Constitutional Challenge to Public Finance Strengthening Law (public salaries, seniority pay, collective bargaining)Acción contra Ley de Fortalecimiento de las Finanzas Públicas (salarios públicos, anualidades, negociación colectiva)

**File: 19-002620-0007-CO** **Res. No. 2025-008201** **Content** **I.- Procedural Matters:** 1) Regarding the admitted joinders (coadyuvancias) 2) Regarding the subsequent joinders **II.- Regarding the composition of the Chamber to hear this matter** **On Admissibility:** **III.- Regarding the formal requirements of admissibility and standing (legitimación)** **IV.- The standing (legitimación) of the plaintiffs in THE SPECIFIC CASE** **SUBSTANTIVE FINDINGS (CONSIDERANDOS DE FONDO)** **V.- Regarding the methodology for analyzing the action.** **VI.- Preliminary. Context and approval of the challenged regulations.** **VII.- ON A NECESSARY BALANCE BETWEEN SALARY POLICIES AND THE PROTECTION OF THE FUNDAMENTAL RIGHTS OF PUBLIC SERVANTS** **VIII.- ON THE MUTABILITY OF THE LEGAL SYSTEM** **IX.- Regarding the principle of progressivity and non-regression (principio de progresividad y no regresividad).** **X.- ON VESTED RIGHTS (DERECHOS ADQUIRIDOS)** **XI.- PRELIMINARY CLARIFICATION. APPLICATION OF THE CHALLENGED REGULATIONS TO THE INSTITUTIONS COVERED BY THE LFFP** **XII.- ON THE NECESSARY SUBSTANTIATION OF THE GRIEVANCES** **Grievances of action No. 19-2620-0007-CO** **XIII.- Change of regulation regarding annual salary increases (anualidades)** **Challenged provisions** **Grievances of the plaintiff (action No. 19-2620-0007-CO)** **Grievances of the plaintiff (joined action No. 19-004931-0007-CO)** **Allegations of the plaintiff (joined action No. 19-022051-0007-CO)** **Report of the PGR** **Allegations of the coadjuvants (coadyuvantes)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **General aspects of annual salary increases (anualidades)** **On the constitutionality of art. 50 of the LSAP and Transitory Provision XXXI (reasonableness (razonabilidad))** **On the recognition of annual salary increases (anualidades) in the month of June, employment continuity, and revaluation (revalorización)** **On the alleged violation of the principle of reasonableness (razonabilidad) because the percentages of the annual salary increases (anualidades) are established in transitory provisions** **On potential normative antinomies** **Conclusions** **XIV.- ON THE ALLEGED Violation OF the principle of non-retroactivity of the law and disregard for consolidated legal situations (situaciones jurídicas consolidadas)** **Preliminary clarification** **Challenged provisions** **Grievances of the plaintiff (action No. 19-002620-007-CO)** **Grievances of the plaintiff (action No. 19-004931-0007-CO)** **Grievances of the plaintiff (action No. 19-022051-0007-CO)** **Report of the PGR (action No. 19-002620-0007-CO)** **Report of the PGR (action No. 19-004931-0007-CO).** **Allegations of the coadjuvants (coadyuvantes)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **Preliminary** **Amounts of annual salary increases (anualidades) and other bonuses that disregard what is established in other legal instruments** **On Transitory Provision XXVII, which refers to the application of the severance pay (auxilio de cesantía)** **Conclusion** **XV.- Violation of the principle of free collective bargaining (libre negociación colectiva)** **Preliminary clarification** **Challenged provisions** **Grievances of the plaintiff (file action No. 19-2620-0007-CO)** **Grievances of the plaintiff (action No. 19-004931-0007-CO)** **Grievances of the plaintiff (file action No. 19-022051-0007-CO)** **Report of the PGR (action No. 19-2620-0007-CO)** **Report of the PGR (action No. 19-004931-0007-CO)** **Report of the Ministry of Finance (Ministerio de Hacienda)** **Allegations of the coadjuvants (coadyuvantes)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **Preliminary** **What was determined by this Court in advisory opinions No. 2018-019511 and No. 2021-017098** **On the alleged violation of the principle of equality by distinguishing regarding solidarity associations (asociaciones solidaristas)** **On the constitutionality of Transitory Provision XXXVI, second paragraph** **Conclusions** **Grievances of action No. 19-004931-0007-CO** **GRIEVANCES THAT PRIMA FACIE MUST BE DISMISSED** **XVI.- Art. 3 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635, concerning Public Employment** **XVII.- Arts. 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635, concerning Public Employment** **XVIII.- ON THE RULES OF FISCAL RESPONSIBILITY. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC** **Challenged provisions** **Allegations of the plaintiff** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XIX.- FISCAL RESPONSIBILITY. DESTINATIONS OF FREE SURPLUSES (SUPERAVITS LIBRES)** **Challenged provision** **Grievance of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **ANALYSIS OF THE PROVISIONS RELATING TO PUBLIC EMPLOYMENT THAT ARE REVIEWED ON THE MERITS** **XX.- ON EXCLUSIVE DEDICATION CONTRACTS (CONTRATOS DE DEDICACIÓN EXCLUSIVA)** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Report of the Ministry of Finance (Ministerio de Hacienda)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXI.- ON THE EXTENSION OF EXCLUSIVE DEDICATION CONTRACTS (CONTRATOS DE DEDICACIÓN EXCLUSIVA)** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXII.- ON THE SERVANTS TO WHOM EXCLUSIVE DEDICATION OR THE PROHIBITION CAN BE RECOGNIZED** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Report of the Ministry of Finance (Ministerio de Hacienda)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXIII.- ON THE OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION CONTRACT AND THE PROHIBITION** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Report of the Ministry of Finance (Ministerio de Hacienda)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXIV.- ON THE NEW PERCENTAGES FOR EXCLUSIVE DEDICATION AND FOR PROHIBITION.** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Report of the Ministry of Finance (Ministerio de Hacienda)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXV.- ON THE PROHIBITION OF ADDITIONAL INCENTIVES** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXVI.- ON THE STEERING ROLE (RECTORIA) OF MIDEPLAN** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXVII.- ON THE MEASUREMENT OF THE PERFORMANCE EVALUATION (EVALUACIÓN DEL DESEMPEÑO)** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXVIII.- ON THE CRITERIA OF THE PERFORMANCE EVALUATION (EVALUACIÓN DEL DESEMPEÑO)** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXIX.- ON THE EXCLUSION OF BENEFITS FOR HIERARCHS (JERARCAS) AND OTHER SERVANTS** **Challenged provision** **Grievances of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXX.- ON THE PAYMENT MODALITY FOR PUBLIC SERVANTS** **Challenged provisions** **Grievances of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXXI.- ON THE PROFESSIONAL CAREER INCENTIVE (INCENTIVO POR CARRERA PROFESIONAL)** **Preliminary clarification** **Challenged provisions** **Grievances of the plaintiff (action No. 19-004931-0007-CO)** **Grievances of the plaintiff (action No. 19-023575-0007-CO)** **Report of the PGR** **Second report of the PGR** **Report of Mideplan** **Report of the DGSC** **Report of the Ministry of Finance (Ministerio de Hacienda)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **General aspects of professional career points (puntos de carrera profesional)** **On an alleged disincentive and setback regarding proven suitability (idoneidad comprobada)** **On the reasonableness (razonabilidad) in recognizing the incentive to servants who paid for their own training** **On the alleged violation of the principle of equality** **On collective bargaining (negociación colectiva)** **On the correct interpretation of the regulations** **On the alleged violation of vested rights (derechos adquiridos) and the inalienability of rights (irrenunciabilidad de los derechos)** **Conclusions** **XXXII.- CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS** **Challenged provisions** **Grievances of the plaintiff** **Allegations of the active coadjuvant (coadyuvante activo) (SINAME)** **Report of the PGR** **Report of the Ministry of Finance (Ministerio de Hacienda)** **Ruling of the Constitutional Chamber (Sala Constitucional)** **XXXIII.- ON THE REFORMS TO ART. 57 OF THE PUBLIC ADMINISTRATION SALARY LAW (LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA)** **Challenged provisions** **Allegations of the plaintiff** **Report of the PGR** **Ruling of the Constitutional Chamber (Sala Constitucional)** **On art. 57, subsection f)** **On art. 57, subsections g), h), m), n), o), and p)** **XXXIV.- GENERAL CONCLUSIONS** **File: 19-002620-0007-CO** **Res. No. 2025-008201** **CONSTITUTIONAL CHAMBER (SALA CONSTITUCIONAL) OF THE SUPREME COURT OF JUSTICE.** San José, at thirteen hundred hours on the seventeenth of March of two thousand twenty-five.

Unconstitutionality action brought by [Name 001], ID [Value 001], in their capacity as General Secretary of the Union of Employees of the National Bank of Costa Rica (Sindicato de Empleados del Banco Nacional de Costa Rica, SEBANA), seeking a declaration that arts. 39, 50, 54, 55, 56, 57, subsection I) of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) No. 2166, as well as Transitory Provisions XXVII, XXXI, and XXXVI of the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) No. 9635, are unconstitutional. Subsequently, this action was expanded (file No. 19-004931-0007-CO) to review the constitutionality of arts. 28, 30, 31, subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57, subsections f), g), h), i), m), n), o), and p) of Law No. 2166, arts. 15, 17, 23, 24, 25 of Title IV of Law No. 9635, and arts. 1, subsection a), 3, 6, 7, 15, 16, 17, 21, and 22 of Executive Decree (Decreto Ejecutivo) No. 41564-MIDEPLAN-H. Likewise, actions No. 19-022051-0007-CO and 19-023575-0007-CO were joined. The representatives of the Attorney General's Office (Procuraduría General de la República), the Ministry of Finance (Ministerio de Hacienda), the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica), and the General Directorate of Civil Service (Dirección General de Servicio Civil) intervened in the process.

**Whereas:** 1.- By means of a document received at the Secretariat of the Chamber at 10:16 a.m. on February 15, 2019, the plaintiff [Name 001], in their capacity as General Secretary of the Union of Employees of the National Bank of Costa Rica (SEBANA), requests, in summary, that the unconstitutionality of arts. 39, 50, 54, 55, 56, 57, subsection I) of the Public Administration Salary Law (hereinafter LSAP) No. 2166 of October 9, 1957, be declared, as well as Transitory Provisions XXVII, XXXI, and XXXVI of the Law for Strengthening Public Finances (hereinafter LFFP) No. 9635 of December 3, 2018. The foregoing, considering them contrary to the principles of reasonableness (razonabilidad), non-retroactivity of the law (irretroactividad de la ley), and free collective bargaining (libre negociación colectiva), to Articles 11, 33, 34, 39, 41, 50, 60, 62, 74, 191, and 192 of the Political Constitution, to Conventions No. 87, 98, and 135 of the International Labour Organization (ILO), as well as to Article 26 of the American Convention on Human Rights (ACHR) and Article 8, subsection a) of the Protocol of San Salvador.

The plaintiff raises three major grounds for unconstitutionality:

• a)violation of substantive due process (debido proceso sustantivo); b) violation of the principle of non-retroactivity of the law and disregard for consolidated legal situations (situaciones jurídicas consolidadas); c) violation of the principle of free collective bargaining (libre negociación colectiva).

**First ground of unconstitutionality. Violation of substantive due process (debido proceso sustantivo)** Regarding this point, it is said that there is a violation of substantive due process (debido proceso sustantivo) in relation to arts. 50, 57, subsection l) to the extent it reforms art. 12, all of the LSAP, and Transitory Provision XXXI of Law No. 9635. Provisions that, in turn, must be related to other provisions of the LSAP that were also modified by Law No. 9635, such as art. 58, subsection c), which repeals art. 5, and provisions 48 and 49 referring to the performance evaluation (evaluación del desempeño) and which share the correlation between the payment of annual salary increases (anualidades) and the existence of a merit system. Art. 5 referred to the principle of efficiency of the Administration by stating that annual increases would be granted based on merit; whereas now, under the new regulations, it is indicated that the result of the annual evaluation will be the sole parameter for granting the annual salary increase (anualidad) incentive to each official, whereby, in both cases, the basis is the same programmatic axis or teleological sense, which is to comply with the merit system and with the principle of efficiency contained in the Political Constitution.

The reform to art. 50 and the provisions of Transitory Provision XXXI must be subjected to a test of reasonableness (razonabilidad) to determine their necessity, suitability, and proportionality, as constitutional parameters in accordance with the provisions of the principle of due process.

Regarding the necessity of the new regulations on the payment of annual salary increases (anualidades), the legislator's intention in converting the percentage of the annual salary increase (anualidad) into a fixed and permanent amount is not clear, nor is the reason why the precise percentage of the annual salary increase (anualidad) contemplated in Transitory Provision XXXI is set, distinguishing between professional classes and non-professional classes.

What the provisions establish is a percentage anchored to the salaries earned as of January 2018, from which a nominal amount is derived, which does not vary over time, regardless of the years a servant works in the public sector. By the time the law was approved, this reference salary used by the legislator had already been modified by the statutory salary adjustments.

With this mechanism introduced in the law, a future increase in the payment of annual salary increases (anualidades) is avoided, which would lead —hypothetically— to a reduction in public spending on salaries; however, this argument lacks internal logic because if the need to reduce the payment of annual salary increases (anualidades) and salaries in the public sector responds to an economic criterion, one cannot purport to regulate the salary reduction once and for all, as if the country's economic conditions were to last sine die.

The challenged regulations are also not suitable, because if the amount of the annual salary increases (anualidades) is anchored to the salaries corresponding to each salary scale for the month of January 2018, such amounts will not only not grow over time, but they will end up having a value very close to zero due to the effect of monetary devaluation and inflation, without there being a logical or reasonable relationship between the objective of the annual salary increase (anualidad) —as an economic stimulus to improve the efficiency of public sector employees— or between the annual salary increase (anualidad) as a formula to reward those who are evaluated annually with the aim of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning.

Art. 50 and Transitory Provision XXXI are also not proportional to the intended purpose, since the payment of annual salary increases (anualidades) is eliminated for the future, and that is the true implicit purpose. The sacrifice imposed by these regulations on employees who earn a compound salary is completely radical and confiscatory, given that, in the future, earning a compound salary, with payment of annual salary increases (anualidades), will have no real meaning for such employees because these are eliminated for the future, rendering them insubstantial, without any real economic content, and converted into a symbolic payment, so that as working life progresses, the servant will earn less in terms of annual salary increases (anualidades), which represents a regressive condition of their salary. If what the legislator intended was to maintain a performance evaluation (evaluación del desempeño) system linked to the payment of annual salary increases (anualidades), the approval of the payment of these, frozen in time and calculated based on a fixed amount, is not suitable and affects the entire merit system of Articles 191 and 192 of the Political Constitution. That implicit purpose —eliminating annual salary increases (anualidades)— was never openly raised in the statement of motives or in the legislative discussion.

**Unconstitutionality of art. 57, subsection 1) to the extent it reforms art. 12 of the LSAP** With regard to art. 12, reformed by the challenged art. 57, subsection l), the payment of the annual salary increase (anualidad) previously had to be made on the first day of the month closest to the official's date of entry or re-entry to the position, but with the reform, the annual salary increase (anualidad) payments will be made in the first half of June of each year, which is deemed openly unconstitutional, because in addition to creating a disproportionate and unjustified sacrifice against persons entitled to seniority when their date of entry or re-entry is before the month of June, this contradicts the very nature of the annual salary increase (anualidad), whose purpose is to remunerate an annual period of work and not any period arbitrarily or artificially constructed by the legislator, for which reason the provision is not suitable, is neither logical nor reasonable, but rather constitutes an arbitrary provision that goes against the nature of the annual salary increase (anualidad) and turns it into something different.

Art. 12, subsection c) of the LSAP established that if the previous position held by a promoted person entitled them to one or more annual salary increases (anualidades), upon moving to a higher position, they would be entitled to have the previously received annual salary increases (anualidades) revalued (revalorizaran), according to the new category to which they were promoted; a provision that has now been modified to state that "under no circumstances shall the already recognized incentives be revalued." The previous provision was logical and complied with the principle of proportionality, as it aimed for the position promotion to positively affect the person opting for a higher position, encouraging public sector employees to seek higher positions, but the reform discourages people from occupying positions of greater responsibility, by freezing their previous annual salary increases (anualidades) and not allowing them to opt for a revaluation (revalorización) of these.

In addition, art. 12, subsection d) —which allowed time accumulated in other public sector entities to be considered for the purposes of paying annual salary increases (anualidades)— was eliminated, which is unreasonable and discriminatory, in addition to being harmful to the principle of proportionality because people who have worked in other public sector entities would be forced to start the count from zero in each entity in which they work, damaging the doctrine of the State as a single employer (patrono único), which, as a legal concept, has been taking shape in the jurisprudence of the Second Chamber (Sala Segunda) and the Constitutional Chamber (Sala Constitucional). The provision is also not suitable because it discourages the transfer or re-entry of public employees and officials to the different State entities, contributing to hindering the constitutional system of access to the public function through merit. Finally, it is discriminatory because it confers a disproportionate advantage on people who prefer to remain in the same institution indefinitely over those who aspire to improve their condition or provide a better public service elsewhere in the public sector, and, secondly, because it creates discrimination among all persons who, prior to Law No. 9635, managed to count years worked in other public sector entities for the purposes of annual salary increases (anualidades), with respect to those who wished to transfer or re-enter it after the approval of Law No. 9635.

They summarize that arts. 50, 57, subsection l), and Transitory Provision XXXI, by lacking reasonableness (razonabilidad), suitability, and proportionality, violate substantive due process (debido proceso sustantivo) and thereby the provisions contained in Articles 9, 11, and 121 of the Political Constitution, but also an indirect violation of constitutional Articles 191 and 192 by creating a system for paying annual salary increases (anualidades) that undermines the merit system and the principle of efficiency.

They argue a violation of the principle of reasonableness (razonabilidad) because a Transitory Provision was what determined the percentage of the annual salary increase (anualidad) from which the calculation of what will later be the nominal and unchangeable amount of the annual salary increase (anualidad) must start, as well as the date from which that calculation will begin, which, in their opinion, should have been included in a substantive provision to be part of the permanent legal body.

**Second ground of unconstitutionality: Violation of the principle of non-retroactivity of the law and disregard for consolidated legal situations (situaciones jurídicas consolidadas)** The arts. challenged in this section are added or reformed, emptied of their original content, without consideration for vested rights (derechos adquiridos) or consolidated legal situations (situaciones jurídicas consolidadas) as ordained by Article 34 of the Political Constitution.

It is alleged that these provisions violate the principle of non-retroactivity of the law as well as respect for consolidated legal situations (situaciones jurídicas consolidadas), affirming that, in any case, when dealing with issues relating to additional salary (sobresueldos), it is a general defect of Law No. 9635 not to respect the consolidated legal situations (situaciones jurídicas consolidadas) of workers who acquired rights under the previous regulations governing them.

Art. 50 of the LSAP and Transitory Provision XXXI impose an annual salary increase (anualidad) in a fixed nominal amount that disregards what has been established in some institutions through collective bargaining agreements (convenciones colectivas) or other regulatory instruments that usually grant a higher and different amount of annual salary increase (anualidad) through a percentage payment calculated on the employee's base salary, whereby those provisions impose calculation techniques for the annual salary increases (anualidades) that directly clash with the collective bargaining agreements (convenciones colectivas) and the regulations existing in the public sector on this matter. The legislator exceeded their powers, thereby violating consolidated legal situations (situaciones jurídicas consolidadas) by not establishing provisions to mitigate the effect on consolidated legal situations (situaciones jurídicas consolidadas), as it did do with the salary component of exclusive dedication —in Transitory Provision XXVI of Law No. 9635— or, in a flawed manner, on the issue of severance pay (cesantía); cases in which it did consider the impact of the new regulations on the subjective legal situations of each employee.

A collective bargaining agreement (convención colectiva) is an agreement in the form of a contract that constitutes subjective legal situations that are integrated into the patrimony of rights of each worker covered by the agreement and, while it is in force, the workers to whom it applies have a right and not a mere expectation of a right that the terms thereof be respected. Therefore, Law No. 9635 could not ignore the subjective legal situations arising from a collective bargaining agreement (convención colectiva) as if they did not exist. It is contradictory that, according to Transitory Provision XXXVI of Law No. 9635, the legislator took into account the existence of collective bargaining agreements (convenciones colectivas) in the public sector, but at the same time, did not consider them when imposing a total and absolute change not only in the amounts but also in the nature of the annual salary increases (anualidades).

The regulatory provision must be interpreted and applied in the manner most favorable to the human being or under the principle of pro homine or pro citizen and, therefore, they consider that the questioned provision must be interpreted with clear safeguarding and protection of the consolidated legal situations (situaciones jurídicas consolidadas) of the members they represent, in such a way that from the moment workers began to work in a particular public company where said regulations apply, subjective situations were created in their favor, which form part of their salary, so the State cannot expropriate or confiscate those rights without compensation, so that if the annual salary increases (anualidades) were predefined in a regulation or statute, this is equivalent to a declarative act of rights in their favor, whereby the employees have a consolidated subjective legal situation that this payment system be respected, unless they are compensated in accordance with art. 155 of the General Law of Public Administration (Ley General de la Administración Pública, LGAP).

The challenged art. 54, which refers to the "conversion of incentives to fixed nominal amounts," implies a direct and heteronomous intrusion into the existing collective bargaining agreements (convenciones colectivas) and into those that may be negotiated in the future, which seriously harms the principle of non-retroactivity of legal norms, for two reasons: first, because the salary corresponding to the month of January 2018 that the law uses as a reference to determine the nominal amount to be paid for the annual salary increase (anualidad) concept had already been modified when the law was approved as a consequence of the salary adjustment applied semi-annually, so the legislator disregarded the principle of non-retroactivity in drafting the provision by using a delimiting parameter of the article's content that was then out of date; the second reason is that the provision ignores that there are collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions on the payment of incentives or compensation in percentage form, such as the collective bargaining agreement of the National Bank, signed by their represented party, where percentages for productivity incentive payments have been set in art. 63, known over several past agreements as the results incentive, so for the persons to whom this collective bargaining agreement (convención colectiva) applies, there is a right, and not a mere expectation of a right, that during the entire time the collective bargaining agreement (convención colectiva) is in force, that subjective right be respected; otherwise, there is a violation of Article 34 of the Political Constitution.

Regarding the challenged art. 56, relating to the "application of incentives, caps, and compensations," this is a provision with an intelligibility problem, which is confusing despite regulating a topic of great interest such as vested rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas). If the legislator intended to refer to future regulation, they could not state that what applies in the future are the previous incentives, compensations, caps, or annual salary increases (anualidades), and they interpret that perhaps what the legislator intended to say was that the new regulations on incentives, compensations, caps, or annual salary increases (anualidades) govern for the future and not retroactively. The provision is contrary to the principle of reasonableness (razonabilidad) and, therefore, to substantive due process (debido proceso sustantivo), as well as a violation of Article 34 of the Political Constitution, given that the acquired patrimonial rights before the new law's effective date are not respected, as it omitted recognizing the consolidated legal situations (situaciones jurídicas consolidadas) arising from collective bargaining agreements (convenciones colectivas), regulations, or statutes that have declared rights in favor of workers before the enactment of the law.

On art. 57, subsection l), which reformed provision 12 of the LSAP, they assert that the provisions contained in collective bargaining agreements (convenciones colectivas) or other legal instruments creating subjective rights were also not respected in matters such as when the payment of each annual salary increase (anualidad) is due, the way it is calculated when there are promotions, the recognition of those rights to those coming from other public sector institutions or when they re-enter it, so there is no certainty about what happens to people who were transferring from a company or institution within the public sector prior to the publication of Law No. 9635 but whose years worked in other public sector units have not yet been counted, nor whether the consolidated legal situation (situación jurídica consolidada) of having their previously worked time recorded should be disregarded. On this point, it is alleged that the law failed to resolve conflicts of laws over time, and this omission is visible throughout all its provisions, except regarding exclusive dedication, where exclusive dedication contracts signed before the entry into force of the law are indeed respected, and also, in a less rigorous manner, on the matter of severance pay (cesantía), since in this case the law imposes a cap on years that did not respect the accounting of time served that had been incorporated into the patrimony of rights of public sector employees based on provisions of collective bargaining agreements (convenciones colectivas) that were in force at the time the law reform came into effect, for which reason the legislator disrespected the content of the subjective legal situations of the members they represent.

Regarding Transitory Provision XXVII, which refers to the application of the severance pay (auxilio de cesantía), this is a provision containing two defects of unconstitutionality: the first is the violation of the right to collective bargaining (negociación colectiva), and the second is the disregard for the principle of non-retroactivity of the law and non-observance of consolidated legal situations (situaciones jurídicas consolidadas). The provision limits the payment for the severance pay (auxilio de cesantía) concept with caps greater than twelve years, without taking into account that many collective bargaining agreements (convenciones colectivas) in force —when Law No. 9635 came into effect— established rules with higher caps, such as the one signed between their represented party and the National Bank, which stipulated that it was a real right in favor of the institution's employees paid with a cap of twenty years and which was not considered unconstitutional when analyzed in an action that challenged it. The limitation introduced by this Transitory Provision extends to other legal instruments different from collective bargaining agreements (convenciones colectivas) in which the payment of severance pay (cesantía) is regulated in more beneficial conditions than those stipulated in art. 29 of the Labor Code, in which case the twelve-year limit is also imposed.

The vice of unconstitutionality of the Transitional Provision lies in the omission of measuring the scope of its effects, in such a way that the consolidated legal situations in favor of public employees would be duly protected and not affected, when, under the protection of current collective bargaining agreements (convenciones colectivas) or other legal instruments, at the time the legal reform entered into force, they had already accumulated a labor seniority that granted them the right to earn a severance pay (auxilio de cesantía) indemnity greater than eight or twelve years.

It concludes that the legal technique used by the legislator in Articles 50, 54, 56, and 57 subsection l) in relation to Article 12 of the reformed LSAP and Transitional Provisions XXVII and XXXI of Law No. 9635, is unconstitutional by ignoring that, in accordance with Article 34 of the Political Constitution, consolidated legal situations exist, born from instruments such as collective bargaining agreements, regulations, and personnel statutes, which should have been respected.

Third ground of unconstitutionality. Violation of the principle of free collective bargaining.

It challenges Articles 39, 50, 54, 55, 57 subsection l) insofar as it reforms Article 12, all of the LSAP, and Transitional Provisions XXVII, XXXI, and XXXVI of Law No. 9635 relating to the indicated Salary Law, since in the opinion of the claimant, they are injurious to the principle of free collective bargaining.

It is reproached that the regulation established by Law No. 9635 leaves no space for these matters to be regulated through collective bargaining and thus exceed the minimums contemplated by ordinary legislation. The foregoing, despite the fact that these are essential labor matters and that the Labor Procedural Reform, approved by Law No. 9343, in its Article 690 subsection i), established the possibility that unions and employer representatives could negotiate clauses of salary content.

The articles of the LSAP —introduced or reformed by Law No. 9635 being challenged— absolutely exclude all negotiation of salary components or bonuses, as well as prohibit negotiation on the right to severance pay, all of which is observed in the insurmountable eight-year cap on the indemnity for the payment of severance pay (Article 39), or with the establishment of a single annual increment (anualidad) payment which has a single way of calculating it through an inelastic division between professional classes and non-professional classes and an invariable amount that remains anchored in time based on the salaries earned in January 2018 (Articles 50 and 57 subsection l), or imposing a prohibition on establishing incentives or compensations in percentage terms (Article 54), or establishing a legal reserve (reserva de ley) for the creation of all types of incentives, economic compensations, or salary bonuses (Article 55) and, additionally, forcing the heads of institutions to denounce the collective bargaining agreements upon their expiration (Transitional Provision XXXVI). The right to collective bargaining of incentives and components of a salary nature contemplated in subsections h) and i) of Article 690 of the Labor Code, whose legal framework derives from ILO Convention No. 98 and Article 62 of the Political Constitution, has been emptied of all economic content. The intention of the legislator who enacted Law No. 9635 was to create a kind of legal reserve regarding supplementary salaries (sobresueldos) and annual increments, supplanting the constitutional legislator in clear violation of Articles 60 and 62 of the Political Constitution, but Articles 26 of the ACHR and 8 subsection a) of the Protocol of San Salvador are also transgressed.

The Labor Procedural Reform opened space for the right to collective bargaining in the public sector of Costa Rica, but Law No. 9635 is a counter-reform that violates the principle of progressivity of the social and economic rights of the inhabitants of this country. Based on Convention No. 135 and Convention No. 98 of the ILO, approved by Costa Rica according to Law No. 2561 of May 11, 1960, the full development and use of voluntary negotiation procedures must be promoted so that collective contracts are issued to regulate employment conditions; freedom of collective bargaining which, in Costa Rica, in the case of collective bargaining agreements, was elevated to the rank of constitutional right in Article 62 of the Political Constitution. In this regard, the Constitutional Chamber ruled in judgment No. 2018-019511, when it referred to the introduction of Article 55 within the LSAP, in the legislative bill of what is now Law No. 9635. Thus, when ruling on legislative file No. 20,580, the Constitutional Chamber was clear that it was not possible to establish a total interdiction on the creation of supplementary salaries by way of collective bargaining agreements; notwithstanding the foregoing, the rules challenged here do establish that type of interdiction, despite the warning made by the Chamber, so that Law No. 9635 was approved according to the text decreed in the first debate that the Chamber reviewed, and this confirms the unconstitutionality being requested.

For this reason, the challenged rules violate the principle of free collective bargaining, which implies the violation of ILO Convention No. 98, Article 8 subsection a) of the Protocol of San Salvador, and Article 62 of the Political Constitution.

Article 39 of Law No. 2166 reformed by Law No. 9635, by imposing an eight-year cap for the payment of severance pay, imposes very serious limitations that impact the constitutional order of collective bargaining, since even the Constitutional Chamber —on repeated occasions, even with restrictive criteria— has endorsed clauses of collective bargaining agreements signed in the public sector in which severance pay caps exceeding eight years are established, understanding that breaking the legal cap is constitutionally valid and conforms to parameters of reasonableness and proportionality.

The alleged vice of unconstitutionality is magnified by the existence of Transitional Provisions XXVII and XXXVI of Law No. 9635, from which it is evident that the legislator's purpose has been none other than to establish an absolute prohibition so that, via collective bargaining agreements, rules on indemnity for severance pay different from those established in Articles 39 of the LSAP under study, reformed by Law No. 9635, and 29 of the Labor Code, can be negotiated, without considering that in Costa Rica, the payment of severance pay with caps higher than those established in the Labor Code has been accepted for more than thirty years when the Solidarist Associations Law No. 6970 of November 7, 1980, was approved, which establishes the payment of severance pay by the employer —public or private— without any cap on years and as a real right, that is, its recognition is applicable under any assumption regardless of the cause that extinguishes the employment relationship. Based on the foregoing, unequal and unjustified treatment is also created to the detriment of the union organization compared to the solidarist organization, since the latter can do so by special law, while the union cannot, generating a disparity of conditions in the legal treatment that the legal system offers to one organization and the other. It adds that the ILO Direct Mission that visited the country verified the differentiation of rules for the payment of severance pay that exists as a result of the Solidarist Associations Law, which constitutes discriminatory treatment between workers associated with these and those affiliated with a union.

Transitional Provision XXVII represents a clear intrusion and imposition by the legislator on the content of the collective labor agreements (convenciones colectivas de trabajo) that were in force when the reform contained in Law No. 9635 entered into effect, since this transitional rule limits the payment for severance pay to a maximum of twelve years, despite the existence of conventional rules that provided for higher limits.

Those articles are unconstitutional because they disregard the legal nature that the Political Constitution grants to collective bargaining agreements, but also because they violate the right to free collective bargaining, by supplanting the negotiating will of the signatory parties of those normative instruments.

Article 50 of the LSAP, together with Transitional Provision XXXI contained in Law No. 9635, by imposing an annual increment at a fixed nominal amount, implies an unreasonable and disproportionate limit on free collective bargaining, but also a total prohibition on negotiating the payment of annual increments in collective labor agreements as had been negotiated before the entry into force of Law No. 9635, which is an arbitrary retroactivity of the rule and an emptying of the content of the right to collective bargaining.

Article 54 of the LSAP is unconstitutional because it denies all possibility of negotiating a different amount for incentives or compensations, which have now been transformed into a fixed percentage, anchored in the month of January 2018, without any possibility of future improvement, in contrast to the provisions of Article 690 subsection h) of the Labor Code, which contemplates the possibility that salary incentives can be negotiated; an article that is now without legal effect, thus facing a true labor counter-reform whose true purposes were never explained to the citizenry. This Article 54 is injurious to the principle of non-retroactivity, the principle of free collective bargaining, and the principle of reasonableness, since it freezes, without term or date, the payment of supplementary salaries and thereby forces their disappearance in the future, as it sets a permanent salary condition over time without considering that the labor market, salary policies, and the fiscal condition of governments, change over time, such that even if the appearance of respect for the payment of supplementary salaries is desired, deep down it is not so, and they are condemned to disappear with the passage of time because a moment will come when their economic value is negligible.

With the reform made in Law No. 9635 to Article 55 of the LSAP, the legislator intended to create a legal reserve so that any incentive, compensation, or salary bonus had to be created by law; however, this is unconstitutional because Article 62 of the Political Constitution and ILO Convention No. 98, duly approved by Costa Rica, prevent establishing a limitation of such nature, but also because that article injures the principle of free collective bargaining, as it demands an exclusivity in the generation of a normative source of working conditions that supposes emptying the constitutional right to collective bargaining of its content.

Transitional Provision XXXVI is one of the most pronounced intrusions of the Public Power into the right to collective bargaining, since it forces the heads of public entities to denounce collective bargaining agreements upon their expiration, thereby suppressing the content of Article 62 of the Political Constitution and ILO Conventions 87 and 98, together with Articles 26 of the ACHR and 8 subsection a) of the Protocol of San Salvador, for which reason it is considered contrary to the Law of the Constitution.

The progressive development of social rights contemplated in Article 26 of the ACHR is completely restricted by this Transitional Provision, which rather enshrines regression and a step backward in the development of collective labor law in Costa Rica, which had been achieved with the so-called Labor Procedural Reform. This regression is also observed because the Transitional Provision imposes the obligation that, if new collective bargaining agreements are negotiated, they must adapt to the provisions of Law No. 9635, which means that working conditions that worsen previous ones must be inserted, without respect for consolidated legal situations. The freedom of union association and the right to collective bargaining, in the terms envisioned by the Inter-American Court of Human Rights (IACHR Court) in the case of Lagos del Campo v. Peru of August 31, 2017, cannot fully develop if the State predefines, as occurs in Transitional Provision XXXVI of Law No. 9635, the content that a collective bargaining agreement must have, which is also intended to be done with legal-rank rules but also with secondary rules, since this Transitional Provision does not indicate to which rules it refers when it says “the other regulations issued by the Executive Branch”, with which it could be any according to what the Government of the day determines, which, in this manner, would have the door open to interfere in an unlimited manner, contrary to the limits that, by its nature, public power must have in a Social State of Law. The Constitutional Chamber, in advisory opinion No. 2018-019511, when reviewing the bill of what is now Law No. 9635, made the observation that each head of public entities has the power to decide whether or not to denounce collective bargaining agreements; an observation that was not heeded when Law No. 9635 was approved.

In consideration of Transitional Provision XXXVI, regardless of the moment in which the denunciation of a collective bargaining agreement is made, the truth is that future agreements are being forced to maintain a regulated content that will depend not only on what a law says that worsens the working conditions already obtained in collective bargaining instruments, statutes, and previous regulations, but also leaves the door open for the Executive Branch to establish any content for those agreements, all of which is additionally introduced in a rule of a transitional nature but that causes permanent and definitive effects.

It ends by requesting that the unconstitutionality of the rules challenged here be declared.

2.- In order to substantiate the standing it holds to promote this action of unconstitutionality, the claimant indicates that it comes from Article 75, second paragraph, of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional, LJC), since it appears in defense of collective interests held by its represented party. The representatives of the union allege that the questioned rules contravene not only free collective bargaining, and with it the collective bargaining agreement of Banco Nacional, but also lead to a detrimental regressivity of fundamental rights (salary, working conditions, and free collective bargaining) and contradict the principle of collective labor law that establishes the possibility of negotiating, in collective bargaining agreements, the conditions of calculation and payment for severance pay and more favorable bonuses for workers.

3.- By resolution of the Presidency of the Constitutional Chamber at 9:46 hrs. on February 22, 2019, the action was admitted, granting a hearing to the Office of the Attorney General of the Republic (Procuraduría General de la República, PGR). Regarding standing, the following was resolved:

“The standing of the claimant comes from Article 75, second paragraph, of the Law of Constitutional Jurisdiction, since it exercises the direct action, without prior trial to that effect, in order to protect and preserve the coinciding interests of the union members of SEBANA, based on its constitutive pact, which enables the defense of collective interests”.

4.- In a brief filed with the Secretariat of the Chamber on March 7, 2019, Juan Carlos Chaves Araya appeared in his capacity as Secretary General of the Union of Workers of Banco Popular y de Desarrollo Comunal (SIBANPO) to request that his represented party be considered an active coadjuvant, given that it shares the legal theses expressed by the claimant and because the challenged rules may affect the workers of Banco Popular y de Desarrollo Comunal (BPDC).

5.- The Office of the Attorney General of the Republic rendered its report through Julio Alberto Jurado Fernández, by document delivered to the Secretariat of the Chamber on March 18, 2019.

The claimant raises three grounds of unconstitutionality against the reform to LSAP No. 2166 operated through LFFP No. 9635, and in each one of them, points out the rules that, in its opinion, should be annulled.

The first ground of unconstitutionality raised by the claimant refers to a possible violation of substantive due process in relation to Articles 50, 57 subsection l) of the LSAP reformed by the LFFP, and Transitional Provision XXXI of this Law No. 9635.

The legislator is the one called to establish the incentives and the amount of the economic benefits granted to its servants, for which reason it must be understood that the economic amount granted for annual increments is a function of the intensity with which the legislator wants to incentivize the permanence in the position of public officials and the economic possibility of paying the sums derived from that incentive. The legislator could even eliminate the payment of annual increments and incentivize efficiency and permanence in public service through a mechanism different from the one used now, since the obligation to recognize annual increments is not stipulated in constitutional-rank rules but in legal ones.

