiva, de acuerdo con el costo de los servicios que hayan de prestarse en cada región y de conformidad con los respectivos cálculos actuariales. La contribución de los trabajadores no puede ser nunca mayor de la contribución de sus patronos, salvo los casos de excepción que para dar mayores beneficios a aquéllos, y para obtener una más justa distribución de las cargas del seguro social obligatorio señale el Reglamento, con base en recomendaciones actuariales. Vista así las cosas, concluye este Tribunal que no se vulnera el principio de legalidad tributaria, por la elemental razón que mediante Ley formal se le impone a la Junta Directiva de la Caja Costarricense de Seguro Social parámetros objetivos a la hora de determinar el monto de la cuota –el costo de los servicios que presta y los respectivos cálculos actuariales-, por lo que el legislador le fijó al órgano colegiado administrativo los elementos objetivos que debe observar a la hora de fijar los respectivos montos, actos administrativos que también deben ceñirse a los principios generales de Derecho y son controlables a través del Juez de lo Contencioso Administrativo. Esta misma lógica sigue el Código de Normas y Procedimientos Tributarios en su numeral 5, en relación con las tasas, pues permite variar su monto por vía de Reglamento para que se cumpla su destino en forma más idónea, previa intervención del organismo que por ley sea el encargado de regular las tarifas de los servicios Públicos.

Recapitulando, al ser creada la contribución parafiscal por el Constituyente originario, se cumple, con creces, el principio de legalidad tributaria, por un lado, y al fijar el legislador parámetros objetivos para determinar monto de la cuota de la contribución parafiscal, también se respeta ese principio.

II.- Tampoco puede interpretarse que artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social infrinja, per se, el artículo 177 constitucional, en los términos expuestos por el accionante, pues tal numeral, lejos de impedir que la Caja Costarricense de Seguro Social fije –en el ejercicio de sus competencias, derivadas del ordinal 73 constitucional- las cuotas que pagan los patronos y trabajadores, lo que impone, por el contrario, es la obligación de crear a favor de esa institución las rentas suficientes, a fin de lograr la universalización de los seguros sociales y garantizar, cumplidamente, el pago de la contribución del Estado como tal y como patrono. Ergo, la acción de inconstitucionalidad incoada debe ser rechazada por el fondo, en cuanto al citado ordinal 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, como en efecto se hace”.

En adición, se lee en la sentencia n.º 2018019511 de las 21:45 horas de 23 de noviembre de 2018:

“Dado el rango constitucional de la propia CCSS, es necesario analizar las normas presupuestarias atinentes a ella. La Sala subraya que la propia Constitución establece –dentro de la normativa presupuestaria- un régimen propio para la CCSS, tal como regula el párrafo tercero del numeral 177 de la Constitución Política:

“Para lograr la universalización de los seguros sociales y garantizar cumplidamente el pago de la contribución del Estado como tal y como patrono, se crearán a favor de la Caja Costarricense de Seguro Social rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Si se produjere un déficit por insuficiencia de esas rentas, el Estado lo asumirá, para lo cual el Poder Ejecutivo deberá incluir en su próximo proyecto de Presupuesto la partida respectiva que le determine como necesaria la citada Institución para cubrir la totalidad de las cuotas del Estado.” Asimismo, la Constitución prevé, en su artículo 73, una garantía adicional para los fondos y reservas de los seguros sociales, al disponer:

“(…)

No podrán ser transferidos ni empleados en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. (…)” La importancia de estos textos radica en el hecho de que la Constitución Política es una norma de aplicación directa, tal como lo ha sostenido este Tribunal es múltiples ocasiones (verbigracia, sentencias n.os 2016-017376 de las 11:41 horas del 23 de noviembre de 2016 y 2015-006787 de las 15:45 horas del 12 de mayo de 2015). Es decir, el hecho de que la Constitución sea el parámetro frente al cual se miden otras normas o que sus preceptos se encuentren desarrollados en normas infra constitucionales, no resta ni inhibe la aplicación plena, directa, prevalente e inmediata de determinados postulados constitucionales.

Con esto en mente, la Sala observa que el antedicho artículo 177 garantiza que el Estado velará por que la CCSS tenga rentas suficientes para el cumplimiento de los cometidos constitucionales asignados. Por eso, el Poder Ejecutivo se encuentra conminado por la propia Ley Fundamental a presupuestarle a ese ente asegurador rentas suficientes para cubrir sus necesidades. En caso de no hacerlo, la misma norma define el mecanismo correctivo, toda vez que obliga al Poder Ejecutivo a cubrir en el siguiente periodo el déficit que se produjere. Si bien tal norma omite asignar a la entidad en mención un porcentaje concreto del presupuesto, a diferencia del Poder Judicial y la educación pública, lo cierto es que sí impone un mandato constitucional expreso y determinable.

Esta primera salvaguardia constitucional debe leerse en conjunto con la segunda garantía transcrita, preceptuada en el numeral 73. El párrafo tercero de dicha norma evita que cualquier fondo o reserva de los seguros sociales sean utilizados en objetivos diferentes al motivo de su creación.

Tales normas conllevan, por un lado, la obligación del Estado de brindar rentas suficientes para la CCSS (artículo 177) y, por otro, la imposibilidad de utilizar los recursos de un seguro para fines distintos (numeral 73). Esto significa que, tratándose de seguros con aportes tripartitos, como el de enfermedad y maternidad (cuestionado por los consultantes), todos los recursos de dicho fondo se encuentran cubiertos por la protección constitucional, imposibilitando su afectación por medio de las medidas fiscales propuestas.

Según se expuso, las garantías antes mencionadas son de aplicación directa y prevalente con respecto a la CCSS. De este modo, si bien las normas cuestionadas efectúan solo dos salvedades (los recursos del Régimen de Invalidez, Vejez y Muerte y del Régimen No Contributivo), lo cierto es que la imposibilidad constitucional de transferir o emplear los fondos del seguro de enfermedad y maternidad constituye una excepción dimanada de nuestra Carta Magna, en defensa de la autonomía de gobierno de la CCSS y del apropiado uso de los recursos de dicho seguro.

La aplicación directa de la Constitución Política con respecto a la CCSS no es nueva para la Sala Constitucional:

“VI.- EL CASO CONCRETO.- La Caja Costarricense de Seguro Social encuentra su garantía de existencia en el artículo 73 constitucional, con las siguientes particularidades : a) el sistema que le da soporte es el de la solidaridad, creándose un sistema de contribución forzosa tripartita del Estado, los patronos y los trabajadores; b) la norma le concede, en forma exclusiva a la Caja Costarricense de Seguro Social, la administración y gobierno de los seguros sociales, grado de autonomía que es, desde luego, distinto y superior al que se define en forma general en el artículo 188 idem; c) los fondos y las reservas de los seguros sociales no pueden ser transferidos ni empleados en finalidades distintas a su cometido. Como se vio en los considerandos anteriores, la Asamblea Nacional Constituyente optó por dejar las cosas, en cuanto a esta institución, tal y como estaban en la Constitución de 1871, "con plena autonomía para independizarla así del Poder Ejecutivo". Ahora bien, según lo dicho, entre las notas características de las instituciones autónomas, está incluida, a no dudarlo, la autonomía presupuestaria (véase intervención en la Asamblea Nacional Constituyente de Nombre35481 en el considerando II).- La inclusión de las partidas presupuestarias necesarias para que el Estado cancele sus aportes a la Caja Costarricense de Seguro Social, forman parte de los recursos ordinarios creados en el mismo artículo 73 constitucional, de manera que no es posible que la Asamblea Legislativa los incluya y apruebe en un presupuesto ordinario o extraordinario de la República, con la definición, a la vez, del gasto correspondiente, sustituyendo así las facultades otorgadas por Constitución a la propia Caja Costarricense de Seguro Social, sin violar los artículos 73 y 188 de la Constitución Política y los principios aquí señalados. Tratándose de recursos ordinarios, sólo la institución, conforme con su propia organización, puede ejercer la autonomía constitucional libremente (definición de las razones de legalidad con la oportunidad y la discrecionalidad) por medio de los presupuestos del ente, que deberán ser aprobados y fiscalizados por la Contraloría General de la República. Es decir, es la propia Constitución Política la que ha definido cuáles son los recursos financieros propios y ordinarios de la Caja Costarricense de Seguro Social, al señalar que lo componen las contribuciones forzosas que deben pagar el Estado, los patronos y los trabajadores, fondos que son administrados y gobernados por la propia institución. Distinto es el caso de contribuciones extraordinarias del Estado o de terceros en favor de los seguros sociales, que sí pueden llevar, por tratarse de donaciones, contribuciones o participaciones (liberalidades al fin), los fines específicos a los que están dirigidos esos recursos especiales, como por ejemplo la construcción de un hospital, una clínica o la compra de equipo especializado. Pero tratándose de los recursos ordinarios, el legislador no puede sustituir al jerarca de la institución en la definición de las prioridades del gastos, porque el hacerlo es parte de lo esencial del ejercicio de la autonomía del ente, según las características, principios y notas que aquí se han señalado. Todo ello nos lleva a la conclusión que las transferencias presupuestarias que se han consultado, resultan inconstitucionales, por ser violatorias de los artículos 73, 188 y 189 de la Constitución Política.” (Sentencia n.° 6256-94 de las 9:00 horas del 25 de octubre de 1994. El subrayado es agregado)”.

En la misma dirección, se advierte en la sentencia n.º 2020010608 de las 14:00 horas de 10 de junio de 2020:

“A.- La jurisprudencia sobre el Estado social de Derecho, la Caja Costarricense de Seguro Social y los derechos prestacionales. Mucho ha dicho este Tribunal sobre el Estado Social de Derecho, especialmente, relacionado con los derechos que tienen la persona humana frente a los servicios esenciales que presta el Estado, como aquellos que están relacionados con los derechos a la salud, a la pensión, entre otros, prestados por la Caja Costarricense de Seguro Social. Estos temas han sido abordados con el contenido del artículo 50, Constitucional, que establece:

“El Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza”.

En esta fórmula, el Constituyente estableció el principio general básico del Estado Social de Derecho que posteriormente se verá reforzado con otras disposiciones que establecen, en concreto, el modo en que el Estado costarricense materializa este principio transversalmente entre los diferentes sectores sociales.

En la Sentencia de esta Sala N° 2005-11132 de las 8:49 horas del 26 de agosto de 2005, se señaló que:

“… el Estado procurará el mayor bienestar a todos los habitantes del país, organizando y estimulando la producción y el más adecuado reparto de la riqueza, lo que unido a la declaración de adhesión del Estado costarricense al principio cristiano de justicia social, incluido en el artículo 74 ibídem, determina la esencia misma del sistema político y social que hemos escogido para nuestro país y que lo definen como un Estado social de Derecho (ver sentencia número 1441-92 de las quince horas cuarenta y cinco minutos del dos de junio de mil novecientos noventa y dos). En ese sentido, también se manifestó este Tribunal Constitucional de la siguiente manera:

“Una de las connotaciones básicas del Estado costarricense y, en general, de todo Estado “social” de Derecho, lo constituye la intervención -cada vez más frecuente- de los gobernantes, para dar solución a la problemática social.- La propia Constitución Política obliga al Estado a participar activamente, no solo en los procesos de producción (Artículo 50), sino también en los relativos al desarrollo de derechos fundamentales del individuo (vivienda, educación, vestido, alimentación, etc.) que garantice una existencia digna y útil para la sociedad”.- (Sentencia N° 5058-98 de las catorce horas veinte minutos del catorce de octubre de mil novecientos noventa y tres)”.

De igual manera, por Sentencia de esta Sala N° 2005-13205 de las 15:13 horas del 27 de septiembre del 2005, esta Sala dispuso que:

“III.- Sobre el Estado Social de Derecho, la Igualdad y la Dignidad Humana. El Estado Social de Derecho, elemento fundamental de nuestro orden constitucional, entraña una orientación de nuestro régimen político hacia la solidaridad social, esto es, hacia la equidad en las relaciones societarias, la promoción de la justicia social y la igualdad de todos los ciudadanos en el ejercicio de sus derechos, descartando discriminaciones arbitrarias e irrazonables. En tal sentido, el numeral 74 constitucional establece, explícitamente, el deber de procurar una política permanente de solidaridad nacional con asidero en el principio cristiano de justicia social, lo que hace de ella un valor constitucional de primer orden (ver sentencia número 2170-93 de las 10:12 horas del 21 de mayo de 1993). En forma consecuente, con sustento en el Estado Social de Derecho, nuestra Constitución Política contempla un conjunto de derechos prestacionales relativos a la protección de la familia, los trabajadores, sectores vulnerables de la población, la educación, el ambiente y bienes de la Nación como el patrimonio cultural. Este deber de sujetarse según los lineamientos del Estado Social de Derecho no está constreñido a la Administración, sino que se extiende a toda la comunidad nacional, pues se trata de una regla fundamental de la convivencia ciudadana en nuestro sistema político. En su condición de principio general, emana una particular proyección normativa en todos los ámbitos de creación, interpretación y ejecución del Derecho. Propiamente en lo concerniente al control de constitucionalidad, el Principio del Estado Social Derecho resulta útil como parámetro de validez normativa, criterio hermenéutico e instrumento funcional integrador del ordenamiento jurídico”.

Por otra parte, la Sentencia N° 2003-09880 de las 11:10 horas del doce de septiembre de 2003, estableció que:

"Como elemento propio del Estado Social y Democrático de Derecho, la Seguridad Social se erige como un estandarte del mismo, siendo que éste se funda en el principio de solidaridad social, y se complementa con el derecho a la igualdad y el principio de la dignidad humana, como derecho prestacional que es. Dentro de nuestra Constitución Política, el régimen de seguro social, no obstante ser un régimen universal y de acceso a todos los habitantes de la República, parte de la premisa fundamental para su sustento económico de la cotización tripartita, sea Estado, patrono y trabajadores. El artículo 73 constitucional establece que los seguros sociales se crean en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine. Como se puede observar, la propia Constitución, con el afán de establecer un mecanismo de financiamiento de la seguridad social a favor de los trabajadores activos y pensionados, establece un sistema de contribución forzosa tripartita, de lo que se concluye que tendrán acceso a los servicios de seguridad social, sin costo adicional alguno, aquellos trabajadores o pensionados que coticen regularmente para el régimen de conformidad con lo establecido en la Constitución".

Dentro de las manifestaciones de la intervención estatal está la seguridad social, siendo una de las más palpables el régimen de pensiones de reparto, mediante el cual, las personas pensionadas o jubiladas, al cumplir con los requisitos del régimen, reciben prestaciones económicas cuando han tenido que dejar las actividades productivas, sea por vejez o invalidez. En estos casos, ha sobrevenido el ocaso al ciclo de productividad de un trabajador, dejan de recibir el respectivo ingreso por el trabajo desempeñado, y es cuando inicia el principio de la solidaridad social, para proporcionar las prestaciones propias de la pensión, que, de no ocurrir, no se le permitiría seguir valiéndose por sí mismo -él y sus dependientes-, y se caería en riesgo social y económico. De esta manera, en un sistema de seguridad social de reparto, se forma un fondo con un aporte obligatorio de los trabajadores, patrones y el Estado, de conformidad con el artículo 73, Constitucional. Sobre este tema, es importante destacar que cuando el sistema ha sido impugnado por considerarse que se trataba de una obligación tributaria, la Sala Constitucional desestimó dicha argumentación. Precisamente, en la Sentencia N° 2018-13658 de las 9:15 horas del 22 de agosto de 2018, que se transcribirá parcialmente, la Sala revisó la jurisprudencia sobre la naturaleza jurídica de las cuotas y prestaciones, las que identificó como una contribución parafiscal de entregar esos aportes, en desarrollo del artículo 23, de la Ley Constitutiva de la Caja Costarricense de Seguridad Social. La Sala estableció que:

"[...] Según la doctrina más autorizada en materia tributaria las contribuciones parafiscales son un tributo, pues contienen los elementos materiales de la obligatoriedad -el deber de pagarlas quienes se encuentren en el supuesto de la norma creadora-, de singularidad debido a que afecta un determinado y único grupo social o económico y la destinación sectorial a causa de lo que se recauda a través de esta prestación obligatoria se utiliza en beneficio exclusivo del grupo que pagó el tributo. Estamos, pues, ante el ejercicio de una potestad de imperio del Estado que impone prestaciones pecuniarias para el cumplimiento de fines sociales o económicos. Ergo, solo a través de una Ley formal se pueden crear -tributum sine legge-.