The permanent nature that is implicit when granting the annual increment a nominal value that is stable over time is justified by the need to achieve a situation of equilibrium in public finances, which goes beyond overcoming a passing economic crisis, as it constitutes an economic objective that it is desirable to maintain over time. If it is established that, once a certain period has elapsed, the changes made in the legal rules regulating public sector remunerations must be reversed, it is possible that states of economic instability, which are undesirable in the short, medium, and long term, may be fallen into again. The State has the obligation to promote efficiency in the provision of public services, and therefore must promote the efficiency of public employment, which does not mean that this objective can only be achieved through the payment of annual increments. It adds that part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenses generated by the State's payroll, which is only achieved through reasonable salary recognition, adjusted to the economic situation of the country and the availability of resources.

Its represented party does coincide with the claimant in that there is no logical reason for the payment of the annual increment to be made, in all cases, starting from the first half of June each year, and there is no justification for people whose annual increment anniversary falls immediately after that date having to wait periods that could be almost a year to receive the respective compensation; a situation that is unreasonable and discriminatory, since those whose annual increment anniversary falls in May or June, for example, would receive their compensation under more favorable temporary conditions than those whose anniversary falls in July or August of each year, for which reason the Attorney General's Office considers that the system should allow that, once the performance evaluation is done and the level of efficiency required by current regulations is demonstrated, it be possible to recognize the economic incentive no later than the month following the date on which the official reaches their annual increment.

On the other hand, regarding the argument that annual increments are not revalued according to the higher-category position that employees may come to occupy, it insists that it is the legislator who has the power to decide which aspects of the service relationship should be incentivized through the payment of annual increments, or through the revaluation of that benefit, all in accordance with the prevailing economic possibilities. It considers that it is evident that revaluing the economic incentives already acquired in the event that the official is promoted could be an important incentive to promote the administrative career; however, it argues that this implies an expenditure of resources that might not be consistent with the intention of balancing public finances, and faced with that situation, it is up to the legislator to decide —as it has already done— whether to incentivize the administrative career, or whether to promote the balance of public finances, without opting for one decision or the other implying any violation of constitutional rules or principles.

In another order of things, it points out that the suppression of the phrase in Article 12 of the LSAP, which indicated that public sector servants would be credited for service time provided in other public sector entities for purposes of annual increases, is contrary to the doctrine of the State as Sole Employer, which emerged as a way to ensure workers who move from one State institution to another the continuity in the enjoyment of the rights recognized throughout the public sector; however, it argues that despite this, it is not possible to affirm that said doctrine is intangible for the legislator, since its creation was produced by legal-rank and not constitutional rules, which leads to validly affirming that just as the legislator authorized the recognition of time served in the different State institutions for purposes of the payment of annual increments, it is the same legislator who is empowered to modify that authorization, when it deems it necessary to achieve the balance of public finances.

Regarding a transitional provision establishing permanent effects, it argues that such an observation could be useful to reflect that the duty to follow good legislative technique has been infringed; however, it considers that such an infringement could not generate the unconstitutionality of the rule, since it is not a substantial vice that justifies nullifying the express will of the law.

The second ground of unconstitutionality alleged by the claimant is for violation of the principle of non-retroactivity of the law and lack of respect for consolidated legal situations in relation to the reform made to Articles 50, 54, 56, 57 subsection l) of the LSAP and Transitional Provisions XXVII and XXXI, all of LFFP No. 9635.

The objections raised here revolve around the issue of the prevalence or not of a supervening law (the LFFP) over current collective bargaining agreements, and in this sense, it recalls that in opinion C-060-2019, the Attorney General's Office expressed its criterion to the effect that there are no constitutional reasons that justify giving prevalence to the mandates of a collective bargaining agreement or any other normative instrument over the law. It points out that the foregoing does not mean disrespecting acquired rights or the consolidated legal situations of the recipients of collective bargaining agreements, because the application of the legal mandates that conflict with what was agreed in said agreements governs for the future, which implies that the employment benefits incorporated into the patrimony of each person by the application of the conventional clauses repealed by the law will remain in the patrimony of each of the people who received them.

Regarding the current employees of Banco Nacional, who, according to the claimant, maintain an acquired right that the calculation of the severance benefit be made based on a maximum of twenty years of service (which was the one admitted in the collective bargaining agreement) and not on a maximum of twelve years, as established by Transitional Provision XXVII of Law No. 9635, it recalls that the right to severance pay is only acquired when the cessation of the service relationship occurs, and provided that said cessation obeys one of the causes that justify the payment of that indemnity, so that, before this occurs, the interested party has only a mere expectation of right that could not prevail over legal-rank provisions like those introduced to the LSAP through the LFFP. Due to the foregoing, the Attorney General's Office does not consider that Articles 50, 54, 56, 57 subsection l) and Transitional Provisions XXVII and XXXI of the LSAP infringe Article 34 of the Constitution by disrespecting acquired rights or consolidated legal situations of public sector officials.

The third ground of unconstitutionality is raised for violation of the principle of free collective bargaining regarding Articles 39, 50, 54, 55, 57 subsection l) of the LSAP reformed by Law No. 9635 and its Transitional Provisions XXVII, XXXI, and XXXVI.

The right to collective bargaining of public servants is a right of legislative configuration, so its scope of application, as well as its extent, can be defined by legal-rank rules, without this necessarily implying a violation of constitutional rules. While it is true that some of the principles derived from Article 62 of the Political Constitution could apply to collective bargaining in the public sector, it is also true that this rule was not intended to be applied to public employment relations, and to prove this situation, it should be noted that ILO Convention No. 98 on the Right to Organize and Collective Bargaining, adopted in 1949, excluded from its scope of application public officials in the Administration of the State (Article 6), which shows that, for that year (which coincides with the promulgation of the current Political Constitution), the possibility that public employment relations would be governed by conventional rules was not foreseen, but rather by statutory rules, issued unilaterally by the State. The foregoing agrees with the provisions of Article 191 of the Political Constitution, in the sense that “A civil service statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration”; a rule that reflects a standardizing vision of the rules that must prevail in employment relations between the State and its servants, which is compatible with the regulations on collective bargaining established in the LFFP. The absolute freedom of negotiation that the claimant derives from Article 62 of the Political Constitution applies in relation to the working conditions of the private sector, not for those of the public sector, since the latter is governed by rules and principles that, in some cases, are diametrically different from those of private employment.

The same treatment cannot be conferred to the use and disposition of public funds (which are what finance public employment relations) as that granted to the use of private funds, since the former must be oriented towards the pursuit of the satisfaction of the public interest and are therefore not absolutely available to the parties negotiating a collective bargaining agreement in the public sphere.

The Constitutional Chamber, for many years, has maintained the thesis that collective bargaining in the public sector is not comparable to that of the private sector and that the former must respect the laws, regulations, and current directives in force, for example, in judgment No. 4453-2000, where it was indicated that even in the public sector in which the application of collective bargaining agreements is constitutionally possible, in the companies or economic services of the State and in the personnel nuclei of public institutions and entities in which the services they provide do not participate in public management, the Chamber repeats and confirms its jurisprudence to the effect that the authorization to negotiate cannot be unrestricted nor comparable to the situation of a private employer, since through this route, current governmental laws, regulations, or directives cannot be dispensed or exempted, nor can laws that grant or regulate the competencies of public entities be modified or repealed.

In addition to the foregoing, it recalls that no right, fundamental or not, is unrestricted, but that all are subject to the limitations and restrictions inherent to their nature, provided that the latter are reasonable and contained in legal-rank rules, as occurs with those imposed on collective bargaining in the public sector by the LFFP.

The principles of efficiency in the management of public funds, rationality of spending, sound management of public finances, etc., which are of constitutional rank, must be harmonized with the possibility of collective bargaining in the public sector, which cannot be unrestricted, but rather, on the contrary, must adapt to the economic possibilities of the country.

The Chamber, when analyzing the constitutionality of the bill that contained Article 55 of the LSAP and Transitional Provision XXXVI of what is now the LFFP, indicated that public sector employees who can validly enter into collective bargaining agreements cannot be limited in the possibility of creating incentives, compensations, or salary bonuses, and that the head of each public entity cannot be denied the power to denounce or not the respective collective bargaining agreement (advisory opinion No. 2018-019511).

The legislator can indeed establish restrictions on the exercise of the right to collective bargaining in the public sector, such as those regulated in Article 55 of the LSAP and in Transitional Provision XXXVI of the LFFP.

Imposing certain restrictions on collective bargaining in the public sector regarding severance pay, the valuation of annual increments (anualidades) and incentives, and the creation of new supplemental salaries, does not empty the right to bargain of its content, nor does it affect its essential core. It adds that, likewise, the obligation to terminate collective agreements upon the expiration of the agreed term aims to adapt those instruments to the current regulations on the matter, but does not inhibit the possibility of signing new agreements, provided that those instruments are adapted—as has always been required—to the prevailing legal framework.

Establishing certain restrictions on collective bargaining in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been public knowledge and whose management has required sacrifices, not only from individuals linked to the State through a public employment relationship, but from all economic and social sectors.

On the other hand, it points out that it is not possible to compare unions with solidarity associations (asociaciones solidaristas), as they are distinct figures, with their own characteristics very different from one another, and, in that sense, it recalls that solidarity associations have not been granted the right to collective bargaining, nor the right to strike, without thereby finding themselves in a situation of disadvantage or unconstitutional discrimination with respect to unions.

Finally, with regard to the objection concerning the permanent and non-temporary nature of what is regulated in Transitory Provision XXXVI of the LFFP (related to the obligation to terminate collective agreements upon the expiration of the agreed term), it may be considered a possible infringement of proper legislative technique, but it does not generate the unconstitutionality of the affected norms, as it is not a serious defect that justifies annulling those provisions.

It concludes with the suggestion to the Constitutional Chamber to declare this action without merit, with the exception of the provision in the first paragraph of Article 12 of the LSAP, specifically, the phrase stating that “The incentive for annual increment will be recognized in the first half of the month of June of each year.” 6.- The edicts referred to in the second paragraph of Article 81 of the LJC were published in numbers 57, 58, and 59 of the Judicial Bulletin, on March 21, 22, and 25, 2019.

7.- In a document filed with the Chamber Secretariat on April 4, 2019, Enrique Egloff Gerli appears in his capacity as President of the Association of the Chamber of Industries of Costa Rica, to request passive joinder in this matter.

He states that SEBANA's arguments are based on a legally erroneous premise: that the payment of annual increments is a fundamental labor right recognized at the constitutional level. This is not true because annual increments are an exclusive creation of the legislator; therefore, the first argument of the action refers to a typical case of legislative discretion, and the view of the claimant is not acceptable because increasing, decreasing, or eliminating annual increments can be varied over time as the country's economic and fiscal conditions change.

The challenged norms establish the percentage by which annual increments may grow in the future because previously the contradiction existed that they grew more than inflation, which is contrary to the constitutional principle of reasonableness, without there being a fundamental right to annual increments as the claimant intends.

The system of annual salary increases must be the same as occurs with minimum wages in the private sector, which only occurs due to cost-of-living increases, since there is no justification—legal, economic, or much less fiscal—for public employees to enjoy privileges in this matter compared to private ones, which harms the principle of equality, with the aggravating factor that the average salary level of the Public Administration is much higher than that prevailing in the private enterprise sphere where, for equal work, less is paid despite the fact that it has been shown that employees are more efficient.

It is not true that annual increments are linked to public sector efficiency, as they have been paid and increased without basis in technical criteria, disconnected from the cost-of-living increase, and therefore it is not harmful to Articles 191 and 192 of the Constitution. In the past, the State—under other fiscal conditions—was allowed to guarantee a very generous system regarding annual increments, but today the situation has changed radically, and therefore the situation must adjust to the country's fiscal reality, which is being done through the challenged regulation that respects the acquired rights of public servants up to the moment of its entry into force, and what has been done is constitutionally valid. The payment of annual increments is destined to disappear, as it only serves to increase salary without reasonable justification because the payment is made automatically just for accumulating years of service. It recalls that the rights and obligations of public servants are those exhaustively set by the legal system, and therefore the legislator has discretion to regulate salary bonuses as deemed most opportune given the country's fiscal health. Access to public positions is based on equal opportunities, and the selection of personnel for public positions is measured by a criterion of proven suitability that has no relation to the payment of seniority, so it is not true that varying the payment of annual increments will discourage or make access to public positions by merit more difficult.

Certainly, the matter regulated by Transitory Provision XXXIII should have been included in a substantive norm of the law because the legal nature of transitory provisions is to make possible the transition from the previous regulation to the new one; although it is a matter of poor legislative technique that may be objectionable, it is not unconstitutional.

There are no reasons justifying the first claim of unconstitutionality raised by the claimant, and therefore it requests that it be declared without merit.

Regarding the second ground of unconstitutionality alleged, it considers that there is also no defect of unconstitutionality whatsoever. All norms can be modified for the future by another of equal or higher rank without this implying a violation of the principle of non-retroactivity of the law; a principle that is only violated when acquired rights and consolidated legal situations have arisen as a direct consequence of subjective legal situations created under the protection of previous legislation, and it warns that legal situations consolidated or acquired rights are not considered those derived from collective agreements, regulations, or statutes, because these are norms that regulate objective situations.

Consequently, it considers that none of the norms being challenged implies a violation of the principle of non-retroactivity of the law, as what the legislator has done is to modify, with future effects, objective situations created by previous legislation.

In Costa Rica, the relationship between public servants and the State is of a statutory nature, so the conclusion of collective agreements is prohibited in the state sphere, with the exception of public enterprises and the State's economic services governed by private law, so it is logical to conclude that public servants cannot obtain any right under their protection.

A distinction must be made between the producing source of the act and its legal nature, such that a collective agreement, although it has legal value, does not come from the Legislative Assembly and therefore does not have the same force, so these are norms that can be modified for the future because what would be unconstitutional is if the challenged norms had retroactively modified the annual increment system contained in previous legislation. In this case, there is a constitutional authorization to modify the content of these norms for the future—from the entry into force of the new regulation—as it is a discretionary power of the legislator to modify the rights and obligations of public servants going forward in order to protect the public interest. The legal system is not immovable, and the legislator has the discretionary power to modify it, with the only limit being not to retroactively affect acquired rights and consolidated legal situations prior to its entry into force. It adds that the legislator also has full freedom to choose the parameter it considers appropriate to determine future annual increments without this implying harm to the principle of non-retroactivity of the law.

The challenged Article 56 is poorly drafted but not unconstitutional because respect for acquired rights is a principle and it is not necessary to indicate it expressly, such that collective agreements can be modified for the future by the legislator, and the only thing the legislator must respect are rights incorporated into the patrimony of individuals, so it can freely change the existing rules of the game as long as servants do not have an acquired right, even when they have an expectation of a right.

Regarding the third ground of unconstitutionality, it reiterates that collective agreements are only applicable to public enterprises and the State's economic services governed by private law; therefore, the challenged regulation is applicable to all public servants, since the signing of collective agreements in the state sphere is prohibited, so the legislator can modify the maximum amount of severance pay (auxilio de cesantía) for public servants without incurring a violation of the freedom to conclude collective agreements.

The challenged Article 39 and Transitory Provisions XXVII and XXXVI are not discriminatory with respect to solidarity associations, given that Law No. 9635, being subsequent to Law No. 6970, modified the latter as appropriate, although due to an error in legislative technique this modification was not expressly stated in its text; however, it is evident that it was modified insofar as it authorizes the payment of severance pay without being subject to any limit of years of service, given that there is a supervening incompatibility between the content of both laws regarding servants covered by the solidarity system. It argues that, on the other hand, if the freedom of collective bargaining is prohibited in the public sector—except for the two existing exceptions—it is not legally possible for that freedom to be violated by the challenged regulation, and, therefore, it is valid to regulate the payment of annual increments in the state sector because the rights and obligations of public servants are solely and exclusively those set by law by virtue of the principle of inalienability of the relationship, according to which the parties cannot negotiate the content of the service relationship existing between them.

The principle of progressivity applies to the freedom of collective bargaining, but since this right does not exist in the state sphere, it cannot be invoked as a parameter for the constitutional validity of the challenged regulation. It concludes by requesting that the action be declared without merit.

8.- By means of a document filed on April 9, 2019, Miguel Ernesto Carranza Díaz appears in his capacity as a public official, Internal Control and Central Archive Facilitator of the Monseñor Sanabria Hospital, to request that he be granted active joinder in this unconstitutionality action, considering himself affected by the challenged regulatory provisions, and indicates that, due to his status as a public official and in the face of potential promotions, his economic income will be harmed.

9.- Marvin Atencio Delgado appears in his capacity as General Secretary of the Union of Professionals in Medical Sciences of the Costa Rican Social Security Fund and Related Institutions (SIPROCIMECA) through a document filed with the Chamber Secretariat on April 9, 2019, and requests that his represented party be granted active joinder in this unconstitutionality action. The union organization he represents fully adheres to the arguments put forth by the claimant and considers that the challenged norms contravene the principles of due process, freedom of collective bargaining, non-retroactivity of the law, and respect for consolidated legal situations. It requests that the unconstitutionality action be declared with merit in all its aspects.

10.- Álvaro Adrián Madrigal Mora, in his capacity as General Secretary of the Union of Workers of the National University (SITUN), appears through a document delivered to the Chamber Secretariat on April 10, 2019, to request that his represented party be granted active joinder in this unconstitutionality action.

In relation to the payment of severance pay, he states that the reform contained in Law No. 9635 did not consider the last reform to the Worker Protection Law in which the right to severance pay was stipulated as an effective right for workers without being subject to a limit of years, as provided by Article 8 of Law No. 7983, so, in his opinion, the norm contained in Article 3 of Law No. 9635, which added Article 39 of Law No. 2166, and Transitory Provision XXVII challenged here, would also be contrary to Article 7 of the Constitution. This is because ILO conventions are a higher authority over the ordinary laws of Costa Rica, in which it has been established that collective bargaining, labor relations in public administration, and the right to unionization are acquired rights, and he recalls that Convention No. 98 provides that appropriate measures to national conditions shall be taken, where necessary, to encourage and promote among employers and employers' and workers' organizations the full development and use of voluntary negotiation procedures to regulate employment conditions through collective contracts. ILO Conventions 151 and 154 are in the same terms. Neither the Legislative Assembly nor the Constitutional Chamber can ignore such conventions because they are clear in stating that collective bargaining is permitted for public sector workers and that it will enjoy independence from the authorities (Articles 7 and 48 of the Constitution). Through the different laws enacted in the country, the legislative will is evident that the right to severance pay applies not only in cases of dismissal with employer liability but also in relation to retirement, old-age pension, death, or withdrawal granted by the CCSS or the various pension systems of the Branches of Government, the TSE, autonomous institutions, semi-autonomous institutions, and municipalities. In labor law, the starting point is a right of minimums, so higher ceilings can be established, adjusted to the principles of reasonableness and proportionality. He indicates that the claims raised in the unconstitutionality action regarding severance pay are fully applicable to the workers of the National University where, through a collective agreement, the severance pay ceiling has been fifteen years, and this remains in force in the recently extended IV UNA-SITUN Collective Labor Agreement, with a progressive and staggered increase up to twenty years as the maximum ceiling, its full application being as of the year 2017. He indicates that with the regressive reform introduced to the Labor Code through the Worker Protection Law No. 7983 of February 2000, workers in both the public and private sectors saw the proportion to be paid for severance pay reduced, as a calculation table was established that worsens the benefit, according to the provisions of Article 29 of the Labor Code.

On the other hand, regarding the annual increment incentive, he states that it is closely linked to the recognition of time served in the public sector, which, in the case of the UNA, is a salary bonus called annual increment (anualidad) that, as of that date, constitutes 4% of the base salary for each year worked for the institution and is dissociated from any type of annual evaluation, included through salary negotiation in the different collective agreements. He argues that the importance of the permanence and experience of workers in other public higher education institutions has also been recognized, and therefore the collective agreement recognizes it for all its academic and administrative workers, but it is also included in the Coordination Agreement for State University Higher Education of Costa Rica, signed by the four rectors of the state universities. The objective that originates and supports this recognition is permanence and experience in the public sector, in contrast to the private sector, because the purposes or objectives of both are not the same: private activity promotes profit and utilities for a small group of business owners, while the public sector seeks the development of state institutions with the objective of public service, so permanence and experience in it seeks to provide service in the most optimal way possible and to attract better-educated and trained human resources. It is irrational and disproportionate that a single invariable fixed nominal amount has been set for the entire salary scale when this is a set of differentiated categories, since each position or job has a profile and other elements that assign it a specific, diverse salary according to the volume and responsibilities of the position. The provision of the challenged Article 50 affects the acquired rights of public sector workers because no differentiation is established between those who are already incorporated and acquired their annual increment right in percentage form and now, suddenly, it is intended to transform it into a fixed, invariable nominal sum, which is a direct impact on the salary that violates the principle of protection of salary as a fundamental component of the employment relationship with the State as employer. Transitory Provision XXXI complements, permanently, what is provided in the challenged Article 50 by establishing the percentages that will later define the fixed nominal amounts of the annual increment, which, by being frozen in time, will lose their real value, implying discrimination in relation to the differences in the percentages that existed (1.94% and 2.54%) and that are now intended to be calculated on a base salary from a date prior to the validity of Law No. 9635. The reform made in Article 57, subsection l) is discriminatory in relation to the fixed application that will be made in the first half of June, since people whose annual increment anniversary falls from January to May will have it delayed, while those whose anniversary falls from July to December will rather have it advanced, which will generate a payment for them that is not yet due, and if this second group ceases their duties, a problem is generated for the public treasury; a situation that will also affect interim workers, so some will be more benefited than others. This also aims to discourage people from seeking to improve their training and achieve temporary or permanent promotions, since the revaluation of already recognized incentives is prevented, ignoring that the annual increment is a salary concept that applies to the worker and not to the position or job, but which also generates legal uncertainty in the entire salary administration system of the public sector, evidencing a setback in salary policy and the system of economic incentives for public sector workers. The challenged Articles 54, 55, and 56 violate the right to collective bargaining and collective agreements in the public sector. Article 54 is ambiguous and indeterminate because it refers to “any other,” which implies it refers to incentives or compensations, making it an open-ended clause, harmful to legal certainty and the principle of legality. Article 56, for its part, is ambiguous because it refers to incentives “paid” (remunerados) as of the effective date of the law applied in the future, which is strange because if they were paid, they cannot be applied in the future, so it seems that instead of “paid” it should have said “approved,” since each public sector worker has in their individual file an approval document for all those incentives, compensations, and annual increments, so their modification must be done individually and with notification of the resolution so declaring it.

Transitory Provision XXXVI is ambiguous and indeterminate because it is not clear whether that obligation to terminate collective agreements, supposedly transitory, is for the first opportunity or must be applied for an indefinite future each time the term of validity of a collective agreement expires, in which case the norm would no longer be transitory but would become substantive and permanent, thus limiting the right to collective bargaining by conditioning one of the parties to terminate. This right is also limited as a fundamental right and made subject to what the law establishes, but it does not say which law it refers to, whether Law No. 9635 or Law No. 2166, since it is in a law that modifies another law. He recalls that in the event that a collective agreement is terminated and cannot be renegotiated, the rights and benefits that it and previous agreements contained are incorporated into the subjective and individual rights of each working person of the institution through their employment contract. Making all collective bargaining subject to regulations dictated by the Executive Branch is very dangerous for union freedom and freedom of collective bargaining because arbitrary abuses could occur by the rulers in office to attempt to limit the right to collective bargaining in the public sector through decrees, directives, or any lower-ranking norm that, in a dictatorial manner, is intended to be imposed on the union group of the public sector, losing the legal certainty that exists in the legal system, and he points out as an example of this Executive Decree No. 41654-MIDEPLAN-H called Regulation of Title III of the Law for Strengthening Public Finances referring to Public Employment, with which, in his opinion, a series of abuses by the Executive Branch is beginning to be experienced by including a series of “definitions” based on the current interest of the Executive Branch and not on reality.

The second paragraph of Transitory Provision XXXVI, in addition to what the claimant stated, contravenes Articles 7 of the Constitution, 7, 23, and 25 of the Universal Declaration of Human Rights (UDHR), 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and 22 of the International Covenant on Civil and Political Rights (ICCPR). The correct dimension that the right to collective bargaining, which is of constitutional rank, must acquire in the case of the public sector is not that of a total curtailment for the servant as is intended with the challenged regulation, but rather that its exercise is subject to certain limitations in accordance with observance of the legal system, the limits of public spending, and the regulations that exist on the matter. If transitory provisions are part of temporary law because their objective is to resolve conflicts in laws on a transitory basis for the purpose of providing a different and exceptional legal treatment, the legislator cannot intend for that norm to be applied indefinitely in the transitory provisions challenged in this unconstitutionality action, since severance pay, annual increment, and the termination of the collective agreement are not temporary issues because the matters intended to be regulated are of an indefinite nature, and, therefore, even if not appropriate, those transitory provisions will continue to be applied throughout the validity of the norm, which distorts its objective. With the second paragraph of Transitory Provision XXXVI challenged, the principle of non-delegability of state functions is also violated because the Legislative Assembly has sought to delegate certain of its own functions to the Executive Branch, and the latter, in turn, through the cited Executive Decree No. 41654-MIDEPLAN-H, to substitute the Constituent Assembly and the Legislative Assembly by interpreting and expanding the application of the contents of Title III of Law No. 9635 to public universities and the CCSS. It requests that, through connexity, the constitutionality of Executive Decree No. 41654-MIDEPLAN-H published on February 18, 2019, and particularly Article 3, be analyzed. It concludes by requesting that its represented party be granted active joinder and that the unconstitutionality action be declared with merit in all its aspects.

11.- Through a document filed with the Chamber Secretariat on April 10, 2019, Róger Muñoz Mata appears in his capacity as General Secretary of the Union of Employees of the Bank of Costa Rica (UNEBANCO) to request that his represented party be admitted as an active coadjuvant, as it has a legitimate interest given that the modification of LSAP No. 2166 included, within its scope of regulation, decentralized administration, i.e., autonomous institutions, semi-autonomous institutions, public enterprises of the State, and municipalities, whereby the State banks were incorporated, which originally were not covered by that Salary Law but which now, at the mercy of Law No. 9635, are subject to the provisions of Chapter III and subsequent chapters contained in Title III of that law, and, therefore, his represented party has a legitimate interest in this process in protection of the collective interest of its members and the workers of the Bank of Costa Rica (BCR), since the norms challenged in this action regarding severance pay, annual increments, incentives, salary compensations, and others, are relevant to the workers he represents because they are rights recognized for his members, regulated in the norms of the collective agreement or in regulatory provisions, which are being affected by those legal norms that harm their acquired rights and consolidated legal situations, the protection of which is the responsibility of his represented party under the protection of Article 60 of the Constitution. The challenged provisions directly undermine the right to collective bargaining, not only regarding the specific regulation of the indicated salary items but also the substantivity of the right to collective bargaining as well as its essential content throughout the public sector, and the right of the union he represents facing the next negotiation of the current collective agreement, as the principle of collective autonomy is being undermined.

Article 39 and Transitory Provision XXVII are unconstitutional because the cut of severance pay to a maximum amount of eight years is incompatible with the evolution of the development of that right in Costa Rica and breaks the principle of progressivity of fundamental rights, substantive due process, collective bargaining, and is openly discriminatory against unions. Article 26 of the ACHR provides that the States Parties undertake to adopt measures to progressively achieve the full effectiveness of the rights derived from the economic, social, and education, science, and culture norms contained in the Charter of the Organization of American States (OAS), which has a positive dimension implying that States are committed to progressively developing economic, social, and cultural rights aimed at their full effectiveness and universal satisfaction, but also a negative dimension implying the irreversibility of the protection agreed upon, i.e., the prohibition that any legislative measure undermines or worsens a favorable legal situation recognized for individuals. In the specific case, the norms in question, instead of developing and strengthening severance pay as is appropriate, undermine that right, and instead of promoting the maximum effectiveness of that right, they impose regressive regulation, incompatible with the principle of progressivity.

They violate reasonableness and proportionality because the eight-year regression lacks any basis, and that ex lege ceiling has no equivalence or proportional relationship with the average career or seniority of public servants.

The abrupt reduction of the severance pay ceiling could have unfavorable effects on the management of public services because it discourages the permanence of the official in the Public Administration, despite facilitating the accumulation of experience that will ultimately translate into better management of public services.