Ahora bien, en el caso de las cuotas obrero-patronales destinadas al sostenimiento de la seguridad social -seguro de enfermedad y maternidad y seguro de invalidez, vejez y muerte-, nuestro ordenamiento jurídico tiene una singularidad. En efecto, y es que el numeral 73 constitucional es el que crea la contribución parafiscal al disponer una contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos citados y demás contingencias que la ley determine. Acto seguido, el texto constitucional establece que la administración y el gobierno de esos seguros sociales corresponde a una institución autónoma: la Caja Costarricense de Seguro Social. Finalmente, en lo que interesa, la norma constitucional impone la prohibición de transferir o emplear en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. Como puede observarse, estamos, pues, ante una contribución parafiscal creada por el Constituyente originario, con lo que, desde la perspectiva de este Tribunal, se cumple la máxima de que no puede haber imposición sin representación -no taxation without representation-. En otras palabras, en el caso que nos ocupa, el apego a los principios que regentan el ejercicio de la potestad tributaria se cumple satisfactoriamente, toda vez que un órgano representativo, plural, que ejerce el máximo poder en un Estado democrático y social de Derecho, como lo es el ejercicio de la potestad constituyente, determinó soberana y democráticamente crear la contribución parafiscal.

Un segundo escollo que debemos superar, es el relativo a la fijación del monto de la cuota a pagar por patronos y trabajadores. Al respecto, el artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social estatuye que las cuotas y prestaciones serán determinadas por la Junta Directiva, de acuerdo con el costo de los servicios que hayan de prestarse en cada región y de conformidad con los respectivos cálculos actuariales. La contribución de los trabajadores no puede ser nunca mayor de la contribución de sus patronos, salvo los casos de excepción que para dar mayores beneficios a aquéllos, y para obtener una más justa distribución de las cargas del seguro social obligatorio señale el Reglamento, con base en recomendaciones actuariales. Vista así las cosas, concluye este Tribunal que no se vulnera el principio de legalidad tributaria, por la elemental razón que mediante Ley formal se le impone a la Junta Directiva de la Caja Costarricense de Seguro Social parámetros objetivos a la hora de determinar el monto de la cuota -el costo de los servicios que presta y los respectivos cálculos actuariales-, por lo que el legislador le fijó al órgano colegiado administrativo los elementos objetivos que debe observar a la hora de fijar los respectivos montos, actos administrativos que también deben ceñirse a los principios generales de Derecho y son controlables a través del Juez de lo Contencioso Administrativo. Esta misma lógica sigue el Código de Normas y Procedimientos Tributarios en su numeral 5, en relación con las tasas, pues permite variar su monto por vía de Reglamento para que se cumpla su destino en forma más idónea, previa intervención del organismo que por ley sea el encargado de regular las tarifas de los servicios Públicos.

Recapitulando, al ser creada la contribución parafiscal por el Constituyente originario, se cumple, con creces, el principio de legalidad tributaria, por un lado, y al fijar el legislador parámetros objetivos para determinar monto de la cuota de la contribución parafiscal, también se respeta ese principio.

II.- Tampoco puede interpretarse que artículo 23 de la Ley Constitutiva de la Caja Costarricense de Seguro Social infrinja, per se, el artículo 177 constitucional, en los términos expuestos por el accionante, pues tal numeral, lejos de impedir que la Caja Costarricense de Seguro Social fije -en el ejercicio de sus competencias, derivadas del ordinal 73 constitucional- las cuotas que pagan los patronos y trabajadores, lo que impone, por el contrario, es la obligación de crear a favor de esa institución las rentas suficientes, a fin de lograr la universalización de los seguros sociales y garantizar, cumplidamente, el pago de la contribución del Estado como tal y como patrono”.

De este modo, conforme indica con claridad el precedente, las atribuciones de la Junta Directiva de la Caja Costarricense de Seguridad Social son las de establecer cuotas obligatorias para Patronos y Trabajadores, y la contribución del Estado, con parámetros objetivos, como los costos de los servicios y los estudios actuariales para mantener las prestaciones que el Constituyente le otorgó bajo su competencia.

Como parte del fundamento del artículo 9°, de la sesión 8856, celebrada el 28 de julio del año 2016, en el que la Junta Directiva de la Caja Costarricense de Seguro Social toma varias medidas, como la eliminación de la opción de pensión anticipada, y se acordó reformar el Reglamento del Seguro de Invalidez, Vejez y Muerte, se indicó -entre otras cosas- que:

“[…] 2 Existe un porcentaje importante de pensionados que sin la aplicación de ningún tipo de anticipo, el cálculo del monto de pensión - con la aplicación de la fórmula- resulta inferior a la cuantía mínima de pensión, siendo que por tal existencia de mínimos de protección, deben llevarse al monto de pensión mínima. Tal situación le cuesta al fondo de pensiones alrededor de 54 mil millones de colones al año.

[…]

5. Aún y cuando las Valuaciones Actuariales Largo Plazo, elaboradas por la Dirección Actuarial y Económica, ubican la sostenibilidad financiera del Régimen de IVM en horizontes de tiempo que oscilan entre una y dos décadas -según escenario- existen situaciones coyunturales y presiones de corto plazo que está enfrentando al Seguro de Invalidez, Vejez y Muerte, y que en mucho se ven reflejadas en el flujo de efectivo y en la utilización de intereses para el pago del aguinaldo. Ante esa situación, resulta conveniente inyectar nuevos recursos mediante un aceleramiento en la magnitud de la prima de contribución.

[…]

C. Que, con fundamento en lo anterior, se recomendó eliminar el retiro anticipado con reducción y también para que en todos aquellos casos en donde el monto de pensión global generado con la aplicación de la fórmula de cálculo vigente resulta inferior al monto de pensión mínima, el Estado en su condición subsidiaria aporte la diferencia.

D. Que de conformidad con lo recomendado anteriormente, es que en el artículo 31° de la Sesión No. 8803, celebrada el 1° de octubre del 2015, la Junta Directiva dispuso –entre otros aspectos- los siguientes:

“… la Junta Directiva, conforme en adelante se consignará ACUERDA:

• 1)Retiro Anticipado: eliminar […]
• 2)Subvención Estatal: acoger lo propuesto en cuanto al establecimiento de una subvención Estatal respecto de la pensión mínima, para lo cual se instruya a la Gerencia de Pensiones, en coordinación con la Dirección Jurídica y la Dirección Actuarial y Económica, para realizar los ajustes que procedan al Reglamento del Seguro de Invalidez, Vejez y Muerte.

(…)”.

Dicho lo anterior, que sirve de motivo a la reforma del Reglamento, es importante resaltar que, dentro de un Estado Social de Derecho, como el nuestro, existen ciertas obligaciones ineludibles del Estado, que por la dirección política y jurídica que contiene este concepto, condiciona a los demás órganos constitucionales a actuar en determinado sentido dentro de una realidad económica, como bien se hace ver en la Sentencia N° 2018-19511 de las 21:45 horas del 23 de noviembre de 2018, que:

“…En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otra forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serio riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. Vigilar entonces que no se llegue a caer en una Constitución fallida o de papel, donde los derechos prestacionales de rango constitucional no puedan ser efectivos, es tarea fundamental de esta Sala, estrictamente dentro de lo que el marco de sus competencias se lo permite.

Se debe advertir, eso sí, que todos los principios, valores y preceptos constitucionales deben ser observados en cualesquiera circunstancias, lo que permanentemente le corresponde vigilar a la jurisdicción constitucional. Ahora, con motivo del ejercicio de ponderación u optimización que el juez constitucional realiza para resolver alguna colisión entre tales principios, valores y preceptos, el contexto que rodea al conflicto no puede pasar desapercibido.

Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho. Se insiste en la observación del Programa del Estado de la Nación: “Esto [refiriéndose al desbalance estructural en las finanzas públicas] ha puesto en jaque el futuro del Estado de bienestar social construido a lo largo de la segunda mitad del siglo XX, ya que su financiamiento y la eficiencia de su gasto no son suficientes”.

Justamente, la hermenéutica de los principios generales para resolver el sub examine, como el del equilibrio presupuestario y el del Estado Social de Derecho, no puede desligarse de los parámetros de relevancia constitucional que se colige de las medidas consultadas y las abundantes referencias técnicas a la coyuntura económica, que son elementos fundamentales para descartar una actuación arbitraria o irrazonable”.

Ahora bien, es lo cierto que la sentencia esboza la obligación del Estado de vincularse a la realidad económica y social, lo que implica que el Estado no puede negar la existencia de las realidades económicas por las que pasa el Estado, pero también los sistemas previsionales para todos los sectores sociales a las que se dirige la disposición constitucional. En este sentido, al establecer un marco teórico jurisprudencial general de estos derechos, es importante reconocer que existe un fuerte mandato, desde la Constitución Política, cuando establece la existencia de mecanismos jurídicos para exigir el pago de primas para los seguros sociales, además de la forma para determinarlos.

B.- Sobre el principio de la solidaridad social y la Caja Costarricense de Seguro Social. La Sala tuvo la oportunidad de revisar la constitucionalidad de los topes máximos que otorga el sistema contributivo de la seguridad social en Costa Rica, por parte de un sector profesional que aporta al régimen. Entre otros fundamentos para desestimar la acción, se señaló el principio de solidaridad social, que en un Estado Social de Derecho actúa transversalmente en toda la sociedad.

Por Sentencia N° 2013-06638 de las 16:00 horas del 15 de mayo de 2013, esta Sala se pronunció de la siguiente manera:

“B.- El principio de la solidaridad social. El principal agente multiplicador de la distribución de la riqueza en el Estado Social de Derecho radica en este principio, que en nuestro país reside especialmente a partir de los mandatos contenidos en los artículos 1, 50, 73 y 74 de la Constitución Política. A través de todo el entramado administrativo (centralizado y descentralizado) y de distribución de los Poderes del Estado, se debe intentar erradicar las desigualdades sociales más imperiosas; implica que la actividad estatal tiene necesidad de vincularse razonablemente con el administrado que tiene mayores necesidades y debe satisfacer las demandas más apremiantes con las potestades de imperio del Estado, incluso para imponerse en circunstancias muy calificadas en contra de la voluntad del gobernado, pero que permite -al Estado- establecer mecanismos que hacen de la sociedad un lugar más justo y estable. Con este principio se promueve la equidad social, el cual consiste en la obligación de quienes tienen más a ayudar a los que menos tienen. Se inspira, en consecuencia, en un deber-ser de la sociedad o de la colectividad, para brindar soporte a quienes no tienen suficientes medios de subsistencia o quienes se encuentran en un riesgo social y económico, y donde la sociedad da un paso adelante a través del Estado o de los mecanismos que éste crea, para satisfacer la necesidad de las personas que caen en un riesgo social y económico: por ello promueve mayor justicia y equidad. Como la seguridad social nace de la necesidad humana, todo esto conlleva a un sacrificio de los sectores mejor acomodadas a favor de los más desposeídos, que es precisamente el espíritu de lo que se regula en los artículos 1, 50, 73 y 74 de la Constitución Política (pues son quienes tienen o tuvieron acceso a la educación, a mejores condiciones personales y sociales, y que en razón de tales beneficios se esperaría una conducta tendente a favorecer a aquellos con menor suerte, etc.). Precisamente, los sistemas de seguridad social promueven el combate a la pobreza extrema para los más desfavorecidos, se convierte entonces en un sistema de distribución económica y social que debe reconocerse conlleva inherentemente el sacrificio de ciertos grupos sociales mejor aventajados de la sociedad, pero que contribuye grandemente a la seguridad y paz social. Bien señalado por Nombre35482: “Un estómago vacío no es buen consejero político”, y ello debe ser la principal preocupación del Estado cuando existe en los estratos sociales más bajos de la sociedad costarricense”.

Es importante traer a colación el caso, toda vez que se cuestionó la constitucionalidad del aporte y la prestación que se recibía a partir de la contribución forzosa tripartita que establece el artículo 73, de la Constitución Política, en la cual, patronos, trabajadores y el Estado aportan obligatoriamente a un fondo de pensiones, y que redistribuye las cuotas de quienes aportan más a quienes tienen menos. Si bien, no es proporcional para ninguno de los extremos (máximo y mínimo), es con los primeros que se evidencia un mayor sacrificio, justificado en el principio de solidaridad social a favor de quienes aportaron menos al sistema por pertenecer al menor estrato social. De esta manera, el sistema de seguridad social debe buscar mecanismos que compensen las diferencias desde un mínimo para elevar las prestaciones a un monto que asegure la supervivencia de todos los individuos. En la sentencia supra-citada, la Sala es clara en señalar que:

“No se debe perder de vista que está sustentada en un régimen básico de protección social, o lo que es lo mismo, la obligación internacional está con el establecimiento como sostenimiento de un piso social. Es así como, al ser un sistema básico de cobertura abarca una dimensión horizontal del sistema que exige niveles mínimos de protección para lograr o mantener la universalidad de esa protección (incluso hasta para sustentar una elevación de los niveles a quien no los tiene, según el principio de solidaridad social), pero que, sin duda, debe reconocerse la progresividad en los regímenes de protección, es decir, en su dimensión vertical, donde éstos deben estar en sintonía con las pautas y obligaciones internacionales que nuestro país ha aceptado frente a la OIT. De los informes es claro que se produciría una contracción muy sensible en el régimen, por la dinámica y presiones que debe afrontar el fondo o reserva de pensiones”.

En conclusión, el tope máximo y el monto mínimo se encuentran técnicamente interrelacionados, de manera que necesitan, como referentes, los cálculos actuariales más recientes, para que permitan una sustentabilidad financiera y la solidez del fondo. Está claro, que dependen del primero para darle vigencia al segundo; y que, como criterios técnicos de la matemática actuarial, estarían sujetos a la revisión periódica conforme al comportamiento de la reserva. En el caso que nos ocupa, el Informe N° DAE-735-17 de 02 de octubre de 2017, estableció:

“Conviene mencionar que aunque a lo interno del Seguro de Invalidez, Vejez y Muerte, la solidaridad se manifiesta de múltiples formas, siendo una de las más significativas el riesgo de muerte y de invalidez. La existencia de un tope máximo permite reforzar el monto de pensión de los que menos reciben; sin embargo la cantidad de personas en la pensión máxima es significativamente reducida, ya que apenas representan el 1%, por lo que no es sostenible pensar que los aportes de los de altos ingresos pensión máxima- financian la solidaridad total para los de bajo ingreso”.

De ahí que, se confirma la necesidad de decretar un aumento en los aportes obligatorios, y la importancia de reconocer la competencia de la Junta Directiva de la Caja Costarricense de Seguro Social para decretar el incremento del aporte forzoso del Estado.

Nombre5650.- Las prerrogativas del Poder Ejecutivo en la elaboración del presupuesto nacional y la especialización de la Caja Costarricense de Seguro Social en el régimen de los seguros sociales. El Poder Ejecutivo tiene, en la formación del presupuesto de la República, determinadas prerrogativas que le autorizan, constitucionalmente, preservar el orden financiero del Estado, sea en sus ingresos y gastos, que son potestades que reclama el Ministro de Hacienda para oponerse a ejecutar el acuerdo de la Junta Directiva de la Caja Costarricense de Seguro Social, contenido en el artículo 9°, de la sesión N° 8856, así como a las pretensiones deducidas en esta acción de inconstitucionalidad. Las implicaciones de ese acuerdo conllevan la erogación de cincuenta y seis mil millones de colones anuales sobre el Presupuesto Nacional, dinero que implicaría un endeudamiento mayor del Estado costarricense, toda vez que se reconoce una difícil situación fiscal. A pesar de su oposición manifestada en los oficios DM-2293-2015 del 10 de diciembre de 2015 y DM-0129-2016 del 26 de enero de 2016, y porque considera que no hubo un aval de la cartera de Hacienda, ni atención a la pertinencia de un diálogo nacional para dotar al Estado de nuevas rentas con las que pudiera hacer frente a la obligación. En este sentido, el informe de la Procuraduría General de la República, que se constituye en un asesor de esta Sala Constitucional, concluye que, a pesar del señalado problema fiscal histórico, la falta de liquidez, la falta de consulta por parte de la Caja; y, además, ausencia en ese momento de la generación de los recursos frescos por parte de la Asamblea Legislativa, la Caja Costarricense de Seguro Social no tiene ningún límite más que los criterios técnicos para acordar un incremento decretado. Es decir, el criterio de la Procuraduría General de la República es que, a pesar de las prerrogativas reclamadas del Poder Ejecutivo, estas no pueden oponerse a la autonomía administrativa y de gobierno de la Caja Costarricense de Seguros Social en el tema de los seguros sociales, especialmente, cuando sus actuaciones están fundadas en criterio matemáticos-actuariales.

La Sala coincide con la Procuraduría General de la República, pero en especial, porque si bien, el Poder Ejecutivo encuentra en los artículos 176, 177 y 179, de la Constitución Política, los poderes de dirección sobre la mayor parte de los presupuestos institucionales, incluidos los Poderes del Estado, el Constituyente exceptuó de tales controles ciertas materias al crear excepciones y remedios jurídicos para sustanciarlos. De ahí que esta Sala ha establecido criterios como el de los recursos atados constitucionalmente, toda vez que están dirigidos por el propio constituyente a solventar un problema prioritario de distribución de los recursos del Estado, como por ejemplo, los gastos presupuestados por el Tribunal Supremo de Elecciones para dar efectividad al sufragio, el posible tema de la independencia económica y operacional del Poder Judicial, y la contribución del Estado en los seguros sociales, en el párrafo 3°, del artículo 177, de la Constitución Política. Dicha disposición señala:

“Para lograr la universalización de los seguros sociales y garantizar cumplidamente el pago de la contribución del Estado como tal y como patrono, se crearán a favor de la Caja Costarricense de Seguro Social rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Si se produjere un déficit por insuficiencia de esas rentas, el Estado lo asumirá, para lo cual el Poder Ejecutivo deberá incluir en su próximo proyecto de Presupuesto la partida respectiva que le determine como necesaria la citada Institución para cubrir la totalidad de las cuotas del Estado” (la negrita no es del original).

Dentro de la norma transcrita, es claro que el Constituyente estableció la meta de la universalización de los seguros sociales, sobre la cual ha tenido una labor destacada la Caja Costarricense de Seguro Social, que le ha permitido alcanzar un alto porcentaje a través de la administración de los seguros sociales, y en el cual, el Constituyente estableció como pivote los aportes del Estado como patrón y como Estado, el cual, indiscutiblemente, contiene el mandato del Constituyente que le obliga a asumir parte de la ecuación de la solidaridad nacional que se espera de un Estado social de Derecho. Véase, que la norma no establece un porcentaje, sino que deja que se establezca esa obligación constitucional determinable en un momento dado, para asegurar los ingresos necesarios actuales y previstos hacia el futuro, propios de un fondo cuyo objetivo es siempre mantener su sustentabilidad en el tiempo y conforme va progresando la cobertura de los seguros sociales. Llama la atención de esta Sala, que este aporte es muy inferior al que existió con la creación del Régimen, y que así se ha mantenido por veinticinco años, conforme lo señala el informe de la Dirección Actuarial de la Caja. La Caja Costarricense de Seguro Social evidencia que el Estado es el que efectúa el menor porcentaje de aporte comparado con el de los patronos y trabajadores. En este orden de ideas, cabe señalar, que la jurisprudencia de esta Sala ha establecido que le corresponde a la Caja fijar las rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Todas las instituciones partes en esta acción, han sido contestes en que estos cálculos corresponden a la Caja Costarricense de Seguro Social, misma que el propio Ministerio de Hacienda reconoce. Se ha señalado con claridad, que le corresponde a la institución de rango constitucional, porque tiene la autonomía administrativa y de gobierno en el orden de la administración de los seguros sociales. De este modo, se indicó en la Sentencia N° 2001-0378 de las 14:37 horas del 16 de enero de 2001 (como en otras anteriores N° 1993-3853 de las 9:09 horas del 11 de agosto de 1993 y N° 1994-1059 de las 15:39 horas del 22 de febrero de 1994) que:

“IV.- Sobre la infracción al principio de reserva de ley. El primer argumento de la accionante es que la norma impugnada lesiona el principio de reserva legal, al imponer, mediante un reglamento, un requisito sustancial para ejercer el derecho a pensión. La regulación de los derechos fundamentales está reservada a la ley, del cual resulta que solamente mediante ley formal, emanada del Poder Legislativo y por el procedimiento previsto en la Constitución Política para la emisión de las leyes, es posible regular, y en todo caso, restringir los derechos fundamentales, todo -por supuesto- en la medida en que la naturaleza y régimen de éstos lo permita, y dentro de las limitaciones constitucionales aplicables. Sin embargo, la norma aquí cuestionada no contraviene la Constitución Política en virtud que el artículo 73 de la Constitución Política confía la administración y el gobierno de los seguros sociales a la Caja Costarricense del Seguro Social, por lo que la Constitución establece a favor de esta institución autónoma, un grado de autonomía -administrativa y de gobierno- que le permite regular, por vía de reglamento lo relativo a los seguros sociales. Dicha norma constitucional es desarrollada en la Ley Constitutiva de la Caja Costarricense del Seguro Social, en especial en los artículos 1, 2 y 3, que disponen:

Artículo 1.- La institución creada para aplicar los seguros sociales obligatorios se llamará Caja Costarricense de Seguro Social y, para los efectos de esta ley y sus reglamentos, CAJA.

La Caja es una institución autónoma a la cual le corresponde el gobierno y la administración de los seguros sociales. Los fondos y las reservas de estos seguros no podrán ser transferidos ni empleados en finalidades distintas de las que motivaron su creación. Esto último se prohíbe expresamente. Excepto la materia relativa a empleo público y salarios, la Caja no está sometida ni podrá estarlo a órdenes, instrucciones, circulares ni directrices emanadas del Poder Ejecutivo o la Autoridad Presupuestaria, en materia de gobierno y administración de dichos seguros, sus fondos ni reservas.

"Artículo 2.- El Seguro Social obligatorio comprende los riesgos de enfermedad, maternidad, invalidez, vejez y desempleo involuntario; además, comporta una participación en las cargas de maternidad, familia, viudedad y orfandad y el suministro de una cuota para entierro de acuerdo con la escala que fije la Caja, siempre que la muerte no se deba al acaecimiento de un riesgo profesional".

"Artículo 3.- La cobertura del Seguro Social - y el ingreso al mismo - son obligatorias para todos los trabajadores manuales e intelectuales que perciban sueldo o salario. El monto de las cuotas que por esta ley se deban pagar, se calculará sobre el total de las remuneraciones que bajo cualquier denominación se paguen, con motivo o derivadas de la relación obrero - patronal. (…)

La Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán".

Las normas transcritas confieren a la Caja Costarricense del Seguro Social la potestad de administrar todo lo referente a seguros sociales, lo que implica determinar reglamentariamente los requisitos de ingreso a cada régimen de protección, sus beneficios y condiciones, por lo que el Reglamento de Invalidez, Vejez y Muerte emitido por la Junta Directiva, así como sus reformas lo ha sido en ejercicio de esta competencia, derivada del numeral 73 constitucional. En consecuencia, el artículo 9 inciso a) del Reglamento del Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social no viola el principio de reserva legal”.

Ahora bien, para la Sala, de conformidad con lo dispuesto por el artículo 14, inciso f), de la Ley Constitutiva de la Caja Costarricense de Seguro Social, corresponde a la Junta Directiva de la Institución dictar los reglamentos para su funcionamiento, de manera que, aunado a la jurisprudencia transcrita, es suficiente para determinar que, en tratándose del aseguramiento de los fondos que el Estado debe garantizar para el sostenimiento del régimen, ésta no tiene más restricciones que los que establezcan los criterios técnicos. En este sentido, ha sido la propia Caja la que ha determinado ese monto al Estado, por reforma al artículo 29, del Reglamento de Invalidez, Vejez y Muerte, y que si bien, se puede reconocer que la coyuntura económica por los problemas estructurales de financiamiento del Estado costarricense, existen y son reales, se debe señalar que ha sido voluntad del Constituyente especificar el mecanismo jurídico cuando esas rentas son insuficientes para el fondo, así como la forma de determinar los compromisos económicos y el modo en el que el Poder Ejecutivo debe solucionarlo, cuando indica que “deberá incluir en su próximo proyecto de Presupuesto la partida respectiva que le determine como necesaria la citada Institución para cubrir la totalidad de las cuotas del Estado”.

Finalmente, este Tribunal, en la sentencia n.º 2021017098 de las 23:15 horas de 31 de julio de 2021, consignó:

“2) Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de la Caja Costarricense de Seguro Social En reiteradas ocasiones, tal como se indicó en la sentencia n°2011-14624 de las 15:50 horas del 26 de octubre de 2011, este Tribunal señaló que la Caja Costarricense de Seguro Social (CCSS) goza de autonomía administrativa y de gobierno, de conformidad con el artículo 73 de la Constitución Política, por lo que puede emitir las disposiciones relacionadas con su régimen interior. La propia Ley Constitutiva de la Caja Costarricense de Seguro Social, número 17 de 22 de octubre de 1943, publicada en La Gaceta número 329 de 27 de octubre de 1943, en el artículo 70 establece lo siguiente:

“Créase la Carrera Administrativa de la Caja Costarricense de Seguro Social, para regular la cual (sic), la Junta Directiva establecerá las condiciones referentes al ingreso de los empleados al servicio de la Institución, garantías de estabilidad, deberes y derechos de los mismos, forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, trámite para el juzgamiento de infracciones y demás disposiciones necesarias…”.

Por otro lado, el artículo 14 inciso f) dota a la Junta Directiva de la CCSS, la atribución de reglamentar el funcionamiento de la institución, de tal modo que le confiere la potestad para dictar normas, incluso para regular el régimen de los funcionarios que requiere la institución para el cumplimiento de las responsabilidades que le señala la Constitución Política y su Ley Constitutiva, y ello resulta constitucional, según se indicó en dicho precedente:

“…En ese contexto, la posibilidad de que la Institución establezca por si misma los diferentes tipos de relaciones laborales con sus funcionarios, ya sea por relación estatutaria o sujetos a figuras especiales, como el caso del Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, no es inconstitucional. La Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política). En virtud de ello, el artículo 21 de la Ley Constitutiva, establece lo siguiente: "Artículo 21.- El Personal de la Caja será integrado a base de idoneidad comprobada, y los ascensos de categoría se otorgarán tomando en cuenta los méritos del trabajador en primer término y luego, la antigüedad en el servicio." A partir de lo anterior, así como de la lectura del numeral 191 constitucional, es claro que la regla ineludible consiste precisamente en que los funcionarios públicos deben estar regidos por una relación laboral estatutaria, es decir, por normas impuestas por la Administración en su calidad de empleador, en atención a la eficiente y eficaz prestación de los servicios públicos que cada instancia administrativa esté llamada a ofrecer. Aún (sic) cuando el constituyente haya pensado en un sistema estatutario único, lo cierto es que la redacción finalmente dada al artículo 191, así como el proceso de profunda descentralización que experimentó el Estado costarricense a partir de mil novecientos cuarenta y nueve, hace que en nuestros días resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” Lo anterior es conteste con la misma autonomía concedida por el Constituyente a determinadas instituciones, para el caso concreto, la conferida a la Caja Costarricense de Seguro Social en el artículo 73, definida como autonomía de gobierno, que resulta necesaria a fin de que pueda cumplir con los cometidos especiales asignados y sin injerencias del Poder Ejecutivo.

En sentencia n°2011-15665 de las 12:40 horas del 11 de noviembre de 2011, reiterada en la 2017-4797, particularmente en relación con la C.C.S.S. se indicó lo siguiente:

“…En este caso, estamos frente a un ente descentralizado creado por Constitución, y cuyo grado de autonomía, definido también por la misma Carta Magna, es de grado dos, la cual debe entenderse que incluye las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y, el ejercicio de la potestad reglamentaria autónoma. Lo cual se traduce en el caso concreto de la administración del régimen de pensiones a cargo de la Caja Costarricense de Seguro Social -al menos- en la potestad de definir por sí misma, con exclusión de toda potestad legislativa, tres aspectos fundamentales sobre las pensiones: el monto de las cuotas de cotización, el número de cuotas que deben pagar los trabajadores para acceso a la pensión y la edad para jubilarse. Justamente este grado de autonomía mayor que tiene la Caja Costarricense de Seguro Social respecto del resto de instituciones autónomas, es lo que explica cómo se le ha excluido de la aplicación de leyes tales como “Ley de la Administración Financiera de la República y Presupuestos Públicos”, ley No. 8131 de 18 de setiembre del 2001. Véase el artículo 1° de dicha ley:

“Artículo 1.- Ámbito de aplicación La presente Ley regula el régimen económico-financiero de los órganos y entes administradores o custodios de los fondos públicos. Será aplicable a:

• a)La Administración Central, constituida por el Poder Ejecutivo y sus dependencias.
• b)Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, sus dependencias y órganos auxiliares, sin perjuicio del principio de separación de Poderes estatuido en la Constitución Política.
• c)La Administración Descentralizada y las empresas públicas del Estado.
• d)Las universidades estatales, las municipalidades y la Caja Costarricense de Seguro Social, únicamente en cuanto al cumplimiento de los principios establecidos en el título II de esta Ley, en materia de responsabilidades y a proporcionar la información requerida por el Ministerio de Hacienda para sus estudios. En todo lo demás, se les exceptúa de los alcances y la aplicación de esta Ley (…)” Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales. En este sentido, véase lo que dispuso esta Sala mediante la resolución número 2001-010545 de las 14:58 horas del 17 de octubre del 2001:

“… Queda claro que la ley no puede interferir en materia de gobierno de la Caja Costarricense de Seguro Social en virtud de la autonomía plena de que goza esta institución…” (Criterio reiterado en la resolución número 2001-011592 de las 09:01 horas del 09 de noviembre del 2011).

Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Titulo XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” Luego, en sentencia n°2007-18484, reiterada en la 2018-6549, este Tribunal se refirió a los alcances de los distintos tipos de autonomía, en el siguiente sentido:

“A) Alcances de la autonomía administrativa de las instituciones autónomas, y la sujeción de éstas a la ley en materia de gobierno (…). El grado de autonomía administrativa -mínima y de primer grado-, es propia de las instituciones autónomas; de gobierno -de segundo grado-, propia de las municipalidades y de la Caja Costarricense del Seguro Social en lo relativo a la administración de los seguros sociales; y de organización - plena o de tercer grado, propia de las universidades del Estado. El ente descentralizado creado por ley ordinaria, está subordinado a su contenido e involucra la potestad legislativa para modificarlo y hasta extinguirlo; pero como la descentralización implica que le corresponden al ente todos los poderes del jerarca administrativo, quiere decir que su personalidad abarca la totalidad de los poderes administrativos necesarios para lograr su cometido en forma independiente. Así entonces, 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. De este modo, el poder central tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Sin embargo, tal como lo expresa el mismo artículo 188 Constitucional, las instituciones autónomas están sujetas a la ley en materia de gobierno. Conforme a lo anteriormente dicho, la autonomía administrativa no es incompatible con la sujeción de las instituciones autónomas a las leyes, así entonces los objetivos, fines y metas del ente vienen dados por el legislador” (El énfasis no es del original).