It also favors discrimination and inequality between unions and solidarity associations because the latter have more benefits in this matter. The principle of collective autonomy contained in Article 62 of the Constitution, which authorizes the negotiation of collective labor agreements in the public sector, is violated; a provision that fulfills the function of the principle of constitutional legality by virtue of which collective labor agreements are recognized at the highest hierarchical level of the legal system, including agreements in the public sector. The recent reform to the Labor Code through Law No. 9343 recognizes the right to collective bargaining in the public sector, but the challenged regulations restrict or prohibit it, resulting in an absolute prohibition on negotiating rules for the severance pay (auxilio de cesantía) different from those prescribed in the challenged Article 39. Transitory Provision XXVII, together with the cited Article 39, violate the principle of non-retroactivity of the law because they undermine the right of individuals to be recognized for the severance pay corresponding to the years they had accumulated as of the date the law entered into force, regardless of whether the right is recognized in a collective agreement, law, or any other source of the legal system, which violates a consolidated legal situation that cannot be overlooked by a new law. Regarding Transitory Provision XXXI, it states that it could never be argued that the seniority bonuses (anualidades) that employees had accumulated as of the date the new law entered into force could be subjected to it, because that would be incompatible with the principle of non-retroactivity of the law. It is equally contrary to this principle to seek to apply the new method of calculation and payment of those seniority bonuses under that new legal regime to the detriment of consolidated legal situations, and therefore, it considers that they must continue to be paid on a percentage basis, as was done. That Transitory Provision XXXI could be reasonable if the legislator had configured a framework of determined duration for it and it had been issued as an extraordinary and temporary measure, but not indefinitely as it was enacted. The modification of the seniority bonus calculation parameter to an absolute amount is neither reasonable nor proportional, and it also lacks technical reasonableness by starting from differentiated percentages, depending on whether they are professional or non-professional classes, in the order of 1.94% or 2.54% respectively, without technical basis and violating free collective bargaining by not allowing another calculation method to be proposed. Since the regulation of Article 50 did not stipulate any transitory provision, the conversion in the way incentives are calculated should not apply to employees who were providing their services when the law was enacted, so any other interpretation would be manifestly contrary not only to the text of the legal provision itself, but openly irreconcilable with the principle of non-retroactivity of the law, which could have no constitutional basis. \n\nArticle 57, subsection l), denatures the seniority bonus, whose objective is to remunerate an annual period of work, whereby the recognition of the seniority bonus in June of each year lacks all logic and proportionality, in addition to eliminating the recognition of time worked in the public sector, contrary to the principle of the single public employer (patrono público único). \n\nIt concludes that the second paragraph of Transitory Provision XXXI violates the principle of collective bargaining because it imposes the obligation that agreements be subject not only to the provisions of this law, but also to any other regulation of the Executive Branch. \n\nIt requests that the action of unconstitutionality be declared with merit in all its aspects.\n\n12.- Through a brief filed on April 12, 2019, José Luis Soto Rodríguez, general secretary of the Union of Personnel of the National Insurance Institute (UPINS), files a request for active joinder (coadyuvancia activa) and considers that the plaintiffs are correct, such that the questioned rules are openly unconstitutional. \n\nThe represented party has initiated ordinary labor proceedings in the Labor Court of the Second Judicial Circuit of San José, processed under case files No. 19-000479-0166-LA and No. 19-000580-0166-LA, which aim to recognize the rules contained in the collective agreement of the National Insurance Institute (INS) and UPINS and the consolidated legal situations of INS and Costa Rica Firefighters workers. \n\nIn advisory opinion No. 2018-019511, which addressed the consultation of constitutionality on the bill for what is now Law No. 9635, the Constitutional Chamber stated that both the Political Constitution and ILO conventions protect the right to free collective bargaining; therefore, limiting collective agreements through a law, forcing the parties to reform what was stipulated therein or imposing the regulations of Law No. 9635, is unconstitutional because it empties the fundamental right to free collective bargaining of its content. With the entry into force of the challenged rules, not only is the possibility of negotiating rights through collective agreements being limited, but also, as indicated by the PGR in its pronouncement No. C-060-2019, the Government is forcing administrations to apply what is stipulated in Law No. 9635 as well as what it modified in the LSAP, which nullifies the rules contained in collective agreements, without these being expressly repealed. It recalls that collective agreements have the force of law, which allows both the institution and the unions to have the legal certainty that what is agreed therein will be fulfilled, and therefore, the challenged rules cannot limit or tacitly repeal the rights contained in a rule of a collective agreement without distorting its nature. The challenged rules are unconstitutional because they also contravene the provisions of Articles 188 and 189 of the Constitution, according to which autonomous institutions —such as the INS— have administrative independence and are only subject to the law in matters of government, such that it is unconstitutional for Law No. 9635 to attempt to regulate and limit their administrative independence, which threatens their autonomy. It requests that the action be declared with merit with its consequences. \n\n13.- Through a brief filed by Gonzalo Francisco de Jesús Delgado Ramírez, in his capacity as president with powers of general unlimited attorney-in-fact of the Costa Rican Union of Chambers and Associations of the Private Business Sector (UCCAEP), and Álvaro Sáenz Saborío, in his capacity as special attorney-in-fact of that Union, delivered to the Secretariat of the Chamber on April 12, 2019, it is requested that this guild be considered a passive coadjuvant (coadyuvante pasivo) and it asks that this action of unconstitutionality be declared without merit. \n\nSeniority bonuses are not a fundamental labor right, but a mere legislative creation subject to changes that the legislator itself can make, be it eliminating, regulating, and reforming them according to the country's economic realities. \n\nIn this specific case, seniority bonuses have been growing more than inflation, which was unreasonable, disproportionate, and fiscally inconvenient. The system of annual salary increases must be similar to that of salaries in the private sector, where the increase occurs in accordance with the inflation index because, otherwise, public employees will continue to enjoy a privileged situation compared to the rest of the workers, which contradicts the principle of equality and threatens the ideal of a social welfare state; a situation that has generated a disproportion in the sense that the average salary of the Public Administration is much higher than that of the rest of the country's workers. The minimum wages of public workers must be uniform, and their increase must be determined by the inflation index as an objective parameter, given that there is no supposed "constitutional right to seniority bonuses," as the plaintiff alleges, and if it did exist, it should then also apply to private workers. \n\nThey point out that the existence of seniority bonuses is not conditioned on the efficiency of the public employee, but rather it is a salary supplement that was paid and grew automatically for public officials, which became an annual salary increase without any criterion and without relation to inflation; therefore, its regulation, elimination, or reduction does not violate any fundamental or constitutional rule. The legislator is not obliged to grant benefits ad perpetuam or sine die, as society's needs are changing, such that legislation that was beneficial for the community at one time may need to be changed or even abolished if the situation so demands. The salary scale, based on hierarchy and responsibility, is justified by objective parameters, which is why it is reasonable that the seniority bonus recognition system varies according to the official's hierarchy and the complexity of their technical skills, in such a way that there is equity in remuneration, which does not violate the principle of proportionality because, unlike private employees, the only way to establish scales and differences in the prerogatives and obligations of public servants is by law. The challenged rules do not imply any obstacle to accessing public positions based on merit, as the plaintiff alleges, by establishing inequalities between old and new workers, since there are other objective technical criteria, parameters, and measurements of suitability for the exercise of public positions, such as evaluations of different regimes, credentials, qualifications, experience, or academic degrees, which has nothing to do with the seniority regime. The challenged legislation does not contravene substantive due process because what it seeks is to impose a relationship of greater equity and justice with private workers, since, as is well known, seniority bonuses are a perquisite or a privilege limited to the public sector, which introduces an odious situation in the entire labor regime and the Social State, which is why situations known to all occur, such as the fact that a worker in a private company sometimes receives one-tenth of what a public sector worker receives for doing the same work. The challenged rules do not violate the principle of public efficiency, since seniority bonuses have no relationship whatsoever with an objective system of qualifications and merits that would suggest that seniority bonuses affect the efficiency of the public service system. Rules can be varied as long as parameters such as normative hierarchy, competence, the source producing the rule and its competence, and respect for the non-retroactivity of rights acquired by law are respected, all of which they consider have not been violated in the challenged regulations, this because those situations arising from collective agreements, regulations, or simple statutory regulations cannot be considered consolidated legal situations or acquired rights, as long as they are objective situations, such that, in this case, what the legislator did was simply modify, for the future, objective situations created by previous laws. The Chamber has been reiterative in its jurisprudence that the relationship between public servants and the State is statutory in nature, so it is not possible to obtain benefits from collective agreements signed in the state sphere, since that prerogative is only limited to public enterprises and economic services of the State, governed by private law in accordance with the Public Administration legislation, so acquired rights derived from benefits obtained from collective agreements for State servants cannot be claimed. If the negotiation of collective agreements among State servants is prohibited, then it cannot be invoked that the challenged rules violate freedom of collective bargaining; therefore, the amounts of severance pay can even be modified without violating the freedom to negotiate collective agreements. SEBANA makes the mistake of considering that any rule granting a benefit is by itself immutable and cannot be reformed, but it forgets that only subjective situations are protected by the non-retroactivity of the rule. In the present case, acquired rights essentially refer to those that already belong to one's personal patrimony, so the legislator can indeed vary the regulations regarding potential future rights, because those are not acquired rights, but rather a mere expectation. The challenged regulations do not harm any right of solidarity associations, since they are subsequent to the Law on Solidarity Associations, thus fulfilling the same principle in the sense that the legislator can approve subsequent laws that modify the regulatory reality. The ILO international conventions have a lower rank than the Constitution, so they cannot contradict constitutional provisions 191 and 192. Finally, the challenged regulations are not unconstitutional and therefore they request that this action of unconstitutionality be declared without merit. \n\n14.- Through a brief filed on April 12, 2019, Luis Gerardo Chavarría Vega appears, in his capacity as general secretary of the National Union of Employees of the Fund and Social Security (UNDECA), and requests that his represented party be considered an active coadjuvant in this action of unconstitutionality. \n\nThe challenged Article 39 and Transitory Provision XXVII are unconstitutional for several reasons; firstly, due to the cap imposed on severance pay (auxilio de cesantía) of a maximum of eight years, which is totally incompatible with the evolution that the development of this right has had in Costa Rica and which implies a violation of the principle of progressivity of fundamental rights, of substantive due process, of the right to collective bargaining, and for being discriminatory against unions. The purpose of constitutional Article 63 is to protect workers who lose their job as a result of a dismissal without just cause, but that provision does not prohibit the worker from being recognized for severance pay in other circumstances. It points out that, due to the historical evolution of the severance pay institute in Costa Rica, it does not have an exclusively compensatory nature because it was also recognized when the worker retires or obtains a pension, thus configuring itself as an expectation of a right without being of a reparatory nature; a situation that, together with the enactment of the Law on Solidarity Associations, broke with the minimum cap established in Article 29 of the Labor Code, with the challenged Article 39 and the corresponding Transitory Provision violating this historical evolution of severance pay, consolidated as a personal, indisputable right of the worker, which is not subject to arbitrary caps, in addition to which it can be considered disproportionate, because a public official, to consolidate the retirement right, needs to be at least 62 years old —for men— and 60 years old —for women—, with a number of contributions equivalent to no less than thirty-eight years of service. A cap of eight years, like the one imposed by the challenged regulations, is completely out of alignment and devoid of all reasonableness and proportionality. The abrupt reduction of the severance pay cap could have unfavorable effects on the management of public services, because it discourages the permanence of the official in the Public Administration, whose continuity facilitates the accumulation of experience, and this new cap leaves unions in a situation of discrimination compared to solidarity associations because, while collective agreements are subject to an eight-year cap, the employer contributions corresponding to workers affiliated with solidarity associations have no limit or cap; and, in turn, they violate the principle of autonomy and collective bargaining as well as the principle of non-retroactivity of the law. \n\nRegarding the challenged Article 50 and Transitory Provision XXXI, the new rule established for the payment of the seniority bonus (anualidad) incentive should not apply to public servants who were working on the effective date of Law No. 9635, and therefore, it could not be argued that the seniority bonuses that employees had recognized and accumulated as of the date the law entered into force could be subjected to the new rules, such that an interpretation of this kind would be unconstitutional since it violates the principle of non-retroactivity of the law to the detriment of acquired rights and consolidated legal situations of those public servants, in detriment of the seniority bonuses accumulated as of the effective date. \n\nTransitory Provision XXXI violates the principle of necessity, proportionality, and reasonableness, as it transforms the calculation parameter for the seniority bonus from a percentage factor to a nominal or absolute amount, which would remain invariable, that is, the seniority bonus amount is frozen ad perpetuam, which will mean its real value will progressively deteriorate at the expense of inflation, deteriorating the country's economic situation. \n\nRegarding the challenged Article 54, no transitory provision was stipulated, so this differentiated treatment allows one to maintain that the conversion in the rule for calculating incentives does not apply to employees who were providing their services when said law was enacted, such that attempting to interpret it otherwise would be totally unconstitutional because the consolidated legal situations of individuals who already acquired rights under the regulations that governed those incentives or salary supplements would be violated, whether those regulations correspond to a law, collective agreement, or any other regulatory source of the legal system. This rule would have a devastating effect on the salary levels of public servants whose incentives or salary compensations would remain frozen. \n\nIn relation to the challenged Article 55, it argues that it was determined not to be unconstitutional as long as it is understood as the Constitutional Chamber interpreted it, and the challenged Article 56 is not in itself unconstitutional because it can be interpreted as constituting a kind of general safeguard clause for the acquired rights and consolidated legal situations of public servants, whose scope permeates all the provisions contained in Title Three and the corresponding transitory provisions of Law No. 9635. \n\nArticle 57, subsection l), denatures the seniority bonus, whose objective is to remunerate an annual period of work, such that its recognition in June of each year lacks all logic and proportionality, and eliminates the recognition of time worked in the public sector, contrary to the principle of the single public employer (patrono público único). \n\nIt concludes that, in relation to Transitory Provision XXXI, its second paragraph violates the principle of collective bargaining because it imposes the obligation that agreements be subject not only to the provisions of this law but also to any other regulation of the Executive Branch. It ends by requesting that the action filed be declared with merit.\n\n15.- By resolution of 09:54 hrs. on April 25, 2019, the Presidency of the Constitutional Chamber issued two notices (prevenciones):\n\n"Prior to resolving the requests for joinder (coadyuvancia), the applicant Marvin Atencio Delgado, identification number 6-0178-0481, in his capacity as General Secretary of the Union of Professionals in Medical Sciences of the Costa Rican Social Security Fund and Affiliated Institutions (SIPROCIMECA), is notified that he must provide the current legal standing (personería jurídica) of the union he represents, certifying the status he claims to hold with respect to that entity. Likewise, Álvaro Adrián Madrigal Mora, identity card number 1-0675-0987, in his capacity as General Secretary of the Union of Workers of the National University (SITUN), is notified that he must submit again the brief filing his joinder, since the digital document in the case file is incomplete (folio 58 is missing)."\n\n \n\n16.- By resolution of 13:10 hrs. on May 2, 2019, the Presidency of the Chamber issued the following notice:\n\n"Prior to resolving the request for joinder, the applicant Juan Carlos Chaves Araya, identity card number 107210335, in his capacity as General Secretary of the Union of Workers of the Banco Popular and Communal Development (SIBANPO), is notified that he must provide the current legal standing of the union he represents, certifying the status he claims to hold with respect to that entity."\n\n \n\n17.- By resolution of 09:29 hrs. on May 8, 2019, the Presidency of the Chamber resolved the following:\n\nMr. Enrique Egloff Gerli, in his capacity as president of the Costa Rican Chamber of Industries Association, and Mr. Álvaro Sáenz Saborío, in his capacity as special attorney-in-fact of the Costa Rican Union of Chambers and Associations of the Private Business Sector, are considered passive coadjuvants, because their interest is that this action of unconstitutionality be declared without merit; \n\nMr. Juan Carlos Chaves Araya, in his capacity as general secretary of SIBANPO, Miguel Ernesto Carranza Díaz as a public official, Marvin Atencio Delgado in his capacity as general secretary of SIPROCIMECA, Álvaro Adrián Madrigal Mora as general secretary of SITUN, Róger Muñoz Mata in his capacity as general secretary of UNEBANCO, José Luis Soto Rodríguez in his capacity as general secretary of UPINS, and Luis Gerardo Chavarría Vega as general secretary of UNDECA, are considered active coadjuvants, as their interest is that this action be declared with merit; \n\nthe hearing granted to the PGR was considered as answered; and \n\nthe action is assigned to the reporting magistrate to whom its substantive study corresponds by turn. \n\n18.- On March 22, 2019, the action of unconstitutionality No. 19-004931-0007-CO was filed by Mr. ALBINO VARGAS BARRANTES, in his capacity as GENERAL SECRETARY and JUDICIAL AND EXTRAJUDICIAL REPRESENTATIVE of the NATIONAL ASSOCIATION OF PUBLIC AND PRIVATE EMPLOYEES (ANEP). The arguments were as follows: \n\n"1.- Article 26 added to Law No. 2166. It violates the principle of municipal autonomy and constitutional Articles 11, 169, 170, and 188. This rule was conceived with the idea of cushioning public spending, based on the Government's crisis, and despite being a Central Government situation, including decentralized and autonomous institutions in general, such as municipalities, within its application scope is a violation of Articles 11, 169, 170, and 188 of the Political Constitution regarding their autonomy. The challenged rule violates normative, administrative, and tax autonomy. Additionally, with the challenged Article 26, the Executive Branch is being given the power of direction and administration over decentralized and autonomous institutions, which is limited by constitutional provisions. \n\n \n\n2. Article 28, paragraphs 2 and 4, as well as paragraph 6 of Regulation No. 41564-MIDEPLAN-H, states that it violates the principles of autonomy, legal certainty, reasonableness and proportionality, progressivity of rights, and autonomy of will, as well as the content of constitutional Article 28. The challenged rule is unconstitutional to the extent that it imposes on public institutions in general, and mainly on autonomous and decentralized ones, an obligation to sign exclusive dedication contracts for a time determined in this Law, violating the institutions' autonomy to decide under what terms, according to their interests and particular conditions, for how long (contract duration) they may sign this type of contract with their collaborators. Establishing in this article the obligation to sign exclusive dedication contracts within the indicated time range (from one to a maximum of five years) also makes it impossible, through specific rules such as collective bargains or internal work regulations, to establish rules on the matter that are more beneficial for the worker or more in line with institutional needs, which violates the principles of progressivity of labor rights and the protective principle of labor law. Regarding the principle of progressivity, it indicates that it is an interpretative principle according to which rights cannot diminish; therefore, by being only able to increase, they progress gradually. Regarding paragraph 4 of the rule, it has defects of unconstitutionality to the extent that it violates the principle of legal certainty by establishing, in an ambiguous manner, the express prohibition for officials who, without having an exclusive dedication contract nor receiving economic compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over public interest. \n\n \n\n3.- Article 30 and Article 7 of Regulation No. 41564-MIDEPLAN-H, it alleges violate the principles of legal certainty, reasonableness, the protective principle and non-regressivity of labor rights, as well as constitutional Article 34. Both rules contain defects of unconstitutionality to the extent that they represent a regression of rights and guarantees for the most vulnerable party in the employment relationship, which is the worker. The fact that through these regulatory provisions a situation of legal uncertainty is generated for officials whose contracts have not been extended, including those contracts signed before the entry into force of Law 9635, and by prohibiting tacit extension, a situation of disadvantage and uncertainty is created, violating the protective principle. \n\n \n\n4.- Article 31, subsection 1), maintains that it violates the principles of legal certainty and equality and constitutional Article 33. The rule does not include, among the positions that could be subject to payment of the salary supplement for exclusive dedication and prohibition, all possible forms of contracting within the Public Administration. The provision, to the extent that it establishes a numerus clausus of persons who may be subject to payment for exclusive dedication and prohibition within the Public Administration, generates clear inequality and a situation of legal insecurity in relation to other officials whose categories are not contemplated. \n\n \n\n5.- Articles 32 and 33, added to Law No. 2166, violate the principles of legal certainty, equality, reasonableness and proportionality, and the interdiction of arbitrariness, and constitutional Article 33. Establishing limitations such as those indicated in Articles 32 and 33 creates a clear situation of inequality between officials who have an exclusive dedication or prohibition contract and are therefore paid the corresponding item, compared to officials who do not have this salary incentive, and even so, the State prohibits them from practicing their profession, according to the cited rules, which is clearly unconstitutional. \n\n \n\n6.- Articles 35 and 36, added to Law 2166, violate the principles of progressivity of rights, equality, efficiency and efficacy, reasonableness, proportionality, and constitutional Articles 7, 33, 50, 56, and 57. The new percentages for recognizing salary supplements for exclusive dedication and prohibition under less beneficial conditions violate the principle of progressivity of rights, previously mentioned. The approved regulation worsens working conditions within the public sector, justified by the country's poor fiscal situation, which cannot be permanent. However, the approved reforms do not foresee that the workers' situation will change if the country's economic situation is restored, turning it into a permanent sanction. The new compensation rules for public officials violate the principles of progressivity of rights and efficiency and efficacy in the Public Administration. This will generate, in the short term, a flight of experienced professionals, as there will be no attractive salary conditions to keep them within the system. This, added to the freezing of other salary supplements such as seniority bonuses and other incentives, will have a direct impact on the efficiency and efficacy of the function performed by the Administration.

The reduction applied to the additional salaries for exclusive dedication and prohibition is irrational and lacks a technical study that could support this deterioration in working conditions, without there being certainty that it is the cause of the country's fiscal problem, when it has been pointed out that the causes of the fiscal deficit stem from more complex problems such as tax evasion and avoidance. In the near future, there will be officials performing equal or similar functions, but receiving a totally different income. The set of norms challenged in this section makes it clear that the purpose of the law to "standardize and unify" public employment regimes is false, and that the State is creating gross and unjustified differences between officials of the same category, promoting the violation of the constitutional principle of equality.

7.- Article 39 added to Law No. 2166, indicates that it harms the principles of collective bargaining, rationality, proportionality, progressivity of rights and most beneficial condition, as well as constitutional articles 33 and 62. This provision closes the possibility for the public sector to sign collective bargaining agreements, which have the force of law between the parties, which harms constitutional article 62. The challenged norm not only harms the right to collective bargaining, but also acquired rights, the consolidated legal situations of officials who, at the time the norm came into effect (December 3, 2018), had already acquired working conditions that cannot be affected. Moreover, this provision disregards that there are collective bargaining agreements and regulations or statutes that already contain provisions on the payment of incentives or compensation in percentage form. Collective bargaining is a fundamental right contained in article 62 of the Political Constitution, so the possibility of negotiating better working conditions between the parties that sign a collective bargaining agreement is a fundamental right that must be protected. Expressly prohibiting the possibility of negotiating a higher severance pay ceiling, through an agreement between the parties, limits not only the right to collective bargaining, but also the possibility of obtaining better working conditions for officials, which empties it of content. Article 7 of the Political Constitution establishes that international treaties and conventions have authority superior to laws. In turn, union freedom is a right contained in article 16 of the American Convention, in article 8 of the Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador; also in article 23 of the Universal Declaration of Human Rights, and article 22 of the American Declaration of the Rights and Duties of Man and, therefore, must be observed in Costa Rica. Convention 87 of the International Labour Organization, called "Convention concerning Freedom of Association and Protection of the Right to Organise", duly ratified by Costa Rica, establishes the obligation of the Costa Rican State to implement the provisions of said convention. The challenged Article 39 harms article 4 of that convention, which orders that the State must seek to promote collective bargaining and not limit or hinder it, and recognizes that the collective bargaining agreement is the quintessential mechanism for improving employment conditions through social organizations. The fact that the country's economic situation is difficult does not make collective bargaining agreements unconstitutional.

8.- Article 40 and article 16 of Executive Decree No. 41564-MIDEPLAN-H, considers that it harms municipal autonomy, as well as the principles of efficiency and effectiveness, legal certainty, the constitutional right to collective bargaining, the progressivity of labor rights, and the protective principle of labor law. The norm constitutes an unconstitutional interference by the State, by affecting the self-government possibilities that the Municipal regime possesses. It is a prohibitive norm, which eliminates the possibility for local governments to determine their own needs and possibilities in salary matters and to establish incentives for work personnel to remain in their jobs. It violates the principle of progressivity of labor rights, as it causes regression in some institutions that already pay the five-year period (quinquenio) incentive, whether through legal means (article 90, subsection c) of the General Police Law, article 27 of the Legislative Assembly Personnel Law) or regulatory means (articles 99 and 100 of the Autonomous Regulation of the Costa Rican Tourism Institute) or through collective bargaining (Social Protection Board of San José).

9.- Article 46 added to Law No. 2166 and article 22 of Executive Decree No. 41564-MIDEPLAN-H, harm municipal autonomy and that of decentralized entities in general, as well as the constitutional principles of efficiency, effectiveness, and legal certainty. The unconstitutionality of the norm is evident, as, in relation to article 26 of Title III of Law No. 9635, it grants powers to the Central Administration, through the Ministry of Planning, to "define the guidelines and administrative regulations that tend towards the unification, simplification, and coherence of employment in the public sector, ensuring that public sector institutions adequately respond to the defined objectives, goals, and actions." This constitutes a very clear intrusion into the administrative, political, and organizational powers of decentralized entities, in direct violation of the three degrees of autonomy that the Constitution and their creation laws have granted to each of those administrations, stripping them of their power of self-administration. Each of the decentralized entities is a distinct legal entity, with a specific legal purpose and attending to concrete needs established by law. For this, a budget is assigned to them, which in many cases is their own as it comes from taxes created in their favor or from a commercial activity. On the other hand, the Ministry of Planning is alien to the reality of each institution and the community or public interest it serves, despite which it is granted the power to decide on multiple aspects of the public employment regime. A violation of the principle of legal certainty also occurs, because the duality in regulation (decentralized regime and regulatory powers of the Executive Branch) causes a state of insecurity for the entities and their workers.

10.- Article 47 added to Law No. 2166, harms municipal autonomy and that of decentralized entities, as well as the principles of efficiency, effectiveness, legal certainty, equality, and prohibition of arbitrariness. The norm has the same constitutional flaws indicated for Article 46, because it orders decentralized entities to apply certain evaluation methodologies, with the Central Administration interfering in the administrative powers constitutionally granted to each of the institutions, in clear violation of their administrative autonomy. The term "respective exceptions (salvedades respectivas)" is ambiguous; neither the law nor the regulation mentions what they are. The ambiguity of the norm is not coincidence but rather responds to the purpose of the Executive Branch to singularly derogate a norm in favor of whomever it wishes or whichever institution it desires, acquiring power over decentralized institutions. There is also a violation of the principle of equality and the Prohibition of Arbitrariness, insofar as the Administration can not apply its own evaluation methods whenever it wishes, without objective criteria established in the law. The violation of the principle of equality derives from the 1st paragraph of the norm that establishes "quantitative indicators of compliance with individual goals for products and services provided." The services provided by the Public Administration are never comparable to the type of services provided in the private sector, so as to establish quantitative evaluation methods.

11.- Article 48 added to Law No. 2166, indicates that it also violates the constitutional principles of municipal autonomy and that of decentralized entities, as well as those of legal certainty, equality, reasonableness, proportionality, and prohibition of arbitrariness. As with Articles 46, 37 and 48, this article constitutes an intrusion by the Central Administration into the administrative competencies of decentralized entities. The norm, viewed in light of the referenced articles, contains arbitrary provisions. It creates a new obligation for public officials, at any level, regarding keeping the updating and maintenance of information for their performance evaluation up to date, in a computer system, under penalty of being charged with committing a serious fault. This is a new obligation that translates into more work and less time to attend to daily obligations; nor does it clarify which workers it refers to. On the other hand, it establishes that 80% of the evaluation will be measurement of goals and 20% "responsibility of the headship (jefatura)." Thus, one fifth of the total percentage of the worker's evaluation is granted to the subjective considerations of each headship, understanding that this 20% is the difference between obtaining or not obtaining the annual increase (anualidad) for officials, granting power to headships to leave their subordinates, without any visible objective criterion, without increases for time served for as many periods as they wish.

12.- Article 50 added to Law No. 2166 and article 1, subsection a) of its Regulation, harm the constitutional principles of municipal autonomy and that of decentralized entities and, with it, the principle of legality. Also, the principles of progressivity of labor rights, non-retroactivity of the law, reasonableness and proportionality, prohibition of arbitrariness, and the tax principles of non-confiscation, economic capacity, and progressivity. The State intends to render useless over time the amount paid for annual increase (anualidad) and to empty it of content, eliminating the right to this remuneration that helps workers maintain the purchasing power of their salaries against the cost of living. The norm does not indicate what the designated "nominal amount" is and leaves that task for the Executive to define via regulation. This violates the principle of prohibition of arbitrariness, by eliminating from the laws the percentage amounts included in the Public Administration Salary Law and providing that it is changed to an undetermined nominal amount, thereby granting abusive and undue discretion to the Central Administration. This will also define the same amount for Municipalities and decentralized entities, due to its relationship with article 26 of Title III, which harms the constitutional autonomy provided in favor of such entities. Additionally, the legislator provided for increasing the set of goods and services taxed with the value-added tax (VAT), while the increases for time served, which prevented the loss of purchasing power, are set at an undetermined nominal amount that will only lose value over time. In practice, this translates into a loss of purchasing power for workers that will prevent them from consuming many of the goods taxed with VAT and maintaining their lifestyle. The consolidated legal situations of public officials who began working before the entry into force of Law No. 9635 are being violated by the norms that reformed article 12 of the Public Administration Salary Law and Transitory Provisions XXVII and XXXI) insofar as they establish new forms of payment, fixed amounts of annual increases (anualidades) for all public officials, even for those who, through special norms (collective bargaining agreements, internal work regulations, autonomous service work regulations, Council agreements), etc., have another modality for paying bonuses (pluses), incentives, annual increases (anualidades), five-year periods (quinquenios). Although Transitory Provision 56 of the Law provides that the promulgated norms cannot be applied retroactively to the detriment of workers, an inadequate analysis has been made of what should be understood as an acquired right and consolidated legal situations.

13.- Article 51 added to Law No. 2166, for violation of the constitutional principles of reasonableness and proportionality and the rights to collective bargaining, union freedom, and singular non-derogability of regulations. States that the purpose of the norm is to discourage collective bargaining, prohibiting public officials who negotiate collective bargaining agreements from benefiting from it. This constitutes a violation of article 4 of Convention 98 of the International Labour Organization.

14.- Articles 52 added to Law No. 2166 and 21 of Executive Decree No. 41564-MIDEPLAN-H. States that they harm municipal autonomy and that of decentralized entities, and the principles of legality, reasonableness, proportionality, progressivity of labor rights, as well as the constitutional right to collective bargaining. Points out that the norm harms the administrative autonomy of decentralized entities insofar as they are ordered how to regulate their remuneration system. While the law provides that the salary not be varied, it orders the institutions how to manage salaries, thereby committing an abusive ius variandi. There are workers who have their obligations planned according to a biweekly periodicity, as they have received their salary this way for years. The mere change in the payment modality can represent a detriment for these officials. That the State, through the legislator, orders these institutions to adapt to this article and its transitory provision, directly violates constitutional and conventional law, by ignoring these rights of higher rank than legal law, causing a regression in labor rights and, therefore, equally violating the principle of their progressivity. The norm is not reasonable or proportionate, since according to Transitory Provision XXIX there should be no decrease or increase; in that sense, there is no reason whatsoever to affect the autonomy of the entities. In the absence of a palpable purpose, the norm lacks all reason and proportion.

15.- Articles 53 added to Law No. 2166 and 15 of Executive Decree No. 41564-MIDEPLAN-H, for violation of the constitutional principles of autonomy of decentralized entities, right to collective bargaining, principle of equality, equal pay, legal certainty, and suitability of the public official. Article 192 of the Political Constitution provides that public servants shall be appointed based on proven suitability. The challenged norm represents a regression in relation to the purpose of hiring suitable officials, by providing that career development (carrera profesional) points will only be recognized when they cover the training they receive. This constitutes a serious disincentive for the State's professionals to improve their academic and training conditions. Additionally, the norm causes the appearance of two types of officials: some who can invest in their training and others who depend on the Administration investing in it. Both would perform the same functions, but the training assumption would cause them to receive different incomes, which harms the principle of equality. The training incentive could be provided in a collective bargaining agreement, in which case, the norm would also harm the right to collective bargaining. Finally, the wording of the norm causes legal uncertainty because its wording is ambiguous and does not allow one to determine with certainty what the spirit of the legislator was: whether to recognize up to five years of training or to pay only for five years.

16.- Articles 54 added to Law No. 2166 and 17 of Executive Decree No. 41564-MIDEPLAN-H for violation of the constitutional principles of municipal autonomy and that of decentralized entities, principle of legality, progressivity of labor rights, right to collective bargaining, reasonableness and proportionality, prohibition of arbitrariness, tax principles of non-confiscation, economic capacity, and progressivity. Like the challenged Article 50, this norm empties of content, in the future, any existing incentive provided by legal, conventional, or regulatory norm, by decreeing it nominally, subjecting it to the loss of the currency's purchasing power. It is an extremely poor legislative technique that harms the progressivity of rights and the autonomy of decentralized entities and that directly affects the purchasing power of public officials, whose salary would be confiscated. The unreasonable and disproportionate relationship of what the legislator seeks is clear: higher consumption taxes and diminishment of labor rights. The detriment is not only for the professional class, but also for municipal laborers, administrative police officers, etc. The legislator intends to refinance the State at the expense of the rights of Costa Ricans, especially public officials, regardless of their salary level.

17.- Article 55 added to Law No. 2166 for violation of the constitutional principles of legal reserve, municipal autonomy and that of decentralized entities, principle of legality, progressivity of labor rights, and right to collective bargaining. The legislator's intention to ensure that no other avenue exists for the creation of incentives other than the legislative one is clear. This harms the right to collective bargaining and violates municipal autonomy and that of decentralized entities, whose powers derive from the Political Constitution and the respective laws. The regulatory power in administrative matters enjoyed by the minor entities is undermined by a legal norm that intends to legislate in an unrelated field. For this reason, the principle of legality is harmed.

18.- Article 57, subsections f), g), h), i), m), n), o) and p) of Title III of Law No. 9635. Subsection f), for violation of constitutional article 192 on the suitability and immovability of public officials, as well as their job stability. The others, for violation of the principles of equality, equal pay, and subsection i) for violation of the principles of reasonableness, proportionality, and legal certainty. Regarding subsections g), h), i), m), n), o) and p), it has already been indicated that there is evident inequality promoted by the legislator without any justification, by determining that some officials will receive a prohibition payment percentage of 65% of the base salary, while others, under equal conditions regarding academic level and functions, will be compensated with only 30%. Subsection i) is an ambiguous provision, contrary to the principle of legal certainty because it reforms article 5 of Law No. 5867, Ley de Compensación por Pago de Prohibición of December 15, 1975. The reformed norm indicates that the compensation will be calculated on the lowest salary indicated in the salary scale of the Public Administration issued by the General Directorate of the Civil Service. The original norm provided that such compensation would be calculated on the base salary corresponding to each institution. The objective of paying prohibition percentages to professionals, using the lowest salary on the scale, violates the principles of reasonableness and proportionality, to the extent that the professional is compensated for the limitation of practicing their profession, with an amount that does not correspond to what said professional could obtain if not legally limited. As for subsection f), it reforms the 1st paragraph of article 47 of Law No. 1581, Civil Service Statute of May 30, 1953. Through the reform, the legislator repealed the state obligation to indemnify the worker included in the Civil Service Statute. It also repealed article 37 of that Statute to which it referred through article 58, subsection b) of this law. The repealed norms have a reason for being insofar as the constituent considered it necessary to include the public employment regime within the larger regulatory body to guarantee suitability and stability. Based on the latter, the indemnification provided in article 37 guaranteed that the administrative head could not apply the exception cases (such as reorganization), indiscriminately, to dismiss officials. The norms accused of being unconstitutional break with that purpose, and equate the public official subject to the civil service regime with any private worker. This is contrary to what the constituent intended.

19.- Regarding articles 5 and 11 of Law No. 9635. Points out that they harm the principle of autonomy, as they allow the Executive Branch to impose budgetary policies on all institutions without determining the degree of independence of each one. In relation to article 11, by providing that institutions in general must determine their current expenditure, directly relating it to the debt of the Central Government and limiting the current expenditure of the entire public sector, without taking into consideration the reality of each autonomous institution. For its part, article 13, subsection c) restricts the way in which these institutions regulate salary increases, which is a power constitutionally established in their favor.

20.- Article 15 of Law No. 9635. Harms articles 7, 11, 50, and 74 of the Political Constitution and the principle of progressivity of fundamental rights. The Constitutional Chamber has recognized the mandatory nature of the State's obligation to respect the amounts of specific destinations established by legal norm, especially when they are intended for financing social welfare programs, attention to vulnerable populations, or the fulfillment of fundamental rights in general. Giving the Executive Branch the power to vary these amounts or destinations is a clear abuse of power and a serious violation of fundamental rights that the State must guarantee. The Ministry of Finance's omission to transfer special funds in such an open manner, without the norm making any exception, is irrational and violates Constitutional Law. It is not possible that due to the fiscal crisis, the State ceases to attend to its obligations.

21.- Article 17 of Law No. 9635 harms the principles of autonomy and reasonableness, as well as constitutional articles 11, 169, 179, and 188. This norm violates the independence of autonomous institutions in the fulfillment of their purposes; it is not valid that they are ordered to cover the debt of the Central Government with resources that are their own and that are destined to fulfill specific purposes.

22.- Articles 23, 24, and 25 of Law No. 9635 violate the principle of autonomy and the progressivity of human rights, according to which "...as the level of development of a State improves, the level of commitment to guarantee rights improves...". Article 23, the source of unconstitutionality invoked for the three norms, contains a list of criteria for the budget allocation of the Costa Rican State. The budget allocation places the protection of rights and their progressivity in ninth position, behind even the availability of financial resources, the fulfillment of institutional goals, and the priorities of the current government. It is necessary to analyze the danger that the hierarchy of criteria poses for the population that holds those human rights which, according to the list, would be financed after other commitments. The order of state priorities embodied in this law will allow any public law institution to invoke a lack of budget in order not to finance the human rights that the State is obliged to protect, or allow the State to establish budgets by ignoring or minimizing the fulfillment of human rights. Articles 24 and 25 are intimately related to 23, with the understanding that the National Budget Directorate must use those criteria to budget transfers to State institutions. (...) - For standing purposes, it points out that it derives from article 75, paragraph 2 of the Constitutional Jurisdiction Law. The law they challenge affects the interests of the community as a whole, both in its individual and collective scope, because it contains norms of general application. It also has norms applicable to a group with a social and common interest; specifically, Title III of the Law affects the public officials of this country and their families, thereby affecting their diffuse interests. As public officials are a more or less determined group, but who are not all united by a common legal bond with the petitioner, it considers that this involves the defense of diffuse interests and not necessarily collective ones. Furthermore, this action is also directed towards specific norms of Title I and Title IV of the same body of norms, in which an even larger community is affected, such as in their case the constitutional rights of taxpayers, the administered of the municipal regime, and the local governments themselves in their autonomy granted by the Political Constitution, as well as the set of public officials who work in various public institutions that are creditors of a certain level of autonomy, as well as the exercise of fundamental and constitutional rights that, as will be stated below, are threatened with the approval of a series of norms of the Law for Strengthening Public Finances. It states that its represented entity has among its objectives, to participate in all those decisions that affect the interests of public service and private enterprise workers. Also, to intervene and show solidarity with all those problems that nationally or internationally affect workers in their condition as a class. The Asociación Nacional de Empleados Públicos y Privados commits itself across the entire spectrum of national reality to generate discussions and struggles for a more just, egalitarian, participatory, and solidary society, and by reason of this they consider themselves to have standing to invoke the pertinent constitutional and legal norms in order to achieve said objectives. The norms accused of being unconstitutional are of a general nature and affect, not only the persons affiliated with their represented entity, but every public official, affiliated or not, who is subject to a law that violates constitutional norms and principles and their rights in the abstract. Some of these norms harm the Social State of Law, which affects an even larger community. They consider that they have the right and the duty to take the respective actions to defend those diffuse interests that the Constitutional Jurisdiction must protect. Another aspect they challenge through this action is the violation of the two degrees of autonomy that the Political Constitution grants to local governments. All inhabitants of the country, including their affiliates, live in one of the 82 cantons that form the country, are subject to its regulations and the decisions of their Councils. Their organization has nearly 3,645 affiliated municipal officials, who are being affected by the provisions on public employment and impact on the municipal regime in general, together with the expansion from the sales tax to the value-added tax, all of this contained in the articles of Law No. 9635. On the other hand, the organization it represents is a signatory to several collective bargaining agreements in the public sector. Many of these are in decentralized entities and autonomous institutions. The application of the specific articles of Law No. 9635 empties them of content, in violation of the constitutional, conventional, and legal regulations that protect the right to collective bargaining. The national and international regulations indicated grant unions the standing to enter into collective bargaining in the name of workers. This standing must transcend the defense of the interests of workers who are in real or potential situations of collective bargaining, who may be affected by irrationally restrictive regulations to the detriment of that right. For this reason, from the point of view of defending diffuse interests, they consider that the union it represents possesses sufficient standing to bring action before this jurisdiction, so no prior matter is necessary to allow its filing." 19.- Through a resolution issued at 10:36 a.m.

on May 24, 2019, the Presidency of the Chamber resolved and accepted a request for recusal filed by Magistrate Fernando Cruz Castro in unconstitutionality action No. 19-004931-0007-CO.

20.- In an interlocutory ruling of the Plenary of the Constitutional Chamber No. 2019-010635 (Chamber composed of Magistrates Castillo V., Hernández L., Salazar A., Araya G., Esquivel R., Salas T., Fernández A.) at 9:20 a.m. on June 12, 2019, it was ordered to consolidate unconstitutionality action No. 19-004931-0007-CO, filed by ALBINO VARGAS BARRANTES, in his capacity as SECRETARY GENERAL and JUDICIAL AND EXTRAJUDICIAL REPRESENTATIVE of the ASOCIACIÓN NACIONAL DE EMPLEADOS PÚBLICOS Y PRIVADOS (ANEP), with action No. 19-002620-0007-CO, which remained as the lead case file and is to be considered as an amendment to it. This is due to the evident connection (conexidad) existing between the claims raised in both proceedings and in order to avoid contradictory rulings that could affect the rights and interests of the parties involved. In said ruling, some grievances were dismissed, and the admission of the unconstitutionality action against several articles of the Ley de Fortalecimiento de las Finanzas Públicas was ordered. The operative part (Por tanto) of the ruling reads as follows:

"This action is summarily rejected (rechaza de plano) regarding Article 26 of Law No. 2166 and Articles 5, 11, and Transitory Provisions XXVII, XXXI, and XXXVI of Law No. 9635.- Additionally, the alleged violation of the principle of autonomy in relation to Articles 28, 40, 46, 47, 48, 50, 52, 53, 54, 55 of Law No. 2166, 17, 23, 24, and 25 of Law No. 9635, and Articles 1, subsection 1°), 6, 15, 16, 17, 21, and 22 of Executive Decree No. 41564-MIDEPLAN-H is summarily rejected. Likewise, the violation of Articles 169, 170, 188, and 189 of the Political Constitution by Articles 26 and 55 of Law No. 2166, and Articles 5, 11, and 17 of Law No. 9635 is summarily rejected.

As for the remaining provisions, consolidate this action with the one being processed before this Chamber under case file No. 19-002620-0007-CO and consider it as an amendment thereto." Consequently, it is understood that by means of said judgment, the course of the action was expanded against the following provisions, according to the express text of the aforementioned ruling:

"The norms that are the object of challenge and that are admissible for such purposes are Articles 28, paragraphs 2 and 4, 30, 31 subsec. 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 52, 53, 54, 55, 57 subsecs. f), g), h), i), m), n), o), and p), added to Law No. 2166, Title IV of the Ley de Fortalecimiento de las Finanzas Públicas No. 9635 of December 5, 2018, Articles 23, 24, 25, and Articles 1, subsec. a), 3, 4, 7, 9, 14, 15, 16, 17, 21, and 22 of Executive Decree No. 41564-MIDEPLAN-H, these latter ones due to connection (conexidad)." 21.- Through a ruling at 3:14 p.m. on September 27, 2019, the amendment to this unconstitutionality action No. 19-002620-0007 was admitted in the terms set forth in the action 19-004931-0007-CO consolidated with it, in the sense that Arts. 28, 30, 31 subsec. 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsecs. f), g), h), i), m), n), o), and p) of Law No. 2166, Arts. 15, 17, 23, 24, 25 of Title IV of Law No. 9635 of December 5, 2018, and Arts. 1, subsec. a), 3, 6, 7, 15, 16, 17, 21, and 22 of Executive Decree No. 41564-MIDEPLAN-H are also being challenged, considering them contrary to the principles of equality, legal certainty (seguridad jurídica), reasonableness, proportionality, progressivity of rights, and autonomy of will.

22.- In a brief filed with the Secretariat of the Chamber on October 15, 2019, Enrique Egloff Gerli appeared in his capacity as President of the Asociación Cámara de Industrias de Costa Rica and stated that he was appearing to be admitted as a passive coadjuvant (coadyuvante pasivo) in the amendment to this unconstitutionality action that was originally processed under case file No. 19-004931-0007-CO and has been consolidated with this case file (19-002620-0007-CO). The right to enter into collective bargaining agreements (convenciones colectivas) belongs exclusively to workers covered under a private employment regime, and in the case of public employees, the execution of such agreements is openly incompatible with the legal principles that govern the public employment regime. There is the possibility of entering into collective bargaining agreements and direct arrangements in public entities with a private employment regime, although such negotiations cannot violate legal limits and those imposed by governmental directives. The Constitutional Chamber has indicated that it is valid for workers who do not participate in the public management of the Administration to enter into collective bargaining agreements, so that those under an employment regime of a labor (non-public) nature, such as State Enterprises, can indeed bargain collectively in accordance with the provisions governing collective labor law. All norms may be modified prospectively by another norm of equal or higher rank without this implying a violation of the principle of non-retroactivity, and derived from collective bargaining agreements, regulations, or statutes are not considered consolidated legal situations or acquired rights, as these are norms related to objective situations and not specific acts that do qualify as subjective legal situations. Consequently, none of the norms challenged for an alleged violation of the principle of non-retroactivity of the law is vitiated by unconstitutionality because what the legislator did was to modify, with future effects, objective situations created by previous legislation. If collective bargaining agreements are prohibited in the public sector, it must be concluded that public servants cannot obtain any right under their protection because it would be unlawful and cannot have the protection and recognition of the State. He reiterates that the challenged norms are constitutionally valid, as they find coverage in Art. 191 of the Political Constitution, which is applicable to all organs and entities of the State. He concludes by requesting that the unconstitutionality action be declared without merit (sin lugar).

23.- Through a brief submitted to the Secretariat of the Chamber on October 24, 2019, Álvaro Madrigal Mora, in his capacity as Secretary General of the Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN), requests that his represented party be allowed to participate as an active coadjuvant (coadyuvante activo) in the unconstitutionality action No. 19-004931-0007-CO, through which the present action, now listed as the lead case file, has been amended. His represented union is legitimated to raise this procedural request (gestión) since it groups the collective and diffuse interests of its members. The regulations challenged in action No. 19-004931-0007-CO violate the principles of legal certainty (seguridad jurídica), reasonableness, proportionality, progressivity of rights, and autonomy of will. Even though the country's economy must be reformed, this must be done rationally and with supporting technical justifications, in compliance with the regulations governing the matter and without violating the acquired rights of public officials. The norms have no backing, even though they are to the detriment of the working class, affecting people's standard of living and labor dignity, also contravening free collective bargaining and the principle of legal reserve (reserva de ley) in the creation of new salary supplements. He asserts that it is unconstitutional to force public institutions to renegotiate their collective bargaining agreements downward, which also violates the principle of progressivity of fundamental rights. He considers that what was alleged by the legal representative of ANEP in action No. 19-004931-0007-CO has legal basis as it harms the indicated principles, for which he requests that unconstitutionality be declared in the terms sought.

24.- Julio Alberto Jurado Fernández appears in his capacity as Attorney General of the Republic (Procurador General de la República) through a brief filed with the Secretariat of the Chamber on October 24, 2019, in order to render a report on the amendment made to this unconstitutionality action by ANEP.

Regarding the claim about the exclusive dedication (dedicación exclusiva) regime In Costa Rica, "exclusive dedication" (dedicación exclusiva) is conventional, that is, the product of a formal agreement between the employer entity (Public Administration) and the professional public servant, whereby the latter will dedicate themselves exclusively to the performance of the functions of the public position they hold, renouncing the private practice of their profession, and for which the former will remunerate them economically as a supplement (plus) —not as a permanent salary component— by a specific additional percentage calculated on the base salary of that specific position. The report adds that it has been recognized at the judicial level that the signing or not of that exclusive dedication contract by public administrations involves an undeniable facultative power, that is, a liberality in the sense that the basis or not for its granting is openly discretionary. Before the reform introduced by Law No. 9635, that inter partes agreement was regulated by provisions issued by the DGSC for individuals under that regime and had to be countersigned by the Human Resources Departments of each institution, taking effect during the agreed period, and once expired, such agreement was ineffective without being able to affirm that there existed a subjective right in favor of the servant for the extension of the contract, nor a correlative obligation of the Administration to enter into a new one, since, as stated, that agreement involves discretionary powers of the Administration, so it is not true, as affirmed in the action, that there exists a consolidated situation for the extension of that contractual link, much less that this derives from Constitutional Law. In this context, many of the alleged vices would lack constitutional relevance, as the exclusive dedication regime is a matter of legal regulation. The regulation of the "exclusive dedication" (dedicación exclusiva) regime established by Law No. 9635, and especially with the reforms it made to the LSAP, forms part of the remuneration (retributivo) regime inherent to the public servant "statute" (estatuto), over which there is express constitutional authorization for the legislator, in the exercise of their inexhaustible power, to configure and regulate the employment conditions that must prevail throughout the public sector, especially referring to its professional stratum. With the new legal regulation, a series of postulates and norms on remuneration matters were established that tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the public sector —including the central and decentralized administration— irrespective of the degree of autonomy of each institution or the type of services provided to the State. The Office of the Attorney General (Procuraduría General), in the exercise of its binding advisory function, determined in Opinion No. C-281-2019 of October 1, 2019, that given the general scope of application of this new regulation and its undeniable vocation for uniformity and homogeneity as a constitutionally valid option to regulate the remuneration conditions of employment in the entire public sector —including salary calculation, its components, and exclusive dedication, among others—, it prevails over any other pre-existing provision of legal or lower rank at a sectoral level, by way of total or partial implied repeal (derogación tácita), due to normative incompatibility of its contents, even recognizing its supervening prevalence concerning pre-existing collective bargaining agreements, especially when this new legislation is expressly aimed at repealing, prospectively, conventional norms that have a specific content incompatible with it (Opinion No. C-060-2019 of March 5, 2019). The legal regime of the public function, in general, is characterized by the fact that employment conditions are not established in a contract or by a collective bargaining agreement, but are determined by objective norms that can be modified unilaterally by the competent body, and for that reason it is affirmed that the official does not have a contractual relationship with the administration, but a statutory (estatutaria) one, so that the sub-principles derived from the protective principle of labor law invoked by the claimant are not applicable in the terms alleged. In that sense, it affirms that what the claimant qualifies as discrimination for the supposed imposition of exclusive dedication without remuneration is, in reality, a regime of functional incompatibility that seeks to enhance the principles of impartiality and independence that must govern the exercise of the public function. The public function is governed by a set of values, principles, and norms of high ethical and moral content, with the purpose of guaranteeing impartiality, objectivity, independence, and even avoiding nepotism in the exercise of the public function, as a typical manifestation of conflict of interest, with the public interest prevailing over the private interest. Therefore, in the opinion of its represented party, the claims raised in the action regarding the issue of exclusive dedication are not receivable.

In relation to Arts. 35 and 36 added to Law No. 2166 regarding which the action is amended: belonging to the exclusive dedication (dedicación exclusiva) regime does not constitute a fundamental right as the claimant understands it, and it recalls that exclusive dedication is an agreement or convention between the public employer and the servant, so that if the latter does not agree with the economic remuneration they would receive, they are able not to sign the respective contract. The LFFP respected the acquired rights and consolidated legal situations of officials who already had a current and valid exclusive dedication contract, for which it ensured that the total salary of active servants as of December 4, 2018, would not be reduced according to Transitory Provision XXV, and also establishing that those who had current exclusive dedication contracts would maintain the percentages granted by the previous regulation. It argues that later, through Decree No. 41564, the Executive Branch issued the "Regulations for Title III of the Law for the Strengthening of Public Finances, Law No. 9635 referring to Public Employment" which, in its Arts. 4 and 5, also preserved the acquired rights and consolidated legal situations of officials active on the date Law No. 9635 came into force. For the Office of the Attorney General (Procuraduría), the changes introduced by Law No. 9635 regarding exclusive dedication do not violate Constitutional Law, especially considering that said changes did not affect officials who had entered the regime before the entry into force of that law. The claimant unions have not demonstrated the allegation they raise, according to which the percentages of economic compensation for exclusive dedication applicable to officials who entered public service after the effective date of Law No. 9635 are harmful to the principle of reasonableness, for which they should have provided technical evidence and solid arguments to demonstrate it. Its represented party does not consider that the new regulation on exclusive dedication makes the salary ruinous for professionals who begin working in the public sector after Law No. 9635 takes effect, since it is a supplementary compensation to the salary based on a contractual and waivable figure by the worker, so it is not true that exclusive dedication is a human right, nor that its reduction affects the principle of progressivity. In addition to the foregoing, it points out that it is also not true that Law No. 9635 will produce excessive, disproportionate, and unreasonable reductions in professionals' salaries, as it will not affect those who were active as of December 4, 2018. Furthermore, it must be emphasized that the legal regulation of the public service regime is an express and discretionary power of the legislator.

Regarding Art. 39 added to the LSAP that prohibits negotiating a different severance pay cap (tope de cesantía): it indicates that the challenged legislation establishes a new maximum cap of eight years, with deferred effectiveness according to the Transitory regime that formalizes the maximum admissible cap in this matter and by collective bargaining agreement (convención colectiva) as ordered by the Constitutional Chamber in judgment No. 2018-008882. The objections raised on this point by the claimant party revolve around the issue of the prevalence or not of a supervening law —Law No. 9635 over existing regulations in current collective bargaining agreements—. For the Office of the Attorney General (Procuraduría), collective bargaining agreements are subject to the law, even when it is supervening and is aimed at expressly repealing conventional norms that have specific content, with prospective effect, respecting acquired rights and consolidated legal situations. Consequently, in its represented party's opinion, there are no constitutional reasons justifying giving prevalence to the mandates of a collective bargaining agreement or any other normative instrument over the law. A similar solution applies to collective bargaining agreements renegotiated and approved after December 4, 2018, as they must now adapt in all their aspects to what is established in Law No. 9635 and other regulations issued by the Executive Branch pursuant to Transitory Provision XXXVI of that law. It recalls that this type of norm is often called imperative law (derecho imperativo) —absolutely necessary—, as they exhibit a will of the legislator not to admit any other regulation of a given matter than that contained in the applicable law. These norms imply a non-waivable status (indisponibilidad) that prevents the intended subjects from disengaging from the norm, so that, in their actions, they must at all times adjust to the regulated limits dictated by the normative precept because its content is exhausted by the law, in such a way that, regarding them, no supplementation by agreements or collective bargaining agreements is possible, and the autonomy of the will, whether individual or collective, is impossible. Therefore, in these cases, the Administration must proceed in the manner determined in the norm, with no margin existing, as any conduct contrary to law would be voidable. This does not imply disrespecting the acquired rights or consolidated legal situations of the recipients of collective bargaining agreements, because the application of legal mandates that conflict with what was agreed in such agreements governs prospectively, so the labor benefits incorporated into the patrimony of each person by the application of the conventional clauses repealed by law will remain in the patrimony of each person who received them. Nevertheless, the right to severance pay (cesantía) is acquired only when the termination of the service relationship occurs and it is due to one of the causes that justify the payment of that compensation, whereby, before that occurs, the interested party has a mere expectation of right that could not prevail over provisions of legal rank such as those introduced to the LSAP by means of the LFFP. The Office of the Attorney General (Procuraduría) does not consider that the modification on this subject made to the LSAP infringes Art. 34 of the Constitution by disrespecting acquired rights or consolidated legal situations of public sector officials.

Regarding the claim concerning Arts. 40 of the LSAP and 16 of Decree No. 41564-MIDEPLAN: from the analysis of both articles, it does not follow that the legislator's intention —in use of the broad configurative powers over the Statute of the public function granted by the Constitution— was to repeal the provisions of different rank that governed the remuneration of public servants, but rather to adapt that regulation to a general and transversal framework applicable to each of the existing salary components in whatever is normatively incompatible with it. An example of this is that the incentives or compensations existing at the entry into force of the law that were in percentage terms will prospectively become a fixed nominal amount. The fact that Art. 40 of the LSAP, in relation to Art. 16 of the regulations for Title III of Law No. 9635, decided to leave without effect some specific salary supplements (sobresueldos) such as confidentiality and discretion, biennial bonuses (bienios), five-year bonuses (quinquenios), and any other related to the accumulation of years of service other than the annual increment (anualidad), supports the affirmation that salary supplements existing before the entry into force of that law —and which are not those mentioned in the aforementioned Art. 40— remain in force and are applicable to the personnel of the institutions referred to in Art. 26 of the LSAP, including personnel appointed in the future, but nominalized (nominalizados). The legal reserve (reserva de ley) for the creation of new salary supplements applies from the entry into force of Law No. 9635 and prospectively.

In relation to Art. 46 of the LSAP and Art. 22 of Regulation No. 41564-MIDEPLAN: it argues that with the challenged reforms, the objective was not to establish a formally unitary public employment statute or a single normative instrument, but rather to establish a series of postulates and norms on remuneration matters that tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the public sector —central and decentralized administration— irrespective of the degree of autonomy of each institution or the type of services provided to the State. According to these challenged articles, the regulatory authority (rectoría) that Law No. 9635 grants to MIDEPLAN is for issuing general policies and advising public institutions to achieve unification, simplification, and coherence in public employment matters, all based on administrative efficiency and efficacy policies, following planning and public management performance measurement criteria in accordance with Art. 140, subsection 8) of the Constitution. It indicates that the legislator's intention was not to repeal the powers granted to other public agencies in their respective creation laws; an option that is legally viable and in no way affects Constitutional Law in the terms claimed.

Regarding Art. 47 of the LSAP: it indicates that, according to the claimant, this article harms the principles of efficiency and efficacy, legal certainty (seguridad jurídica), equality, and prohibition of arbitrariness because the term "respective exceptions" (salvedades respectivas) is ambiguous and allows singularly repealing indeterminate norms on evaluation methods, without objective criteria, and with concepts that establish non-comparable quantitative evaluation methods typical of the private sector. In relation to this claim, it considers that it is a matter of simple and strict ordinary legality interest, whereby alleged infractions of constitutional norms and principles in the terms of Art. 73, subsecs. a) and b) of the LJC are not claimed, but rather it refers to a clear aspect of interpretation and normative application of the scope of Art. 47 of the LSAP reformed by the cited Law No. 9635. This cannot be the object of an unconstitutionality action because the correct application of the law cannot be controlled through it, so matters relating to this issue must be heard in the competent ordinary jurisdiction, which in this case could be the Administrative Litigation (Contencioso Administrativa) jurisdiction.

Regarding Art. 48 of the LSAP: the claimant party considers that it harms the principles of legal certainty (seguridad jurídica), equality, reasonableness, proportionality, and prohibition of arbitrariness by creating a new obligation for public officials to maintain updated information for their performance evaluation, under penalty of being held responsible for a serious fault, and also limiting the time to attend to daily obligations. Regarding this point, it recalls that in the specific legal regime of the public function, employment conditions are not established by contract or collective bargaining agreement, but by objective norms —laws or regulations— that can be modified unilaterally. Hence, the relationship is statutory (estatutaria), as a specific regime of public employment or personnel management, founded and governed by principles of Public Law. For this reason, public function reforms are always connected to a preconceived strategy —public policy— for the modernization of the Administration, all delimited by the brief references to the legal regime of the public function made by the Political Constitution in its Arts. 191 and 192, which are postulates that must be taken into account by any bureaucratic model that wishes to be developed. It contends that in this context, directly associated with the annual increment (anualidad) incentive, the performance evaluation has undergone a paradigm shift, because that subjective criterion of merely assessing the servant's individual performance in their work in general is overcome and methodologically transcended towards objective criteria based on quantitative indicators of the fulfillment of individual goals for products and services provided, directly linked to processes and projects carried out by the unit to which the servant belongs (Arts. 45 to 50 of the LSSAP, introduced by Law No. 9635), and its link to the payment of the annual increment is evident because it now depends on the performance evaluation result. Due to this special and novel configuration that has occurred in the performance evaluation, the claimed vices of unconstitutionality are unfounded, because the legislator —in the exercise of their broad, inexhaustible power to configure the Statute of public officials (Arts. 102, 121.1, and 191 of the Constitution)— sought to clearly establish postulates and norms that tend toward the unification, simplification, and coherence of the different existing subsystems of human resources management in the Public Sector. Matters concerning the determination of administrative faults comply with the postulates of the principle of definition of offenses (tipicidad) in disciplinary matters, and concerning its concrete application, this must be analyzed in the competent ordinary jurisdiction.

Regarding Art. 50 of the LSAP in relation to Art. 1, subsec. a) of Regulation No. 41564-MIDEPLAN: the legislator is the one called upon to establish the incentives and the amount of the economic benefits granted to its servants as part of the so-called "Statute of public officials" (Art. 191 of the Constitution) and, therefore, the economic amount granted for annual increments (anualidades) depends on the intensity with which the legislator wishes to incentivize the permanence of public officials in their positions and on the economic possibility of paying the sums derived from that incentive. It argues that, in the opinion of its represented party, the legislator could even eliminate the payment of annual increments and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, because the obligation to recognize annual increments is not stipulated in constitutional-level norms, but in legal ones, as part of the remuneration regime or system inherent in the so-called public servant "Statute" (Estatuto). The permanent nature implicit in granting the annual increment a nominal value —which is stable over time— is justified by the need to achieve a situation of equilibrium in public finances, which goes beyond overcoming a temporary economic crisis, as it constitutes an economic objective that is desirable to maintain over time. It indicates that if it is established that, after a certain period has elapsed, the changes made to the legal norms regulating public sector remunerations must be reversed, it is possible to fall back into undesirable states of economic instability. The State has the obligation to promote efficiency in the provision of public services, and for this it is necessary to foster public employment efficiency; an objective that cannot only be achieved through the payment of annual increments. Part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenses generated by the State payroll, which is only achieved through reasonable salary recognition, adjusted to the country's economic situation and the availability of resources. The provisions on public employment contained in the LSAP related, among other topics, to the way salaries and their components must be calculated in the Public Sector, including annual increments, prevail over any other pre-existing provision of legal or lower rank at a sectoral level, so that, as an implied repeal (derogación tácita) —total or partial— due to normative incompatibility of their contents, the LFFP will prevail over other special norms, to the extent they are incompatible (PGR Opinions No. C-060-2019 of March 5, 2019, and No. C-281-2019 of October 1, 2019).

Regarding Art.

Section 51 of the LSAP: it recalls that the right to collective bargaining of public servants is a right of legislative configuration, meaning its scope of application and its extents can be defined by legal-rank norms without harming constitutional norms. Article 62 of the Political Constitution was not intended to be applied to public employment relations, and as proof of this, ILO Convention No. 98 on the Right to Organise and Collective Bargaining of 1949 excluded public officials in the State Administration from its scope of application, which shows that, for that year (which coincides with the promulgation of the current Political Constitution), the possibility of public employment relations being governed by conventional norms was not foreseen, but rather by statutory norms, issued unilaterally by the State. This also agrees with the provisions of constitutional Article 191, in the sense that "A civil service statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the administration"; a norm that reflects a uniform vision of the rules that must prevail in employment relations between the State and its servants, which is compatible with the regulations on collective bargaining established in the LFFP. The bilateral determination of working conditions —between the representatives of the Administration and the staff— has a limited scope in Costa Rica and cannot be compared with collective bargaining in private enterprise; furthermore, the degree of autonomy of public officials is more limited than that recognized for private-sector workers, and precisely for this reason, the normative provisions of collective bargaining agreements (convenciones colectivas) must conform to and be strictly framed within the current legal system, which in itself limits the extent and object of the negotiation. That is to say, the normative provisions of collective bargaining agreements must conform to existing legal norms and cannot affect, much less repeal, higher-ranking normative provisions that are mandatory or prohibitive in nature and of public order. It recalls that the same treatment cannot be given to the use and disposition of public funds (which are what finance public employment relations) as that granted to the use of private funds, since the former must be oriented toward the pursuit of satisfying the public interest and are not available to the parties negotiating a collective bargaining agreement in the public sphere.

The principles of efficiency in the management of public funds, rationality of expenditure, sound conduct of public finances, etc., which are of constitutional rank, must be harmonized with the possibility of collective bargaining in the public sector, which cannot be unrestricted but rather must adapt to the country's economic possibilities. This Section 51 establishes a specific type of incompatibility that seeks to avoid a potential conflict of interest; a functional incompatibility that must be linked to Section 48 of the Law against Corruption and Illicit Enrichment in Public Office. It considers that, by reason of the foregoing, the alleged defects are not admissible.

Regarding Sections 52 of the LSAP and 21 of Regulation No. 41564-MIDEPLAN: it reiterates that one cannot lose sight of the vocation and character of generality and uniformity with which the LFFP was issued, in the interest of subjecting everything concerning the salary policy of the public administration to uniform criteria. One of the reordering measures for the containment and reduction of personnel expenses in public administrations relates to the payment frequency (periodicidad) of officials' salaries, such that the salary agreed per monthly time unit shall be paid in a biweekly frequency (periodicidad quincenal), for which the corresponding adjustments must be made within the three months following the effective date of Law No. 9635. This includes the adaptation of the available technological payment systems, as well as carrying out the calculations and adjustments necessary to ensure that the legally prescribed change in payment modality does not produce a decrease or increase in the servants' salary. It states that, in accordance with such legal norms, of a clearly mandatory, imperative, and absolute content nature, all public institutions covered by that legal norm would have to regulate the modality or frequency of salary payment for their servants, and no other. It reiterates that this supervening Law No. 9635 prevails over what is provided in any other pre-existing legal or lower-ranking provision at the sectoral level, such as previously signed collective bargaining agreements, this by way of tacit repeal —total or partial— due to normative incompatibility of their contents. The arguments raised regarding this article are not admissible.

Regarding Section 53 of the LSAP and numeral 15 of Regulation No. 41564-MIDEPLAN: it points out that the professional career incentive has the ultimate objective of ensuring that the administration has the highly trained personnel it needs for an adequate performance of public functions, which will depend on normative regulation. It reaffirms that the regime of public officials' rights is not static but variable by essence, especially regarding those rights of economic content whose amount can be modified within the limits of the Constitution, since the servant does not have a vested right (derecho adquirido) against the legislator or the normative power of the employing administration to have a specific regulation of their rights maintained; on the contrary, they must submit to a continuous process of adjustments and reforms for reasons of general interest. The change operated by Law No. 9635 does not seek to create a hateful differentiation or a salary detriment as is unfoundedly accused; rather, it is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified. This goes beyond overcoming a temporary or circumstantial economic crisis, as it constitutes an economic objective that it is desirable to maintain over time, without this implying a violation of the right to equality under the law as alleged by the claimant party.

Section 54 of the LSAP and Section 17 of Regulation No. 41564-MIDEPLAN: it reiterates that the legislator is the one called to establish the incentives and the amount of economic benefits granted to its servants as part of the "Public Officials Statute" and it must be understood that the economic amount granted for incentives or bonuses (pluses) depends on the intensity with which the legislator wishes to incentivize the permanence in the position of public officials, and on the economic possibility of paying the sums derived from that incentive. Maintaining pre-existing percentage-based salary components implies a greater expenditure of resources that is not congruent with the intention to balance public finances that currently prevails, and therefore it was up to the legislator to decide —as it already did— to nominalize them (nominalizarlos) and thereby promote the balance of public finances, without opting for one decision or the other implying any violation of constitutional norms or principles, given that these alternatives are constitutionally valid in light of the basic regulation of the constitutional regime of public employment (Constitutional Article 191), which it is the legislator's responsibility to configure (Articles 105 and 121.1 Ibid.). The permanent character that is implicit in granting said salary components a nominal value that is stable over time does not have the purpose of worsening the situation of public employees; rather, it is validly justified by the real need to achieve a situation of balance in public finances. It reiterates that the norm does not repeal them but establishes the way in which they are to be calculated in the future, no longer by percentage but by a fixed nominal amount, as has been indicated; and also that one cannot pretend that the statutory situation remains frozen in time, such that it has been a consolidated criterion that the official lacks a general vested right to the maintenance of a specific regulation of their working conditions or to prevent its modification. It reiterates the PGR's position that collective bargaining agreements are subject to the law, even when the latter is supervening, especially when it is expressly directed at repealing conventional norms that have a specific content (in this case, with effect for the future, respecting acquired rights (derechos adquiridos) and consolidated legal situations). It concludes that the arguments are also not admissible.

Regarding Section 55 of the LSAP: it points out that, based on Constitutional Chamber Advisory Opinion No. 2018-019511, union action can be limited or prohibited for public officials who participate in public management and who, therefore, do not have the right to enter into collective agreements; consequently, that legal norm, understood in this way, would not be unconstitutional.

Section 57 subsections f), g), h), i), m), n), o), and p), as well as Title III of the LSAP: through Opinion C-281-2019 of October 1, 2019, the PGR indicated that any contradiction between the general rule for the payment of economic compensation for prohibition (prohibición) provided in Section 36 of the LSAP (which contemplates a payment of 30% for a licentiate degree or higher), and what is provided, for example, in subsection a) of Article 1 of Law No. 5867 (which establishes, for that same case, the payment of 65% compensation), or any other earlier law on the same matter, must be governed by the claim of generality and uniformity that inspired the reform to the LSAP operated through the LFFP. Hence, the conflict of laws (antinomia) existing between numeral 36 of the LSAP, which establishes the base salary of each servant as the parameter for calculating the economic compensation for prohibition, and Section 5 of the "Law of Compensation for the Payment of Prohibition" (Ley de Compensación por el pago de Prohibición) which provides that the payment of compensation for the prohibition referred to in Section 244 of the Organic Law of the Judicial Branch (LOPJ) must be calculated on the lowest salary indicated in the Public Administration salary scale, always following the claim of generality and uniformity that inspired the reform to the LSAP, must be resolved in favor of the general and uniform rule established as a unifying parameter; that is, the parameter for calculating the aforementioned economic compensation must be the base salary of each servant. Thus, the economic compensation for prohibition was established at 65% in subsection a) of Article 1 of Law No. 5867, and now Section 36 of the LSAP contemplates a payment of 30% for the same concept; a conflict of laws that implies the tacit repeal of one of the two precepts, with the PGR considering that what is provided in Section 36 of the LSAP must prevail, not only for being the most recent norm but also because it reflects the claim of generality and uniformity that inspired the public employment reform operated through the LFFP. It argues that following another criterion would imply deviating from the purpose of the reform to the LSAP, which consists of establishing general guidelines on the manner in which economic incentives and compensations derived from employment relations throughout the public sector must be recognized. It indicates that, similarly, in the interest of maintaining the intended uniformity and so that there is congruence with the constitutional principles of equality and reasonableness regarding the method of calculating the economic compensation for prohibition, the provisions of Section 36 of the LSAP (on the base salary of each official) must be applied, and not those of Section 5 of Law No. 5867 (on the lowest salary in the Public Administration salary scale). It adds that, taking into consideration the express repeal of subsection f) of Section 37 of the Civil Service Statute and the modification of Section 47 of that same legal body made by Sections 58 subsection b) and 57 subsection f) introduced to the LSAP by Law No. 9635, as well as the application of its temporary regime (Transitory XXVII and Section 13 subsection a) and in fine of Executive Decree No. 41564-MIDEPLAN-H), and especially due to the lack of identity between the indemnities normatively provided for this effect, according to ordinal 111 subsection d) of the Regulation of the Civil Service Statute, it must also be concluded that: a) if the reorganization operated requires dispensing with employees covered by collective bargaining agreements, the applicable severance pay (auxilio de cesantía) may not be greater than twelve years while such collective instruments remain in force (PGR Opinion No. C-060-2018 of March 5, 2019); b) for employees excluded from the application of those collective instruments who may be dismissed due to reorganization, Section 39 of Law No. 9635 is applicable, which is of immediate effect, prevails over Section 27 subsection c) of the Regulation of the Civil Service Statute, and indicates that the maximum cap is eight years of severance; c) in the case of an alleged salary reduction or decrease, the special indemnity regulatorily provided, by way of a general rule, in the cited ordinal 111 subsection d) of the Regulation of the Civil Service Statute must continue to be applied, until the Executive Branch's power of regulatory repeal or reform (Article 140.3) of the Political Constitution) is exercised regarding it. The guarantee of stability in the public position or post continues to exist at the legal level and, as a consequence, any unjustified dismissal entails the recognition of legal benefits, such that there is no artificial or forced comparison to the private labor regime, as unfoundedly accused in the unconstitutionality action, and consequently, the alleged defects are inadmissible, being unfounded.

Regarding the claims concerning Sections 15, 23, 24, and 25 of Title IV on fiscal responsibility of Law No. 9635: in the opinion of the claimant party, these numerals grant powers to the Executive Branch regarding various specific destinations (destinos específicos) with deviation of power, affecting institutional goals and fundamental rights; however, in the PGR's opinion, the alleged defects are entirely unfounded because the establishment of fiscal rules by Western States has become a popular vehicle for imposing a certain fiscal discipline in the face of problems of fiscal deficit and increased public debt. The need to maintain a certain balance between public income and expenditure, which summarizes the principle of budget stability, finds its answer in the first paragraph of Article 176 of the Political Constitution and, from there, the case law of the Constitutional Chamber has extracted the basis of the constitutional principle of financial or budget equilibrium, reaffirmed in Judgment No. 2018-019511. This is a constitutional mandate that binds all public powers and is outside the availability or competence of the State and other public entities, regardless of their degree of autonomy. The fiscal rule, consisting of a rule on current expenditure, is only one of the various options for public financial management existing in the budget process, and being of infra-constitutional rank —Law No. 9635—, the Legislative Assembly would not be bound in the future, so it could legislate in the opposite direction, including adopting legislation that expands expenditures charged to the Republic's Budget, if necessary. As interpreted by the Procuraduría and endorsed by the Chamber as a legitimate manifestation of the constitutional principle of budget equilibrium, the LFFP entails a paradigm shift regarding the regulation of specific destinations and the establishment of a floor for the budgeting of public resources. Contrary to what is accused, for its represented entity, Law No. 9635, as a manifestation of the principle of budget equilibrium, allows the Ministry of Finance to budget the allocation of resources provided by laws that create specific destinations based on the assessment of fiscal conditions and other public policy imperatives, and, therefore, allows it to adjust that allocation to the financial resources available. And, in the exercise of these new powers, the Executive Branch has as limits the specific destinations created by the Constitution, as well as those created by law to exclusively finance a social service. On the contrary, destinations referring to taxes intended to finance public expenditures generally do not constitute a limit, such as may be destinations charged to taxes like income tax or now the value-added tax. As ordered by Section 24 of the LFFP, the Ministry of Finance and the Executive Branch are obligated to allocate a sum no less than that allocated in the 2019 budget, so that this current budget allocation constitutes the minimum amount that must be granted, and the Ministry of Finance can allocate a greater amount of resources than budgeted in 2019, but never diminish it, in order to guarantee the non-affectation of associated benefit services.

In relation to Section 17 of Title IV on fiscal responsibility of Law No. 9635: its represented entity considers, as it has stated on other occasions, that it is not unconstitutional in the sense that it can only be applied to free surpluses (superávits libres), but not to resources with specific destinations determined by the Constitution, which could only give rise to a specific surplus that is not free or is tied up, unavailable to the ordinary or budget legislator.

The Procuraduría concludes by suggesting that the action, which has been expanded, be declared without merit in all its respects.

25.- María del Rocío Aguilar Montoya submits a report in her capacity as Minister of Finance, through a document filed with the Secretariat of the Chamber on October 29, 2019, and states that, in general terms, the claims of the claimant party are directed at two questionings:

• a)firstly, what relates to the salary affectation suffered by public servants as a consequence of the variants referring to exclusive dedication (dedicación exclusiva), prohibition (prohibición), collective bargaining agreements, modification of the calculation method for salary components, among others; claims that, in her opinion, are limited to stating subjective or erroneous criteria in which the idea that matters relating to public employment are immutable and static over the course of time prevails, which is a perspective of invariable permanence that is incorrect in a reality in which said topic is subject to changes, as indicated by the PGR, especially regarding rights of economic content (remuneration system). She recalls that within the limits established by the Constitution, it is undeniable that the Administration holds a "ius variandi" over the content and scope of rights in public employment. The enactment of Sections 28, 30, 31 subsection 1), 32, 33, 35, 36 added to the LSAP by Law No. 9635 and its reform, in accordance with numerals 3, 6, and 7 of Executive Decree No. 41564-MIDEPLAN-H and its reforms, all relating to exclusive dedication, does not imply a regression in the normative development of labor rights, and she recalls that the former has a contractual nature because it is a consensual regime that allows the State to have a certain group of officials who do not practice their profession freely but rather provide the totality of their services to the contracting institution in exchange for economic remuneration or a salary bonus (plus salarial); a regime that the official accesses freely and voluntarily, after assessing whether or not it suits them to sign the contract or if they find it more attractive to freely practice their profession and any other activity at the public or private level. For these reasons, the claimant party's statements are unfounded because, since its granting, exclusive dedication is not a right of the servant but is conferred when the Administration assesses that it requires the official not to work privately. Like any contract, the exclusive dedication contract must have its term established as well as the procedures or formalities required to extend it; hence, enacting regulations covering these aspects complies with the principles of legal certainty, reasonableness, and proportionality, contrary to what the claimant party alleges, and does not imply a regression of labor rights. There is no legal uncertainty for those who signed contracts prior to the entry into force of Law No. 9635 and its reforms, when, on the contrary, the law itself contemplates provisions seeking to provide certainty and legal security regarding the application of the new variants that arise. The contested Section 31 subsection 1) includes persons working with permanent status (propiedad), temporarily (interinamente), as substitutes (en suplencia), or in trust positions (puestos de confianza), so it is unknown which modality of the service relationship, in the opinion of the claimant party, would be being excluded. For her part, regarding the limitations contained in the contested Sections 32 and 33, she argues that they have their reason for being in preventing officials from compromising their impartiality and even practicing their other professions during the time they are on their work shift, recalling the concept of time overlap (superposición horaria) which implies the simultaneous performance of positions and which entails a prohibition or impossibility of holding two public positions simultaneously. The norms contested in this action do not involve any arbitrary or abusive action and, therefore, are not harmful to the principle of the prohibition of arbitrariness. The legislator is empowered to regulate, in a general manner, employment relations throughout the public sector, in light of the provisions of Article 191 of the Political Constitution, which admits the possibility that a single statute —of legal rank— regulates the relations between the State —in a broad sense— and its servants. Based on what the PGR has said, she affirms that it is public and notorious that the legislator's intention with the issuance of the LFFP, and specifically with its Title III related to the topic of public employment, was to establish general parameters applicable to the totality of employment relations in the public sector, including both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State. She adds that among the effects of the LSAP is not that of repealing the salary supplements (sobresueldos) pre-existing Law No. 9635, but rather adapting them to the general rules to which all salary supplements paid in the public sector must submit, establishing the way in which they are to be paid in the future, no longer as a percentage but by a fixed nominal amount, as well as that the parameter for calculating the sum to be paid for each salary supplement must be the base salary of each servant and not their total salary. To safeguard vested rights, and as provided for by Transitory XXV of the LFFP, the total salary of the servants who were active on December 4, 2018, when that law entered into effect, cannot be reduced. In this way, the contested norms, far from entailing arbitrary, discriminatory, disproportionate, and irrational actions, are aimed at establishing a uniform regulatory framework, by legal means, for all employment relations in the public sector. The percentages for exclusive dedication and prohibition can be reviewed and adjusted, as occurred in Law No. 9635, without this implying a violation of the constitutional framework, so she considers that the arguments relating to this topic and to prohibition are not demonstrating unconstitutionality.

The above is also applicable regarding the arguments put forward by the claimant party concerning the recognition of annual increases and regarding the modifications to the prohibition, because the reforms introduced by Law No. 9635 are in accordance with the Constitution.

Regarding the arguments made by the claimant party concerning Sections 39, 40, 51, 52, 53, 54, 55 added by Law No. 9635, as well as Sections 16, 17, and 21 of Executive Decree No. 41564–MIDEPLAN-H, she considers the PGR's statements very accurate in that the ordinary legislator is the first one called to regulate the conditions and limitations under which that indemnity is paid, in accordance with the policy on the subject maintained at a given socio-economic moment, but it must always respect the constitutional framework established in Constitutional Article 63 as well as constitutional case law according to which the payment of severance cannot be unlimited and must have a reasonable cap, so that what is negotiated in a collective bargaining agreement must be subject to the principle of reasonableness and avoid agreeing to breaks in the severance cap that imply an improper use of public funds affecting the services that the institution is called to provide, or that lack any objective reason allowing for the differentiation established in favor of that group of officials. Section 39 of Law No. 9635 provided that now the severance cap may not exceed eight years; however, to avoid problems of temporariness of the new law versus pre-existing collective bargaining agreements for pending situations or those in transition at the time of the legislative change, and while that numeral fully enters into effect, Transitory XXVII and XXXVI were established, according to which officials covered by collective bargaining agreements that grant more than eight years of severance are exempted and may continue enjoying that right while the current agreements that contemplate it are in effect, but in no case may the indemnity exceed twelve years. And if any agreement is renegotiated, it must adapt in all respects to the provisions of Law No. 9635 and other regulations issued by the Executive Branch. She recalls that, contrary to what the claimant party states, the right to severance is acquired only when the termination of the service relationship occurs, and until that happens, what the interested party has is a mere expectation of a right (expectativa de derecho) that does not prevail over legal provisions such as those added to the LSAP through the reform made by Law No. 9635; and therefore, she considers that the contested Sections 50, 54, 56, and 57 do not infringe upon the provisions of constitutional numeral 34 and do not disrespect acquired rights or consolidated legal situations.

Regarding collective bargaining agreements, there is hierarchical prevalence of supervening law over them, by express repeal, and in Costa Rica, although the existence of collective bargaining agreements in the Public Sector is recognized as well as the binding nature of what is agreed in them, this does not imply attributing constitutional or legal rank to the content of any agreement; rather, it must remain within administrative legality, since it is state laws that are competent to set the hierarchy of legal sources, and Section 57 of the Labor Code has provided that the collective agreement is subordinated to the laws. It is not possible to claim the immutability or unalterability of the collective agreement against the law —even if it is a supervening state norm— given that, by virtue of the principle of normative hierarchy, it is the collective agreement that must respect and submit to the law and not the other way around, especially when the legislator's permanent task of configuring the legal regime applicable to public officials and employees, with a public order character, is at stake. Although collective agreements in the public sector have binding force between the parties that have signed them and constitute the most direct and specific norm governing the legal-labor relations existing between them, the truth is that from a formal and material point of view, in the system of legal sources, it is always subject to the law, which, as a source of law of higher hierarchical rank, has the permanent capacity to regulate labor conditions and is automatically incorporated into the employment contract, and may even have, unlike the collective bargaining agreement, general efficacy. Therefore, in case of conflict, the law imposes its primacy over the collective bargaining agreement. For this reason, there is no right whatsoever for what is established in the collective agreement to remain unchanged and be immune to what is provided in a later law until it loses its validity, so that the existence of collective bargaining agreements cannot make it impossible for the effects provided by laws to be produced.

With the legal modification effected by Law No. 9635, the aim is not the denial or suppression of collective bargaining, nor its effective exercise as a negotiating faculty of unions, nor is it being rendered inoperative or without content; rather, what is intended is the future adaptation of working conditions so that they adjust to the new prevailing circumstances which, by provision of the legislator, require conjunctural measures of reordering and rationalization, for the containment and reduction of personnel expenditure of the Public Administrations, demanded by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budgetary balance. It considers, as the PGR does, that establishing certain restrictions on collective bargaining in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been public knowledge, and whose attention has required sacrifices not only from persons linked to the State by a public employment relationship, but from all economic and social sectors, therefore affirming that the provisions of Law No. 9635 do not limit or violate union freedom, nor the possibility of carrying out collective bargaining.