Tal como se indica en el texto jurisprudencial citado, la CCSS además de gozar de la autonomía administrativa, también ostenta la autonomía política o de gobierno. De ahí que el Poder Ejecutivo tiene varias limitaciones respecto de su injerencia sobre la CCSS. No puede actuar como jerarca de esta, no puede controlarla limitando su actividad por razones de oportunidad; y, tampoco puede, actuar como director de la gestión de ese ente mediante la imposición de lineamientos o de programas básicos. Igualmente, respecto de la autonomía de esta institución en particular, la Sala en sentencia n°1994-6256, emite un criterio reiterado en las sentencias 2011-15665 y 2017-4797, que dice:

“III.- LA CAJA COSTARRICENSE DE SEGURO SOCIAL.- La Asamblea Nacional Constituyente, como consta en las Actas Nos. 125 y 126, aprobó la inclusión de la Caja Costarricense de Seguro Social, siguiendo, básicamente, el texto original de la Constitución de 1871; esto es, se trasplantó la institución de la Constitución de 1871, según las modificaciones de 1943 a la Constitución de 1949. Sin embargo, a los efectos de la consulta, resultan sugestivas las participaciones del Constituyente Nombre35480 sobre el tema. De la página 34 del Tomo III de la Actas de la Asamblea Nacional Constituyente, se transcribe lo siguiente: "Además, la Caja, tarde o temprano, tendría que asumir el riesgo de desocupación, que vendrá a resolver el grave problema planteado por la cesantía. Insistió en que no le parecía adecuado debilitar la Caja. Lo prudente es fortalecerla. De ahí que lo más aconsejable es dejar las cosas como están, dándole a la Caja plena autonomía para independizarla así del Poder Ejecutivo"; y en la página 36 idem se agrega: "En ese sentido, lo más adecuado es mantener la redacción del artículo 63, que es buena por lo menos para el tiempo de ensayo. Todo lo que signifique limitar los recursos del Seguro Social, indudablemente será un retroceso inexplicable". Al ser aprobado el artículo, se incluyó un segundo párrafo que literalmente decía: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma", texto que luego fue reformado por Ley No. 2737 de 12 de mayo de 1961, quedando hoy día de la siguiente manera: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". En conclusión, el constituyente atribuyó la administración y gobierno de los seguros sociales a la Caja Costarricense de Seguro Social, como institución autónoma creada por la misma Constitución Política, con las especiales características que ella misma le ha otorgado y compartiendo los principios generales derivados de su condición de ente descentralizado…

…Doctrinariamente existe coincidencia en afirmar que está prohibida toda forma de intervención preventiva y anterior a la emisión del acto por el ente autónomo, salvo las funciones de control previo, como requisito para la validez de esos actos (autorizaciones); el Poder Central no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Todas estas notas características de los entes descentralizados, que tienen su origen en una ley reforzada (artículo 189 inciso 3) de la Constitución Política), son igualmente aplicables, en lo pertinente, a las instituciones autónomas creadas por la propia Constitución Política, salvo que prevalecen las condiciones que ésta, en forma especial y exclusiva, le ha dado al ente.” De ahí que, incluso para lo relativo a la contratación de su personal tiene esa potestad de autoadministrarse, pues de ello también depende el cumplimiento de los fines asignados constitucionalmente. Como muestra de las particularidades y necesidades del servicio, por ejemplo, en la sentencia 2019-11130 de las 10:30 horas del 19 de junio de 2019, este Tribunal señaló lo siguiente:

“Al respecto, este Tribunal constata que efectivamente ese artículo señala que “para la calificación de atestados y asignación de puntajes, la Comisión Técnica de Enfermería hará la calificación de los concursos de acuerdo con (…) Se dará un punto por cada año de servicio o fracción mayor de seis meses, hasta un máximo de diez puntos en las zonas fuera de la meseta central (…)”. Sin embargo, no se considera que esta disposición vulnere el principio de igualdad y, por ende, devenga en inconstitucional, sino que esta decisión tiene una justificación razonable, que consiste en incentivar a los profesionales en enfermería para que acepten puestos fuera de la meseta central, con el aliciente de que en futuros concursos para puestos ubicados en zonas más codiciadas, cuenten con una mejor puntuación. Así, lo que busca la normativa no es únicamente la posición de mejor idoneidad, sino que busca incentivar que los profesionales enfermeros acepten trabajar en lugares alejados y poco apetecidos y, de esta forma, fomentar la prestación de servicios de enfermería, necesarios para una adecuada prestación de los servicios médicos, en todos los sectores del país. Esto acorde a los principios de solidaridad social.

Es claro, entonces, que el Constituyente le concedió tal autonomía, permitiéndole la selección de su personal bajo los estamentos que requiera para cumplir sus fines, eso sí respetando los principios constitucionales establecidos en los ordinales 191 y 192 constitucionales. Criterio reiterado por esta Sala en las sentencias números 03065-98, 10545-01 y 12494-11, al decir:

“…es dable a los diferentes establecimientos de la Caja, en aplicación del principio constitucional de autonomía de administración y gobierno, dictar las medidas de reorganización necesarias de sus servicios para su mejoramiento, con el fin de lograr la mejor satisfacción de sus usuarios y del interés general, que por su naturaleza nunca podría dejar de prevalecer ante los intereses particulares.” La autonomía que el legislador originario le concede a la Caja Costarricense de Seguro Social la protege de la intromisión del Poder Ejecutivo y del Legislativo, tal como se evidencia en la Sentencia 03065-98 de las 18:18 horas del 6 de mayo de 1998 (reiterada en la 2001-10545), al decir:

“…Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales…Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Título XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” De lo expuesto se deriva que, la Caja Costarricense de Seguro Social (CCSS), por disposición constitucional (art.73) goza de autonomía administrativa y de gobierno. Lo cual significa que, como ente descentralizado funcional, puede establecer las reglas para la selección de su personal, siendo válido en este caso la existencia de un marco normativo especial para su relación estatutaria, que atienda y asegure su grado de autonomía. Ese grado de autonomía le permite además, auto-administrarse (disponer de sus recursos humanos, materiales y financieros); darse su propia organización interna; la fijación de fines, metas y tipos de medios para realizarlas; la emisión de reglamentos autónomos de servicio o actividad, acorde con las disposiciones normalmente llamadas de política general. Así entonces, como institución autónoma de creación constitucional y con un grado de autonomía mayor (administrativa y de gobierno) le permite estar protegida frente a injerencias del Poder Ejecutivo y de limitaciones a la hora de legislar el Poder Legislativo (quien no puede modificar vía legal su grado de autonomía). Así el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a esta institución, no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades”.”.

En adición, en cuanto a la potestad reglamentaria de la CCSS, este Tribunal, en la sentencia nro. 2022012512 de las 9:20 horas del 1º de junio de 2022, señaló:

“III.- SOBRE LA POTESTAD REGLAMENTARIA DE LA CAJA COSTARRICENSE DE SEGURO SOCIAL.- En varias oportunidades, este Tribunal se ha pronunciado sobre el carácter exclusivo de la potestad de gobierno con que cuenta la Caja Costarricense de Seguro Social, en relación con los seguros a su cargo. Esta Sala ha definido el tema en una línea jurisprudencial que inició con la sentencia No. 1994-1059, de las 15:39 horas del 22 de febrero de 1994, en la que señaló:

“[…] la Caja Costarricense de Seguro Social tiene una compe­tencia constitucional para la "administración" de los seguros sociales, de modo que el Reglamento de Invalidez, Vejez y Muerte emitido por la Junta Directiva, así como sus reformas, lo ha sido en ejerci­cio de esa competencia”.

Asimismo, el Tribunal en la sentencia No. 2001-9734 de las 14:23 horas del 26 de setiembre del 2001, indicó:

“III.- DE LA COMPETENCIA DE LA CAJA COSTARRICENSE DEL SEGURO SOCIAL. En virtud de lo dispuesto en el artículo 73 de la Constitución Política, a la Caja Costarricense del Seguro Social le corresponde "la administración y el gobierno de los seguros sociales", competencia que es competencia que es desarrollada en el artículo 3 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, número 17 de veintidós de octubre de mil novecientos cuarenta y tres, de manera que su Junta Directiva tiene plenas facultades para establecer, vía reglamento, los alcances de las prestaciones propias de los seguros sociales, tanto en lo que se refiere a la definición de las condiciones y beneficios, así como los requisitos de ingreso de cada régimen de protección. Asimismo, el artículo 23 de la misma Ley, establece como uno de los parámetros a tomar en cuenta en esta definición, los estudios y cálculos actuariales, a fin de mantener la sostenibilidad del sistema. De lo dicho queda claro que la Caja Costarricense del Seguro Social tiene plena competencia para dictar normas como las impugnadas, en cuanto responden al mandato constitucional del artículo 73, toda vez se refieren a un aspecto de la organización y administración de los seguros sociales”.

Posteriormente, en sentencia No. 2355-2003, de las 14:48 horas del 19 de febrero de 2003, la Sala analizó la constitucionalidad del Reglamento al Seguro de Salud y del Instructivo para el Registro, Control y Pago de Incapacidades, oportunidad en la que se indicó, en lo que interesa:

“la autonomía reconocida en el artículo 73 en relación con el 177 de la Constitución Política la Caja no se encuentra sujeta a límites en materia de gobierno, como ha reiterado este tribunal en sentencias precedentes (ver por ejemplo: 2001-7605, 6256-94, entre otras). La Caja es en definitiva el ente encargado de la administración de la seguridad social y está dotada de máxima autonomía para el desempeño de su importante función. En armonía con lo anterior, mediante los artículos 3 y 23 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, su Junta Directiva tiene plena competencia para establecer los alcances de las prestaciones propias de la seguridad social vía reglamento, de manera que puede definir las condiciones, beneficios y requisitos de ingreso de cada régimen de protección, con sustento en estudios actuariales, a fin de no quebrar el sistema”.

En la sentencia No. 2010-005893, de las 14:56 horas del 24 de marzo de 2010, al analizar la constitucionalidad del Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados -en el que uno de los agravios era, precisamente, la infracción al principio de reserva de ley-, el Tribunal precisó lo siguiente:

III.- SOBRE LA POTESTAD REGLAMENTARIA DE LA CAJA COSTARRICENSE DE SEGURO SOCIAL. Esta Sala ya se ha pronunciado sobre la potestad reglamentaria de la Caja Costarricense de Seguro Social para dictar reglamentos autónomos de servicio y organización, para lo cual su Junta Directiva está facultada para dictar las normas necesarias para la administración y el gobierno de los seguros sociales que la propia Constitución Política le encomienda en el artículo 73, lo cual no resulta contrario a lo dispuesto en el artículo 140 inciso 3) constitucional. Al respecto, en sentencia número 2000-02571 de las catorce horas treinta y ocho minutos del veintidós de marzo del dos mil, esta Sala indicó:

“Sobre la lesión al artículo 140 inciso 3 de la Constitución Política. En cuanto al alegato del recurrente, en el sentido de que la norma impugnada excede los límites de la potestad reglamentaria y que la materia regulada no puede estar contenida en un reglamento autónomo, la Sala concuerda con la Procuraduría General de la República, en el sentido de que el artículo 10 del Reglamento de Seguro Voluntario no resulta inconstitucional por ese motivo. La Ley Orgánica de la Caja Costarricense de Seguro Social dispone en su artículo 3º párrafo 5º que la Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán. El artículo 14 inciso f), confiere a la Junta Directiva la atribución de dictar los reglamentos para el funcionamiento de la institución y el numeral 23 le señala que la Junta Directiva es la competente para determinar las cuotas y prestaciones de conformidad con el costo de los servicios, según los cálculos actuariales. Esta Sala se ha referido a tales atribuciones en el voto Nº 3403-94 de las 15:42 horas del 15 de junio de 1994, y en el Nº 7393-98 de las 9:45 horas del 16 de octubre de 1998 declaró que la norma 23 de la Ley Constitutiva de la Caja, es acorde con la Constitución Política, en atención de que las atribuciones que le confiere a la Junta Directiva, no implica delegación del ejercicio de funciones del Poder Legislativo, sino que se funda en el artículo 73 de la Constitución. Esa norma encarga el gobierno y administración de los seguros sociales a la Caja, y por ello es competente para dictar reglamentos autónomos como el de seguro voluntario. En consecuencia, no se constata que el Reglamento en el cual está contenida la disposición impugnada quebrante el artículo 140 inciso 3) de la Constitución Política.” De modo que en ese ejercicio de administración y gobierno de los seguros sociales que la Constitución encarga a la Caja Costarricense de Seguro Social (artículo 73 párrafo 2 constitucional), y de conformidad con su Ley Constitutiva, la Junta Directiva de la Caja está facultada para dictar reglamentos de carácter ejecutivo como el Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, a fin de velar porque se cumplan las obligaciones obrero-patronales en relación con los seguros sociales y poder tomar las medidas pertinentes en caso de incumplimiento o burla de esos derechos para obligar al infractor a cumplir esas obligaciones y hacer los cobros respectivos. De otro modo, no podría cumplir el mandato constitucional. Sobre el particular, también ha dicho la Sala:

“…el artículo 73 de la Constitución Política confía la administración y el gobierno de los seguros sociales a la Caja Costarricense del Seguro Social (sic), por lo que la Constitución establece a favor de esta institución autónoma, un grado de autonomía –administrativa y de gobierno- que le permite regular, por vía de reglamento lo relativo a los seguros sociales. Dicha norma constitucional es desarrollada en la Ley Constitutiva de la Caja Costarricense del Seguro Social, en especial en los artículos 1, 2 y 3, que disponen:

Artículo 1.- La institución creada para aplicar los seguros sociales obligatorios se llamará Caja Costarricense de Seguro Social y, para los efectos de esta ley y sus reglamentos, CAJA.

La Caja es una institución autónoma a la cual le corresponde el gobierno y la administración de los seguros sociales. Los fondos y las reservas de estos seguros no podrán ser transferidos ni empleados en finalidades distintas de las que motivaron su creación. Esto último se prohibe (sic) expresamente. Excepto la materia relativa a empleo público y salarios, la Caja no está sometida ni podrá estarlo a órdenes, instrucciones, circulares ni directrices emanadas del Poder Ejecutivo o la Autoridad Presupuestaria, en materia de gobierno y administración de dichos seguros, sus fondos ni reservas.

"Artículo 2.- El Seguro Social obligatorio comprende los riesgos de enfermedad, maternidad, invalidez, vejez y desempleo involuntario; además, comporta una participación en las cargas de maternidad, familia, viudedad y orfandad y el suministro de una cuota para entierro de acuerdo con la escala que fije la Caja, siempre que la muerte no se deba al acaecimiento de un riesgo profesional".