• b)A second group of claims by the plaintiff is aimed at attacking the provisions relating to the allocation of repealed specific allocations (destinos específicos) contained in Title IV of Law No. 9635. Certainly, with the entry into force of this Title IV as of January 1, 2020, the repeal of a series of specific allocations (destinos específicos) occurs as provided in Articles 31, 32, 33, 34, 35, 36, 37, and 38 of that law. It recalls that among the objectives of Law No. 9635 is to allow a better allocation of budgetary resources to confront the fiscal crisis facing the country, therefore providing that budgetary allocations, even for social programs, will respond to the fiscal conditions in a given year and not to the percentages or sums provided in the rules that created the specific allocation (destino específico); legislation that establishes:
• 1)A change regarding the regulation of specific allocations (destinos específicos): it points out that the budget of the Republic has been affected by the creation of specific allocations (destinos específicos) through ordinary laws that hinder the programming and allocation of budgetary resources according to public needs, the priorities of economic and social development, the availability of resources available, and, therefore, make it difficult for the Executive to allocate resources and decide on their execution. It adds that Law No. 9635 produces a substantial modification to the relationship between ordinary law and budget law from two points of view: first, by repealing certain specific allocations (destinos específicos) created by law, and second, because it authorizes the Budget Law to affect the expenditure obligations provided for by ordinary law so that they are adjusted according to the fiscal conditions of the country to achieve the objective of budgetary balance. It states that thus, the Executive Branch, when preparing the budget bill, and the Legislative Assembly, when approving it, can adjust the resource allocations to which they are obligated by virtue of laws that create specific allocations (destinos específicos), according to fiscal conditions, whereby, from the strict subjection to the percentages and sums established by the legislator, there is a shift to a possibility of assessing the financial resources available to give content to the expenditure obligation established by law, as well as other public policy imperatives, to budget a lesser amount than would correspond in application of that law creating the obligation. Various provisions of the law determine that, under certain conditions, the Budget Law will not contemplate, or once approved, the Ministry of Finance (Ministerio de Hacienda) will not transfer the budgetary transfers or specific allocations (destinos específicos) originating from ordinary laws that were in force, which implies that the budgetary allocation will not be determined by the ordinary law creating the allocation (destino), and therefore, the beneficiary entity will not see the resources provided by the ordinary law assured, which it considers a Fiscal Responsibility provision. It indicates that, for example, in the case of Article 15, the budgeting of specific allocations (destinos específicos) would depend on the availability of income, the levels of budgetary execution, and the existence of a free surplus. It states that resource allocation decisions are made to depend not on the law that established the financing of those bodies, but on “fiscal sufficiency criteria,” which means that sufficient financial resources exist, respecting fundamental rights and the priorities of the National Development Plan, which substantially modifies the relationship between ordinary law and budget law, but also expands the powers of the Ministry of Finance (Ministerio de Hacienda) regarding the allocation of resources, making the structural rigidity of public finances more flexible. This does not mean, in any way, that through resource allocation, the Executive Branch can leave certain programs or bodies without financing, because Article 22 obligates it to guarantee the financing of institutions and social and economic development programs. State economic solvency must be focused on strengthening and developing a supportive political system that safeguards the rights of the economically weakest strata of society; an objective that should be achieved because among the determining criteria for resource allocation (challenged Article 23) are the social purpose of the beneficiary institution, the provision of public services of collective benefit, the effective fulfillment of fundamental rights, the principle of progressivity of human rights, and not only the availability of financial resources. The limit to the new powers of the Executive Branch would refer to specific allocations (destinos específicos) created by the Constitution, or those created by law to finance a social service exclusively, which excludes, then, allocations (destinos) referring to taxes intended to finance—in a general manner—public expenses, such as allocations (destinos) funded by taxes like income tax, or now the value-added tax.
• 2)A modification to the financing of FODESAF: it points out that this set of novel provisions allows affirming that, as of the entry into force of the LFFP, the beneficiary bodies of resources with a specific allocation (destino específico) will see their financing modified because it will now be determined by the new criteria established by the legislator, as well as because, in the future, that financing will not be linked to a particular income source, to the proceeds of certain taxes or other types of resources—unless these have been preserved by Law No. 9635—since budgetary allocations will no longer refer to a specific one, whereby the scope of specific allocations (destinos específicos) created by law undergoes a substantial modification.
• 3)The establishment of a “floor” regarding the budgeting of resources: it indicates that the Constitutional Chamber (Sala Constitucional), when hearing the consultation on the bill for what is now Law No. 9635 (advisory opinion No. 2018-019511), stated that the repeal of specific allocations (destinos específicos) does not inexorably equate to the undermining of benefit rights and the failure to fulfill the duties of the Social State of Law (Estado Social de Derecho), and also that the laws that support them are not immutable nor excluded from the free configuration of the legislator; quite the contrary, it is incumbent upon Parliament to define the most suitable means to satisfy such benefit rights without the legislative output unreasonably emptying or diminishing the budgetary content of state programs to such a degree that the principle of the Social State of Law (Estado Social de Derecho) is considered violated. It argues that in the terms indicated by the Chamber in the aforementioned ruling, Articles 23, 24, and 25 of Law No. 9635 constitute “protection clauses” that allow mitigating or counteracting any eventual budgetary decreases that might occur.

The plaintiff's statements regarding the new powers of the Ministry of Finance (Ministerio de Hacienda) and the content of Articles 23, 24, and 25 of Law No. 9635 are subjective affirmations, lacking foundation, since, on the contrary, the constitutionality of these norms derives from the fact that they constitute the legal measures or mechanisms that the legislator established as a guarantee against the repeal of various legal allocations (destinos) that the same regulatory body contemplates, which was also already endorsed by the Constitutional Chamber (Sala Constitucional). Regarding the challenged Article 17, it states that it is a rule that refers to resources that could not be executed, therefore constituting a free surplus, and in the terms of that article, what is intended is to give them effective, efficient, and effective use, and therefore, it is not considered unconstitutional. The continuous search to strengthen the development of a supportive political system—which is one of the main objectives of a State like that of Costa Rica—is not inappropriate; what is incorrect is when, in that eagerness, an aspect of reality that has to do with the existence of economic solvency to meet the demands of the citizenry is neglected, especially when it concerns the most vulnerable strata, so that without healthy finances, the aspirations of the Social State of Law (Estado Social de Derecho) will be nothing more than that, a wish. It concludes by requesting that the unconstitutionality be rejected of Articles 28, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o), and p) of Law No. 2166, modified and added by Title III of Law No. 9635 of December 5, 2018, its reform, and Articles 1, subsection a), 3, 6, 7, 15, 16, 17, 21, and 22 of Executive Decree No. 41564-MIDEPLAN-H and its reforms, considering that they do not violate Articles 7, 28, 33, 34, 50, 56, 57, 73, 129, and 167 of the Political Constitution.

26.- Regarding unconstitutionality action No. 19-022051-0007-CO.- By means of a written submission filed in the Secretariat of the Chamber at 10:40 a.m. on November 19, 2019, Carlos Stradi Granados, of legal age, married, engineer, resident of San José, with identity card 1-0663-0636, in his capacity as president of the Sindicato de Ingenieros del ICE y Afines (SIICE), and Mario Ching Rosales, of legal age, married, with identity card 1-0585-0325, in his capacity as president of the Asociación Sindical de Empleados Industriales de las Comunicaciones y la Energía (ASDEICE), appeared to file an unconstitutionality action against Articles 39, 50, 54, 56, 57 subsection l), the latter insofar as it reforms Article 12, and against Transitory Provisions XXVII and XXXI of Law No. 2166, which is the LSAP, reformed and added by Article 3 of Law No. 9635 of December 5, 2018. They argue that the standing to present this action comes from Article 75, second paragraph, of the LJC, since the actions of their represented organizations are ascribed to the guardianship and preservation of diffuse and collective interests.

• a)First ground of unconstitutionality for violation of substantive due process: they challenge Articles 50, 57 subsection l) insofar as it reforms Article 12, and Transitory Provision XXXI of the LSAP reformed by Law No. 9635. These norms must also be related to Article 58 subsection c), which repeals Article 5, and to Articles 48 and 49 referring to performance evaluation. To determine if the legal reforms introduced on this point comply with the so-called substantive due process, they must be subjected to a reasonableness test in order to ascertain their necessity, suitability, and proportionality, as constitutional parameters.

They assert that said regulation, by lacking reasonableness, suitability, and proportionality, violates substantive due process and, with this, the provisions contained in Articles 9, 11, 121, 191, and 192 of the Political Constitution, by creating a system for paying annual increments (anualidades) that undermines the merit system and the principle of efficiency contemplated by these articles. Furthermore, they claim that it was in a transitory provision—characterized by its temporary nature, with a beginning and an end in time—where the percentage of the annual increment (anualidad) with which the calculation of what will later be the nominal and unmodifiable amount of the annual increment (anualidad) must start was established, as well as the date from which that calculation must begin; regulation that should have been included in a substantive norm and not in a transitory one.

• b)Second ground of unconstitutionality for violation of the principle of non-retroactivity of the law and disrespect for consolidated legal situations: they indicate that the norms challenged on this ground are Articles 39, 50, 54, 56, and 57 subsection l) of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP. They argue that on this point, it is not about the adaptation over time of rights derived from exclusive dedication contracts or the rules for the payment of severance pay (auxilio de cesantía)—when this is regulated in special instruments such as a collective bargaining agreement (convención colectiva) or a special statute, as is the case of ICE—and the cap is higher than that established in Article 39 of the LSAP added by Law No. 9635; but rather, on the contrary, the provisions of Transitory Provisions XXVI and XXVII reform and empty that right of its original content, without considering acquired rights or consolidated legal situations as prescribed by Article 34 of the Political Constitution. It argues that, except for the indicated exceptions of Transitory Provisions XXVI and XXVII, it is a general defect of Law No. 9635 that, when dealing with matters relating to supplementary salary payments (sobresueldos), the consolidated legal situations of workers who have already acquired rights under the previous regulations governing them are not respected, whether that regulation comes from a law, a special statute, or another valid source.

The law was silent on the resolution of conflicts of laws over time, and this is visible throughout all its provisions, except regarding exclusive dedication, where exclusive dedication contracts signed before the law's entry into force are respected, and, less rigorously, also regarding severance pay, because in this case the law imposes a cap that did not respect the accounting of years that had been incorporated into the patrimony of rights of public sector employees based on norms of collective bargaining agreements (convenciones colectivas) that were in force when the legal reform came into effect, so the legislator disrespected the content of the subjective legal situations of public employees.

Finally, they argue that the legal technique used by the legislator in Articles 39, 50, 54, 56, and 57 subsection l), in relation to Article 12, all of the LSAP, and Transitory Provisions numbers XXVII and XXXI of Law No. 9635, is unconstitutional because it omitted to consider that, in accordance with Article 34 of the Political Constitution, the existence of subjective rights derived from one's own acts, or consolidated legal situations arising from instruments such as collective bargaining agreements (convenciones colectivas), regulations, and personnel statutes, could not be ignored.

They conclude by requesting that the unconstitutionality of the norms challenged herein be declared.

27.- By means of an interlocutory judgment of the Plenary of the Constitutional Chamber (Sala Constitucional) at 10:15 a.m. on December 18, 2019, it was ordered to consolidate unconstitutionality action No. 19-022051-0007-CO with the one being processed in case file No. 19-002620-0007-CO—which is now the principal one—and that it be considered an expansion thereof.

28.- Regarding unconstitutionality action No. 19-023575-0007-CO.- Through a written submission filed in the Secretariat of the Chamber at 1:21 p.m. on December 10, 2019, Mélida Cedeño Castro, of legal age, divorced, educator, resident of Heredia, with identity card 9-0058-0394, appeared in her capacity as president of the Asociación de Profesores de Segunda Enseñanza (APSE), to bring an unconstitutionality action against Article 53, third paragraph, of the LSAP added by the LFFP No. 9635, against Executive Decree No. 41564-MIDEPLAN-H, and against Resolution No. DG-139-2019 of the DGSC, considering that they violate the provisions of Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution.

She argues that the standing to present this process comes from Article 75, second paragraph, of the LJC, since her represented organization works for the guardianship and protection of the labor rights of workers in the education sector and, therefore, has standing based on the collective interests it protects. Her represented organization is legitimized because the challenged norms directly affect the core of rights and interests of the collective that APSE represents.

The professional career (carrera profesional) is a system existing in the Public Administration intended to promote the professional and labor advancement of professional public servants, with the aim that their performance reaches efficiency standards that effectively contribute to the quality and timeliness of the services provided for the benefit of the public service rendered to the citizenry, which includes a salary-based economic incentive recognized to the servants based on points obtained for professional degrees or training. This regime is regulated in Resolutions No. DG-064-2008, amended by Resolution No. DG-139-2019 of July 24, 2019, which regulates the professional career (carrera profesional) of professional servants covered by Title I of the Civil Service Statute (Estatuto de Servicio Civil), and No. DG-333-2005 for servants covered by Title II of the Civil Service Statute (Estatuto de Servicio Civil), all from the DGSC. The economic incentive granted to a worker for the concept of professional career (carrera profesional) constitutes a perfected, subjective right, which is incorporated into the worker's patrimony; however, despite the foregoing, the challenged article establishes that the recognition of new points for professional career (carrera profesional) will only be recognized and remunerated for a maximum period of five years. Such a temporal limitation on the recognition of new professional career (carrera profesional) points is completely arbitrary, but also harms Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution. She concludes by requesting that the unconstitutionality of the norm be declared in the terms requested.

29.- In an interlocutory judgment of the Plenary of the Constitutional Chamber (Sala Constitucional) at 9:20 a.m. on January 15, 2020, it was ordered to consolidate unconstitutionality action No. 19-023575-0007-CO with the one being processed in principal case file No. 19-002620-0007-CO and that it be considered an expansion.

30.- The edicts referred to in the second paragraph of Article 81 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), in which the expansion of the course of the unconstitutionality action is communicated, were published in numbers 25, 26, and 27 of the Judicial Bulletin (Boletín Judicial), on February 7, 10, and 11, 2020.

31.- In a written submission filed in the Secretariat of the Chamber on February 27, 2020, [Name 002], of legal age, married, attorney, with identity card 1-0718-0497, appeared in his capacity as special judicial representative of the Sindicato Nacional de Médicos Especialistas (SINAME) to indicate that, due to the expansion made to this unconstitutionality action, he requests that his represented organization be considered an active coadjuvant, considering that the decision adopted by the Chamber in relation to the alleged norms will have a direct impact on the scope of interests of the union members his organization represents. He argues that Article 17 of Executive Decree No. 41564-MIDEPLAN-H must be declared unconstitutional because it violates the acquired rights and consolidated legal situations of public officials, as the norm is being given a retroactive effect to their detriment, to the detriment of the administered parties, in complete disregard of Article 34 of the Constitution. He argues that what is established in that article of the regulation of Law No. 9635 is contrary to the Political Constitution because it nominalizes all annual increments (anualidades) and salary bonuses, even though those amounts were established as percentages since their creation, and this creates an impact on the economic rights of the administered parties, leaving them completely unprotected and without legal certainty, despite the fact that these are rights derived from collective bargaining. In attention to the principle of non-retroactivity, it cannot be admitted that a later law influences these types of relationships forged under the protection of the previous law. The legal system must protect the intangibility of these acquired rights and consolidated legal situations that are being threatened by the challenged norms. He requests that this coadjuvancy be accepted and the promoted unconstitutionality action be granted.

32.- In a written submission delivered to the Secretariat of the Chamber on January 22, 2021, [Name 003], of legal age, retired, married, resident of San Isidro de Pérez Zeledón, with identity card No. [Value 002], appeared to request that he be considered an active coadjuvant in unconstitutionality action No. 19-002620-0007-CO. He states that he agrees with the arguments raised therein by the plaintiff and asks that this action be granted.

33.- By means of a brief dated March 23, 2023, Mr. Melvin Reyes Durán appeared in the process in his capacity as special judicial representative of Ana Cristina Forn Moraga, Ana Lorena Rodríguez Castillo, Carlos Eduardo de Jesús Álvarez Rodríguez, Magdalena Castro Varela, Iris Solano Portilla, Ivone Odette Furgeson Redguard, Luis Alfredo Meza Sierra, Ruperto López Umaña. They request the prompt dispatch of this matter, as the challenged regulations are related to a process they have initiated before the Contentious-Administrative and Civil Treasury Tribunal (Tribunal Contencioso Administrativo y Civil de Hacienda).

34.- On June 1, 2023, Mr. Sergio Antonio Rodríguez Brenes appeared to request the prompt dispatch of this matter.

35.- On June 22, 2023, Mr. Albino Vargas Barrantes attached a prompt dispatch request.

36.- On August 9, 2023, Justice Garro Vargas filed a motion for recusal (inhibitoria).

37.- By means of a resolution at 11:06 a.m. on August 17, 2023, the Presidency of the Chamber accepted the motion for recusal (inhibitoria) of Justice Garro.

38.- On August 24, 2023, the request for recusal (inhibitoria) of Justices Castillo, Cruz, Rueda, Salazar, Araya, and Garita was attached to the process.

39.- In a drawing of lots carried out by the Presidency of the Supreme Court of Justice, Justice Alexandra Alvarado Paniagua was elected.

40.- By resolution signed by acting Presiding Justice Ana María Picado Brenes at 10:13 a.m. on August 31, 2023, the recusal (inhibitoria) filed by the Plenary of the Chamber was admitted.

41.- In a drawing of lots carried out by the Presidency of the Supreme Court of Justice, Justices Sánchez Navarro, Picado Brenes, Lara Gamboa, Rosibel Jara, Aracelly Pacheco, and Ana Cristina Fernández were elected.

42.- On September 22, 2023, the excuse of substitute Justice Rosibel Jara Velásquez was entered, considering that several challenged norms are applicable to her person.

43.- On September 22, 2023, substitute Justice Alexandra Alvarado Paniagua presented her request for recusal (inhibitoria). She stated that what is resolved is related to and affects the payment of the salary she periodically receives within the Judicial Branch (Poder Judicial).

44.- On September 22, 2023, substitute Justice Ana Cristina Fernández Acuña filed a motion for recusal (inhibitoria).

45.- On September 29, 2023, the motion for recusal (inhibitoria) of substitute Justice Ileana Sánchez Navarro was entered.

46.- On October 23, Mr. Vargas Barrantes' request was forwarded again.

47.- On November 13, 2023, the request for recusal (inhibitoria) of Justice Ingrid Hess Herrera was entered into the Virtual Desktop.

48.- On November 21, 2023, Justice Picado Brenes attached her request for recusal (inhibitoria).

49.- By means of a resolution at 4:10 p.m. on November 21, 2023, the Acting Presidency of the Constitutional Chamber (Sala Constitucional) resolved the following:

"Given the object of this process and the statements of Justices Ingrid Hess Herrera, Ileana Sánchez Navarro, Rosibel Jara Velásquez, Ana Cristina Fernández Acuña, Alexandra Alvarado Paniagua, and Ana María Picado Brenes, regarding having a direct interest in what is resolved in this matter, as they work for the Judicial Branch (Poder Judicial) and the latter is a judicial retiree, the appropriate course is to accept the recusals (inhibitorias) and have them separated from the knowledge of this unconstitutionality action (In the same sense as the resolution at 10:13 a.m. on August 31, 2023). Communicate the pertinent information to the Presidency of the Supreme Court of Justice, so that their substitution may proceed, in accordance with Article 6 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional)." 50.- Through a drawing of lots carried out by the Presidency of the Court, it was recorded that "because originally 6 substitutes had been requested and only 4 are available, the drawing was conducted with the available substitutes." The elected justices were Alejandro Delgado Faith, Ronald Salazar Murillo, Jorge Isaac Solano Aguilar, and Hubert Fernández Argüello.

51.- On January 12, 2024, Justice Alejandro Delgado Faith filed a motion for recusal (inhibitoria).

52.- On February 6, 2024, Paola Loría Castillo appeared in the process to request the prompt resolution of this unconstitutionality action.

53.- On March 13, 2024, the request for recusal (inhibitoria) filed by Justice Ronald Salazar Murillo was added to the case file.

54.- On April 8, 2024, Ms. Karen Carvajal Loaiza (ANEP) appeared to provide a copy of PGR opinion PGR-C-036-2024 of March 4, 2024, related to conventionality control.

55.- On April 10, 2024, Justice Fernández Argüello presented a request for recusal (inhibitoria).

56.- By means of a resolution at 4:03 p.m. on April 12, 2024, the Presidency of the Constitutional Chamber (Sala Constitucional)—Justice Fernando Castillo Víquez—resolved the following:

"The recusal (inhibitoria) filed by Justice Alejandro Delgado Faith is rejected. Justices Ronald Salazar Murillo and Hubert Fernández Argüello are separated from the knowledge of this process. Justices Fernando Castillo Víquez, Fernando Cruz Castro, and Paul Rueda Leal are declared enabled to hear this process. Let it be communicated. Continue with the processing of the case file." 57.- By means of a resolution at 4:10 p.m. on April 17, 2024, the investigating justice of the process, Aracelly Pacheco Salazar, ordered that a hearing be granted to the Office of the Attorney General (Procuraduría General de la República) and the Ministry of Finance (Ministerio de Hacienda), and that the Ministry of Economic Planning (Ministerio de Planificación Económica) and the Civil Service Directorate General (Dirección General de Servicio Civil) be joined to this process. The foregoing, so that they may address the arguments raised in unconstitutionality action No. 19-023575-0007-CO, filed by Mélida Cedeño Castro, in her capacity as president of APSE, and consolidated with this process. Specifically, for the following reasons:

"The professional career (carrera profesional) is a system existing in the Public Administration intended to promote the professional and labor advancement of professional public servants, with the aim that their performance reaches efficiency standards that effectively contribute to the quality and timeliness of the services provided for the benefit of the public service rendered to the citizenry, which includes a salary-based economic incentive recognized to the officials based on points obtained for professional degrees or training. This regime is regulated in Resolution No. DG-064-2008, amended by Resolution No. DG-139-2019 of July 24, 2019, which regulates the professional career (carrera profesional) of professional servants covered by Title I of the Civil Service Statute (Estatuto de Servicio Civil), and No. DG-333-2005 for servants covered by Title II of the Civil Service Statute (Estatuto de Servicio Civil), all from the Civil Service Directorate General (Dirección General de Servicio Civil, DGSC). The economic incentive granted to a worker for the concept of professional career (carrera profesional) constitutes a perfected, subjective right, which is incorporated into the worker's patrimony; however, despite the foregoing, the challenged article—Article 53, paragraph 3, of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), reformed by the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), No. 9635—establishes that the recognition of new points for professional career (carrera profesional) will only be recognized and remunerated for a maximum period of five years. Such a temporal limitation on the recognition of new professional career (carrera profesional) points, in the plaintiff's opinion, is completely arbitrary, but also harms Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution." 58.- On May 7, 2024, IVÁN VINICIO VINCENTI ROJAS, in his capacity as ATTORNEY GENERAL OF THE REPUBLIC (PROCURADOR GENERAL DE LA REPÚBLICA), rendered his report.

On Standing:

It is considered that the plaintiff has sufficient standing to bring this unconstitutionality action, pursuant to numeral 75, second paragraph, of the LJC, since she is acting in defense of a corporate interest, specifically, safeguarding the interests of the members of that union.

On the Merits:

Regarding the "Public Officials Statute" (Estatuto de funcionarios públicos) The PGR states that what has traditionally characterized the legal regime of public employment in general is that employment conditions are not established in a contract or by collective agreement, but are meticulously determined by objective norms, laws, or regulations of Public Law –arts. 9 and 112.1 of the LGAP– which, depending on their nature and hierarchy, can be unilaterally modified by the competent body, without any possibility of demanding that the statutory situation be frozen in the terms under which it was regulated at the time of entry. Hence, it is affirmed that the official does not have a contractual relationship with the Administration, but rather a statutory one, since upon entering the service of the Public Administrations, they are placed in an objective legal situation, by essence mutable. This is for the sake of achieving a clear pre-established purpose: better and more efficient administrative performance and organization, in accordance with ever-changing circumstances –art. 4 of the LGAP–. An idea omnipresent even in our original constitutional framework for public employment, according to which: "A civil service statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the administration" (art. 191 of the Constitution). Thus, the Constitution itself establishes an express reservation for the regulation by law of the various areas of the Public Function, among which is the so-called officials' "Statute" (Estatuto), which includes, among its essential contents, the regime or remuneration system for public officials. This, as has been noted when responding to the unconstitutionality actions processed under expedientes numbers 19-6416-0007-CO, 19-12772-0007-CO, and 20-000491-0007-CO, constitutes an authorization for the legislator, in exercise of their broad and inexhaustible freedom of normative configuration –arts. 9, 105, 121.1, and 191 of the Constitution–, to configure and regulate the employment conditions that must prevail in the Public Sector. Hence, it is the legislator who is called upon to establish the incentives and the amount of the economic benefits granted to its servants; this as part of the so-called "Public Officials Statute" (Estatuto de funcionarios públicos) (arts. 105, 121.1, and 191 of the Constitution).

With the LFFP, the aim was not to establish, by way of artificial homogeneity, a unitary statute in formal terms; that is, a single normative instrument, but rather to establish a series of postulates and norms on remuneration matters that, as part of the Public Administration's salary policy (art. 140 subsection 7) of the Constitution), in general terms and with a clear claim to generality, tend towards the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State. Based on the foregoing, they have been clear and forceful in warning that among the effects of the LSAP reform is not the total and absolute repeal of the remuneration regimes pre-existing to Law 9635, but rather adapting them to the homogenizing rules to which the salaries and additional payments (sobresueldos) that continue to be paid today in the stated public institutions must be subject in the future. Given its general scope of application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option to regulate the remunerative conditions of employment throughout the public sector (art. 191 of the Constitution), they affirm that the normative provisions contemplated in the LSAP, introduced by Law 9635, related to, among other topics, the way in which salaries and their components must be calculated and paid, performance evaluation, payment periodicity, temporary exclusion of salary increases, and cap on remunerations in the public institutions contemplated within its scope of coverage, prevail over any other pre-existing legal or lower-ranking provision at the sectoral level; this by way of tacit repeal –total or partial– due to normative incompatibility of their contents.

From the reform, the so-called principle of "salary indemnity" (indemnidad salarial) is inferred, according to which: the total salary of public servants who, upon the entry into force of this latter law, are active in the institutions contemplated within the scope of application of its Title III, cannot be reduced, and the acquired rights they hold will be respected. Thus, among other things, the changes to the salary regime established with the validity of that law will be applied "prospectively" (a futuro), without being able to be applied retroactively to the detriment of already appointed officials and their patrimonial rights.

In this way, in protection of acquired rights and consolidated legal situations, the questioned regulations establish that servants covered by the Professional Career (Carrera Profesional) regime before December 4, 2018 –the effective date of the aforementioned Law 9635–, whether from Title I or Title II of the Civil Service Statute, will retain, without time limitation, as long as their employment relationship subsists uninterruptedly, the amount of points accumulated and recognized before that date and the respective economic compensation. And only for the updating and recognition of new points and other aspects regulated in the matter of Professional Career (Carrera Profesional), will they be subject to the established normative modifications. Obviously, these norms do not retrospectively, in a general manner, cause effects to the detriment of acquired rights or consolidated legal situations. On the contrary, they adjust the transition of the content of each of the cases regulated under the old regulations with the new provisions established in the norm. The foregoing does not mean, in any way, disrespecting the acquired rights or the consolidated legal situations of the professional beneficiaries of the professional career (carrera profesional), as is unfoundedly alleged in this action, since the application of the new legal and infra-legal mandates governs prospectively; which implies that the labor benefits incorporated into the patrimony of each person by the application of the previous legal regime of the professional career (carrera profesional) will remain untouched in the patrimony of each of the persons who received them, according to the rules or conditions under which they were recognized. In this sense, it cannot be considered that the challenged legal and infra-legal norms are unconstitutional for violating the principle of non-retroactivity of the law –art. 34 of the Constitution–, nor that they violate the principle of patrimonial intangibility –art. 45 Ibid.–, as is unfoundedly alleged, since they really did not imply any detriment to their total salary formed prior to the established reform. And the professional career points (puntos de carrera profesional) already earned before December 4, 2018, form an indisputable part of the patrimony of the beneficiary public servants and cannot be reduced under any circumstance, as they entered their patrimony prior to the legal reform and was so provided by the legislator.

It is not true that the new regulation on the professional career (carrera profesional), which introduces a validity of five years –for the points acquired and remunerated under this concept after December 4, 2018– is contrary to the principle of non-confiscation, as it is an economic compensation, quantitatively minuscule, accessory, complementary, and optional to the total salary, which in the terms of the Chamber itself does not affect the essential core of the constitutionally protected minimum salary –art. 57 of the Constitution– (rulings numbers 2011-014174, 2019-021130, and 2022-019113). Therefore, it cannot be affirmed that it is confiscatory in the terms alleged, especially when the plaintiff does not base or develop any technical, precise, and solidly supported argumentation in this regard in her filing brief.

Nor is any violation of the principle of inalienability of social rights –art. 74 of the Constitution– observed, since just as there is no right to the immutability of the legal system, the matter of salary supplements for those still under the composite salary scheme is a tangible matter and available to the legislator, as it is not part of the constitutional labor regime (minimum salary, art. 57), since it is ordinary legislation that must fix and regulate them and, in this case, the contested regulations, by their content, do not even entail an infringement of the principle of non-retroactivity.

Conclusion

In sum, the legal change operated with Title III of Law No. 9635 on remuneration matters, which is of general application in the Public Sector, does not seek to create a salary detriment as is unfoundedly alleged, but is reasonably based on prevailing budgetary-financial considerations and limitations that validly justify the real need to achieve a balance in public finances; a need that goes beyond overcoming a temporary or circumstantial economic crisis, as it constitutes an economic objective that is desirable to maintain over time. It concludes that this unconstitutionality action must be completely dismissed, on substantive grounds, as stated.

59.- LAURA FERNÁNDEZ DELGADO submitted a report, in her capacity as MINISTER OF NATIONAL PLANNING AND ECONOMIC POLICY.

Background In the context of the fight against the fiscal deficit, an enormous effort was made to contain spending and clean up public finances. The plaintiffs may or may not agree with some of the measures that were taken or may consider that excesses were committed in that paradigm shift that had to be carried out. However, the spending containment measures were embodied, with majority approval by the Legislative Assembly and with the due constitutionality consultation before the Constitutional Chamber (Sala Constitucional).

She emphasizes that the economic situation facing the Costa Rican State remains complex and sustained, and as of the 2020 fiscal year, public debt exceeded the cap of sixty percent (60%) of the Gross Domestic Product (GDP) established in the LFFP in the Fiscal Responsibility section, and although, due to all the measures, adjustments, and efforts made by the Government of the Republic (especially by the Ministry of Finance and this office, according to the pertinent competence), at the close of the 2023 fiscal year, public debt reached sixty-one point one percent (61.1%) of GDP, which continues to exceed the normatively established threshold, so the general, superior, and current interest in maintaining the validity of the norms subsists. Therefore, the Public Administration continues to advocate for the balance between public finances, budgetary restrictions, and respect for the acquired rights and consolidated legal situations of public servants.

On the Merits: Professional Career (carrera profesional) She cites the provisions in PGR opinions numbers C-366-2020 of September 16, 2020, PGR-C-223-2021 of August 9, 2021, PGR-C-120-2022 of May 31, 2022.

As of the entry into force of the LFFP, the professional career incentive (incentivo de carrera profesional) will be recognized to public servants for those academic titles or degrees that are not a requirement for the position, but that are pertinent to it. To be considered within the professional career (carrera profesional) category, the cost of training activities must be covered by the public servant, whether they take them during working hours or not, as long as they are pertinent to the position they hold. For those training activities that are not funded by public institutions, permission with pay may be granted, with due motivation, to receive the training. New professional career points (puntos de carrera profesional) would be remunerated for a maximum period of five years, after which they must be excluded. Conversely, points recognized before December 4, 2018, would continue to be paid according to the previous parameters, but as a nominal amount. Public servants newly hired and those who were not subject to the professional career regime (régimen de carrera profesional) at the time of the law's entry into force (within or outside the Civil Service Regime), should be paid the incentive in accordance with the rules established by the LFFP (unless they fall within the assumptions established by the Public Employment Framework Law (Ley Marco de Empleo Público, LMEP) to apply the global salary). Exceptionally, professional career points (puntos de carrera profesional) could be recognized, according to the parameters prior to the entry into force of the LFFP, in the cases of those applications submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that had not been processed for reasons attributable to the Administration. On the other hand, by regulation, labor continuity is configured, as long as no period greater than one calendar month has elapsed without the public servant providing their services to the State. In this sense, the Single Employer State Theory (Teoría del Estado Patrono Único) must be revisited, which applies not only for the recognition of seniority bonuses (anualidades), but for the recognition of all labor rights acquired by the person in their performance in the public function. This aspect was included among the considerations that supported the addition of subsection f) of the cited art. 14, through Executive Decree (Decreto Ejecutivo) No. 41904-MIDEPLAN-H of August 9, 2019.

Likewise, from the application of art. 56 in concordance with the provisions of Transitory XXV of Title III of Law 9635, the State (as a single employer, as long as labor continuity subsists) is compelled to safeguard salary amounts as a manifestation of the principle of salary indemnity (indemnidad salarial), the acquired rights, and the consolidated legal situations of the public servants covered by the scope of application of the law, such that the amounts that had already entered the patrimonial sphere of the public servants at the time of approval of said law cannot be reduced or applied retroactively in an undue manner. However, the acquired rights and consolidated legal situations regarding the amounts recognized for the professional career (carrera profesional) concept before the entry into force of the LFFP cannot be equated with the expectations of right that public servants may have regarding the recognition of new points, nor can they aspire to a recognition exceeding the maximum cap set by law, as this would indisputably incur in a flagrant violation of the principle of legality.

She requests that the unconstitutionality action be declared without merit.

60.- FRANCISCO CHANG VARGAS submitted a report in his capacity as GENERAL DIRECTOR OF THE GENERAL DIRECTORATE OF CIVIL SERVICE.

He begins by clarifying that the remunerative regime of the Public Administration is built upon a premise of equality, justice, and dignified treatment of public officials; as well as in accordance with the responsibilities of the position they hold. The foregoing not only in an effort to comply with the constitutional rights of every servant, but also in order for public institutions to fully comply, with efficiency and efficacy, with the purposes legally entrusted to them, in accordance with the provisions of art. 4 of the LGAP.

The officials who provide services to the institutions covered by the Merit Regime (Régimen de Méritos) and who entered the Administration prior to the entry into force of the LMEP are subject to the application of the remunerative regime regulated in the LSAP, in accordance with the provisions of the first and fourth numerals of that normative body. That is, their remunerations are based on the salary scale issued by this General Directorate and enjoy the protection contained in numeral 48 of the Civil Service Statute (Estatuto de Servicio Civil), Law No. 1581 of May 30, 1953, and its reforms.

The questioned norms in no way contain constitutional clashes, insofar as what the plaintiff questions is the elimination of the salary supplement that cannot, and should not, be considered an acquired right, for the reasons that will be set forth in the following section, such that this cannot be translated into or considered as a direct impact on the salary of her represented parties.

He explains that the Constitutional Chamber (Sala Constitucional) has established that additional payments (sobresueldos) that depend on some condition to be granted –as is the case at hand– do not constitute an acquired right, because this cannot be considered part of the salary itself, given that its granting depends on the objective conditions for which it was recognized. Consistent with this position, the Second Chamber of the Court (Sala Segunda de la Corte), in resolution No. 03167-2022 of November 18, 2022, was forceful in pointing out that as an acquired right, only those rights that have entered a person's patrimony can be framed, which could not be eliminated without causing a concrete and evident detriment to the conditions they already held previously; a fact that does not occur in the present case, since from the reading of numeral 53 already referenced, it is categorically determined that the professional career incentive (incentivo por carrera profesional) may only be recognized for a maximum period of five years. In other words, it is clear that in accordance with the legal reform introduced by Law No. 9635, it is widely known from the moment of its granting that the cited supplement will be recognized and remunerated on a temporary basis.

Reinforcing the stated position, he emphasizes that the Constitutional Chamber (Sala Constitucional) in resolution No. 23953-2022 pointed out that salary incentives cannot be considered an acquired right solely and exclusively when they depend on a fact or objective situation for their granting; as is the case at hand, in which the regulations related to the granting of the professional career incentive (incentivo por carrera profesional) are conditioned upon the fulfillment of legally established requirements.

He concludes then that when referring to the granting of salary incentives, such as the recognition of points for the professional career (carrera profesional) concept, we are not in the presence of an administrative act generating acquired rights as the plaintiff erroneously claims; on the contrary, it is a benefit granted and conditioned not only upon the fulfillment of certain assumptions and requirements, but also whose enjoyment is legally conditioned to a previously established period, so that its suppression cannot be considered as an abusive ius variandi by the Administration, upon the fulfillment of the temporal condition –five years– of the enjoyment of the cited salary supplement.

It is not possible to assert that the cessation of the recognition of the professional career incentive (incentivo por carrera profesional) constitutes a violation of the principle of intangibility of one's own acts, since both doctrinally and jurisprudentially it has been held that this principle can only be violated when the Administration seeks to ex officio annul an administrative act generating acquired rights or consolidated legal situations, a situation that is not comparable to the one at hand. In this regard, it is clarified that art. 34 of the Political Constitution prohibits giving retroactive effect to acts generating acquired rights or consolidated legal situations that have arisen under the rule of legal norms, provided that this results in detriment to the interested party/parties. In other terms, this principle prevents giving retroactive legal effects to a new norm to the detriment of acquired rights or consolidated legal situations under the protection of another. However, this is not an obstacle to asserting that a norm born into legal life cannot be modified or suppressed by a subsequent law; rather, what is intended with this principle is solely to protect the factual assumptions that occurred prior to the new legal reform. In this regard, he brings up the statement of motives for bill No. 20.5806, since from it, it is determined that the LFFP was a product of the precarious economic situation prevailing in the country at the time of its issuance, so the legislator –exercising the powers conferred by the legal system– determined that the main objective of the cited reform was not only to modify, but also to ensure compliance with these regulations, particularly those referring to the regime of remunerations and payment of salary incentives for officials of the Central Administration, the Legislative Branch, the Judicial Branch, the TSE, and decentralized Administration: autonomous and semi-autonomous, state public enterprises, and municipalities. Law No. 9635 was born into legal life as a product of the complicated economic situation our country was facing and continues to face, and its primary purpose was to stabilize public finances and serve as a means of containing public spending, creating four fundamental pillars, two aimed at reducing the fiscal deficit in the short term, while the remaining two sought to generate fiscal discipline and higher quality in public spending in the medium and long term, as extracted from the statement of motives. In this regard, he cites the motivation for the issuance of the LMEP and refers to criteria from the CGR that had warned of the following:

"[T]he current remuneration scheme impacts fiscal sustainability, given the already mentioned characteristics of its structure, making it necessary to deepen the discussion on more efficient systems, which respond to the principles already indicated as well as to parameters of reasonableness, efficiency, efficacy, and fiscal responsibility." Therefore, he concludes that the legislator not only could, but had to introduce changes in the legal regulations in force regarding the remunerations of servants, without this implying a violation of the principle of non-retroactivity and patrimonial intangibility, since what is constitutionally prohibited is to suppress a legally granted benefit, but not the Administration's possibility to regulate situations prospectively, as happens in this case when the legislator regulates new conditions, requirements, and deadlines for granting the salary incentive for the professional career (carrera profesional) concept. In this section, it must be considered that the deputies, when enacting Law 9635, respected the cited principles, which can be verified from the reading of numeral 56 and Transitory XXV of that legal body.

He notes that Comparative Law offers sufficient examples on this topic, concluding that there is no acquired right to keep the remunerations of public officials unchanged, and, to this effect, cites an excerpt from judgment 327:2111 of June 8, 2004, issued by the Superior Court of Justice of the Province of Río Negro, Argentina, from which the following considerations emerge:

"[T]he intangibility of a public employee's salary is not guaranteed by any constitutional provision, nor is there, therefore, an acquired right to maintain a future remuneration level without variations and under all circumstances." A thesis reiterated by the Supreme Court of Justice of Mendoza, Argentina, which issued a final judgment on August 25, 2009, in case No. 80507, ruling that it is not unconstitutional to vary the scope of provisions related to future salary payments of public employees.

A situation similar to the case at hand occurred in Spain, a country that during 2010, due to the fiscal crisis it was undergoing, adopted Royal Decree-Law 8/2010 of May 20 of that same year, and when subjected to constitutional scrutiny, the Spanish Constitutional Court, in Plenary Order 85/2011, of June 7, 2011, resolved not to admit for processing the question of unconstitutionality 8173-2010, raised by the Social Chamber of the National Court in relation to various precepts of Royal Decree-Law 8/2010, of May 20, by which extraordinary measures were adopted.

In accordance with the comparative law analysis conducted, in our context, it must be kept in mind that the legislator, attending to numeral 34 of the Political Constitution, issued Law 9635, but this legal reform did not imply any violation of the principle of salary indemnity (indemnidad salarial) in accordance with the content of arts. 56 and Transitory XXV of that legal body, by maintaining the remunerations that the servants received before its entry into force and by not applying the legal changes retroactively but prospectively. In this same line of thought, it is necessary to reiterate that the changes provided in the LFFP in relation to the recognition of the professional career salary incentive (incentivo salarial carrera profesional) concerning its recognition and payment, came into effect as of the entry into force of that law –December 4, 2018–, therefore, there is no impact whatsoever on legal situations prior to that date, as the salaries of the servants who provided services to the Costa Rican State prior to the entry into force of the cited law were respected.

Consistent with this legal position and the legal change introduced in our context, this General Directorate, attending to the powers constitutionally and legally assigned to it, issued resolution No. DG-139-2019 of July 24, 2019, which modified resolutions numbers DG-064-2008 of February 28, 2008, and DG-333-2005 of November 30, 2005, this with the purpose of adjusting these regulations to the precepts established in Law 9635 and its regulation.

The actions carried out by this General Directorate were not only timely and diligent, but also conformed to the current norms, and were developed in strict adherence to the principle of legality.

Regarding the alleged injury to art. 74 of the Political Constitution, he states that with respect to this last grievance, it must be indicated that the plaintiff did not provide elements of fact or law that allow this General Directorate to exercise an effective defense and pronounce on the possible violation of this principle. However, he clarifies that, in his opinion, the questioned norms are not violative of the principle of inalienability of the labor rights affected by them, as our Political Constitution, in art. 57, contemplates the right of every working person to receive a minimum salary, or in the case of officials, what it guarantees is that they may not earn a salary lower than that established for their salary category. In that sense, the cessation of the recognition of professional career points (puntos por carrera profesional) of the incentive, as it is not an acquired right but a salary supplement granted by the Administration for a determined period, in no way violates the principle of inalienability of the labor rights of public servants.

He concludes that there is no unconstitutionality whatsoever and requests that the appeal be declared without merit.

61.- Nogui Acosta Jaén submitted a report, in his capacity as Minister of Finance.

On the salary nature of the professional career (carrera profesional) The professional career (carrera profesional) aims to stimulate the academic and professional development of servants, so they maintain constant learning and updating, and that it is applied in the performance of their duties.

On the alleged injury to art. 57 of the Political Constitution The professional career incentive (incentivo de carrera profesional) is considered a salary supplement (plus) and/or benefit, which will depend on whether the servant has professional or training degrees and whether these also meet the requirements set forth in the regulations governing said incentive for its recognition. On the other hand, as administrative jurisprudence has indicated, the relationship existing between the State and the official is one of public law, which is inserted into a statutory regime, is subject to a legal status, to the duties of impartiality, objectivity, and independence that characterize the exercise of state function, and to the power of unilateral modification in the hands of the Administration. For that reason, the regime of the rights of public officials is not a static regime, but a variable one, since the servant cannot resist its normative power, even in rights of economic content, within the constitutional limits of art.

34 of the Political Constitution, that is, retroactively unless it affects subjective rights or consolidated legal situations, for which reason it must be subject to a more or less continuous process of adjustments and reforms for reasons of general interest.

It warns that in application of the principle of wage indemnity (indemnidad salarial), the employees who had career advancement points recognized before December 4, 2018, will retain—without temporal limitation and as long as the employment relationship is maintained—the number of points accumulated and recognized before that date, and based on which they receive the respective economic compensation; but the points obtained after the entry into force of Law 9635 and other aspects regulated in the matter of career advancement will be subject to the regulatory modifications introduced by the cited law. The violation of salary indicated does not occur, since rights of economic content can be modified within the limits of the Constitution (Art. 34 constitutional).

The reinforced protection of salary Labor Law is characterized by a series of its own principles, the protective principle (principio protector) being a classic one. The jurisprudence of the Second Chamber has indicated that the protective principle in labor relations governed by public law is always subject to the principle of legality, and its application is impossible if it results in a regulatory breach.

In that order of ideas, it explains that Art. 53, third paragraph of the law does not violate the protective principle. The meaning of Law 9635 is not to seek a differentiation or wage detriment, but rather it was proposed for the purpose of obeying budgetary and financial limitations, with the clear objective of seeking to maintain a balance in public finances and for this economic objective to be maintained over time and not only applicable to a fiscal crisis. In this sense, it is the State's obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet employer obligations towards public officials and the expenses for payroll payments that it must make, adjusted to the reality that the country's finances are going through. The payment of wage pluses or incentives must be related to the balance of public finances. Said reform introduced by Law 9536 aims to promote this balance without this implying that it has violated constitutional norms and/or principles. It is important to point out that, to safeguard salaries, and because Transitional Provision XXV of the LFFP so provided, the total salary of employees who were active as of December 4, 2018—the date on which that law entered into force—cannot be decreased.

Regarding the alleged injury to Art. 34 of the Political Constitution The final paragraph of Art. 53 cited, does not repeal the career advancement incentive existing before the creation of Law 9635, but rather establishes a temporal limit for the recognition and remuneration of the career advancement economic incentive, up to a maximum of five years. Employees who had career advancement points recognized before December 4, 2018, will retain—without temporal limitation and as long as the employment relationship is maintained—the number of points accumulated and recognized before that date, and based on which they receive the respective economic compensation, but the points obtained after the entry into force of Law 9635 and other aspects regulated in the matter of career advancement will be subject to the regulatory modifications introduced by the cited law.

It is important to reiterate what has been said, insofar as the rights regime of public officials is not a static regime, but a variable one, especially regarding rights of economic content, modifiable within the limits of Art. 34 of the Political Constitution. That is, it cannot be intended that the statutory situation be frozen or remain static forever, but rather it can be modifiable or vary by law or regulation, even suppressed by a subsequent norm. Indeed, there is no right to the immutability of the legal system; the ordinary legislator maintains intact its power to enact laws, reform them, repeal them, and give them authentic interpretation (ordinal 121, subsection 1) constitutional).

This Ministry does not believe that acquired rights are being violated, since Law 9536 prevented the affectation of acquired rights by specifically referring to these in Transitional Provision XXV of the LFFP; the total salary of employees who were active as of December 4, 2018, the date on which that law entered into force, cannot be decreased and the acquired rights they hold will be respected.

Regarding the alleged injury to the principle of intangibility of assets (intangibilidad del patrimonio) The reform made to Art. 53 of the LSAP does not repeal the career advancement incentive, since the points obtained before the entry into force of said law are retained for the term that the statutory relationship lasts. The condition under which they will be granted after its effective date is modified, such that new career points will only be recognized for a period of 5 years. In that sense, Art. 191 of the Political Constitution, as well as the judicial and administrative jurisprudence that informs it, enable the uniform regulation, by legal means, of all employment relationships in the public sector, without this being considered a violation of the constitutional principles indicated. The law safeguards acquired rights and the non-decrease of salary, as observed in Transitional Provision XXV of the LFFP, therefore, in this sense, the challenged norm does not violate the principle of intangibility of assets.

Regarding the alleged injury to the principle of inalienability (irrenunciabilidad) The principle of inalienability implies the impossibility for workers to waive the rights granted by labor legislation (ordinal 74 Political Constitution and Art. 11 Labor Code). Workers' rights are inalienable; however, on this particular point, it is important to point out that the modification operated in Law 9635 does not seek the suppression of labor rights, but rather the law established Transitional Provision XXV of the LFFP, in order to safeguard acquired rights, as well as the matter of respecting the salary conditions of employees who were active as of December 4, 2018, the date on which that law entered into force.

Finally, it refers to the state of public finances, to conclude that it is clear that the State is obligated to guarantee the principle of efficiency by ensuring the necessary resources to meet obligations, adjusted to the reality that the country's finances are going through, so the payment of wage pluses or incentives must be related to the balance of public finances.

It requests that the action of unconstitutionality be dismissed.

62.- In a brief received at the Secretariat of the Chamber on July 5, 2024, Mr. [Name 004] appeared to request being considered a party in this case file.

63.- On October 31, 2024, a motion for prompt dispatch was attached.

64.- By means of a brief dated January 21, 2025, the substitute magistrate, Jorge Isaac Solano Aguilar, attached a request for recusal.

65.- By ruling of the Presidency of the Chamber at 11:39 hrs. on January 24, 2025, the request for recusal of Magistrate Solano Aguilar was rejected.

66.- In the procedures, the prescriptions of the law have been complied with.

Drafted by Magistrate PACHECO SALAZAR; and,

Considering:

I.- Procedural Matters:

• 1)On the admitted interventions (coadyuvancias) By ruling of the Presidency of this Court at 9:29 hrs. on May 8, 2019, the following was ordered in relation to the requests for coadjuvancy presented up to that time:
• a)Messrs. Enrique Egloff Gerli, in his capacity as president of the Asociación Cámara de Industrias de Costa Rica, and Álvaro Sáenz Saborío, in his capacity as special legal representative of the Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado, are considered passive coadjuvants, the foregoing because their interest is that this action of unconstitutionality be dismissed; b) Messrs. Juan Carlos Chaves Araya, in his capacity as general secretary of SIBANPO, Miguel Ernesto Carranza Díaz as a public official, Marvin Atencio Delgado in his capacity as general secretary of SIPROCIMECA, Álvaro Adrián Madrigal Mora as general secretary of SITUN, Róger Muñoz Mata in his capacity as secretary of UNEBANCO, José Luis Soto Rodríguez in his capacity as general secretary of UPINS, and Luis Gerardo Chavarría Vega as general secretary of UNDECA, are considered active coadjuvants, all agreeing on their interest for this action to be granted.
• 2)On the subsequent coadjuvancies Due to the broadening of the scope that was made based on the arguments raised in the action of unconstitutionality No. 19-004931-0007-CO that was joined to this one, requests for coadjuvancy were filed and are resolved as follows:
• a)[Name 002], in his capacity as special judicial representative of SINAME, requested that his represented party be considered an active coadjuvant because he believes that the decision adopted by the Chamber in relation to the alleged norms will have a direct impact on the sphere of interests of the members of that union. Art. 83 of the LJC indicates that within fifteen days following the first publication of the notice referred to in Art. 81, second paragraph of the LJC, those who have a legitimate interest may appear in order to coadjuve in the allegations that may justify the propriety or not of the action of unconstitutionality, or to broaden, where appropriate, the grounds of unconstitutionality in relation to the matter that interests them. In the specific case, as observed, it was on February 27, 2020, when the representative of SINAME requested to be considered an active coadjuvant, estimating that his represented party has a legitimate interest in this action. Consequently, and since the first publication of the notice of the broadening of scope of this action occurred on February 7, 2020, the proper course is to consider this petitioner as an active coadjuvant within this process.
• b)[Name 003], ID [Value 002], filed on January 22, 2021, in the Secretariat of this Court, a request to be considered an active coadjuvant in this action; however, his claim is untimely since, as indicated, the first notice was published on February 7, 2020, and he appeared before this Court almost a year later, whereby his filing is outside the deadline referred to in Art. 83 of the LJC and therefore must be rejected.
• c)In a brief received at the Secretariat of the Chamber on July 5, 2024, Mr. [Name 004] appeared to request being considered a party in this case file. However, his filing is untimely and must be rejected.

II.- On the composition of the Chamber to hear this matter After carrying out the corresponding procedures, as recorded in the operative parts of this case file, the hearing of this case file was assigned to the following magistrates: Fernando Castillo Víquez, Fernando Cruz Castro, Paul Rueda Leal, Jorge Isaac Solano Aguilar, Fernando Lara Gamboa, Aracelly Pacheco Salazar, and Alejandro Delgado Faith.

On Admissibility:

III.- On the formal prerequisites for admissibility and standing (legitimación) This Chamber has repeatedly indicated that the action of unconstitutionality is a process with certain formalities that, if not met, prevent it from ruling on the merits of the matter. Art. 75 of the LJC regulates standing to file actions of unconstitutionality and provides for different situations. The first paragraph requires the existence of a pending matter to be resolved, either in a judicial venue—including habeas corpus or amparo appeals—or in an administrative one—in the procedure for exhausting this route—in which the unconstitutionality of the challenged norm is invoked as a reasonable means of protecting the right or interest deemed injured in the main matter. The second and third paragraphs regulate the direct action, which are cases in which the base matter is not required under the following assumptions: a) when by the nature of the matter there is no individual and direct injury; b) it involves the defense of diffuse interests or those that concern the community as a whole; and c) when the action is brought by the Attorney General of the Republic, the Comptroller General of the Republic, the Prosecutor General of the Republic, and the Ombudsman.

Thus, only in exceptional cases established by law will the existence of this requirement not be necessary, and this Court has clarified that "the assumptions contained in Art. 75, second paragraph constitute an exception to the rule established in the first paragraph (incidental route) that must be carefully assessed" (judgment No. 2022-003938).

IV.- The standing of the plaintiffs in the specific case As can be deduced from the record, in the different actions that have been joined to this main case file, the plaintiffs justify their standing based on the provisions of the second paragraph of Art. 75 of the LJC, by affirming that they come in defense of diffuse interests of public officials, but also of the members of the different associations and unions they represent. This Chamber examined said basis and in interlocutory judgment No. 2019-010635 of 9:20 hrs. on June 12, 2019 (issued in the joined action No. 19-004931-0007-CO), it was expressly indicated that the criterion that they were coming in defense of diffuse interests was not shared, and it was stated that, in the specific case, we are in the presence of corporate interests, also derived from the collective interests that are those intended to be defended by the associations and unions that have appeared. Likewise, the Chamber stated in that ruling that there is a clear relationship between the questioning of the norms and the interests of their members that produces standing to file this action of unconstitutionality. However, the following was also warned:

"[T]hat relationship does not extend to protecting the rights of the families of their members or of an even larger community, formed by taxpayers, the administered of the municipal regime, local governments, and public officials who work in various public institutions that are creditors of a certain level of autonomy. Accepting that the Association has standing to defend the interests of that larger, general, and diverse group would mean accepting the existence of a kind of popular action (acción popular), which is a matter reserved to law in our legal system, so it must be expressly provided for by law, which is not the case" (see interlocutory judgment No. 2019-010635 of 9:20 hrs. on June 12, 2019, issued in case file No. 19-0004931-0007-CO). (The emphasis does not correspond to the original).

Pursuant to that ruling, it must be warned then, prima facie, that the standing of the plaintiffs is only for the purpose of questioning legal or regulatory norms that allegedly affect the labor and salary sphere of workers, not for questioning other public policy aspects that are not directly related to strictly labor aspects.

The Chamber's criterion has been reiterated in several subsequent rulings. For example, in interlocutory judgment No. 2021-022948:

"III.- OF THE INADMISSIBILITY OF THE PRESENT ACTION, REGARDING THE ALLEGED INFRINGEMENT ON THE AUTONOMY OF THE COSTA RICAN SOCIAL SECURITY FUND (CAJA COSTARRICENSE DE SEGURO SOCIAL). In the sub lite, the plaintiffs formulate as a first reproach a presumed infringement on the reinforced institutional autonomy recognized in the constitutional text for the Costa Rican Social Security Fund (Articles 73 and 188 of the Political Constitution). As for this particular point, it must be indicated that this Constitutional Court has repeatedly resolved that the defense of an institution's autonomy must be made before this instance by that same entity and not by a third party (votes Nos. 2008-014190 of 10:00 hrs. on September 24, 2008, 2008-017295 of 14:48 hrs. on November 19, 2008, and 2016-01669 of 09:30 hrs. on February 3, 2016). Said criterion was ratified by this Chamber, recently, when hearing an action of unconstitutionality analogous to the present one, filed by another union organization (ANEP) that also sought to challenge various articles of the cited Public Administration Salary Law (Ley de Salarios de la Administración Pública) (amended by Law No. 9635), precisely, for alleged infringement on the autonomy of municipalities and different autonomous institutions. On that occasion, this Court issued vote No. 2019-010635 of 9:20 hours on June 12, 2019, in which it was indicated – regarding this point – that: (…) This criterion was confirmed again by this Court, subsequently, by rejecting respective actions of unconstitutionality, through votes Nos. 2019-19597 and 2019-22464, by reason of several actions filed by the Union of Workers of the National Learning Institute (Instituto Nacional de Aprendizaje) against various regulations for alleged infringement on the autonomy of that institution. In such judgments, it was reiterated that the representatives of union organizations do not have standing to sue, directly, in supposed defense of the autonomy of an autonomous institution, but rather the defense of the autonomy of an institution must be made by that same entity. Ergo, this action is inadmissible as to this particular reproach." (Considerations reiterated in judgments numbers 2022-023912, 2023-010777, 2024-007057).

Thus, it must be said that, for this Court, it is clear that [Name 001] in his capacity as general secretary of SEBANA; Albino Vargas Barrantes in his capacity as general secretary of ANEP; Carlos Stradi Granados in his capacity as president of SIICE together with Mario Ching Rosales as president of ASDEICE; and finally, Mélida Cedeño Castro in her capacity as president of APSE, are duly legitimized to come through this route before this Court, based on the provisions of Art. 75, second paragraph of the LJC, in defense of corporate interests derived from collective interests that are those they intend to defend, as indicated in the ruling granting leave to proceed of this case file (19-002620-0007-CO) and in the referred interlocutory ruling No. 2019-010635, issued in the joined action No. 19-004931-0007-CO). Regarding the active coadjuvancies, it is likewise warned that their admission is for the purpose of coadjuving in relation to the defense of the labor rights of the persons affiliated to the corresponding unions and not, as has been warned in the background, to defend the institutional autonomy of the institutions for which they work.

It is necessary to insist that, in principle, these actions are admissible insofar as they concern the concrete defense of the public servants affiliated to the different plaintiff unions. Therefore, upon examining the alleged grievances in detail, it will be detailed which norms are inadmissible for analysis before this Court, precisely in view of the standing that the plaintiffs hold. In that sense, although the actions filed are prima facie admitted, it will later be detailed which grievances must be dismissed by virtue that the standing of the unions cannot be assimilated to a popular action in which the entire content of the LFFP is questioned.

Magistrate Cruz Castro dissents and furthermore admits the standing of the plaintiffs regarding the defense of institutional autonomies, fiscal responsibility, and destination of free surpluses.

CONSIDERATIONS ON THE MERITS V.- On the methodology for analyzing the action.

To facilitate the study of the challenged regulations, in the following considerations, each of the questioned articles will be analyzed, including all the topics that are directly related to what is challenged by the plaintiffs. Likewise, in each specific point, a brief reference will be made to what the coadjuvants, PGR, Ministry of Finance, MIDEPLAN, and DGSC indicate, to finally conduct the constitutionality analysis by this Court.

Beforehand, general considerations are made related to the context of the approval of the challenged regulations, reflections on the necessary balance that must exist between the approval of public salary policies and the safeguarding of the fundamental rights of public servants, on the mutability of the legal system, the principles of progressivity and non-regressivity, acquired rights, a clarification on the application of this regulation, and the general principle governing constitutionality control processes, which is the necessary substantiation of the grievances.

VI.- Beforehand. Context and approval of the challenged regulations.

Before examining in detail the list of alleged grievances, it is necessary to assess the context in which the reform occurred. As will be developed below, the LFFP received impetus and legislative approval at a critical moment in the Costa Rican fiscal situation, in which one of the axes is to seek uniformity and containment of spending regarding the payroll of public servants.

Indeed, the matter of paying state employees' salaries has been a subject of concern for several years by public authorities, such that attention has been drawn and emphasis made that in a context of fiscal crisis, it is relevant to take permanent actions aimed at ordering spending on remuneration and, very particularly, regarding salary incentives. Thus, for example, in the Annual Report of the Comptroller General of the Republic (CGR) for the year 2015, an analysis was made of the increase in spending on remuneration and the following warnings were given:

"• Spending on public sector remuneration reached ¢5,132,158 million, 5.7% more than in 2014. However, its participation within total spending is increasingly greater, going from 24.2% in 2010 to 26.3% in 2015.

• The Central Government absorbs 41.4% of the total spending on remuneration, and its growth rate is 7.3%, higher than that of the public sector.

• The salary incentives/basic remuneration ratio in the Public Sector goes from 0.99 in 2010 to 1.1 in 2015. Incentives grow 6.1% in 2015 while basic remuneration grows 4.8%.

• Given the current fiscal situation, it is relevant to take permanent actions aimed at ordering spending on remuneration, in such a way that it is governed by the principles of reasonableness, efficiency, and effectiveness." (The emphasis does not correspond to the original).

In said report, the CGR likewise warned that although spending on remuneration is of enormous importance for the functioning of the Public Administration, such payments must be governed by the principles of efficiency, effectiveness, and economy, and the dispersion of salary regimes and the disbursement of high incentives lead to an "unsustainable behavior of remuneration." The CGR warned that it would be up to the Legislative Assembly to approve the norms and legislative proposals to regulate the matter:

"Undoubtedly, spending on remuneration is of great importance for an effective functioning of the public administration, however, it must be governed by principles of reasonableness, efficiency, effectiveness, and economy. The current dispersion of salary regimes, salary policies, and wasteful salary incentives lead to an unsustainable behavior of remuneration. A situation that is critical for an item that absorbs practically a quarter of public resources and is of a recurring nature. As mentioned in other sections of this Report on the Economic Year, in the legislative stream there are already several proposals aimed at containing this spending; it is up to the legislator to analyze and approve them in order to promote permanent solutions." (The emphasis does not correspond to the original).

Subsequently, in the Annual Report of 2017, the CGR carried out an analysis on what the fiscal deficit in our country consists of and several reasons were explained as to how it could have been generated. Among the causes stated is precisely the growth in the public sector remuneration systems:

"Another cause of spending growth is the public sector remuneration systems that foster inertial growth: annual increments (anualidades), career advancement points (for seniority, courses and professional degrees, etc.), reclassification of positions and posts, extraordinary salary adjustments, increase in the number of officials, laws that create government programs or functions and generate more spending, creation of new units through reorganization, among others. The design of the current remuneration scheme includes the payment of incentives, which usually have a more dynamic behavior compared to base salaries. On average for the period 2012-2017, incentives grew at a rate of 6.3% compared to the 5.2% average for basic remuneration. The foregoing, because some of these incentives are adjusted for inflation or, failing that, are strongly associated with the number of years served, as is the case with annual increments.

Incentives have also come to be higher than base salaries, since in the aggregate of the public sector, for every ¢100,000 of base salary, ¢109,106 were disbursed for incentives, and in some institutions, the incentives not only equal the base salary but double it, that is, up to two-thirds of an official's remuneration may correspond to the payment of incentives, reflecting the denaturalization that incentives have undergone in the base salary plus components schemes, as they gradually went from being an additional compensation to being more important than the salary itself. This incentive/base salary ratio has grown steadily over time; for example, in 2013, for every ¢100,000 of base salary, ¢104,093 were paid in incentives. It should be noted that the magnitude of this ratio differs according to the institutional sector, as it is greater in non-corporate decentralized institutions and lower in Local Governments (1.3 versus 0.7 respectively).

The trend of growth in salary spending, not only in the Central Government, but in entities with a regime of autonomy that are financed through transfers from the Government, impacts the Government's fiscal result." (The emphasis does not correspond to the original).

In said report, it was also warned that it was vital to implement legal reforms to regulate remunerative aspects of public employment and that inaction on this matter was undermining fiscal sustainability:

"In summary, the remunerative scheme, employment behavior, and inflation define the trend of spending on remuneration; where the administration only has some control over the second aspect, while salary regimes and inflation are exogenous variables. The implementation of reforms to order public employment and simplify salary regimes is of utmost importance in addressing the fiscal issue. Inaction constitutes one of the main risks that undermine fiscal sustainability, while perpetuating the inequities and contradictions of the current regimes." (The emphasis does not correspond to the original).

From the above reports of the CGR, it is verified that at least since 2015, there had been insistence on the need to simplify and contain salary spending as a measure to combat the fiscal deficit.

Thus, it is understood that the LFFP was adopted in a context in which the Government and the Legislative Branch determined that it was imperative to adopt measures of all kinds in order to "resolve the fiscal imbalance in a sustainable manner" and seek a solution to the structural problem of public finances (spending containment and increase in revenues). The foregoing, because all economic indicators pointed towards a severe fiscal deficit and an imbalance in public finances.

In fact, upon examining this Court's own precedents, it is evident that in advisory opinion No. 2018-019511, which precisely examined the doubts of constitutionality raised in relation to the bill that sought to approve the LFFP, the Chamber warned that the context surrounding the bill's approval could not be overlooked, and the following statement—which precisely served as a parameter for assessing the constitutionality of the legislative reforms—was made:

"[I]n legislative file No. 20.580, there are technical criteria and reports from various authorities with competence in the matter that, for the purposes of this proceeding, constitute sufficient evidence to conclude that due to disrespect for the constitutional principle of financial balance, enshrined in Article 176 of the Political Constitution, our country presents such a deteriorated fiscal situation that it threatens the financial sustainability of the State." (Emphasis not in original).

After analyzing the various technical criteria contained in the legislative file, the Chamber assessed that—according to the specialists and the Government itself—the country's fiscal situation did not guarantee the financial sustainability of the State, and, therefore, it was not only desirable but unavoidable for the Costa Rican State to adopt measures to guarantee the qualities and principles of our Social State of Law (Estado Social y de Derecho). The foregoing, under a harmonious interpretation of the principle of budgetary balance and the Social State of Law. In this regard, this Court warned the following:

"From this panorama, the Chamber observes sufficient technical criteria to (certify) that, at this time, the country's fiscal situation does not guarantee the financial sustainability of the State and, therefore, the fulfillment of its constitutional obligations.

On this point, faced with a critical condition in public finances (duly supported by technical studies) that puts at risk the effective or adequate execution of constitutionally relevant benefits, the decision of the competent authorities to define and apply suitable measures to alleviate or solve the problem is not only reasonable, but even more so, it is unavoidable.

However, it is not for the Chamber to define specifically what type of remedies should be applied or which is the most appropriate, since this forms part of the State's economic policy, which in turn constitutes a matter of government. In reality, constitutional control is constrained to ensuring that solutions are adopted while safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multi-ethnic and pluricultural republic, whose Government is popular, representative, participatory, alternative and responsible), all of which implies an exercise of weighing and optimizing the various constitutional principles, rights, and values at stake.

In this context, a harmonious interpretation of the principle of budgetary 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, sound management of public finances becomes necessary; that is, there must inexorably be a balance between entitlement rights (derechos prestacionales) and state economic solvency, since the former depend on the material possibilities provided by the latter, while the purpose 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. Put another way, the 'ideal' Social State of Law is the 'possible' Social State of Law, which is precisely what is acted against when the principle of budgetary balance is breached, 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. Therefore, to ensure that we do not end up with a failed or paper Constitution, where constitutional-level entitlement rights cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competences permits." (Emphasis not in original).

Later, the Chamber again refers to the context of the approval of the regulation in question, in order to conclude that the adequate respect for social and entitlement rights is an aspiration that depends on the sound and appropriate management of public finances, and that there must be a balance between entitlement rights and the State's economic solvency, since the former depend on the material possibilities provided by the latter.

Therefore, it precisely starts from the need to adopt legal, administrative, and material measures that would allow reversing the eve of a particularly serious fiscal crisis, which was characterized as unsustainable, implying a threat to the Social State of Law. In this regard, the Chamber made the following reflections:

"As has already been stated in this pronouncement, for a Social State of Law to fulfill its constitutional and legal purposes, the fiscal sustainability of the country must be safeguarded; that is, there must inexorably be a balance between entitlement rights and the State's economic solvency, since the former depend on the material possibilities provided by the latter. Hence, the 'Ideal' Social State of Law is the 'Possible' Social State of Law, because indebtedness and irresponsible management of public finances, even if carried out with the aim of alleviating social problems, when they reach disproportionate levels can put the financial sustainability of the country at risk, which not only brings about its economic weakening (even to levels of very difficult or traumatic management), but also increases the possibility of losing social programs and the socioeconomic advances gained to date. Furthermore, as a starting point, this judgment proceeds from the fact that the challenged project is guided by the constitutional principle of budgetary balance, within a context where there is sufficient evidentiary record to verify a particularly serious fiscal crisis of gravity, which has been characterized either as unsustainable or as a threat to the Social State of Law, according to the technical criteria of various authorities from the university, economic, and oversight sectors (Instituto de Investigaciones Económicas of the Universidad de Costa Rica, Banco Central, Contraloría General de la República, Programa Estado de La Nación, among others). It is verified that such economic weakening of the country can undermine the foundations of the welfare and supportive state, which precisely puts the Social State of Law itself at risk. In the task of solving this problem, the legislator enjoys broad freedom of configuration, regarding which it is not for the Constitutional Chamber to define specifically what type of remedies should be applied or which is the most appropriate, since this is part of the State's economic policy, which at the same time constitutes a matter of government. The function of the jurisdiction is constrained to ensuring that solutions are adopted while safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the organization and political structures contemplated in the Fundamental Law, the foundations of our democratic political system." (Emphasis not in original).

Magistrates Salazar Alvarado and Araya García pointed out that it was not for the Chamber to define whether or not our country was actually going through a fiscal crisis; however, they did recognize that, in light of the various technical criteria contained in the legislative file, the context could be assessed and the legal reforms being proposed could be examined. Nevertheless, they warned that the potential financial crisis could not justify, by that mere circumstance, the hollowing out of the fundamental rights of the inhabitants, since that could ultimately imply an emptying of the Social State of Law. To the extent relevant, they made the following reflections:

"It is necessary to emphasize that it is not for this Chamber to define, specifically, whether or not the country is going through a fiscal crisis, nor the characteristics thereof—should one exist—, much less what type of remedies should be applied, nor which are the most appropriate, nor the timeliness and advisability of the financial and public spending reduction measures adopted, all of which falls within the macro-economic policy of the State, a typical matter of government. Nor is it for it to opt for one solution or another. It is for the competent administrative dependencies, through technical and actuarial criteria, to define whether a fiscal crisis exists in the country, to what extent, as well as its characteristics and economic and social consequences. This, however, does not prevent this Court, in light of those technical criteria—such as the Economic Report AL-DEST-IIN-114-2019, of March 2, 2018, from the Departamento de Estudios, Referencias y Servicios Técnicos of the Asamblea Legislativa (see folio 1477 of the legislative file); official letter No. DFOE-SAF-0183, from the Área de Fiscalización del Sistema de Administración Financiera of the Contraloría General de la República of April 13, 2018 (visible at folio 4525 of the legislative file); and official letters JD-5846/04, of September 26, 2018, and DEC-AAE-0083-2018, of October 16, 2018, from the Secretario General and the Departamento de Análisis y Asesoría Económica, both of the Banco Central de Costa Rica (visible at folios 15805 and 20519, respectively, of the legislative file); among others—from assessing the situation—not defining it—in order to, within that context, carry out the constitutionality analysis that is its responsibility. These considerations are proper to a Court of the nature of this Chamber, since not only can it not be oblivious to the financial and social reality of the country, but this issue is inserted within the constitutional principle of financial balance that the Constituent Assembly of '49 established in Article 176 of the Political Constitution, which has serious repercussions on the Social State of Law. However, the State's financial crisis cannot justify, by itself and on its own, the restriction or the enervation of fundamental rights. In this sense, it is indeed the responsibility of this Court to determine whether or not the proposed measures are in accordance with the Law of the Constitution, so that the content of constitutional rights is not hollowed out for the sake of seeking a healing of public finances. There exist, in this matter, intangible limits for the legislator. In this context, an exacerbated impairment of social guarantees, especially entitlement rights, cannot be admitted, without that implying a dismantling of the Social State of Law." (Emphasis not in original).

Magistrate Hernández López also referred to the context of the normative approval as a parameter of reasonableness and proportionality, warning, however, that it is a contingent aspect that could eventually improve:

"Another aspect that is essential to clarify is that, although this judgment contains references to the current economic situation (according to the technical studies provided in the record), that context has been taken into account insofar as the competent authorities rely on it to justify that some of the measures adopted are determinable for the economic sustainability of the State's responsibilities. In that sense, the references to that situation, from my perspective, have been made in order to assess reasonableness and proportionality as constitutional parameters of some of the measures under consultation. By acting in that way, I understand that it reaffirms the necessity—also clearly recognized by legal doctrine itself—that the decisions of this body take into account and always operate within a concrete social and economic context, so that—within such specific circumstances—the best possible weighing, protection, and balance of the fundamental rights of the administered individuals is achieved, but without affecting the viability, durability, and stability of the Political Constitution, as the legal and political instrument that makes the materialization of the social pact possible; the opposite would be to risk ending up at the antipodes of the constitutional state of law, with a Fundamental Charter left hanging, with rights that exist only on paper, that is, with a failed state, incapable of guaranteeing its obligations, particularly those of entitlement rights (especially those of the most vulnerable populations: children, adolescents, the elderly, poverty programs, security, health, justice, and peace, among others), which would be left empty of content. Nothing exempts a constitutional state of law from fulfilling its obligations to guarantee, programmatically, the fulfillment of these responsibilities, which also form part of its reason for being. In that sense, different contexts (economic, political, or social) can influence the way in which a Constitutional Court, in fulfilling its role of protection and control, endows meaning and concrete scope, especially to the so-called constitutional principles, due to their open texture, and guides authorities on the scope of the programmatic norms of a given state, at a given time and under given historical circumstances; it could not be otherwise, nor has it ever been otherwise, when it comes to the task of building a democratic and social State of Law, in which this Court also participates, insofar as it is its responsibility—by its function as guardian of the Political Constitution—and as part of its role, to ensure the stability and durability of the social pact. Such is the real meaning of what is stated in this judgment, which, as indicated, cannot serve to prejudge exactly and rigidly the questions that in the future—in concrete cases and in different contexts—may be brought before the Chamber, since it would not be correct for—for example—the specific parameters of reasonableness and proportionality employed under a determined context to remain, without adjustment, in the face of changes or improvements that may arise in the future; so that in a context of economic prosperity, the reasonableness and proportionality of some of the adopted measures would not have the same meaning from a constitutional point of view. From my perspective, for example, it would not be constitutionally sustainable that, in the face of future economic stability or prosperity, some of the restrictions on the growth of social spending—destined for populations in the greatest state of vulnerability and workers' rights—that have been imposed in the current context, remain in force." It should be noted that the LFFP included a series of provisions related to modifications in tax matters, specifically regarding the Ley del Impuesto sobre el Valor Agregado (Title I), the Ley de Impuesto a los Ingresos y Utilidades (Title II); a series of norms were added that came to reform the LSAP (Title III)—which refers precisely to the object to be examined in this action—; provisions regarding fiscal responsibility were also introduced (Title IV); and finally, transitional rules to make the reforms in question operative.

Regarding the impact on the salaries of public servants (servidores públicos), the statement of motives of the bill explained the purpose of the initiative, namely: to orient public service remuneration towards a scheme of efficiency and quality in public spending. Thus, the statement of motives of the bill stated the following:

"b) Addition to the public salaries law The reform to the public salaries law seeks to orient public service remuneration towards a scheme of efficiency and quality in public spending. To that end, it establishes: i) Ceilings on the highest salaries of the Public Administration; ii) A single salary remuneration system for high-ranking officials (jerarcas); iii) The legal regulation of the regimes of prohibition and exclusive dedication, and iii) The conversion of the seniority bonus (anualidad) into a mechanism for evaluating individual excellence, but one that takes into account the fulfillment of institutional goals and the Plan Nacional de Desarrollo. The latter seeks to reduce the paradox of having officials rated as excellent who, however, provide services in entities that have not met expectations.

The compensation of high-ranking officials must be based on the nature of their work and the competencies to be performed. For many positions of responsibility, the base salary represents only 20% of the total salary, their remunerations being adjusted through the most diverse bonuses (pluses), which are less transparent and controllable, and which can result in clearly abusive retributions, especially if the reality of our labor market is taken as a parameter.

In this sense, the establishment of ceilings for the best-paid positions could bring the double benefit of, on the one hand, avoiding abusive compensations and, on the other, equating the retributions of high-ranking officials who perform functions of equal responsibility.

On the other hand, it is unquestionable that the performance evaluation system in the public sector is not only complex, but it facilitates grade inflation and is conducted without regard to the actual provision of services, which is ultimately what matters to the citizenry.

Furthermore, according to data from the INEC, in Costa Rica there are approximately 305,000 public officials, which represents a number close to 15% of the labor force. Determining whether that quantity is excessive does not depend on the quantity itself, but on the results obtained.

An adequate evaluation system, based on ease of understanding, on transparency so that its results are publicly known, and on the merit of the officials, would have as a necessary corollary the incentive for better individual performance and service provision. This would also redound to better analysis of the resources allocated to our public labor force, and even in the possibility of redirecting them to those areas of greatest demand or incidence.

For these reasons, the following bill is presented to the honorable deputies:" (Emphasis not in original).

In the Integrated (Legal) Report No. AL-DEST-IJU-110-2018 of the Departamento de Estudios, Referencias y Servicios Técnicos, dated March 21, 2018, concerning the bill processed under file No. 20.580, regarding the LFFP bill, the legislator's intentions to curb the uncontrolled growth of public finances through various norms aimed at preventing the exponential increase in public servant salaries and unifying the salary policy of the Public Administration were precisely highlighted. Said report, to the extent relevant, established the following:

"As observed, the norm intends for the entire Public Administration to be governed by a single salary.

This principle has already been implemented in institutions such as the Contraloría General de la República, with the intention of managing in an adequate and rationalized manner the salary bonuses (pluses salariales) that are granted to public officials up to now.

Limiting the growth of so-called public remuneration has constituted a relatively recent objective of the legislator, articulated through various mechanisms, as in this case, aimed at restricting not only the amount of such remuneration in the public sector through the legal establishment of caps or maximum ceilings (topes), but also at curbing the increase in public spending.

On this point, the Constitutional Chamber has warned the following:

"(...) the effects that imbalances in the State's salary regime produce on public finances and, therefore, on the country in general, make it fully justifiable and even constitutionally necessary to submit everything concerning the salary policy of the Public Administration to uniform criteria. (....)". (Ruling No. 3309-94 of 3:00 p.m., July 5, 1994).