"Artículo 3.- La cobertura del Seguro Social - y el ingreso al mismo - son obligatorias para todos los trabajadores manuales e intelectuales que perciban sueldo o salario. El monto de las cuotas que por esta ley se deban pagar, se calculará sobre el total de las remuneraciones que bajo cualquier denominación se paguen, con motivo o derivadas de la relación obrero - patronal. (…)

La Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán." Las normas transcritas confieren a la Caja Costarricense del Seguro Social la potestad de administrar todo lo referente a seguros sociales, lo que implica determinar reglamentariamente los requisitos de ingreso a cada régimen de protección, sus beneficios y condiciones, por lo que el Reglamento de Invalidez, Vejez y Muerte emitido por la Junta Directiva, así como sus reformas lo ha sido en ejercicio de esta competencia, derivada del numeral 73 constitucional. En consecuencia, el artículo 9 inciso a) del Reglamento del Régimen de Invalidez, Vejez y Muerte de la Caja Costarricense del Seguro Social (sic) no viola el principio de reserva legal.” (Sentencia número 2001-00378 de las 14:37 hrs. del 16 de enero de 2001) Lo dicho en la anterior sentencia parcialmente transcrita es aplicable a los reparos de constitucionalidad que hace el recurrente respecto del Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, el cual no viola lo dispuesto en el artículo 140 inciso 3) de la Constitución Política, ni viola, por lo dicho en las sentencias citadas, el principio de reserva de ley, ni ningún otro principio o norma constitucional, ni implica exceso alguno en el ejercicio la potestad reglamentaria propia de la Institución. Son múltiples los votos en los que esta Sala ha reconocido esa potestad reglamentaria de la Caja Costarricense de Seguro Social en la materia propia que le encomendó el Constituyente, entre ellos, los número 3853-93, 1059-94, 3403-94, 7393-98, 9580-01, 9734-01, 10546-01 y Telf2955. Más recientemente, esta Sala, en sentencia número 2003-02355 de las catorce horas cuarenta y ocho minutos del diecinueve de febrero de dos mil tres, expresó:

“III.- Sobre el fondo. La Caja Costarricense de Seguro Social como institución autónoma encargada de la administración y gobierno de los seguros sociales. La accionante alega que el artículo 34 del Reglamento de Salud y el capítulo dos, punto 2.2.1 denominado “Derecho al pago de subsidio de incapacidades por enfermedad” del Instructivo para el Registro, Control y Pago de las Incapacidades de los Empleados de la C.C.S.S. son violatorias del principio de reserva legal en cuanto condicionan vía reglamentaria al asegurado, para tener derecho al subsidio, el haber cotizado con seis cuotas mensuales dentro de los doce meses anteriores a la fecha de inicio de la incapacidad, siempre que los últimos tres sean continuos e inmediatamente anteriores a la fecha de inicio de la incapacidad. Sobre el tema de la competencia de la Caja Costarricense del Seguro Social, para emitir disposiciones con el contenido impugnado, en su condición de institución autónoma encargada de la administración y gobierno de los seguros sociales, esta Sala, con base en lo dispuesto en el artículo 73 constitucional, indicó mediante la sentencia 01-9734 de las 14:23 horas del 26 de setiembre del 2001, que:

“III.- DE LA COMPETENCIA DE LA CAJA COSTARRICENSE DEL SEGURO SOCIAL. En virtud de lo dispuesto en el artículo 73 de la Constitución Política, a la Caja Costarricense del Seguro Social le corresponde "la administración y el gobierno de los seguros sociales", competencia que es competencia que es desarrollada en el artículo 3 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, número 17 de veintidós de octubre de mil novecientos cuarenta y tres, de manera que su Junta Directiva tiene plenas facultades para establecer, vía reglamento, los alcances de las prestaciones propias de los seguros sociales, tanto en lo que se refiere a la definición de las condiciones y beneficios, así como los requisitos de ingreso de cada régimen de protección. Asimismo, el artículo 23 de la misma Ley, establece como uno de los parámetros a tomar en cuenta en esta definición, los estudios y cálculos actuariales, a fin de mantener la sostenibilidad del sistema. De lo dicho queda claro que la Caja Costarricense del Seguro Social tiene plena competencia para dictar normas como las impugnadas, en cuanto responden al mandato constitucional del artículo 73, toda vez se refieren a un aspecto de la organización y administración de los seguros sociales.” De la cita transcrita se concluye que la autonomía reconocida en el artículo 73 en relación con el 177 de la Constitución Política la Caja no se encuentra sujeta a límites en materia de gobierno, como ha reiterado este tribunal en sentencias precedentes (ver por ejemplo: 2001-7605, 6256-94, entre otras). La Caja es en definitiva el ente encargado de la administración de la seguridad social y está dotada de máxima autonomía para el desempeño de su importante función. En armonía con lo anterior, mediante los artículos 3 y 23 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, su Junta Directiva tiene plena competencia para establecer los alcances de las prestaciones propias de la seguridad social vía reglamento, de manera que puede definir las condiciones, beneficios y requisitos de ingreso de cada régimen de protección, con sustento en estudios actuariales, a fin de no quebrar el sistema. En consecuencia, procede rechazar por el fondo la acción en cuanto al extremo aludido.” De modo que, contrario a lo aducido por el accionante, la potestad reglamentaria ejercida por la Caja al dictar su Junta Directiva el Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Asegurados, así como lo dispuesto en el artículo 6 de ese reglamento, se enmarca dentro de las potestades de administración y gobierno que en materia de seguridad social se le otorga en el párrafo segundo del artículo 73 de la Constitución Política y, por ello, resulta acorde con el Derecho de la Constitución. Esa potestad reglamentaria es diversa a la que los incisos 3 y 18 otorgan al Poder Ejecutivo, que se refieren a los reglamentos de organización y servicios de la Administración. Pero el Poder Ejecutivo no puede reglamentar lo relativo a la administración y gobierno de los seguros sociales, materia en la cual la Caja tiene plena independencia y autonomía otorgada por la propia Constitución. El reglamento en cuestión no es sino el ejercicio de esas atribuciones, y la determinación de la base presunta como procedimiento excepcional cuando por determinadas actuaciones u omisiones del patrono o del asegurado, en los casos previstos en los diversos incisos del artículo 6, no se pueda establecer con precisión el monto de la obligación, es un mecanismo legítimo que no viola el Derecho de la Constitución, en particular el principio de reserva de ley, antes bien está dirigido a permitir a la Caja cumplir el fin que constitucionalmente se le ha encomendado, sin que para ello sea necesario que sea establecida por una ley emanada de la Asamblea Legislativa”.

El ejercicio de la potestad reglamentaria por parte de la Caja Costarricense de Seguro Social, con las características señaladas en las sentencias transcritas, este Tribunal la ha avalado para el caso de los trabajadores independientes. Así, en la sentencia No. 2008-017304, de las 14:57 horas del 19 de noviembre de 2008, dispuso:

VI.- SEGUROS DE TRABAJADORES INDEPENDIENTES. Contrario a la opinión del accionante, este Tribunal no ha encontrado razón para excluir los seguros de trabajadores independientes —e, incluso de regímenes no contributivos— de las potestades reglamentarias de la CAJA COSTARRICENSE DE SEGURO SOCIAL. Sobre el particular, se pronunció en sentencia No. 2000-02571, de las 14:38 hrs. del 22 de marzo del 2000:

«En cuanto al alegato del recurrente, en el sentido de que la norma impugnada excede los límites de la potestad reglamentaria y que la materia regulada no puede estar contenida en un reglamento autónomo, la Sala concuerda con la Procuraduría General de la República, en el sentido de que el artículo 10 del Reglamento de Seguro Voluntario no resulta inconstitucional por ese motivo. La Ley Orgánica de la Caja Costarricense de Seguro Social dispone en su artículo 3º párrafo 5º que la Caja determinará reglamentariamente los requisitos de ingreso a cada régimen de protección, así como los beneficios y condiciones en que éstos se otorgarán. El artículo 14 inciso f), confiere a la Junta Directiva la atribución de dictar los reglamentos para el funcionamiento de la institución y el numeral 23 le señala que la Junta Directiva es la competente para determinar las cuotas y prestaciones de conformidad con el costo de los servicios, según los cálculos actuariales. Esta Sala se ha referido a tales atribuciones en el voto Nº3403-94 de las 15:42 horas del 15 de junio de 1994, y en el Nº7393-98 de las 9:45 horas del 16 de octubre de 1998 declaró que la norma 23 de la Ley Constitutiva de la Caja, es acorde con la Constitución Política, en atención de que las atribuciones que le confiere a la Junta Directiva, no implica delegación del ejercicio de funciones del Poder Legislativo, sino que se funda en el artículo 73 de la Constitución. Esa norma encarga el gobierno y administración de los seguros sociales a la Caja, y por ello es competente para dictar reglamentos autónomos como el de seguro voluntario. En consecuencia, no se constata que el Reglamento en el cual está contenida la disposición impugnada quebrante el artículo 140 inciso 3) de la Constitución Política».

Como se desprende de la sentencia citada, el punto planteado por el accionante no es nuevo. Este Tribunal ya se ha pronunciado al respecto y no hay ninguna razón para cambiar de criterio”.

De conformidad con lo señalado en los precedentes anteriores, la Caja Costarricense de Seguro Social está facultada para emitir los reglamentos de los seguros bajo su administración, sin que el ejercicio de esa facultad implique, por sí mismo, infracción alguna de orden constitucional. En virtud de ello, no estima la Sala que el Reglamento para Verificar el Cumplimiento de las Obligaciones Patronales y de Trabajadores Independientes sea inconstitucional, bajo el argumento planteado por la parte accionante -principio al principio de reserva de ley- por lo que la acción debe ser desestimada en cuanto a este extremo, toda vez que la CCSS es el ente encargado de la administración de la seguridad social y está dotada de máxima autonomía para ese fin, por lo que tiene a su vez plena competencia para establecer los alcances de las prestaciones propias de la seguridad social vía reglamento, de manera que puede definir las condiciones, beneficios y requisitos de ingreso de cada régimen de protección”.

Con respecto a la universalización de los seguros sociales y su carácter obligatorio, la Sala, en la resolución 2021023611 de las 17:50 horas de 20 de octubre de 2021, dispuso:

“A los efectos del análisis correspondiente, se transcriben los ordinales 73 y 74 de la Constitución Política:

“ARTÍCULO 73.- Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine.

La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social.

No podrán ser transferidos ni empleados en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales.

Los seguros contra riesgos profesionales serán de exclusiva cuenta de los patronos y se regirán por disposiciones especiales.

(Así reformado por el artículo único de la ley N 2737 de 12 de mayo de 1961).

ARTÍCULO 74.- Los derechos y beneficios a que este Capítulo se refiere son irrenunciables. Su enumeración no excluye otros que se deriven del principio cristiano de justicia social y que indique la ley; serán aplicables por igual a todos los factores concurrentes al proceso de producción, y reglamentados en una legislación social y de trabajo, a fin de procurar una política permanente de solidaridad nacional” Del texto citado se infiere que nuestra Carta Magna configuró los seguros sociales como un beneficio irrenunciable de las personas trabajadoras ante enfermedad, invalidez, maternidad, vejez, muerte y otras contingencias determinadas por ley, cuyo financiamiento se regula por el sistema de contribución forzosa tripartito del Estado, patronos y trabajadores. Asimismo, resulta importante hacer notar el mandato constitucional a la CCSS para la administración y el gobierno de los seguros sociales (referencia expresa a la institución introducida en 1961), amén de que los fondos y las reservas de estos no pueden ser transferidos ni empleados en finalidades distintas a las que motivaron su creación.

Aunado a lo anterior, del examen de la referida normativa, como se explica a continuación, se colige que los seguros sociales fueron establecidos en beneficio de todos los trabajadores. En tal sentido, el desentrañamiento del “espíritu de la ley” en una norma constitucional demanda una tarea hermenéutica, que comprende tanto la voluntad del constituyente originario como la del derivado, así como un análisis sistémico del cuerpo normativo.

Dentro de esta perspectiva, primeramente resulta útil traer a colación las actas de la Asamblea Nacional Constituyente de 1949, de manera que:

“ACTA No. 125 No. 125.- Centésima vigésima quinta acta de la sesión celebrada por la Asamblea Nacional Constituyente a las quince horas del día ocho de agosto de mil novecientos cuarenta y nueve, bajo la Presidencia del Dr. Nombre35483, Presentes los señores Diputados: Nombre35484 y Nombre35485, Secretarios; Nombre35486, Nombre35487, Nombre29739, Nombre35488, Nombre35489, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35336, Nombre35378, Nombre23243, Nombre35379, Nombre35380, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre35498 y los suplentes: Nombre2656, Nombre8269, Nombre35499, Nombre35500 y Nombre19774.

(…)

Artículo 4º.- Se continuó en la discusión del capítulo de Garantías Sociales de la Constitución del 71.

Se acordó posponer el debate de la moción del Diputado Nombre2145, cuya discusión había quedado pendiente en la sección anterior, por encontrarse ausente el proponente.

En relación con el artículo 63 de la Carta del 71, referente a seguros sociales, se presentaron mociones de la fracción Social Demócrata, Nombre35501, Nombre35526 y de los señores Nombre35382, Nombre18690, Nombre35527, y Nombre35336, que se publican en “La Gaceta”.

Son las siguientes:

“Todos los habitantes de la República tienen derecho a vivir protegidos contra los riesgos de carácter social y profesional. Con ese objeto el Estado establecerá, por medio de Instituciones Autónomas un sistema obligatorio de seguridad social, que se financiará con sus aportes y los de los patronos y trabajadores, tratándose de riesgos de carácter social y exclusivamente con los de los patronos, tratándose de riesgos de orden profesional.” Nombre35502 y compañeros.

“Se establecen los Seguros Sociales en beneficio de los trabajadores manuales e intelectuales que pertenezcan únicamente a las clases económicamente débiles y vulnerables de la población. Estos Seguros estarán regulados por el sistema de triple contribución FORZOSA del Estado, de los patronos y de los trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine.

La administración y gobierno de los Seguros Sociales estará a cargo de una institución permanente y autónoma, llamada Caja Costarricense de Seguro Social. Los fondos o reservas de los Seguros Sociales no podrán ser transferidos ni empleados en finalidades distintas a las que motivaron su creación y su manejo será hecho por la Caja de acuerdo con su ley constitutiva. Los seguros contra riesgos profesionales serán de exclusiva cuenta de los patronos y se regirán por disposiciones especiales (Ley No. 24 del 2 de julio de 1943.”) Nombre35383 “Se establecen los Seguros Sociales en beneficio de los trabajadores manuales e intelectuales que pertenezcan a las clases económicamente débiles y vulnerables de la población. Estos Seguros estarán regulados por el sistema de triple contribución forzosa del Estado, de los patronos y de los trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine.

La administración y el gobierno de los Seguros Sociales estará a cargo del Estado por medio de las Instituciones autónomas que para ese fin existan.

Los fondos o reservas de los Seguros Sociales no podrán ser transferidos ni empleados en finalidades distintas a aquéllas de carácter técnico que determine su creación, y su manejo estará a cargo exclusivamente de esas Instituciones, de acuerdo con sus leyes constitutivas.” Nombre35384.

“Todos los habitantes de la República tienen derecho a vivir protegidos contra los riesgos de carácter social y profesional.

Con ese objeto, el Estado establecerá un sistema obligatorio de seguros sociales que regulará la ley, cuya base económica se formará con los aportes del Estado, de los patronos y de los trabajadores, tratándose de riesgos de carácter social; y exclusivamente con los de los patronos, tratándose de riesgos de orden profesional. El Estado protegerá y estimulará la creación y desarrollo de organizaciones privadas que llenen igual fin.” Nombre35503.– Nombre35504.– Nombre35505.– Nombre35506.

El Licenciado Nombre35528 indicó que las mociones presentadas sobre Seguros Sociales diferían realmente muy poco. En el fondo todas dicen lo mismo, por cuanto aceptan el régimen de seguridad social. Sin embargo, piensa que la presentada por ellos es un poco más amplia. Se acoge en un todo el artículo 63 de la Carta del 71, con algunas variantes, que pasó a enumerar brevemente. Agregó que las mociones de los señores Nombre35529 y Nombre35526 establecían los seguros a los trabajadores manuales e intelectuales, pero limitándolos a las clases económicamente débiles y vulnerables de la población. Opina que la excepción es inaceptable por cuanto las Garantías Sociales deben amparar a todos los trabajadores, sin discriminaciones de ninguna clase. En ese sentido, debe mantenerse el principio general de los seguros sociales en favor de todos los trabajadores manuales e intelectuales, tal y como lo indica el texto del 71. El representante Nombre35526 advirtió, asimismo, que las mociones diferían en muy poco, pasando luego a referirse concretamente a la suya.