Therefore, it is not surprising that the proposal of the present Bill seeks to make effective a measure of general economic policy, of undeniable budgetary character, aimed at containing the relative expansion of one of the components of public spending, namely that related to the remuneration of officials and high-ranking positions.

Although it is true that there is no norm in our legal system that specifically supports the State's competence to set limits or maximum ceilings, of a global nature, on the remuneration of personnel at the service of Public Administrations, it must be considered that even though the Executive Branch—stricto sensu—has among its attributions the power to 'Order the collection and investment of national revenues' (Art. 140.7 of the Constitution), and from this the powers of salary setting have been derived (resolution No. 1822-01 of 3:46 p.m., March 7, 2001, Constitutional Chamber), the Magna Carta expressly establishes that it must do so 'in accordance with the laws'. And what is proposed is undeniably a legal proposal that aims to set limits or maximum ceilings on the remuneration of all personnel at the service of the public sector, under a uniform scheme, based on the principles of equality and solidarity, aimed at containing the relative expansion of one of the essential components of public spending and reducing the public deficit." (Emphasis not in original).

In April 2018, the Comisión Permanente Ordinaria de Asuntos Hacendarios favorably recommended—by majority—the bill, and in the report rendered to the Plenary, they also made reference to the economic context of the approval of the proposed reforms. As relevant to this action of unconstitutionality (acción de inconstitucionalidad), it is of interest to highlight the legislators' purpose of adjusting the salary elements that constitute a trigger for public spending:

"B) FISCAL CONTEXT AND THE PRESENTED PROPOSAL In recent years, there has been an increase in the country's tax collection, which has led to fiscal revenues being close to the average of fiscal revenues in countries of Latin America and the Caribbean; however, and despite said improvement and the efforts made to reduce spending, resources are insufficient to finance the expenditures currently necessary in the country.

The high levels of deficit have caused a rapid increase in public debt, making it increasingly difficult to cover it with current tax revenues. The Central Government Budget went from a surplus of 0.57% of GDP in 2007 to a deficit of 6.2% in recent years. Public debt rose from approximately 25% of GDP in 2008 to more than 40% in 2015. The level of indebtedness in Costa Rica is high compared to the estimated average in the countries of the region. On the other hand, indebtedness expressed as a percentage of public revenues reaches unsustainable levels and has grown more than in other countries of the region. In 2015, the level of indebtedness in Costa Rica was almost three times greater than the Government's annual revenues, which positions Costa Rica in the second-highest spot in the region after El Salvador.

If not addressed conveniently, Costa Rica's fiscal deficit could be unsustainable, and the public debt could reach critical values that would put the country's growth at risk. To balance the budget, Costa Rica must obtain new revenues and, at the same time, control public spending. It is necessary to correct the distortions that arise, for example, from the excessive specific earmarking that has been given to fiscal revenues and that substantially limits governmental decisions on public financing. It is also necessary to establish norms for the deceleration of spending and control of spending triggers, all of which, together with a reform of the tax structure, are the necessary elements required to place Costa Rica on the path leading to fiscal sustainability.

(...)

All of the foregoing highlights the need to approve the proposed reform, which contains the following pillars:

Improvement in the tax structure that allows for improved collection and approaching a budgetary balance, which involves:

(...)

Establishing improvements in the definitions of prohibition and exclusive dedication, capping seniority bonuses (anualidades), and other regulations that organize the matter of public employment. (...)." (Emphasis not in original).

Subsequently, it was certified that the file was referred to a special commission: "Comisión especial encargada de dictaminar el expediente 20.580, Ley de Fortalecimiento de las Finanzas Públicas, which has legislative file 20.730." A series of consultations and interviews were conducted in said commission. It was certified, for example, that in ordinary session No. 28 on Thursday, June 21, 2018, the then Minister of Hacienda was interviewed, who gave a broad explanation of the bill. Particularly, regarding public employment, she lamented that the country had delayed in taking concrete actions with the purpose of standardizing salary issues, and she made projections regarding the nominalization of bonuses (pluses). This, without impacts on the salary of public servants being carried out. On these points, the following statements are on record:

"In this study of opinions and her efforts that the Contraloría just released yesterday and made public, there are very interesting recommendations that I believe should be taken into account in that potential public employment law.

Regarding the estimate that was made, for the purposes of the ninety-six billion, it is an estimate that starts from the following.

Today, there are about one hundred fifteen thousand employees, one hundred twenty thousand Government employees, from the Republic's Budget, one hundred thirty if all are included.

They have an average annual base salary of six million colones. So, what was done was to use the average seniority, which is more or less—seniority in terms of the number of seniority bonuses (anualidades)—on the order of fourteen or fifteen, if I remember correctly.

What was estimated is under several assumptions: 3% inflation and 100% payment of the seniority bonus, what is the impact on the growth of that incentive in the years to come, and what the situation would be if, instead of keeping it as a percentage, a fixed estimate is made?

Under that assumption that I am adding a seniority bonus to that group and that each time I make the salary increase, it is not that I increase that year's seniority bonus, but the inventory of those they bring, it yields a certain amount. And then, not only the issue of the savings from the seniority bonus is added, but also the rest of the social charges that would be avoided as a result of that non-adjustment in the automatic and inertial manner that seniority bonuses have.

It is assumed, right?, because this is done based on, of course, assumptions, as I said, that each person earns one seniority bonus each year, because as you know, in the public sector, in the Central Government, practically 99%—I don't know if there is any exception—earns the full seniority bonus.

(...)

Deputy Yorleny León Marchena:

Still within the framework of that table, Ms. Rocío, and thank you for expanding on that information. A doubt arises regarding the participation that the Minister of Labor had yesterday and your appearance today.

In this table, there is a line item that speaks of constant payment of each seniority bonus, and earlier you explained to us, then, how those ninety-six billion that are there come out, which represents 0.21, right?

For this effect of the measures to occur, that situation must then be carried out in practice, that seniority bonuses will go from being, instead of percentages, they will become nominal, and so on.

But yesterday the Minister of Labor repeatedly indicated that no worker in this country would see their salary affected in any way. Now the doubt arises as to which is the correct interpretation.

Ms. Rocío Aguilar Montoya:

No doubt.

Their current salary is not reduced. What is modified is, going forward, how certain components are calculated.

I used to give the example of a year in which inflation was zero and that year there was no salary adjustment and, despite there being no salary adjustment, remunerations grew by 1.93. And that is an effect of there being salary increases that are decoupled, shall we say, from what happens with the cost of living, which is the classic case of the annuity (anualidad), the biennium (bienio), merit (mérito), and others, they have another name, right?, but these are automatic increases as a percentage of the base.

So, here no one is being deprived of that benefit they currently have; what is being modified is the way it is calculated going forward. And, as I said, what is sought here is to manage salary policy in a better way so that when I make an increase to the base, a whole series of other benefits do not start to float upwards, which, being anchored as a percentage to the base, grow disproportionately.

Looking, for example, not only at the Central Government, if one looks at the budget report prepared by the Comptroller General of the Republic (Contraloría General de la República) for the entire institutional framework, it is striking how remunerations grow at a lower rate than incentives, and the reason is precisely that: that the incentives are divorced in that way.

If one had managed to make the decision—I think I did the calculation very early in the morning—in 2014, if I recall correctly, having decoupled them would have generated savings of about… I said one hundred fifteen billion colones, the math would have to be done better, but I did that in very general terms.

That is what we want to avoid. And what should one aim for in the medium term? For the base salary to truly have value again. The base salary today is about 40%, but because no one touched it again because it became untouchable, because if I touch the base salary, the rest of the things automatically grow.

Deputy Yorleny León Marchena:

So, Mrs. Rocío, let's see. My current salary will not be modified, but my salary expectations, based on future components, will indeed be affected. That is the effect. Is that correct?

Mrs. Rocío Aguilar Montoya:

That is one way of describing it, and this is important because here we must begin to make the distinction between acquired rights (derechos adquiridos) and expectations of rights (expectativas de derecho). And regarding another concept that the Constitutional Chamber itself has developed in a way that seems excellent to me, the concept of the immutability of law (inmutabilidad del derecho), none of us has a right that it will not be modified going forward.

Of course, if that modification implies that my acquired right was modified, well, it must be compensated. But if what we are talking about is the expectation of a right, which is somewhat the theme I referred to, there the matter is different, that can be varied.” Additionally, in ordinary session No. 29 of June 27, 2018, the appearance of the Comptroller General of the Republic was received, who made important reflections on the urgency of approving the LFFP:

“We referred on that occasion to a fiscal reality characterized by a deficit of more than six percentage points of GDP, associated with a public debt that is brushing the limit of sustainability and that has been fueled for almost thirty years by financing current expenditure with debt and that is rooted in political practices and decisions that have been established without a medium-term vision of their consequences on public finances and that have become a problem that is a structural matter.” Specifically, regarding the salary issue, the Comptroller gave the following explanations:

“With respect to Title Three, this is a modification to the Public Administration Salary Law (Ley de Salarios de la Administración Pública) and intends, first, to regulate limits and general criteria for the recognition of compensation for exclusive dedication (dedicación exclusiva) and prohibition (prohibición), indicating, moreover, that it will be paid only on the base salary.

More specifically, the text modifies the dedication incentive by establishing percentages of 55, 20, and 30% according to the academic degree of the official and, furthermore, establishes that these contracts must be for a minimum of one year and a maximum of five years. The prohibition would be established at 65 for graduates (licenciados) and above and 30 for baccalaureate holders (bachilleres).

It declares as improper incentives (incentivos improcedentes) discretionary, confidentiality, bienniums (bienios), five-year periods (quinquenios), and similar ones. It regulates the severance pay assistance (auxilio de cesantía), according to the provisions of the Labor Code, to eight years.

It establishes a limit on remunerations for all public servants of twenty monthly base salaries of the lowest category of the Public Administration salary scale; twenty-five in the case of the President, and thirty in the case of officials of institutions operating in competition, which represents distortions regarding the level of responsibility and remuneration received, and we had also pointed this out in March.” Subsequently, the strengthening of public service provision with the notion of uniform salary conditions was advocated:

“Given its importance in fiscal and social matters, I will briefly refer to the topic of public employment. And here clarify that public employment is a means to contribute to and increase the State's capacity to offer goods and services that improve the quality of life of citizens.

The topic of public employment is not only compensation or remuneration. That is only one part; everything must function effectively and efficiently to deliver the expected results.

Among other components of this system, we have recruitment, selection, administrative career (carrera administrativa), performance evaluation, profiles, competencies; all of which must be designed so that public employment, which is fundamental for the country's economic and social growth, is vigorous, fair, balanced, equitable, and transparent.

In that sense, different documents from the Comptroller General's Office have advocated for a necessary comprehensive vision and the creation of a defined policy on public employment, given the diversity of the remunerative systems in force in the public sector, characterized by unequal base salaries and salary incentives of the most varied nature that are enshrined in laws, decrees, collective bargaining agreements (convenciones colectivas), and internal regulations.

(…)

Specifically, on the topic of remunerative schemes, our most recent work corresponds to the study on challenges for the modernization of the remunerative scheme in government ministries, where general principles were identified toward which remuneration schemes can be oriented in order to attract and rely on motivated, effective, and efficient personnel. That is, to pay equal salary for the same work, to pay different salaries only in the presence of differences in the work performed, in the responsibilities, and the required qualifications, to pay salaries in the Government comparable, as far as possible, to the equivalent positions in the public sector, to periodically and systematically review the remuneration schemes to guarantee their continued validity.

The application of these principles has an important impact in five areas, such as governance, and therein the use of public resources and transparency, economic policy, the implementation of fiscal policy, the distribution of public goods and services, and fiscal sustainability.

(…)

In conclusion, on this Title Three of the bill, it is considered a positive signal towards the ordering of remunerations, which must advance towards an internal balance, but also an external one within the institutions.

The Comptroller General's Office proposes initiating a transition towards a remunerative system in which salary incentives are gradually adjusted to the principles mentioned above, which is important as a step towards a more uniform remuneration regime, as well as addressing other crucial public employment issues necessary to impact efficiency in public management.” (The highlighting does not correspond to the original).

Having clear the context of the approval of the regulation and the purposes of the Legislative Assembly is how each of the claims raised will be examined. Emphasis is made that this argument was added in order to assess the final motivation for the reform, without this in itself being a condition that legitimizes all the provisions related to public employment and salary provisions.

VII.- ON A NECESSARY BALANCE BETWEEN SALARY POLICIES AND THE SAFEGUARDING OF THE FUNDAMENTAL RIGHTS OF PUBLIC SERVANTS Bearing in mind the serious fiscal situation of our country, this Court considers that the Costa Rican State, in a broad sense, must aspire to a healthy balance between respect for the fundamental rights of workers—a salary that ensures conditions of well-being and dignity, respect for acquired rights, and the right to collective bargaining, among others—and the orientation of public finances and specifically the remuneration system towards a scheme of efficiency and quality in public spending. The foregoing, with the purpose of gradually stemming the salary gaps and disparities that have been precisely affecting public finances. To achieve the above, the principles of equality, reasonableness, and proportionality must be taken into consideration in the recognition of salary improvements, so that there is no severe impact on the disposition of public funds and an unjust disparity among public servants themselves. For example, when this Court, in judgment No. 2018-008882, examined the cap on the amount of severance pay that can validly be improved through collective bargaining, it made the following considerations:

“The problem that the majority of the Chamber finds here—and which does not seem to have been specifically addressed before—arises when the magnitude of the benefit is contrasted, not only within the group of employees favored by the Agreement, as was done in the cited judgments, but when the magnitude of that severance pay assistance payment is analyzed within the complete universe of public servants in a broad sense; this extension of the comparative framework is justified insofar as for all employees in the service of state institutions, the source of financing for that severance pay assistance payment is one and the same: the taxes and public prices paid by all the people who inhabit the Republic. And it does not impede that, both in this case and in many others, these are state-owned enterprises acting in a competitive market and administering consumer, saver, and borrower funds, because, insofar as such institutions are State-owned and have its backing, their health and financial practices can be—and are in fact—extremely relevant for public finances, as the well-known current condition of Bancrédito clearly demonstrates and the estimates that have been given on the impact its closure will have on the national budget.

Thus, it must be affirmed that the provisions of an economic nature agreed upon by the administrators of public institutions when they negotiate collectively with their workers cannot evade the necessary coherence and proportionality in relation to what constitutes the general framework of economic benefits that the State (in its broad concept) has been recognizing over time, in favor of its workers, nor can one fail to take into account the financial possibilities of the entities in general and the way in which these provisions will affect state expenses and economic obligations, given that such commitments determine and are simultaneously determined by the different economic variables and situations and directly impact the general economic situation of the country.

By adopting this approach, the majority of the Chamber verifies the existence of a very wide gap between the severance pay assistance payment applicable to the vast majority of public servants, whose cap is 8 years, and the payment that workers of Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months of salary for the same severance pay assistance. This is a difference of one hundred and fifty percent (150%), which, from the perspective of the majority of those who make up this Chamber, is abysmal and, therefore, should have clear and incontestable arguments that justify it, but which instead lacks them and is disproportionate and unsustainable in such magnitude.

It must be remembered, on the one hand, that this Chamber, in tune with the development of the fundamental rights linked to the labor environment, has exercised its constitutional control function with great restraint in this matter, understanding that the fundamental nature of the right to collective bargaining—one of the fundamental pillars of the right to work—has as its legitimate purpose the improvement of the working conditions of workers, and this necessarily entails the generation of differentiations and disparities that are in no way unjust or illogical in themselves and, even less, can be branded as unconstitutional, for the mere fact of benefiting a group of people who have achieved such vindications through the instrument of collective bargaining. But the foregoing cannot completely deactivate the need for the improvements to which the State commits itself to be proportionate and reasonable, not only with respect to the condition in which other state workers not protected by collective bargaining agreements are left, but also with respect to the burden that society must bear to cover such sums. Thus, a difference of 150 percent (that is, a difference halfway between double and triple the normal sums) between what may correspond to some public servants over all others for the same concept is located far beyond what can be understood as proportionate and acceptable as a legitimate vindication in the condition of state workers.” (The highlighting does not correspond to the original.)

This criterion of the Chamber has been reiterated in multiple judgments, such as, for example, 2019-008679, 2019-009222, 2019-0009723, 2020-00320, 2020-014208, and 2021-025969, among others, in which the Chamber expressly warned that “due to the financial situation of the Costa Rican State, it had to reexamine its original position.” So that the recognition of certain rights and labor improvements are also subject to contingent aspects such as the financial and fiscal situation of the Costa Rican State.

This thesis, if looked at in detail, is not a novel position, but in reality, this Chamber has positively valued that the salary policy of the Public Administration be submitted to certain standards of uniformity to avoid harm to public finances. Thus, for example, we have that in judgment No. 1994-3309, this Chamber referred to the constitutionality of the Law for the Creation of the Budgetary Authority (Autoridad Presupuestaria), No. 6821 of October 19, 1982, which established in its Art. 1 that one of the main functions of the Budgetary Authority is the formulation of budgetary policy guidelines for the public sector, even in aspects related to salaries. On that occasion, the Chamber stated the following:

“So that if in Article 9 of the challenged law the Budgetary Authority was granted the power to ensure that there are equal salaries for equal work, thereby guaranteeing the constitutional principle of the right to an equal salary under 'identical efficiency conditions' and thus issuing the necessary criteria to standardize the salary regime of all public servants, the actions of the Budgetary Authority must respect Articles 57 and 68 of the Political Constitution insofar as they establish:

'Article 57: Every Worker shall have the right to a minimum wage, fixed periodically for a normal workday, which shall procure well-being and a dignified existence. The salary shall always be equal for equal work under identical efficiency conditions.' Likewise, paragraph 1 of Article 68 of the Political Constitution indicates that:

'Article 68: No discrimination may be made regarding salary, advantages, or working conditions between Costa Ricans and foreigners, or regarding any group of workers...' On the contrary, the effects that imbalances in the State's salary regime produce on public finances and, therefore, for the country in general, make it fully justifiable and even constitutionally necessary to submit everything concerning the salary policy of the Public Administration to uniform criteria.” (The highlighting does not correspond to the original. See also judgments 1994-6471, 1994-5297, 1995-6577, and 2003-09954, among others).

More recently, in judgment No. 2024-007057, this Chamber referred to the regulatory provisions that make the public employment regulations issued under the LFFP operative, and the Chamber stated precisely that such regulations obey the “public interest in reducing public spending and, consequently, reducing the country's fiscal crisis.” However, in the same way, it must be warned that one cannot lose sight of the fact that the emptying of the fundamental rights of public sector workers in the eagerness to solve the problems of public finances is not valid. The fiscal crisis that Costa Rica has been suffering is due to several reasons that must be addressed comprehensively. Supra, mention was made precisely of the annual reports of the CGR. In the 2017 report, several reasons were listed, and while mention is made of the need to curb the disproportionate growth of remunerations, other reasons are also listed, such as, for example, the institutional design and atomization of the Costa Rican public apparatus with duplication of functions in various institutions that do not necessarily result in the efficiency of the Public Administration; differentiated tax treatments in favor of certain activities or persons, and tax evasion, to list some causes.

Therefore, while this Court accepts the general premise that the Legislative State can regulate and standardize public employment norms, given that there is no acquired right to certain regulations remaining unchanged, this should in no way imply sacrificing public employees so that they experience a hollowing out of their fundamental rights. In this sense, just as previously noted, it is necessary to balance the scales, given that the stability and dignity of public employees' salaries is also an axis of the Social and Democratic Rule of Law. In this regard, it must be assumed that in accordance with the provisions of Art. 56 of the Constitution, performance in one's job is an obligation of the servant, but it also gives them the right to obtain the corresponding remuneration for it, in a timely manner and in an amount that procures well-being and a dignified existence (Article 57 of the Political Constitution).

Now then, it is pertinent to warn that regulations related to the remunerations of public servants should not remain stagnant. As examined, it was healthy and necessary to intervene in order to establish uniform salary provisions and avoid exponential increases outside of all economic and social reality in accordance with the state of national finances. However, this in itself is contingent or dynamic, so that these regulations should not remain frozen in time to the detriment of public servants, to the point that salaries are not attractive—which could impact the efficiency of the Public Administration—or do not guarantee minimum conditions of dignity and well-being for workers. Therefore, it is the obligation of the Costa Rican State, even by virtue of the principle of progressivity, to assess, in accordance with fiscal conditions and efficiency in public expenditure controls, how to aspire for the salaries of public workers to guarantee conditions of dignity and well-being. In this regard, it is worth bearing in mind that Art. 56 of the Political Constitution recognizes the fundamental right to work as a dual situation, right-responsibility. But it also enshrines the obligation for the State to ensure that all people have access to employment that is “duly remunerated.” This means that people have the right to receive a fair and adequate salary for their work, allowing them to maintain a dignified standard of living. Article 56 states the following:

“Art 56.- Work is a right of the individual and an obligation to society. The State must endeavor that everyone has honest and useful occupation, duly remunerated, and prevent that because of it conditions are established that in any way diminish a person's freedom or dignity or degrade their work to the condition of mere merchandise. The State guarantees the right of free choice of work.” Furthermore, Art. 57, when referring to salary, establishes that there is a right to a minimum wage and that this must be fixed periodically, to procure the well-being and dignified existence of workers, which confirms that salary aspects are dynamic and must be evaluated in light of supervening circumstances so that well-being is recognized for the working person. In line with the above, we can verify that Art. 23, point 3) of the Universal Declaration of Human Rights establishes that “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Art. 7 of the International Covenant on Economic, Social and Cultural Rights also establishes that the States Parties recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, remuneration which provides all workers, as a minimum, a fair wage and a decent living for themselves and their families. Furthermore, ILO Convention C131 - Minimum Wage Fixing Convention, 1970 (No. 131), Law No. 5851-A of December 9, 1975, confirms that what pertains to the periodic fixing of minimum wages—which could be extrapolated to the periodic review of the salary rules for public servants or in general—obeys contingent situations that can be examined and evaluated according to new evaluative elements, such as the following:

“The elements to be taken into consideration in determining the level of minimum wages shall, so far as possible and appropriate in relation to national practice and conditions, include-- (a) the needs of workers and their families, taking into account the general level of wages in the country, the cost of living, social security benefits, and the relative living standards of other social groups; (b) economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment.” Consequently, it is reiterated that this Court is aware of the need for and the foundation of the LFFP as a legislative mechanism to establish general rules for remunerations in the public function with the clear purpose of curbing eventual salary increases that are not consistent with the fiscal reality of our country. And, regarding this, in thesis of principle, it is established that it is legitimate for the legislator to modulate this theme of remunerations in attention to the objectives outlined and duly explained in the preceding considerando. Also, in attention to the need to professionalize the public function through efficiency in public service and aspiring to the proven suitability of public servants. The foregoing, without harming previously recognized rights and without emptying the content of fundamental rights or essential principles of the Costa Rican Social State. Furthermore, without it being possible for these matters to become stagnant to the detriment of workers' rights, especially if, as has been developed in these considerandos, there are obligations imposed by the Law of the Constitution in the sense that remunerations be just and equivalent to guarantee conditions of well-being and dignity for all workers—in other words, to properly satisfy their basic needs and those of their families. In this regard, the considerations made by the CGR in the oral appearance before the Legislative Assembly are highlighted, in the sense that it is the obligation of public authorities “to periodically and systematically review the remuneration schemes to guarantee their continued validity.” Regarding remunerations, it is finally worth pointing out, as a general premise, that there is no fundamental right as such for the salary to be calculated in a particular way, but rather that the amount be dignified and its setting be periodic in order to guarantee the worker the possibility of securing for themselves and their family conditions of dignity and well-being. In that sense, it is warned, as this Chamber has made clear in other precedents, that no one has a “right to the immutability of the legal system,” that is, for the rules never to change and, to that extent, the legislator has the power to vary the conditions or requirements under which various salary bonuses (pluses salariales) are recognized for public servants, which, in thesis of principle, are subject to a statutory regime that establishes rules of public order regarding salary compensations. The foregoing, of course, provided that acquired rights of servants are not harmed or unreasonable rules are established that in some way harm principles of constitutional order such as reasonableness, proportionality, and equality and non-discrimination lacking legal support.

Finally, regarding the right to a dignified salary, it is necessary to refer to the considerations made by this Chamber in judgment No. 2019-016791, where this Court referred precisely to this fundamental right and to the fact that when injuries to this principle are alleged, sufficient arguments relative to the generality of public employees must be provided, and the alleged injury to the right to a dignified salary should not be argued in a generic and abstract manner. In the relevant part, the following was resolved:

“On the right to a dignified salary. The union alleges that Article 24 of the challenged Collective Agreement is an instrument that improves the salary of municipal officials, because the one they have, it is accused, is not decent. It asks for the action to be dismissed, based on the fact that said salary would be protected by being a human right. It points out Article 25 of the Universal Declaration of Human Rights, which establishes:

'1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.' Now then, this Chamber has referred to the right to a salary in the public function, with the following:

'If work is conceived as a right of the individual whose exercise benefits society and which, regarding the official, guarantees periodic remuneration, it could not be accepted for the State to receive a service without paying the public servant the corresponding salary or for it to be delivered late. The salary as the remuneration owed to the servant by virtue of a statutory relationship, for the services they have rendered or must render, is not only an obligation of the employer, but a constitutionally protected right' (Judgment No. 2009-008062 of 9:35 p.m. on May 13, 2009).

In this sense, the Union is correct that the State, or in its case, the Municipality, must pay the official the salary that corresponds to them for the work performed. Likewise, the Chamber has established that Article 57 of the Political Constitution establishes the protection of workers with the right to a minimum wage, which could be comprised according to the freedom that the legislator or its interpreter has, to define its content and composition of the minimum wage (Judgment No. 2017-16272 of 11:30 a.m. on October 11, 2017).” For the Chamber, there is no doubt that the right to work is a human right deserving of protection, which ensures the individual the realization of many other rights and allows them to achieve an adequate and dignified way of life for themselves and their family. But this Constitutional Court considers that in order to clear up the argument of the indignity of the salary presented by the Union, it must first be defined that the human right to a dignified wage should be understood as the remuneration that an employer owes for the work provided by the worker, by virtue of an employment contract (written or verbal), and which seeks a dignified existence. In this sense, there must be access to a wage determined through a national policy that must ensure a dignified family life. This type of remuneration must be set by the States, through the mechanisms established in international regulations (ILO Conventions Nos. 26, 95, and 131, among other instruments), as well as by the second paragraph of Article 57 of the Constitution, with the purpose of avoiding ruinous and indecorous wages for individuals. In its practical sense, it refers to a wage policy problem (of public and private employers), which must be of general observance by all respective employers. But, of course, there is a problem of sufficiency that cannot be associated with each worker, considered individually, and their own needs, nor those of their family; rather, one must aspire to a wage average that the representatives of the State, employers, and workers should estimate with fair compensation for work in the national context, with the help of economic and social mechanisms, to secure a dignified family existence for workers. It is reiterated, as occurs with many economic, social, and cultural rights, they cannot be defined regarding concrete solutions, nor for an individual, nor their concrete needs, but rather for the community, established integrally through technical studies from a fair average or mean.

In this way, to justify the indignity of the salary, as is intended, a series of conditions must be taken into account that are not present in the file, because if it is asserted that municipal servants do not receive a decorous salary, this should be argued and proven. In that order of ideas, asserting that the salary received at the Municipality of Limón is not decorous, and if it implies salary problems of such magnitude that it does not allow reaching levels below the legal minimums, this is not credible, since we must start from the premise that if we are dealing with municipal officials, they are paid a salary whose setting already relies on technical studies and their respective increases, determined by the respective public authority, as well as their corresponding institutional approvals. Nor could one think that the State could be an accomplice in authorizing sums lower than those required for the private sector. The Chamber notes the absence of the Union not providing other useful and pertinent information on that point, so it cannot be sustained, in the abstract, that the challenge of the unconstitutionality of the impugned salary improvement constitutes an infringement of the effective exercise of the human right to a wage. Although it is accused that the salary of municipal workers is very low, it is true that State salaries must respond to technical criteria and therefore could not be lower than those established by the Executive Decree (Decreto Ejecutivo) of minimum wages for the rest of the workers.” (The highlighting does not correspond to the original).

VIII.- ON THE MUTABILITY OF THE LEGAL SYSTEM (MUTABILIDAD DEL ORDENAMIENTO JURÍDICO) As just noted, it is worth indicating, as a general premise, that no one has a “right to the immutability of the legal system (derecho a la inmutabilidad del ordenamiento),” that is, that the rules never change, and to that extent, the legislator has the power to vary the conditions or requirements under which various salary bonuses are recognized for public servants. In ruling No. 2021-011957, this Chamber referred to the principle of mutability of the legal system in matters of social security and stated the following:

“LXXVI.- Drafted by Magistrate Hernández López. On the principle of mutability in matters of social security. One sector of the petitioners argues that they understand the scope of the principle of mutability of the legal system because it responds to realities, but they also affirm that mutability must make it flexible, adaptable, and convenient to regulate life in society, considering that Law 9544 does not allow that to be applied because, in a single bubble of identical legal effects, it places officials who have very dissimilar personal circumstances, assuming the burden of the reform under equal conditions. In relation to this principle, it must be remembered that this Chamber has repeatedly indicated that no one has the right to the immutability of the legal system, that is, that the rules never change (see ruling number 6134-98 of 17 hours 24 minutes of August 26, 1998), and in the case of special retirement and pension regimes, the legislator has full power to make the modifications it deems pertinent to give sustainability to the regime, but also because these are solidarity systems that are built with the contribution of workers, employers, and the State in the legally established proportion, so that in order to guarantee compliance with basic principles of social security and protection, it is the competence, but also the obligation of the legislator, to adopt the measures necessary to maintain actuarial balance in those regimes, and this implies that the mutability of the legal system in this matter is aimed at satisfying the interest of the community and not the particular interests that some of its members might have. Remember that, even in this matter, in attention to the social ends it protects, it might be possible that some modification could eventually occur that could be considered regressive, but that would be valid to the extent that it is by law, justified by technical criteria, and meets parameters of reasonableness and proportionality. From this perspective, then, this allegation is unfounded, and it is considered that, in the specific case, the mutation of the legal system that has operated in the Pension and Retirement Fund of the Judicial Branch (Fondo de Jubilaciones y Pensiones del Poder Judicial) since the impugned reform, conforms to the Law of the Constitution because it is aimed at achieving an objective that is social, solidarity-based, and collective in nature: guaranteeing the solvency of that Fund for 100 more years for the benefit of its current and future members.” (The highlighting does not correspond to the original).

These considerations can also be applied in the salary matters of public servants of the State. There are premises that are essential and must always be respected: the right to a minimum wage, the aspiration to dignified wages that ensure a sphere of well-being for individuals, the review of the salary to cope with the increase in the cost of living, and the prohibition of applying reforms to the detriment of patrimonial rights that have already entered the sphere of rights of the public servant. However, this does not translate into a right that the payment rules remain unchanged, especially since when this regulation was approved, a fiscal crisis was verified that generally justified the legal reforms aimed at standardizing salary policies and avoiding salary increases disconnected from the national reality.

IX.- On the Principle of Progressivity and Non-Regressivity.

In Advisory Opinion No. 2018-019511 (opinión consultiva n.°2018-019511), which referred to the draft law for the approval of the LFFP, the Constitutional Chamber (Sala Constitucional) pronounced on the protection of benefit rights and the principles of progressivity and non-regressivity, endorsing that the protection and realization of these rights can be impacted by contingent aspects that require an adjustment in the level of protection. All of the above under the adequate substantiation of the measures that must be adopted. In what is pertinent, the Chamber stated the following:

“[W]hen it comes to applying conventionality control in matters of benefit rights, a relevant aspect to consider is the financial sustainability and availability of economic resources of the State, even according to its level of development, which depends on the economic context at a given historical moment and on the technical basis available to justify any type of measure, so that the greatest possible realization of such rights is always sought in accordance with what the economic circumstances allow. Precisely, that progressive achievement spoken of in the norms undoubtedly constitutes an objective to be achieved, but subject to an inexcusable condition: that there effectively are resources.” Of importance for the resolution of the issues raised by the petitioners, it must be noted that the Chamber was emphatic in pointing out that the principles of progressivity and non-regressivity do not imply a right to the immutability of the legal system (derecho a la inmutabilidad del ordenamiento jurídico). This Court, citing its own precedents, warned that the State is obliged not to adopt measures, policies, nor approve legal norms that worsen, without reasonable and proportionate justification, the situation of the rights achieved up to that point. However, it was warned that this principle does not suppose an absolute irreversibility, since all States experience national situations of an economic, political, social nature, or due to natural causes, which negatively impact the achievements reached until then and force a downward rethinking of the new level of protection. In line with those considerations, the Chamber resolved the following:

“Neither the right of progressivity nor that of non-regressivity oppose the mutability inherent to law (permanent and inevitable modification), since no right is immutable or eternal, as this would mean the petrification of the legal system and would cause Law to cease to be a dynamic means for resolving the problems of society, which perpetually vary with time. What the mentioned principles do demand is that the trend be to always and preferably aspire to increase the coverage of human rights and likewise of benefit rights in the interest of the Social State of Law (Estado Social de Derecho); however, such a goal is not alien to the socio-economic context of a specific historical juncture nor to the obligation to carry out an exercise of weighing and optimization of the various constitutional principles, rights, and values at play (for example, between the principle of the Social State of Law and that of Budgetary Balance (Equilibrio Presupuestario)), so that in the context of a particularly serious financial unsustainability of the State, duly accredited from a technical point of view, measures can be taken to alleviate the situation, provided that these are adopted safeguarding the fundamental rights sheltered in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multiethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), which implies that the remedies in question cannot empty any constitutional right of its content, a situation that in this specific case and at this time is not observed to occur with the questioned regulation.” (The highlighting does not correspond to the original).

X.- ON ACQUIRED RIGHTS (DERECHOS ADQUIRIDOS) In ruling No. 2005-16394, the Chamber referred to acquired rights, explaining it in the following sense:

“Well, then, as acquired, one must understand that right (as an expression of a concrete legal relationship that is projected onto a specific subject) that has effectively entered the patrimony of a person, in such a way that it could not be eliminated without causing concrete and evident detriment to the conditions they already held previously. Thus, a mere expectation for the future could not fall within this conception, even if there were objective parameters to calculate what could constitute its possible effective consequence, because the truth is that in this latter stage it has not yet become part of the subject's patrimonial sphere, ergo, it cannot then be considered 'acquired'. The spirit of Article 34 prevents the new law from affecting the legal effects already produced in certain specific situations, subjective rights that already had an individualized expression in the person's patrimony at the time the new legislation arose. Under this reasoning, it must be admitted that the future projection of a certain legal relationship cannot be covered by this constitutional guarantee, because such a thing entails a sort of 'freezing' or petrification of the legal system and of the legislative and regulatory power of the State, which does not align with the principle derived from Article 129 of the Constitution, when it indicates that 'laws are obligatory and take effect from the day they designate.' The foregoing, because in the face of any possible variation in the legal regime concerning a specific matter, anyone could claim their 'acquired right' (derecho adquirido) for the previous regulatory conditions to be maintained or conserved, which in good logic is clearly inadmissible. Returning to what was said earlier, the constitutional prohibition applies only to assumed rights, integrated into the patrimony. In contrast, over pending, future situations, over what is not yet consummated, it is only possible to have an expectation. Within a legal relationship that is maintained over time, there is no retroactive application when the new regulatory conditions are applied to the future development of the relationship, without affecting the effects already consummated in the previous situation (RSC No. 05291, 10:42 hours, 2930 June, 2000).” (The highlighting does not correspond to the original).

The distinction made here is particularly relevant for examining the grievances raised, since in the majority of cases the intent is to categorize as subjective rights some salary incentives or calculation rules for such incentives that, as such, have not entered the patrimony of the public servants, all of which will be detailed below.

XI.- PRELIMINARY CLARIFICATION. APPLICATION OF THE QUESTIONED REGULATION TO THE INSTITUTIONS COVERED BY THE LFFP It is necessary to clarify beforehand, as was recorded in ruling No. 2024-007057, that the constitutionality of the norms examined here is conditioned on their application being limited to those institutions that are legitimately covered by the LFFP, as was delimited in Advisory Opinion No. 2018-19511. In the above-cited ruling, this Chamber issued the following warnings:

“In summary, the draft law that gave rise to the law regulated here, through Executive Decree (Decreto Ejecutivo) No. 41729-MIDEPLAN-H published in Digital Supplement No. 113 of La Gaceta Digital No. 94 of May 22, 2019, called 'Reform to Articles 14, 17 and 22 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), Law No. 9635 of December 3, 2018, referring to Public Employment,' did not require a qualified majority, solely because under a systematic interpretation that this Chamber made of the norms indicated therein, it was ruled out that, in salary matters and regarding the performance evaluation of its officials, the Judicial Branch (Poder Judicial) was subject to that regulation, since its special laws are those that govern it.

(…)

Now then, what has been said up to here does not apply to the officials of the excluded institution, because, as explained supra, the application of the law must be carried out in compliance with Advisory Opinion No. 2018-19511, taking into consideration that the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) should not be applied to the institution excluded in said opinion, nor should the norms of the regulation of the cited law challenged in this action, specifically the regulation of Title III referring to public employment.

(…)

By majority, the accumulated actions are declared without merit, with the understanding that the norms of the questioned decree must be applied only to officials of the institutions that are not excluded from the application of the Law for the Strengthening of Public Finances in salary matters in accordance with the provisions of Advisory Opinion No. 2018-19511, of 9:45 p.m. of November 23, 2018, mentioned in the considering clauses (considerandos).” Equal warnings must be made here. That is to say, the norms of the LFFP that reformed the LSAP will be examined in detail in accordance with the grievances raised, always with the understanding that they do not apply to the servants of the institutions excluded from the LFFP in salary matters in accordance with the guidelines of the analyzed advisory opinion.