El diputado Nombre35480 expresó (…) En segundo término, es sabido que el mayor número de asociados es lo que garantiza el éxito de los seguros sociales.

Por eso se opone a que se limite la órbita de acción de la Caja. Está bien que se acoja la redacción del texto del artículo 63, pero de ninguna manera introducir en el mismo la excepción planteada por el Nombre35501, que limita los seguros a las clases económicamente débiles y vulnerables de la población (…).

El diputado Nombre35529 analizó las distintas mociones presentadas, una de las cuales –la de la fracción Social Demócrata– tiende a generalizar los seguros a toda la población, y otras –la suya y la del señor Nombre35526– limitan los seguros a las clases económicamente débiles y vulnerables de la población. (…) Agregó que su moción correspondía en un todo al texto del artículo 63, excepción hecha de que limita los seguros a las clases económicamente débiles de la población, que en realidad no pueden costearse un médico particular. Pero antes, cabe preguntar, ¿para quiénes es el seguro social beneficioso? El establecimiento de los seguros sociales en un país se ha debido al deseo de favorecer a aquellos grupos de la población de capacidad económica limitada, que no puede pagar servicios médicos como es de desear. Por lo tanto, el seguro social debe concretarse a prestar ayuda y protección a esos grupos. (…) Terminó el señor Nombre35529 insistiendo en la necesidad de limitar los seguros a las clases económicamente débiles y vulnerables de la población.

Luego usó de la palabra el diputado Nombre35525, para defender la tesis de la moción del compañero Nombre35529, que limita los seguros a las clases económicamente débiles y vulnerables de la población. Con esa sola limitación, piensa que el Seguro Social podrá cumplir bien su misión en nuestro país.

De nuevo intervino en el debate el representante Nombre35480. Indicó que sus compañeros se habían referido únicamente al Seguro de Enfermedad –desde luego el más importante– pero se olvidan de otros seguros de fundamental importancia, que tarde o temprano se establecerán en Costa Rica, como los de invalidez, vejez y muerte. También debe resolverse el problema de la desocupación involuntaria, mediante el seguro adecuado. De tal modo, opina que no se debe empequeñecer el problema. Nombre193 que era de los primeros en reconocer la deficiencia del Seguro Social, que se debe en gran parte a la falta de recursos indispensables. El seguro se estableció en Costa Rica prematuramente. Sin embargo, echó a andar. Pero, ¿qué significa para una institución de esta magnitud cinco años de vida? Han significado un gran esfuerzo. En lugar de desanimarnos, de debilitar la institución –agregó– debemos darle toda clase de apoyo, fortalecerla, para que cumpla mejor su cometido. Es cierto que el Seguro Social fue creado para las clases débiles y más desvalidas del país. Lo ideal, sin embargo, sería extenderlo a todos los habitantes del país, plan ambicioso que no se realizará fácilmente en nuestro país. Por otra parte, el Seguro Social, se basa en la mutualidad, es decir, en la cooperación de todos para lograr el bien del mayor número. En ese sentido, lo más adecuado es mantener la redacción del artículo 63, que es buena por lo menos para el tiempo de ensayo. Todo lo que signifique limitar los recursos del Seguro Social, indudablemente será un retroceso inexplicable.

El Licenciado Nombre35528 manifestó que estaba de acuerdo en aprobar en definitiva el texto de la Constitución del 71 –de acuerdo con los propósitos del señor Nombre35480– con algunas pequeñas modificaciones. Nombre193 que la idea que los movió a presentar la moción en relación con los seguros sociales, fue la de dar una mejor redacción, más amplia, del artículo 63, pero no por considerarlo deficiente o inadecuado. Luego pasó a enumerar esas variaciones. (…). La nueva fórmula presentada por el Licenciado Nombre35528 es la siguiente:

“Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de triple contribución forzosa del Estado, de los patronos y de los trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine.

La administración y gobierno de los seguros sociales estará a cargo del Estado por medio de las instituciones autónomas que la ley determine.

Los fondos o reservas de los seguros sociales no podrán ser transferidos ni empleados en finalidades distintas a aquéllas de carácter técnico que determine su creación y su manejo estará a cargo exclusivamente de esas instituciones, de acuerdo con sus leyes constitutivas.

Los seguros contra riesgos profesionales serán de la exclusiva cuenta de los patronos.” Por lo avanzado de la hora, se acordó posponer la discusión de la moción anterior, hasta tanto cada uno de los señores Diputados cuente con una copia de la misma. (…)

ACTA Nº 126 Nº 126.– Centésima vigésima sexta acta de la sesión celebrada por la Asamblea Nacional Constituyente a las quince horas día nueve de agosto de mil novecientos cuarenta y nueve, bajo la Presidencia del Dr. Nombre35483. Presentes los señores Diputados: Nombre35484 y Nombre35507, Secretarios; Nombre35486, Nombre35487, Nombre35508, Nombre35509, Nombre35510, Nombre35480, Nombre35490, Nombre35491, Nombre35492, Nombre35493, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35379, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre35525, Nombre32335, Nombre23114, Nombre35497, Nombre30798, Nombre4511, Nombre35527, y los suplentes: Nombre35526, Nombre35512, Nombre35513 y Nombre35514 (…)

Artículo 3º.– La fracción Social Demócrata presentó una nueva fórmula, para que el artículo 63 de la Carta del 71, se lea del modo siguiente:

“Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de triple contribución forzosa del Estado, de los patronos y de los trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine.

La administración y gobierno de los seguros sociales estará a cargo de una institución permanente, de carácter autónomo, la cual desempeñará sus funciones con absoluta independencia, del Poder Ejecutivo.

Los fondos o reservas de los seguros sociales no podrán ser transferidos ni empleados en finalidades distintas a las que motivaron su creación.

Los seguros contra riesgos profesionales serán de exclusiva cuenta de los patronos y se regirán por disposiciones especiales.” El Licenciado Nombre35528 explicó que la moción, salvo algunas variaciones de simple forma, se ajusta en un todo al texto del 71.

(…)

El Nombre35515 se refirió a la importancia del artículo en discusión, que debe ser más estudiado antes de votarlo. Explicó que en Costa Rica existen actualmente dos instituciones, con funciones entremezcladas: la Caja Costarricense de Seguro Social y el Instituto Nacional de Seguros. Los seguros de enfermedad y maternidad –piensa– deben pertenecer a la Caja. Los otros –invalidez, vejez, muerte y paro– al Instituto. Luego insistió en que los seguros sociales no tienen por qué ser generales. Deben circunscribirse a las clases económicamente débiles y vulnerables de la población, tal y como lo propone la moción del compañero Nombre35529.

(…)

El Nombre35501 manifestó que ninguno de los argumentos dados, lo había convencido en cuanto a su moción, la cual sigue considerando la más razonable y justa. Por otra parte, la moción de Social Demócrata sólo modifica en la forma –mas no en el fondo– el texto del artículo 63. Agregó que la parte de su moción que limita los seguros sociales a las clases económicamente débiles y vulnerables de la población, lejos de perjudicarlas, las beneficia.

(…)

Agotado el debate en relación con la moción del Social Demócrata, puesta a votación, fue aprobada.

(…)

ACTA No. 171 No. 171.- Centésima septuagésima primera acta de la sesión celebrada por la Asamblea Nacional Constituyente a las quince horas del día veinte de octubre de mil novecientos cuarenta y nueve, bajo la Presidencia del Dr. Nombre35516. Presentes los señores Diputados Nombre35484 y Nombre35507, Secretarios; Nombre35487, Nombre35508, Nombre2145, Nombre35488, Nombre35489, Nombre35517, Nombre35491, Nombre35492, Nombre35493, Nombre32336, Nombre35494, Nombre5074, Nombre35495, Nombre35511, Nombre35336, Nombre23243, Nombre35518, Nombre35385, Nombre35496, Nombre18690, Nombre35381, Nombre8269, Nombre12068, Nombre35519, Nombre30798, Nombre4511, Nombre35527, y los suplentes: Nombre19774, Nombre35520, Nombre35521, Nombre35522 y Nombre18807.

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En relación con el artículo 74, el Diputado Nombre35492 presentó moción para el párrafo 2º se lea del modo siguiente: “La administración y gobierno de los seguros sociales estará a cargo de una institución autónoma”.

La moción anterior se aprobó.

El Diputado Nombre35523 presentó moción para agregar después de la palabra “maternidad” la palabra “desocupación”. Explicó el proponente que ha presentado la moción anterior por insinuación del señor Nombre35381, quien ha manifestado sus deseos respecto al seguro de desocupación que debe asumir la Caja de Seguro Social.

El Diputado Nombre30798 indicó que será la ley la que venga a establecer cuando la Caja está en condiciones de asumir el riesgo de desocupación. Por esa razón, no votará la moción propuesta, que fue desechada.

Fue aprobado el artículo 74, con las modificaciones apuntadas, el cual se leerá de la manera siguiente:

Artículo 74.- “Se establecen los seguros sociales en beneficio de los trabajadores manuales e intelectuales, regulados por el sistema de triple contribución forzosa del Estado, de los patronos y de los trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine.

La administración y gobierno de los seguros sociales estará a cargo de una institución autónoma.

Los fondos o reservas de los seguros sociales no podrán ser transferidos ni empleados en finalidades distintas a las que motivaron su creación.

Los seguros contra riegos profesionales serán de exclusiva cuenta de los patronos y se regirán por disposiciones especiales”. (El subrayado y resultado no es original).

De este modo, en las actas transcritas se observan con toda claridad dos posiciones: 1) la intención de establecer los seguros sociales en beneficio de toda la clase trabajadora; 2) fijar tales seguros solo en beneficio de la población laboral en condición económicamente vulnerable. Justamente, el propio diputado Nombre35529 reconoció con franqueza ambas posturas, cuando hizo referencia a una moción de la fracción social demócrata que “tiende a generalizar los seguros a toda la población”, y a otras mociones propuestas por él (junto con el diputado Nombre35526) que “limitan los seguros a las clases económicamente débiles y vulnerables de la población”.

Ahora, luego de la discusión correspondiente, la posición que prevaleció fue la de establecer los seguros sociales en beneficio de todos los trabajadores, de manera que, por razones lógicas, la interpretación constitucional deba partir de los argumentos de los constituyentes que promovieron esa tesis.

En primer lugar, el diputado Nombre35528 afirmó que las garantías sociales debían amparar a todos los trabajadores sin discriminación alguna. Además, señaló que se debía mantener el principio general de los seguros sociales en favor de todos los trabajadores.

Por otro lado, si bien el diputado Nombre35480 mencionó que el seguro social fue creado para las clases débiles y más desvalidas del país, también acotó que lo ideal era extenderlo a todos los habitantes del país. Agregó que el seguro social se basaba en la mutualidad; es decir, en la cooperación de todos para lograr el bien del mayor número.

Con vista en lo anterior, no hay duda de que el espíritu del numeral 73 de la Constitución Política se extiende a todas las personas trabajadoras e, incluso más allá, a todos los habitantes del país, lo que comulga con el principio de la universalización de los seguros sociales.

Conforme esa misma dirección, en 1961, el constituyente derivado reformó el ordinal 177 de nuestra Ley Fundamental e introdujo expresamente la universalización de los seguros sociales, en los siguientes términos:

“ARTÍCULO 177.

(…).

Para lograr la universalización de los seguros sociales y garantizar cumplidamente el pago de la contribución del Estado como tal y como patrono, se crearán a favor de la Caja Costarricense de Seguro Social rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Si se produjere un déficit por insuficiencia de esas rentas, el Estado lo asumirá, para lo cual el Poder Ejecutivo deberá incluir en su próximo proyecto de Presupuesto la partida respectiva que le determine como necesaria la citada Institución para cubrir la totalidad de las cuotas del Estado.

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Artículo 177 (párrafo tercero) - Transitorio.-La Caja Costarricense del Seguro Social deberá realizar la universalización de los diversos seguros puestos a su cargo, incluyendo la protección familiar en el régimen de enfermedad y maternidad, en un plazo no mayor de diez años. Contados a partir de la promulgación de esta reforma constitucional.

(Así reformado por el artículo único de la ley N 2738 del 12 de mayo de 1961) Es importante resaltar que, previo a la reforma constitucional que incluyó formalmente la obligación de universalizar los seguros sociales puestos a cargo de la CCSS, la ley constitutiva de esa institución ya le había impuesto a su junta directiva el mandato de fijar la fecha de la entrada en vigor del “seguro social de los trabajadores independientes y las condiciones de este seguro” (artículo 3 de la Ley Constitutiva de la CCSS de 22 de octubre de 1943). Es decir, el seguro social de los trabajadores independientes indefectiblemente formaba parte de tal universalización y, en consecuencia, su implementación en el país goza de asidero constitucional.

Dentro de este contexto, no está de más reiterar que, por disposición del ordinal 73 constitucional, la administración y el gobierno de los seguros sociales está a cargo de la CCSS, y que los fondos y las reservas de los seguros sociales no pueden ser transferidos ni empleados en finalidades distintas a las que motivaron su creación. Asimismo, tal y como se mencionó supra, por medio de las reformas constitucionales dispuestas en las leyes n.os 2737 y 2738 de 12 de mayo de 1961, se introdujo la alusión explícita de la CCSS al artículo 73 de la Carta Magna (como encargada de la administración y el gobierno de los seguros sociales), y, en el numeral 177 constitucional, se le asignó expresamente a esa institución la universalización de los seguros sociales puestos a su cargo. Lo anterior sin lugar a duda incluye los seguros sociales de los trabajadores independientes, pues desde 1943 se encontraban a cargo de la CCSS.

En consecuencia, el derecho fundamental a la seguridad social abarca a todas las personas (asalariadas y trabajadoras independientes) que ejerzan algún tipo de actividad en el país y se encuentren regidos por el ordenamiento jurídico patrio, ya que no solo deben contribuir de manera solidaria con la sostenibilidad de los seguros sociales, sino que correlativamente están cubiertos por la protección dispuesta a nivel constitucional.

En ese sentido, vale reiterar que la Sala, en la sentencia n.º 2003-03483 de las 14:05 horas de 2 de mayo de 2003, reconoció que el derecho a la seguridad social incorpora el principio de universalidad, por cuanto se extiende a todos los ciudadanos con carácter de obligatoriedad:

“Sobre el régimen de la seguridad social. El artículo 73 de la Constitución Política, interpretado armónicamente con el artículo 50 ídem, consagra el Derecho de la Seguridad Social. La Sala ha señalado reiteradamente que este derecho supone que los poderes públicos mantendrán un régimen público de seguridad social para todos los ciudadanos en el más alto rango, de manera que garantice la asistencia y brinde las prestaciones sociales suficientes ante situaciones de necesidad para preservar la salud y la vida. El ámbito subjetivo de aplicación del derecho de la seguridad social incorpora el principio de universalidad, pues se extiende a todos los ciudadanos, con carácter de obligatoriedad. El ámbito objetivo asume el principio de generalidad, en tanto protege situaciones de necesidad, no en la medida en que éstas hayan sido previstas y aseguradas con anterioridad, sino en tanto se produzcan efectivamente. Además, incorpora los principios de suficiencia de la protección, según módulos cuantitativos y cualitativos y de automaticidad protectora, lo que se traduce en la adecuada e inmediata protección en materia de enfermedad, invalidez, vejez y muerte. Por expresa disposición constitucional, esta gestión ha de ser pública, a cargo del Estado, representado por la Caja Costarricense de Seguro Social, y la financiación responderá al principio cardinal de solidaridad social, pues se funda en la contribución forzosa y tripartita que realizan trabajadores, patronos y el Estado. En consecuencia, los principios del Derecho a la Seguridad Social, son, los de universalidad, generalidad, suficiencia de la protección y solidaridad social”. (El destacado no es original).

Así, es posible concluir que, tanto las normas referidas como la jurisprudencia de esta Sala, han reconocido la protección constitucional de los seguros sociales para todas las personas trabajadoras. Precisamente, la universalización de los seguros sociales es la que permea con carácter extensivo los seguros sociales que se encuentran a cargo de la CCSS y, por ello, tienen protección constitucional”.

En adición, en la sentencia nro. 2011-10893 de las 14:33 horas de 17 de agosto de 2011, se dispuso:

“IV.- SOBRE LA AFILIACIÓN OBLIGATORIA DE LOS TRABAJADORES INDEPENDIENTES. Aún (sic) cuando la acción resulta inadmisible, tal como se analizó en el considerando anterior, cabe mencionar, que en reiteradas ocasiones, esta Sala se ha pronunciado sobre el tema de la afiliación forzosa de los trabajadores independientes al régimen de seguridad social, oportunidades en las que ha considerado que no resulta contrario al Derecho de la Constitución, con base en las siguientes consideraciones. En primer término, la Caja Costarricense de Seguro Social es una institución autónoma constitucionalmente creada para la administración de los seguros, por lo que está dotada de autonomía política para el desempeño de esa función. Asimismo, los artículos 3 y 23 de la Ley Constitutiva de la Caja Costarricense del Seguro Social, disponen que la Junta Directiva de la Caja tiene plena competencia para establecer, vía reglamento, los alcances de las prestaciones propias de la seguridad social, de manera que puede definir las condiciones, beneficios y requisitos de ingreso de cada uno de los regímenes. En segundo lugar, las regulaciones contenidas en los artículos 63, 73 y 74 de la Constitución Política, en relación con la seguridad social, constituyen mínimos y no máximos, por lo que el legislador en uso de sus potestades discrecionales, puede desarrollar esos preceptos e incluso ampliarlos, a efecto de hacerlos extensivos a otros sectores de la población, por lo que no corresponde a este Tribunal ejercer un control sobre dicha discrecionalidad; únicamente, en aquellos casos en los que se excede esa potestad en perjuicio directo de los derechos fundamentales de las personas es que esta Sala puede, válidamente, conocer y pronunciarse al respecto. Sin embargo, este no es el caso, pues contrario a lo que afirma el accionante, el artículo 73 de la Constitución Política, crea los seguros sociales a cargo de la Caja Costarricense de Seguro Social en beneficio de los trabajadores, a fin de proteger a éstos contra los riesgos de enfermedad, invalidez, maternidad, vejez, muerte y demás contingencias que la ley determine. Por su parte, el artículo 74 constitucional, contiene los principios de justicia social y solidaridad social. El primero es entendido como la autorización para que el Derecho irrumpa en las relaciones sociales con el fin de corregir y compensar las desigualdades entre las personas, que resulten contrarias a su dignidad de tal manera que se pueda asegurar las condiciones mínimas que requiere un ser humano para vivir. El segundo principio, el de solidaridad social, consiste en el deber de las colectividades de asistir a los miembros del grupo frente a contingencias que los colocan en una posición más vulnerable, como la vejez, la enfermedad, la pobreza y las discapacidades. Por su parte, los artículos 22, 23, 24 y 25 de la Declaración Universal de los Derechos Humanos, artículo 11, 16 y 35 de la Declaración Americana de los Derechos y Deberes del Hombre, y los artículos 9 y 12 inciso d) del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, sociales y Culturales, reconocen el derecho de toda persona a la seguridad social que la proteja contra las consecuencias de la vejez y de la enfermedad, así como de otras condiciones que le impida obtener los medios para llevar una vida digna y decorosa. De esta forma y con base en la interpretación armónica de todos estos preceptos constitucionales e internacionales es que se integra todo el sistema de seguridad social. Además, si bien en un inicio la seguridad social protegía solo a los trabajadores asalariados que aportaban al sistema, lo cierto es que ello provocaba un desamparo económico para el resto de la población, por lo que a partir de la promulgación de la Constitución Política de 1949 y de la evolución progresiva de los derechos fundamentales en este campo, surgió el principio de universalidad de los seguros, el cual pretende incorporar a toda la población dentro de la cobertura de los seguros, como piedra angular de todo estado social democrático de derecho y como instrumento para el desarrollo de las personas y la sociedad. De esta manera, se concibe al sistema de seguridad social como un conjunto de normas, principios, políticas e instrumentos destinados a proteger y reconocer prestaciones a las personas en el momento en que surgen estados de vulnerabilidad, que le impidan satisfacer sus necesidades básicas y las de sus dependientes. Es así, como en nuestro país, surgen diferentes regímenes de pensión cuyas disposiciones, requisitos y recursos, difieren en atención a esas condiciones especiales según el destinatario de que se trate. Por todo lo anterior, este Tribunal considera que la inclusión obligatoria de los trabajadores independientes –incluidos los que ejercen la profesión liberal- dentro del régimen de la Caja Costarricense de Seguro Social no es contraria a la Constitución. Ahora bien, el hecho de que el accionante labore como asalariado y como trabajador independiente, y cotice en ambas condiciones, no implica una doble imposición, pues se tratan de labores distintas que el legislador en el ejercicio de su discrecionalidad, determinará como actividades asegurables. (Ver en igual sentido las sentencias números 643-2000, 2571-2000, 16404-2005, 1591-2006, 5743-2006 y 14460-2006)”.

A partir de lo anterior, la CCSS, como institución encargada del gobierno y la administración de los seguros sociales, tiene la potestad de reglamentar el aseguramiento obligatorio de los trabajadores independientes y las cuotas que deben pagar. En ese sentido, cuenta con autonomía suficiente para definir los alcances de las prestaciones propias de la seguridad social, tales como condiciones, beneficios y requisitos de ingreso de cada régimen. Justamente, las normas impugnadas permiten a la Junta Directiva de la CCSS fijar las condiciones (coberturas, cuotas y requisitos) aplicables a los trabajadores independientes, lo cual prima facie no excede la potestad reglamentaria otorgada a esa institución. Además, el ordinal 23 de la Ley Constitutiva de la CCSS le otorga la competencia a ese órgano colegiado de determinar las cuotas y prestaciones, en relación con las contribuciones y cargas del seguro social. En consecuencia, no se tiene por vulnerado el principio de reserva de ley en los términos pretendidos. De igual forma, tal como lo señala la Procuraduría General de la República, la competencia reglamentaria se deriva de la autonomía de la CCSS, la cual es reconocida en el numeral 73 de nuestra Ley Fundamental.

En relación con lo anterior, las cuotas de la seguridad social constituyen contribuciones parafiscales de origen constitucional (canon 73 de la Carta Magna), cuyos elementos deben ser establecidos por la Junta Directiva de la CCSS (precepto 23 de su ley constitutiva). Es decir, con base en la autonomía de la institución, el legislador le atribuyó a ese órgano la potestad de determinar las cuotas y prestaciones, lo que conlleva definir los elementos necesarios para su cálculo y regulación. Por consiguiente, no se acredita la alegada transgresión a los artículos 9 y 121 inciso 12 de la Carta Magna.

Atinente la libertad de empresa y el derecho al trabajo (numerales 46 y 56 de la Constitución Política, respectivamente), no observo alguna transgresión susceptible de ser declarada, toda vez que lo que se trata es de la regulación de las actividades económicas de las personas por parte de la CCSS (con el debido sustento legal y constitucional). En ese sentido, según lo afirma la PGR, el propio ordinal 3 de la Ley Constitutiva de la CCSS de forma expresa contempla como obligados a los trabajadores independientes. Ahora, el canon 74 eiusdem estatuye que “las personas que realicen total o parcialmente actividades independientes o no asalariadas, deberán estar al día en el pago de sus obligaciones con la Caja Costarricense de Seguro Social (CCSS), así como con otras contribuciones sociales que recaude esta Institución conforme a la ley”, lo cual no es abiertamente contrario al concepto desarrollado en el precepto 1 impugnado del reglamento. Más bien, se advierte una definición legal que abarca a las personas que realicen actividades independientes o no asalariadas, por lo que, a los efectos del control de constitucionalidad susceptible de ser efectuado en esta vía, no es absolutamente imprescindible que exista algún concepto de “trabajador independiente” en los términos pretendidos. Ergo, no aprecio alguna omisión susceptible de ser declarada en los términos planteados, pues tanto los trabajos como las actividades empresariales efectuadas por personas son susceptibles de regulación, con ocasión de las facultades mencionadas ut supra reconocidas a la CCSS.

Sobre la transgresión a los principios de proporcionalidad y razonabilidad, así como la presunta violación al artículo 28 de la Constitución Política, no observo algún desarrollo ni fundamentación, por lo que prima facie no es factible analizarlas.

Por otra parte, concerniente a la alegada violación al “principio de unidad de la seguridad social”, no observo algún desarrollo que permita considerarlo como tal e integrarlo como parámetro de constitucionalidad, sino que lo alegado es que, en atención al principio de igualdad, se deberían brindar beneficios similares a las personas protegidas por el mismo régimen, lo cual, según menciona, no se cumple porque se carga más a los trabajadores independientes por los mismos beneficios. No obstante, si bien las normas impugnadas contienen disposiciones para fijar las contribuciones de los trabajadores independientes, no menos cierto es que la parte accionante no especificó los extractos cuestionados, tampoco estableció (ni desarrolló) elementos de comparación con respecto a los parámetros y condiciones establecidas para trabajadores asalariados. Incluso, ni siquiera se individualizaron los argumentos en relación con la norma legal impugnada y las disposiciones reglamentarias cuestionadas. Lo anterior impide analizar si se trata de un problema de constitucionalidad, o bien, de aplicación de las normas (aspecto que no sería susceptible de ser declarado en esta vía de la acción). Ahora, los trabajadores independientes, al igual que los asalariados, tienen el deber de contribuir al sistema (en atención a los principios de universalidad y solidaridad), lo cual les otorga prestaciones y beneficios sin limitar la cobertura a su condición particular, los montos aportados o el tipo de trabajador.

Tampoco verifico alguna transgresión al principio de interdicción de la arbitrariedad. Nótese que se acusa el establecimiento de una potestad discrecional a la Junta Directiva de la CCSS para la fijación de las cuotas más gravosas a los trabajadores independientes con respecto a las de los asalariados; sin embargo, no se exponen los parámetros normativos que regulan a estos últimos. Más bien, lo que se acusa es que la Junta Directiva cuenta con potestades para establecer un régimen tributario más oneroso a los trabajadores independientes; no obstante, además de lo apuntado ut supra, tampoco individualizaron argumentos con respecto a los artículos cuestionados. En todo caso, la Sala ha reconocido la potestad del legislador de extender los alcances de la seguridad social a los trabajadores independientes (con la consecuente regulación por parte de la institución, siempre dentro del marco establecido en la Carta Magna y la jurisprudencia constitucional); sin embargo, no se desarrollaron de forma clara argumentos de relevancia constitucional que evidenciaran alguna transgresión. Ergo, prima facie desestimo este argumento.

Finalmente, no existe desarrollo alguno en cuanto a la presunta violación del principio de seguridad jurídica. Al respecto, la parte accionante se limita a transcribir un extracto de un voto y a manifestar que las normas no establecen “el sujeto pasivo, el hecho generador, la base imponible ni la tarifa del tributo parafiscal que crean en perjuicio del mal llamado “trabajador independiente””. Precisamente, no se precisa la relación entre ese principio y el hecho de no establecer tales aspectos concretos. Nótese que únicamente se justifica que lo anterior los establecen “los principios fundamentales del Derecho Tributario”...

…Razones adicionales del Magistrado Cruz Castro.- El principio de solidaridad social y en todo caso, la parafiscalidad creada por el Constituyente En esta acción de inconstitucionalidad se cuestionó varia normativa relacionada con el pago de las cuotas del seguro social de los trabajadores independientes. En sus alegatos se parte de la naturaleza tributaria de las contribuciones a la seguridad social y con base en ello cuestiona que tales normas no cumplen con los requisitos que deben cumplir los tributos, creando un impuesto sobre la renta encubierto. Argumentándose la violación al principio de reserva legal; los artículos 46 y 56 constitucionales; 9 y 121.13 constitucionales; 28 constitucional; el principio de unidad de la seguridad social; el principio de interdicción de la arbitrariedad; y el principio de seguridad jurídica.

Las razones que da esta Sala para declarar sin lugar esta acción están referidas a: el grado de autonomía de la CCSS que le permite dictar reglamentos para regular los alcances de las prestaciones propias de los seguros sociales; la constitucionalidad de la afiliación obligatoria a la CCS a partir del art.73 constitucional; la constitucionalidad de la afiliación forzosa de trabajadores independientes; no se configura ninguna diferenciación irrazonable entre trabajadores asalariados e independientes, toda vez que ambos se constituyen como afiliados al sistema y reciben iguales beneficios en razón de su condición, sin importar el monto de lo que coticen ni la condición de suscripción en la que se encuentren; la naturaleza parafiscal las cuotas de la seguridad social, por disposición constitucional, pues ha sido el Poder Constituyente el que determinó, de manera soberana y democrática, la creación de la contribución parafiscal en beneficio del régimen de seguridad social que regenta la CCSS, con lo cual se cumplen los principios que regulan el ejercicio de la potestad tributaria; y además, la normativa adicional adoptada legal y reglamentaria consolida la conformidad constitucional de la potestad de la Junta Directiva de la Caja Costarricense de Seguro Social, para determinar las cuotas que deben cubrir los diferentes sectores de personas trabajadoras aseguradas, sin que ello implique de modo alguno la afectación a los principios de reserva de ley, de legalidad tributaria, seguridad jurídica, universalidad y solidaridad de la seguridad social, ni de los artículos 46 y 56 de la Constitución Política.

Además de todo lo anterior, he considerado adicionar razones, referidas a dos aspectos: la contribución parafiscal y el principio constitucional de solidaridad.

He considerado en casos anteriores que las cuotas obrero-patronales destinadas al sostenimiento de la seguridad social –seguro de enfermedad y maternidad y seguro de invalidez, vejez y muerte- no son un tributo en sentido estricto (ver razones diferentes en el voto n° 2018-013658), pues el régimen de seguridad social protege y beneficia a los propios contribuyentes, y se nutre de las contribuciones obligatorias que la ley establece. Así que, para su existencia misma, la contribución resulta una obligación esencial, pues su finalidad es el fortalecimiento del fondo que le da sustento al régimen. La ratio legis de la norma, referida a la obligatoriedad de la contribución al fondo del régimen de seguridad social, resulta adecuada al principio de justicia social que nuestra Constitución establece. Entonces, al no constituir un tributo, en sentido técnico jurídico, la fijación que hace la Caja Costarricense de Seguro Social de las cuotas patronales y de los trabajadores, no puede aplicársele los argumentos y alegatos, como si lo fuera. Ahora bien, coincido con la posición actual de que, en todo caso, de considerarse una contribución parafiscal, esta fue creada por el Constituyente. Tal como se dice en el voto, es que el numeral 73 constitucional es el que crea la contribución parafiscal al disponer una contribución forzosa del Estado, patronos y trabajadores, a fin de proteger a éstos contra los riesgos citados y demás contingencias que la ley determine. Acto seguido, el texto constitucional establece que la administración y el gobierno de esos seguros sociales corresponde a una institución autónoma: la Caja Costarricense de Seguro Social. Finalmente, en lo que interesa, la norma constitucional impone la prohibición de transferir o emplear en finalidades distintas a las que motivaron su creación, los fondos y las reservas de los seguros sociales. Como puede observarse, estamos, pues, ante una contribución parafiscal creada por el Constituyente originario, con lo que, se cumple la máxima de que no puede haber imposición sin representación – no taxation without representation-. En otras palabras, en el caso que nos ocupa, el apego a los principios que regentan el ejercicio de la potestad tributaria se cumple satisfactoriamente, toda vez que un órgano representativo, plural, que ejerce el máximo poder en un Estado democrático y social de Derecho, como lo es el ejercicio de la potestad constituyente, determinó soberana y democráticamente crear la contribución parafiscal.

Por otro lado, en este caso bajo el principio constitucional de solidaridad, que aplica a la seguridad social, se debe entender que toda la población, en la medida de sus posibilidades, debe contribuir económicamente al financiamiento del sistema. Ninguno debería estar excluido, ni sería inconstitucional aquella normativa que atienda justamente a establecer como una obligatoriedad universal contribuir a la seguridad social. Esta visión se refuerza con la frase del art.73 constitucional, cuando indica que es una contribución forzosa, por lo tanto, no admite exoneraciones.

Procede recordar lo que esta Sala ha indicado sobre la progresividad de la obligatoriedad de la seguridad social (ver sentencia n° 2000-2571):

“VI.- Es claro que para dar cumplimiento a los preceptos constitucionales y la normativa internacional citada supra, la Caja Costarricense de Seguro Social, debió trazar planes de implementación y extensión de los seguros sociales, que en una primera etapa se vieron frustrados porque el Estado, principal empleador, no pagaba las cuotas que adeudaba oportunamente. Quince años después de que se elevara a rango constitucional el principio de universalidad de los seguros sociales a favor de los "trabajadores manuales e intelectuales" de Costa Rica, no se habían extendido más que a una minoría de costarricenses. La situación anterior motivó la reforma del artículo 177 de la Constitución Política –aprobada por ley N°2738 de 12 de mayo de 1961- para lograr la definitiva consolidación económica de los Seguros Sociales en Costa Rica, mediante el establecimiento de una norma que garantice el pago de las cuotas que en forma obligatoria debe pagar el Estado para financiar y desarrollar el sistema de seguridad social. La exposición de motivos del proyecto de reforma constitucional señala que al 31 de diciembre de 1959 se estimaba la deuda del Estado, acumulada a favor de la Caja Costarricense de Seguro Social, en veintiún millones novecientos sesenta y cinco mil setecientos treinta y nueve colones con seis céntimos. La comisión especial nombrada por la Asamblea Legislativa para estudiar el proyecto de reforma al artículo 177 de la Constitución citó en su dictamen un informe de la Caja según el cual, con base en un estudio realizado en 1958 -con datos de 1957-, faltaba por asegurar un 66 % de los trabajadores posibles en toda la nación y un 89 % de los familiares de estos trabajadores que podría cubrir el seguro social en todo el país. La reforma al artículo 177 de la Constitución Política constituyó una forma de asegurar a la Caja que el Estado honraría sus obligaciones. De esa forma se incluyó el párrafo tercero, que dispone:

"Para lograr la universalización de los seguros y garantizar cumplidamente el pago de la contribución del Estado como tal y como patrono, se crearán a favor de la Caja Costarricense de Seguro Social rentas suficientes y calculadas en tal forma que cubran las necesidades actuales y futuras de la Institución. Si se produjere un déficit por insuficiencia de esas rentas, el Estado lo asumirá para lo cual el Poder Ejecutivo deberá incluir en su próximo proyecto de presupuesto la partida respectiva que le determine como necesaria la citada institución para cubrir la totalidad de las cuotas del Estado. " Asimismo, el Constituyente incluyó un artículo transitorio al párrafo tercero del artículo 177, que indica:

"La Caja Costarricense de Seguro Social deberá realizar la universalización de los diversos seguros puestos a su cargo, incluyendo la protección familiar en el régimen de enfermedad y maternidad, en un plazo no mayor de diez años, contados a partir de la promulgación de esta reforma constitucional".

El constituyente fijó un plazo a la institución encargada de la administración y gobierno de los seguros sociales para lograr su universalización, en resguardo de los derechos de sus beneficiarios, y consideró que diez años era un lapso razonable para que los trabajadores y sus familias fueran protegidos contra los riesgos de enfermedad, invalidez, vejez, muerte, "y las demás contingencias que la Ley determine." Lo cierto es que la Caja Costarricense de Seguro Social dirige desde entonces su esfuerzo a lograr la cobertura total de los trabajadores sujetos a relaciones laborales y sus familias y éste ha rendido frutos, dado que los porcentajes de cobertura son muy elevados, y el sistema de seguridad social costarricense está entre los mejores de América Latina. En el momento histórico en que se incluyeron las garantías sociales a la Constitución Política, el grupo de población que se pretendió proteger fue el de los trabajadores manuales e intelectuales regulados por el sistema de contribución forzosa del Estado, patronos y trabajadores, y el propio constituyente consideró que este grupo debía estar cubierto en la década de los años setenta. Una etapa posterior en la evolución de los seguros sociales, constituye su expansión gradual a otros grupos de la sociedad, como los trabajadores independientes o por cuenta propia –que no están sujetos a una relación laboral- y los asegurados por cuenta del Estado –quienes no pueden acceder a la seguridad social por su precaria situación económica-. Así, los esfuerzos actuales deben dirigirse a que toda la población nacional debe ser cubierta por el sistema de seguridad social, pues si se eleva su calidad de vida se producirá un mejoramiento de la economía en general. (…)” De esta forma se comprende que, una etapa posterior en la evolución de los seguros sociales, constituye su expansión gradual a otros grupos de la sociedad, como los trabajadores independientes o por cuenta propia –que no están sujetos a una relación laboral- y los asegurados por cuenta del Estado –quienes no pueden acceder a la seguridad social por su precaria situación económica-. Así, los esfuerzos actuales deben dirigirse a que toda la población nacional debe ser cubierta por el sistema de seguridad social, pues si se eleva su calidad de vida se producirá un mejoramiento de la economía en general.

Finalmente, el debilitamiento progresivo de la seguridad social es una ruta que no armoniza con la trascendencia histórica y política de las garantías sociales. Algunas decisiones legislativas u omisiones del Poder Ejecutivo, evidencian un debilitamiento económico de la CCSS, pero tal tendencia no puede traducirse en contravenir la definición del Constituyente sobre un seguro médico universal, accesible y solidario. Son muchas las razones y circunstancias por las que ahora enfren-tamos un debilitamiento financiero de la CCSS, pero esa trans-formación, quizás inconveniente para el bienestar de las mayorías, no puede desconocer las normas constitucionales que privilegiaron los seguros sociales.”.

VI.- Sobre la alegada vulneración del principio de igualdad ante la ley, de razonabilidad y proporcionalidad. Aduce la parte accionante que la contravención al numeral 33 de la Constitución Política, surge en el momento en el que la normativa reglamentaria de la institución aplica dos raseros distintos, uno para los empleados o trabajadores que perciben sueldo o salario y, otro para los trabajadores independientes; y esta distinción se realiza sin que exista un parámetro objetivo de diferenciación, pues no se puede discriminar o diferenciar entre la naturaleza del trabajo o de las funciones que ejecutan unos u otros, dado que ambos ejercitan actividades productivas por igual. También advierte que, resulta contrario al principio de igualdad ante la ley, el hecho de que para los trabajadores independientes la regulación se atribuya por completo a la Junta Directiva; mientras que, por el contrario, para los trabajadores asalariados la regulación la dicta la propia norma legal. Así, a juicio de la parte accionante, resulta irrazonable y contrario al mencionado principio de igualdad, que el trabajador independiente -quien no tiene una estructura económica que lo respalde, sino que asume todos los riesgos y las cargas del ejercicio de su propia actividad- tenga que cotizar más -en términos de la cuota y del porcentaje- que un trabajador asalariado. Este último, por contrapartida, no asume ningún riesgo de la organización de la empresa, y solo tiene que aportar su trabajo al sistema de factores de producción.

En relación con este tipo de alegatos, la Sala ha señalado que, para poder realizar el análisis pretendido, la parte accionante debe fundamentar su argumento, aplicando el debido examen de razonabilidad a la normativa cuestionada, lo cual se omite en este caso. Esta Sala, en reiteradas ocasiones ha señalado lo siguiente:

“Para emprender un examen de razonabilidad de una norma, el Tribunal Constitucional requiere que la parte aporte prueba o al menos elementos de juicio en los que sustente su argumentación e igual carga procesal le corresponde a quien rebata los argumentos de la acción y la falta en el cumplimiento de estos requisitos, hace inaceptables los alegatos de inconstitucionalidad. Lo anterior, debido a que no es posible hacer un análisis de "razonabilidad" sin la existencia de una línea argumentativa coherente que se encuentre probatoriamente respaldada. Ello desde luego, cuando no se trate de casos cuya "irrazonabilidad" sea evidente y manifiesta” (Sentencia n.° 1999-5236 de las 14:00 horas del 7 de julio de 1999, reiterada en las sentencias 2016-14392 de las 9:05 horas del 5 de octubre de 2016, 2019-6935 de las 11:20 horas del 24 de abril de 2019 y 2021-11995 de las 16:31 horas del 26 de mayo de 2021).

Sin la realización del test respectivo, la línea argumentativa de la parte accionante carece de fundamentación. Debe recordarse que no se puede equiparar lo que no es necesariamente idéntico, y que no toda distinción es discriminatoria, solo aquella que no se encuentre debidamente justificada en los principios de razonabilidad y proporcionalidad. De ahí que, al igual que se indica en la sentencia transcrita, este Tribunal requeriría, para emprender un examen de razonabilidad de una norma, que la parte aporte prueba o elementos de juicio suficientes en los que sustente su argumentación, e igual carga procesal le correspondería a quien los cuestione. Sin ello, no es posible hacer un análisis de “razonabilidad”, sin la existencia de una línea argumentativa coherente que se encuentre probatoriamente respaldada.

En todo caso, en la sentencia supracitada, la parte accionante también alegó que la normativa impugnada discrimina entre trabajadores independientes y los trabajadores asalariados, de forma tal que la carga de los primeros excede en mucho a la que soportan los segundos, lo cual es producto de la voluntad subjetiva de la Junta Directiva; y, al respecto, la Sala consideró lo siguiente:

“XIV.- Sobre la aducida lesión al principio de unidad de la seguridad social e interdicción de la arbitrariedad. De acuerdo con este principio, el sistema de seguridad social como un todo, debe funcionar con criterios congruentes y coordinados, así como otorgar prestaciones o beneficios similares para los diferentes colectivos que se protegen. Lo que se enfatiza con este principio es que debe existir una congruencia en la gestión de las diferentes entidades que participan en la administración del sistema de seguridad social, y en los beneficios otorgados por ellas, de modo que la multiplicidad de instancias o departamentos no implique un rompimiento de la unidad como un todo y que tampoco produzca afectación del principio de igualdad.

Conforme se ha señalado, el artículo 73 de la Constitución Política, interpretado armónicamente con el artículo 50 de la misma Constitución, consagra el derecho de la seguridad social, respecto del cual, la Sala ha señalado reiteradamente que supone que los poderes públicos mantendrán un régimen público de seguridad social para todos los ciudadanos en el más alto rango, de manera que garantice la asistencia y brinde las prestaciones sociales suficientes ante situaciones de necesidad para preservar la vida y la salud, lo cual, entonces, garantiza el efectivo ejercicio del principio de unidad de la seguridad social.

Ahora bien, no puede olvidarse que este principio está en estrecha relación con: a) el principio de universalidad, según el cual, la aplicación del derecho a la seguridad social se extiende todos los ciudadanos, con carácter de obligatoriedad; b) el principio de solidaridad, que es la otra cara del anterior, en el sentido de que, si con la universalidad se pretende la protección a toda la población porque se conceden derechos derivados de la seguridad social a todos los pobladores, con el principio de solidaridad se debe entender que toda la población, en la medida de sus posibilidades, debe contribuir económicamente al financiamiento del sistema; c) el principio de generalidad, en tanto protege situaciones de necesidad, no en la medida en que éstas hayan sido previstas y aseguradas con anterioridad, sino en tanto se produzcan efectivamente -ver sentencia número 2003-3483-. En cuanto al principio de universalidad de los seguros, mediante sentencia número 2011-10892 señaló la Sala que dicho principio:

“[P]retende incorporar a toda la población dentro de la cobertura de los seguros, como piedra angular de todo estado social democrático de derecho y como instrumento para el desarrollo de las personas y la sociedad. De esta manera, se concibe al sistema de seguridad social como un conjunto de normas, principios, políticas e instrumentos destinados a proteger y reconocer prestaciones a las personas en el momento en que surgen estados de vulnerabilidad, que le impidan satisfacer sus necesidades básicas y las de sus dependientes.”.

De tal manera, con la situación sometida a estudio no se presenta ninguna vulneración al principio de unidad de la seguridad social, por cuanto, como se dijo, el sistema también se sustenta en la universalidad y la solidaridad, de modo que, al darse la contribución por parte del Estado, patronos y trabajadores de manera obligatoria, con el pago de cuotas de acuerdo a la capacidad económica e ingresos de cada uno, se garantiza a los participantes del régimen de seguros las mismas prestaciones y beneficios, lo cual se les otorga no en función del monto de la cotización que cada quien aporta, sino por la sola pertenencia al régimen.

Desde esta perspectiva, la unidad de la seguridad social está garantizada porque todos, sin importar su condición de patronos o trabajadores, asalariados o independientes, recibirán prestaciones y beneficios en similares condiciones de acuerdo a su situación de salud particular, lo que también garantiza el principio de igualdad, en el sentido de que se dará el mismo trato a todas las personas que se encuentran en la misma situación que, en este caso, es el ser beneficiarios de un mismo y único sistema, y no en razón de la cuantía de su cotización.

Es justamente por esas razones que tampoco se presenta una afectación del principio de interdicción de la arbitrariedad, porque contrario al criterio del accionante, no se configura ninguna diferenciación irrazonable entre trabajadores asalariados e independientes, toda vez que ambos se constituyen como afiliados al sistema y reciben iguales beneficios en razón de su condición, sin importar el monto de lo que coticen ni la condición de suscripción en la que se encuentren, lo cual, como se dijo, es característica propia de la CCSS y del régimen de seguridad social costarricense, como un sistema universal y solidario.

En consecuencia, no se observa que en cuanto a este extremo se esté ante una lesión al Derecho a la Constitución”.

Conforme el criterio expuesto resaltado en negrita, este Tribunal desestimó que exista un trato discriminatorio entre la forma en que se han constituido los sistemas de seguridad social, sea entre personas asalariadas y trabajadores independientes, pues si bien existe un trato diferenciado, este no resulta irrazonable, toda vez que en ambos casos, están afiliados al sistema y reciben iguales beneficios, en razón de su condición, sin importar el monto de lo que coticen ni la condición de suscripción en la que se encuentren, lo cual, como se indicó el precedente supra citado, es producto de los principios de solidaridad y del régimen universal de seguridad social que rige en nuestro país.

VII.- Conclusión. Corolario de lo anterior, procede rechazar por el fondo esta acción en los extremos señalados, como en efecto se dispone.

VIII.- NOTA DE LA MAGISTRADA GARRO VARGAS. En la presente sentencia me corresponde advertir que no voté el precedente que se cita para rechazar por el fondo este proceso, sea, la sentencia n.°2024-3228 de las 12:17 horas del 7 de febrero de 2024.

IX.- 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. La magistrada Garro Vargas consigna nota.

Fernando Castillo V.

Fernando Cruz C.

Luis Fdo. Salazar A.

Jorge Araya G.

Anamari Garro V.

Ingrid Hess H.

Ana María Picado B.

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