XII.- ON THE NECESSARY SUBSTANTIATION OF GRIEVANCES By virtue of some precisions that will be made later, it is necessary to establish that this Chamber has been rigorous regarding the substantiation of grievances. In ruling No. 2023-19520, the following was stated:

“II.- ON THE NECESSARY SUBSTANTIATION OF THE WRIT FILING THE ACTION OF UNCONSTITUTIONALITY. As indicated, the action of unconstitutionality is a process with certain formalities, which, if not met, make it impossible for the Chamber to hear the challenge intended. One of those requirements corresponds to the necessary substantiation of the writ filing the action of unconstitutionality. The Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), in its Article 3, provides that 'The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the questioned norm or act, of its effects, or of its interpretation or application by public authorities, with constitutional norms and principles.' Now then, for this Court to consider the infringement configured and to be able to declare the unconstitutionality of the impugned norm or act, with the consequent annulment and expulsion from the legal system, whoever promotes an action of unconstitutionality has the burden of demonstrating how that provision infringes the Law of the Constitution and, in addition, must indicate why the claim should be granted. This is termed by this Chamber as the burden of argumentation, that is, that 'a norm that facially [sic] is contrary to the Constitution shifts the burden of argumentation to those who maintain that in reality there is no conflict between that norm and the Political Constitution; the contrary occurs if action is taken against a norm that upon first examination does not appear contrary to the Constitution, in which hypothesis it is the petitioner who must advance the arguments that convince about the unconstitutionality' (see ruling No. 0184-95 of 4:30 p.m. of January 10, 1995). In a later ruling, this Chamber stated, regarding the lack of exposition of the arguments of unconstitutionality in matters of actions of unconstitutionality, the following:

'The action of unconstitutionality is filed with the argument that the impugned Executive Decree (Decreto Ejecutivo) is harmful, injures, and infringes the fundamental rights to a healthy and ecologically balanced environment, the right to health, and the international commitments signed with the Kyoto Protocol. Despite the opportunity granted to the petitioners, it is confirmed what the Attorney General's Office indicates, that there is no concrete analysis of the provisions of the impugned Executive Decree that are considered unconstitutional, but rather it is limited to establishing disagreements in a generic and abstract manner against the entirety of the Regulation, even more so against all activity carried out by the Sugar Mills (Ingenios Azucareros) and Haciendas (Haciendas), since they maintain that they cause inconveniences in the quality of life and health of the surrounding inhabitants, without specifying what constitutionality arguments must be taken into account against each of the provisions or groups of norms of the impugned Regulation. […] The first paragraph of Article 78 of the Law of Constitutional Jurisdiction establishes the obligation to authenticate the writs of filing actions of unconstitutionality, since it is deemed necessary that there exist arguments put forward by a legal professional, which this Court does not rule out responds to a serious study of the technical and scientific background of a specific matter, given the diversity and universality of the norms of the legal system. Unlike the guarantee processes, that is, the resources of habeas corpus and amparo, which any interested party can directly file before the constitutional jurisdiction in defense of their fundamental rights, generally against acts or omissions that injure them in their private sphere (although not always, as in environmental cases), in the processes of defense of the Political Constitution (such as the action of unconstitutionality), the legislator entrusted the authenticating lawyer with a task whose demand is even greater, if you will, more elaborate and exhaustive, which must be expressed in the filing writ by reason of their professional office, to demonstrate to the Court the injury to the constitutional norm by a norm of lower rank, undermining the principle of constitutional supremacy contained in Article 10 of the Political Constitution. Precisely the material and formal elaboration of the Law, as well as of the other secondary provisions, supposes a highly costly process for the State, in which organized civil society has participated in many ways for its elaboration, for or against, and whose formation, approval, and promulgation procedures should not be analyzed lightly. In this sense, this Chamber must recognize that there is a reduced space for this Court to remedy the manifest absences of the legal professionals who authenticate the writs in this constitutional jurisdiction, without exposing the impartiality and analysis owed to each of the actions of unconstitutionality.' (Ruling No. 2012-05285 of 3:03 p.m. of April 25, 2012).

The cited Article 78 of the Law of Constitutional Jurisdiction demands, in that sense, that in the writ filing the action, 'its grounds [be] set forth in a clear and precise manner.' (…)

Finally, in vote No. 2020-000319 of 12:15 p.m. of January 8, 2020, this Chamber reiterated that:

'(…) given the formalism legally provided for processes of constitutionality control, the argumentative burden in the processing of an action of unconstitutionality falls on the petitioner, who must explain, without ambiguity, the contradiction existing between an infra-constitutional regulation and the constitutionality block (bloque de constitucionalidad), as well as the standing that assists them'. (The highlighting does not correspond to the original).

In this way, it is appropriate to establish beforehand and as a general premise that by virtue of the seriousness of a process of constitutionality control and given the formalism legally provided for these processes, the argumentative burden in the processing of an action of unconstitutionality falls on the petitioner, and the absence of sufficient reasoning (arguments and proof of the allegations) cannot be remedied or supplied by this Chamber. This Court has insisted, in that sense, that it is not enough to allege in a generic and abstract way the lack of reasonableness of a norm or supposed discriminations. These arguments must be duly demonstrated. For example, in ruling No. 2023-015596, the following was warned:

“In other words, the action of unconstitutionality refers to mere hypothetical scenarios ‒exponential growth of public spending, detriment to public services, and increase in the tax burden‒ that are also not duly based on serious and real economic projections (which is precisely the omission the petitioner reproaches). So that, under the terms in which the action was raised, without solid arguments or evidence, and barely a month after approval, they do not allow accrediting a supposed unreasonableness that has threatened the constitutional principles invoked by the petitioner. (…) Furthermore, although a technical unreasonableness in the adopted measures is accused, the petitioner does not provide any element that allows the proposed analysis. This Chamber has been consistent regarding the need to provide objective parameters to be able to define the concurrence or not of a technical bias in the adoption of this type of norms. The insufficiency in this matter subjects this Court to speculation about the content of the questioned norm and imposes the burden of making comparisons and assessments without having the parameters or minimum elements for it. Hence, it finds no merit to order the unconstitutionality of the questioned regulation.” (The highlighting does not correspond to the original).

If the absence of adequate substantiation and proof of grievances is verified, the objection must be dismissed. The foregoing, without prejudice, of course, that in a later scenario and with a more complete and duly accredited substantiation, the presumed affectation of the Law of the Constitution (Derecho de la Constitución) can be re-evaluated (Art. 87 of the LJC).

Grievances of Action No. 19-2620-0007-CO XIII.- Change in Regulation Regarding Annual Salary Increments (anualidades) Impugned Norms The Secretary General of SEBANA questions, firstly, the constitutionality of the provisions relating to the regulation of annual salary increments (anualidades) following the approval of Law No. 9635. The impugned norms read as follows:

“Art. 50- On the amount of the incentive. As of the entry into force of this law, the incentive for annual salary increment (anualidad) for public officials covered by this title shall be a fixed nominal amount for each salary scale (escala salarial), an amount that shall remain invariable.

(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), No. 9635 of December 3, 2018).

Art. 57.1 l) Article 12 of Law No. 2166, Law of Salaries of the Public Administration (Ley de Salarios de la Administración Pública), of October 9, 1957, is reformed. The text is the following:

Article 12- The incentive for annual salary increment (anualidad) shall be recognized in the first fortnight of the month of June of each year.

If the servant is promoted, they shall begin to receive the minimum of the new category; under no circumstance shall already recognized incentives be revalued.

TEMPORARY PROVISION XXXI. To establish the calculation of the fixed nominal amount, according to what is regulated in Article 50, for the recognition of the incentive for annual salary increment (anualidad) immediately after the entry into force of this law, one point ninety-four percent (1.94%) of the base salary for professional classes, and two point fifty-four percent (2.54%) for non-professional classes, shall be applied to the base salary corresponding for the month of January of the year 2018 for each salary scale.” Numbers that, in the judgment of the petitioner, must be related to other norms of the LSAP that were also modified by Law No. 9635. Such as, for example, Art. 58 subsection c) which repealed Art. 5 and numbers 48 and 49 referring to performance evaluation and which have in common the correlation between the payment of annual salary increments (anualidades) and the existence of a merit system. Art. 5 referred to the principle of efficiency of the Administration by indicating that annual increases would be granted for merit, whereas now, with the new regulation, it is indicated that the result of the annual evaluation will be the sole parameter for granting the incentive for annual salary increment (anualidad) for each official. Art. 58 c) says:

“Art. 58- Repeals. The following provisions are repealed:

(…)

• c)Article 5 of Law No. 2166, Law of Salaries of the Public Administration, of October 9, 1957”.

The repealed norm stated the following:

“Art. 5.- In accordance with this salary scale, each category shall have increases or steps, according to the amounts indicated in Article 4 above, until reaching the maximum salary, which shall be the sum of the base salary plus the annual steps or increases of the corresponding category.

Every servant shall start earning the minimum of the category corresponding to the position, except in cases of inopia at the discretion of the respective Minister and of the General Directorate of Civil Service (Dirección General de Servicio Civil). The annual increases shall be granted for merit to those servants who have received a rating of at least 'good' in the previous year, granting them an additional step, within the same category, until reaching the maximum salary.

(Thus reformed by Article 1 of Law No. 6408 of March 14, 1980)”.

While the performance evaluation provisions establish the following:

“Art. 48- Criteria for Performance Evaluation.

Each head of Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products, and services of the unit, establishing delivery deadlines and estimated time for their completion. It shall be the responsibility of each hierarchical superior to monitor this annual work plan; non-compliance shall be considered a serious offense in accordance with applicable regulations.

For the regular and frequent monitoring of the activities of the work plan, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and compliance with deadlines and times. It shall be the responsibility of each official, including all managerial levels, to update and keep current the information necessary for the evaluation of their performance, in accordance with the processes, projects, products, and services specifically assigned, their delivery deadlines, and estimated times for their completion, in said computer system that the Administration will make available to them. Non-compliance shall be considered a serious offense in accordance with applicable regulations.

The annuality (anualidad) incentive shall be granted solely through performance evaluation for those employees who have achieved a minimum rating of "very good" or its numerical equivalent, according to the defined scale. Eighty percent (80%) of the annual rating shall be based on compliance with the annual goals defined for each official, in accordance with the provisions of this chapter, and twenty percent (20%) shall be the responsibility of the head or superior.

Article 49- Effects of the annual evaluation. The result of the annual evaluation shall be the sole parameter for granting the annuality incentive to each official.

The annual ratings shall constitute a precedent for granting the incentives established by law and for suggesting recommendations related to the improvement and development of human resources. It shall be considered for promotions, advancements, recognitions, training, and instruction, and shall be determined by the official's performance evaluation history. Likewise, the evaluation process must be considered to implement actions for the improvement and strengthening of human potential.

Annually, the Dirección General de Servicio Civil shall issue the technical and methodological guidelines for the application of the performance evaluation instruments, which shall be mandatory.

Grievances of the plaintiff (action no. 19-2620-0007-CO) Regarding the constitutionality of Article 50 and Transitional Provision XXXI (reasonableness and proportionality test) The reform to Article 50 and the provisions in Transitional Provision XXXI must be subjected to a reasonableness test to ascertain their necessity, suitability, and proportionality, as constitutional parameters in light of the principle of due process.

Regarding the necessity of the new regulations on the payment of annualities, the legislator's intention when converting the annuality percentage into a fixed and permanent amount is unclear, nor is the reason clear for precisely setting the annuality percentage contemplated in Transitional Provision XXXI, making the separation between professional classes and non-professional classes.

What the rules establish is a percentage anchored to the salaries earned in January 2018, from which a nominal amount is derived, which does not vary over time, regardless of the years an employee works in the public sector. By the time the law was approved, this reference salary that the legislator used had already been modified by statutory salary adjustments.

With this mechanism introduced in the law, a future increase in annuality payments is prevented, which would hypothetically lead to a reduction in public spending on salaries; however, this argument lacks internal logic because if the need to reduce annuality and salary payments in the public sector responds to an economic criterion, one cannot purport to regulate a salary reduction once and for all, as if the country's economic conditions were to last sine die.

The challenged regulations are also not suitable, because if the amount of the annualities is anchored to the salaries corresponding to each salary scale for the month of January 2018, such amounts not only will not grow over time, but will come to have a value very close to zero due to monetary devaluation and inflation, without there being a logical or reasonable relationship between the objective of the annuality—as an economic stimulus to improve the efficiency of public sector employees—or between the annuality as a formula to reward those who are evaluated annually in the spirit of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning.

Article 50 and Transitional Provision XXXI are also not proportional to the purpose they propose, since the payment of annualities is eliminated for the future, and that is the true implicit purpose. The sacrifice imposed by these rules on employees who earn a compound salary (salario compuesto) is completely radical and confiscatory given that, in the future, earning a compound salary, with annuality payments, will have no real meaning for such employees because those are eliminated prospectively, rendering them unviable, without any real economic content, and converted into a symbolic payment.

Unconstitutionality of Article 57, section 1) as it reforms Article 12 of the LSAP reformed by Law No. 9635. Regarding payment in June and non-revaluation (revalorización) Previously, the annuality payment had to be made on the first day of the month closest to the official's date of entry or re-entry to the position, but with the reform, annuality payments will be made in the first half of June of each year, which is openly considered unconstitutional, because in addition to creating a disproportionate and unjustified sacrifice against persons entitled to seniority when their date of entry or re-entry is before the month of June, this goes against the very nature of the annuality, whose purpose is to remunerate an annual period of work and not any period constructed arbitrarily or artificially by the legislator, making the rule unsuitable, illogical, and unreasonable. Furthermore, Article 12, subsection d)—which previously allowed accumulated time in other public sector entities to be considered for annuality payment purposes—was eliminated, which is unreasonable and discriminatory, as well as harmful to the principle of proportionality because persons who have worked in other public sector entities would be forced to start counting from zero in each entity where they work, harming the doctrine of the State as sole employer (Estado como patrono único) which, as a legal concept, has been taking shape in the jurisprudence of the Second Chamber (Sala Segunda) and the Constitutional Chamber (Sala Constitucional). The rule is also not suitable because it discourages the transfer or re-entry of public employees and officials to different State entities, contributing to hindering the constitutional system of access to public service through merit.

It also alleges that it is discriminatory because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely, over those who aspire to improve their condition or provide better public service elsewhere in the public sector, and secondly, because it creates discrimination between all persons who, prior to Law No. 9635, managed to count the years worked in other public sector entities for annuality purposes, compared to those who might want to transfer or re-enter it after the approval of Law No. 9635.

It summarizes that Articles 50, 57, section l), and Transitional Provision XXXI, lacking reasonableness, suitability, and proportionality, violate substantive due process and thereby the provisions contained in Articles 9, 11, and 121 of the Political Constitution, but also an indirect violation of constitutional Articles 191 and 192 by creating an annuality payment system that undermines the merit system and the principle of efficiency.

It argues injury to the principle of reasonableness because a Transitory Provision was what established the annuality percentage with which the calculation must start for what will later be the nominal and unmodifiable annuality amount, as well as the date from which that calculation will begin, which, in its opinion, should have been included in a substantive rule so that +++++++++++ is part of the permanent legal body.

Grievances of the plaintiff (accumulated action no. 19-004931-0007-CO) The State intends to render the amount paid for annuality obsolete over time and empty it of content, eliminating the right to this remuneration that helps workers maintain the purchasing power of their salaries against the cost of living.

Allegations of the plaintiff (accumulated action no. 19-022051-0007-CO) By virtue of the identity in object, the allegations of action no. 19-022051-0007-CO brought by ASDEICE will be included in this section.

In that action, it was questioned whether the rules challenged in this section harm the principle of substantive due process and do not meet the reasonableness test.

Regarding the necessity of the new regulations on the payment of annualities, they reiterate that the legislator's intention when converting the annuality percentage into a fixed and permanent amount is unclear, nor is the reason clear for precisely setting the annuality percentage contemplated in Transitional Provision XXXI, making the separation between professional classes and non-professional classes. The challenged regulations also do not meet the requirements of suitability and proportionality. Regarding the first, if the amount of the annualities is anchored to the salaries corresponding to each salary scale for the month of January 2018, such amounts not only will not grow over time, but will come to have a value very close to zero due to monetary devaluation and inflation. Therefore, there is no logical or reasonable relationship between the objective of the annuality—as an economic stimulus to improve the efficiency of public sector employees—, or between the annuality as a formula to reward those who are evaluated annually in the spirit of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning. Articles 50 and Transitional Provision XXXI are also not proportional to the purpose they propose, since the payment of annualities is eliminated for the future, thus conferring an implicit purpose on the legal reform, which is the disappearance of annualities over time. Surreptitiously, the payment of a single or total salary is introduced, eliminating in practice the compound salary system that currently governs a good part of the public sector. In the particular case of ICE, as of the date of filing this action, the base salary plus bonuses remains the predominant salary modality, in accordance with the regulation set forth in the Personnel Statute (Estatuto de Personal) which is a unilateral administrative act of the institution's Board of Directors from which subjective rights arise for its employees. One of the subjective rights originating in that Statute is the right to the payment of annualities on a scale of 3.56% of the base salary of each category; however, in practice, the challenged rules will render those subjective rights ineffective, replacing the employees' rights scheme with another that infringes the principles of reasonableness and proportionality. The sacrifice imposed by the cited rules on employees who earn a compound salary is completely radical and confiscatory, given that, in the future, earning a compound salary, with annuality payments, will have no real meaning for such employees. Regarding the substitution made by Law No. 9635 of the text of Article 12 of the LSAP, previously the annuality payment had to be made on the first day of the month closest to the official's date of entry or re-entry to the position, but with the reform, annuality payments must be made in the first half of June of each year, which is openly considered unconstitutional. For their part, they state that subsection b) of the former Article 12 of the LSAP established that if the previous position held by a promoted person had entitled them to one or more annual increases, upon moving to a higher position they would be entitled to have the annualities previously received revalued, in accordance with the new category to which they were promoted; a rule modified in the challenged law by stating that "under no circumstances will incentives already recognized be revalued." The previous rule maintained a logic and complied with the principle of proportionality in that it intended for the position promotion to positively affect the person who opted for a higher-level position, stimulating public sector employees to be able to opt for higher positions; however, with the reform, people are discouraged from occupying positions of greater responsibility by freezing their previous annualities and not allowing them to opt for a revaluation of these. Regarding subsection d) of former Article 12, which allowed accumulated time in other public sector entities to be considered for annuality payment purposes, the elimination of this provision in the reformed Article 12 is unreasonable and discriminatory as well as harmful to the principle of proportionality because persons who have worked in other public sector entities would be forced to start counting their annualities when they move to other public institutions or companies, starting from zero, violating the doctrine of the State as sole employer which, as a legal concept, has been taking shape in the jurisprudence of both the Second Chamber of the Supreme Court of Justice and the Constitutional Chamber. The rule is also not suitable, from a logical and rational standpoint, because it discourages the transfer or re-entry of public employees and officials to different State entities, which hinders the constitutional system of access to public service through merit. It is a discriminatory rule in a double sense: first because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely over those who aspire to improve their condition or provide better public service elsewhere in the public sector, and secondly, because it creates discrimination between all persons who, prior to Law No. 9635, managed to have the years already worked in other public sector entities counted—for annuality purposes—, compared to those persons who might want to transfer or re-enter it after the approval of Law No. 9635.

PGR Report The legislator is the one called to establish the incentives and the amount of the economic benefits granted to its employees, so it must be understood that the economic amount granted as annualities is a function of the intensity with which the legislator wants to incentivize the permanence in the position of public officials and the economic possibility of paying the sums derived from that incentive. The legislator could even eliminate the payment of annualities and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, because the obligation to recognize annualities is not stipulated in constitutional rules, but in legal ones.

Her represented party does agree with the plaintiff that there is no logical reason whatsoever for the annuality payment to be made, in all cases, starting in the first half of the month of June each year, and there is no justification for persons whose annuality falls immediately after that date to have to wait periods that could be almost a year to receive the respective compensation; a situation that is unreasonable and discriminatory, because those whose annuality falls in May or June, for example, would receive their compensation under more favorable temporal conditions than those whose falls in July or August of each year, so the Procuraduría considers that the system should allow that, once the performance evaluation is completed and the level of efficiency required by current regulations is demonstrated, it be possible to recognize the economic incentive no later than the month following the date on which the official completes their annuality.

She insists that it is the legislator who has the power to decide which aspects of the employment relationship are to be incentivized through the payment of annualities, or through the revaluation of that benefit, all in accordance with the prevailing economic possibilities. She considers it evident that revaluing economic incentives already acquired in the event that the official is promoted could be an important incentive to foster the administrative career; however, she argues that this implies an outlay of resources that may not be consistent with the intention of balancing public finances, and given that situation, it is up to the legislator to decide ₋as they have already done₋ whether to incentivize the administrative career, or whether to foster the balance of public finances, without opting for one decision or the other implying any violation of constitutional rules or principles.

She considers that the suppression of the phrase in Article 12 of the LSAP that indicated that public sector employees would be recognized for the time of service rendered in other public sector entities for annual increase purposes is contrary to the doctrine of the State as Sole Employer, which emerged as a way to assure workers who transfer from one State institution to another the continuity in the enjoyment of the rights recognized throughout the public sector; however, she argues that despite this, it is not possible to affirm that said doctrine is intangible for the legislator, because its creation occurred through legal rules, not constitutional ones, which leads to validly affirming that just as the legislator authorized the recognition of time served in different State institutions for annuality payment purposes, it is the same legislator who is empowered to modify that authorization when they deem it necessary to achieve the balance of public finances.

The permanent effects of a transitory rule: Regarding a transitory provision establishing permanent effects, she argues that such an objection could be useful to reflect an infringement of the duty to follow good legislative technique; however, she considers that such infringement could not generate the unconstitutionality of the rule, as it is not a substantial defect justifying annulling the express will of the law.

It is also necessary to take into consideration the report given by the PGR in unconstitutionality action no. 19-015299-0007-CO in which the following was reported:

"On the topic of acquired rights (derechos adquiridos), this Chamber has indicated that those are rights that have definitively entered the holder's patrimony, so mere expectations are not considered as such, and that consolidated legal situations (situaciones jurídicas consolidadas) are those that can never be modified (ruling no. 670-1994 of 8:46 a.m. on December 23, 1994). It has also held that an acquired right is that circumstance already consummated, in which a thing, material or immaterial, has entered or impacted the person's patrimonial sphere, so that the person experiences a verifiable advantage or benefit (Ruling 2765-1997 of 3:03 p.m. on May 20, 1997).

For its part, this Procuraduría, regarding the specific topic of acquired rights in salary matters, has held that the remuneration system can be modified prospectively, provided that the overall amount of the salary is not affected.

(…)

In summary, the legislator can make changes to the conditions under which services are rendered to the State, provided that the acquired rights and consolidated legal situations of the persons who maintained an employment relationship before the implementation of those changes are respected. Respect for acquired rights implies, in relation to salary matters, not reducing the salary received by the persons targeted by the regulatory changes.

In the specific situation under analysis, this Procuraduría considers that both the Ley de Fortalecimiento de las Finanzas Públicas and the Regulation to Title III of said law (Decree No. 41564 of February 11, 2019), respect the salary rights acquired by the employees targeted by the changes related to the calculation of salary components. (…)

Specifically, with regard to annualities, the method for calculating them set forth in the questioned provisions does not entail a reduction in the total salary that public employees were receiving as of December 4, 2018, the effective date of the Ley de Fortalecimiento de las Finanzas Públicas, because the sums already received for that incentive are maintained in each employee's salary, without any reduction, such that the nominalization referred to in Article 50 of the Ley de Salarios de la Administración Pública began to be applied from the effective date of that law.

The situation would have been different if the new calculation rules had been applied to the annualities already accumulated by each official, calculated in accordance with the regulations in force at the time they obtained them, as that would indeed entail a reduction in the total salary of each employee; however, that is not what the challenged rules provide, so the application of the latter has not entailed any reduction in the total salary of public employees." Allegations of the Co-adjuvants Active Co-adjuvants The general secretary of SIBANPO and the general secretary of SIPROCIMECA stated their support for the plaintiff's theses.

Mr. Álvaro Adrián Madrigal Mora, as general secretary of SITUN, states that the annuality incentive is closely linked to the recognition of time served in the public sector, which, in the case of the UNA, is a salary bonus called annuality that, as of that date, constituted 4% of the base salary for each year worked for the institution and is dissociated from any type of annual evaluation, having been included through salary negotiation in various collective bargaining agreements (convenciones colectivas). He argues that the importance of the permanence and experience of workers in other public higher education institutions has also been recognized, and for that reason the collective bargaining agreement recognizes it for all its academic and administrative workers, but it is also included in the Convenio de Coordinación de la Educación Superior Universitaria Estatal de Costa Rica, signed by the four rectors of the state universities. The objective that originates and supports this recognition is permanence and experience in the public sector, in contrast to the private sector, because the purposes or objectives of both are not the same. He considers it irrational and disproportionate that the same fixed, invariable nominal amount was set for the entire salary scale when it is a set of differentiated categories, since each position has a profile and other elements that assign it a specific, diverse salary according to the volume and responsibilities of the position. The provision of challenged Article 50 affects the acquired rights of public sector workers because no differentiation is established between those who are already employed and acquired their annuality right in percentage form, and now, suddenly, an attempt is made to transform it into a fixed, invariable nominal sum, which is a direct impact on salary that undermines the principle of salary protection as a fundamental component of the employment relationship with the State as employer. Transitional Provision XXXI complements, permanently, what is provided in challenged Article 50 by establishing the percentages that will later define the fixed nominal amounts of the annuality, which, upon being frozen in time, will lose their real value, which implies discrimination in relation to the differences in the percentages that existed (1.94% and 2.54%) and that are now intended to be calculated on a base salary from a date prior to the effective date of Law No. 9635.

The general secretary of UNEBANCO states that it could never be held that the annualities that employees had accumulated as of the date the new law came into force could be subjected to it, because that would be incompatible with the principle of non-retroactivity of the law. It is equally contrary to this principle to attempt to apply the new calculation method and the payment of those annualities under this new legal regime to the detriment of consolidated legal situations, and therefore considers that they must continue to be paid in percentage form, as was done. That Transitional Provision XXXI could be reasonable if the legislator had configured a framework of limited duration in time and it had been issued as an extraordinary and temporary measure, but not indefinitely as it was enacted. The regulations lack technical reasonableness by starting from differentiated percentages, depending on whether they are professional or non-professional classes, on the order of 1.94% or 2.54% respectively, without any technical basis and violating free collective bargaining by not allowing another calculation modality to be proposed. Article 57, section l), denatures the annuality whose objective is to remunerate an annual period of work, whereby the recognition of the annuality in June of each year lacks all logic and proportionality, in addition to eliminating the recognition of time worked in the public sector, going against the principle of the sole public employer.

The representative of UNDECA questions whether the new rule established for the payment of the annuality incentive should apply to public employees who were working as of the effective date of Law No. 9635, and therefore, it could not be held that the annualities that employees had recognized and accumulated as of the date the law came into force could be subjected to the new rules, so an interpretation of this kind would be unconstitutional as it violates the principle of non-retroactivity of the law to the detriment of acquired rights and consolidated legal situations of those public employees, to the detriment of the annualities accumulated as of the effective date. Transitional Provision XXXI violates the principle of necessity, proportionality, and reasonableness, as it transforms the calculation parameter of the annuality from a percentage factor to a nominal or absolute amount, which would remain invariable, meaning the annuality amount is frozen ad perpetuam, which will result in its real value deteriorating progressively at the expense of inflation, deteriorating the country's economic situation. Article 57, section l), denatures the annuality whose objective is to remunerate an annual period of work, so its recognition in June of each year lacks all logic, proportionality, and eliminates the recognition of time worked in the public sector, going against the principle of the sole public employer.

Passive Co-adjuvants The president of the Asociación Cámara de Industrias de Costa Rica argued that annualities are an exclusive creation of the legislator, so the first argument of the action refers to a typical case of legislative discretion, because increasing, decreasing, or eliminating annualities can be varied over time as the country's economic and fiscal conditions change.

The representatives of UCCAEP stated that annualities are not a fundamental labor right, but a mere legislative creation subject to changes that the legislator itself can make, whether eliminating them, regulating them, or reforming them in accordance with the country's economic realities. In the specific case, annualities have been growing faster than inflation, which was unreasonable, disproportionate, and fiscally inconvenient. They point out that the existence of annualities is not conditioned on the public employee's efficiency, but is a salary bonus that was paid and grew automatically for public officials, which became an annual salary increase without any criterion and unrelated to inflation; therefore, its regulation, elimination, or reduction does not violate any fundamental or constitutional rule.

The legislator is not obligated to grant benefits *ad perpetuam* or *sine die*, as society's needs are ever-changing, meaning that legislation beneficial to the community at one time may need to be changed or even abolished if the circumstances so demand.

Resolution of the Constitutional Chamber Regarding the unconstitutionality action No. 19-022051-0007-CO, which was consolidated with this case file (expediente), it is necessary to note that the plaintiffs allege a presumed violation of Article 121 of the Political Constitution; however, there was no concrete development of this argument indicating the presumed contradiction between the challenged provisions and the content of the aforementioned constitutional article. Therefore, since no appropriate substantiation of this grievance was provided, it being a mere statement, the argument must be dismissed from the outset.

General Information on Annuities (anualidades) The concept of annuity (anualidad) is found in Article 1 of the Regulations for Title III of the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), Law No. 9635 regarding Public Employment (Empleo Público), No. 41564-MIDEPLAN-H, which defines it as follows:

“a) Annuity (anualidad): salary incentive granted to public servants in recognition of their continuous tenure providing services to the Public Administration in cases where they have achieved a minimum rating of "very good" or its numerical equivalent in the annual evaluation, and as a fixed nominal amount for each salary scale”.

As can be seen, the annuity (anualidad) is a salary incentive—a compensation mechanism—meaning it is not part of the core salary of public servants; it is granted as recognition for their continuous, efficient tenure providing services to the Public Administration. For example, in opinion C-262-2007 of August 6, 2007, the Office of the Attorney General (PGR) provided the following explanations:

“Articles 5 and 12 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) regulate the annuity (anualidad) bonus (sobresueldo), which recognizes a sum of money for each year of seniority the servant accumulates in service to the public sector.

“The salary supplement called 'annuity' (anualidad) is a recognition granted by the Administration, the purpose of which is to reward the experience acquired by its officials who have remained continuously providing their services to it. Basically, this incentive is a reward for the seniority of the official who has dedicated their effort, experience, and knowledge acquired over the years to the service of a single employer, in this case, the State and its institutions.” (Opinion C-242-2005 of July 1, 2005.)

The annuity (anualidad) bonus (sobresueldo) is based on the concept that the State is a single center for the attribution of labor rights, a principle commonly known as the theory of the State as a single employer (Estado como patrono único); therefore, regardless of the specific public entity or body in which the worker performs their productive activity, the annuity (anualidad) benefit is recognized to them.” (Emphasis not in the original).

As this is an additional component to the salary, this Chamber has expressly stated that “granting or recognizing annuities (anualidades) responds to the criteria of opportunity and convenience that the legislator embodied in the legislation, which can certainly be reformed in the future” (judgment No. 2014-001227). Based on that premise and on the fact that there is no right to the immutability of the legal system, it is clear that the legislator is perfectly empowered to regulate, for the future, the terms and amounts through which this type of salary incentives can be recognized. Also, following the same logic, the legislator can perfectly regulate the necessary requirements to legitimately aspire to this salary recognition. The foregoing, of course, without prejudice to acquired rights (Article 34 of the Constitution) and other constitutional principles such as reasonableness and non-discrimination.

On the Constitutionality of Article 50 of the Public Administration Salary Law (LSAP) and Transitory Provision XXXI (Reasonableness) The challenged legal norm establishes that, from the law's entry into force, the annuity (anualidad) incentive will be a fixed nominal amount for each salary scale, this amount being invariable. Furthermore, Transitory Provision XXXI establishes the successive amounts to be recognized for professional or non-professional classes.

In the first place, the plaintiff asserts that the legislator's intention with these decisions is unclear. In this regard, according to the analysis of the examined background and the reports submitted to the case file (expediente), it is possible to conclude that the legislator's intention in reforming the provisions related to the payment of annuities (anualidades) was aimed at ensuring that said bonus (sobresueldo) be paid, in the future, as a fixed nominal sum, without this implying an effect on the amount of already accumulated annuities (anualidades), nor on the total salary of public officials. That is, to cap it to prevent a disproportionate increase in salary payments, but without affecting in any way the salary amounts already received and consolidated in the salary status of each servant. From the background contained in the legislative case file (expediente) and which were listed supra, it is observed that the objective is for the annuity (anualidad) amount to be a fixed one to prevent these from undergoing revaluations due to cost of living or other factors that, in the long run, excessively inflated the corresponding incentive amount (“that non-adjustment in the automatic and inertial manner that annuities (anualidades) have” – Appearance of the Minister of Finance before the Legislative Assembly).

It should be noted, as already stated supra, that the legislator can make changes to the conditions under which services are provided to the State. That is, it has the competence to dictate the general guidelines for regulating remunerations, and in that sense, it is appropriate to establish that there is no fundamental right to the maintenance of a specific regulatory mechanism. The foregoing, provided that the acquired rights and consolidated legal situations of persons who maintained a service relationship before the implementation of those changes are respected, and also that constitutional principles such as reasonableness and non-discrimination are respected. In the opinion of this Chamber, the foregoing is safeguarded in general terms by the provisions of the law itself, as Article 56 of the Public Administration Salary Law (LSAP) establishes that “the incentives, compensations, caps, or annuities (anualidades) remunerated as of the date of entry into force of the law will be applied prospectively and may not be applied retroactively to the detriment of the official or their property rights.” Furthermore, Transitory Provision XXV of the Law for Strengthening Public Finances (LFFP) orders that:

“The total salary of the servants who are active in the institutions contemplated in Article 26 upon the entry into force of this law may not be decreased, and the acquired rights they hold shall be respected.” (Emphasis not in the original).

While Article 3 of the Regulations for Title III of the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), Law No. 9635 regarding Public Employment (Empleo Público), No. 41564-MIDEPLAN-H, provides that:

“Acquired rights correspond to the incentives, bonuses (sobresueldos), extra payments, additional remunerations, or any other of an equivalent nature, that, prior to the entry into force of Law No. 9635, formed part of the total salary of the public servant, whether permanent or interim.” The foregoing proves that the regulations the legislator is authorized to implement were established prospectively, leaving the amounts already received by active servants untouched.

Regarding necessity, this Chamber verified that there is indeed a legitimate motive, which is precisely to address the fiscal crisis caused, among several reasons, by the lack of uniformity in salary remunerations in the public sector. It is pertinent to emphasize that compliance with the principle of financial or budgetary equilibrium in this case is an objective and reasonable justification to conclude that the legislator’s motive is in accordance with Constitutional Law, especially considering the severely deteriorated fiscal situation of the Central Government, which endangers the viability of the Social State of Law and the Costa Rican economy as a whole.

Along these lines, it is appropriate to note that this Chamber has verified that this type of bonuses (sobresueldos) has resulted in harm to public finances. For example, in judgment No. 2006-17440, the following was resolved:

“VII.- Annuities (anualidades) of a minimum of 3%. The plaintiffs estimate that it is unconstitutional for the National Production Council to recognize a higher annuity (anualidad) percentage than that of other workers, without a maximum cap being established, which violates the principle of legality. In this regard, the 36th clause of the Collective Labor Agreement of the National Production Council establishes:

“Article 36°: The Institution will automatically pay a minimum of 3% annually on the base salaries for seniority, as the worker completes each annuity (anualidad).” This Chamber does not consider that setting a higher annuity (anualidad) percentage for officials of the National Production Council compared to other workers is discriminatory, as this responds to the salary policy of each institution and is supported by the Public Administration Salary Law (Ley de Salarios de la Administración Pública). However, what this Chamber can assess is the reasonableness of the set amount, as an abusive use of this power could mean a clear detriment to public finances. It is on this point that the Chamber observes the unconstitutionality of a part of the challenged norm, because it establishes that seniority will be paid with a “minimum” of 3% annually on base salaries, making it evident that said clause does not set a cap, and consequently, empowers the Administration to dispose of public resources without limit. This is undoubtedly contrary to Constitutional Law, as it constitutes a disproportionate liberality in favor of the National Production Council that cannot be justified. Consequently, given the normative openness of the clause in question, this Chamber deems it appropriate to annul the phrase “a minimum of” contained in Article 36 of the analyzed Collective Agreement.” Judgment No. 8254-2020 can also be consulted, in which, furthermore, this Chamber itself reiterated that the recognition of this type of incentive cannot be disconnected from the performance evaluation process:

“B. 2.- ON THE SALARY INCREASE BASED ON THE WORKER'S SENIORITY. The provision is challenged that allows workers to receive annual salary increases based on the percentages established in Transitory Provision I of the Collective Agreement. These increases occur in a staggered manner, as detailed in the provision transcribed below:

“TRANSITORIO I. Workers who celebrate their anniversary in the second semester of 2007 will have the seniority increase applied once this agreement is approved and retroactively from the date the anniversary was completed (…).

c.- After the first five-year period, and up to 10 (ten) years of service, the worker will receive a salary increase for each year of efficient service of 7% (seven percent) of their base salary, and from the 11th (eleventh) year and up to the 25th (twenty-fifth), 4% (four percent), and from the 26th (twenty-sixth) year and until their retirement from the Institute, 3% (three percent) of their base salary.

d.- (…)”.

Thus, the worker will be entitled to the percentage salary increases for each year of efficient service, which implies that a system for evaluating the worker's performance exists or must exist, through which they become eligible for the staggered increase. Despite the plaintiffs indicating that it is a norm granting the annuity (anualidad) automatically with the passage of time, this Chamber agrees with the reading of the provision made by the PGR. The foregoing does not mean that the Chamber is changing its jurisprudence that classifies fixed increases established merely with the passage of time as unconstitutional (judgment No. 17438-2006). This position is maintained and reaffirmed in this case. The problem of constitutional relevance with the norm we are analyzing on this occasion is quantitative, not nominal, because the source of the increase would be verified annually according to the worker's valuable final product (considered individually), similar to what is regulated in the General Salary Law of the Public Administration.

Now then, regarding the 7% increase on the salary for each step or annuity (anualidad), where the most significant increase occurs at the beginning of the employment relationship with the INS, a percentage that is questioned by the plaintiff. It is important for this Chamber to establish the existence of a breach of the principle of reasonableness of norms.

Although a Collective Agreement could indeed exceed the legal minimums for salary increases by annual steps, the truth is that these must pass a test of reasonableness. In the Chamber's criterion, the INS being an autonomous institution, even though its relationship with the majority of employees is one of common or labor law, it is subject to the criteria of financial legality, reasonableness, and proportionality of its actions. The union UPINS did not provide further criteria to explain that the norm has an important purpose, other than ensuring that the Collective Agreement allows reaffirming the loyalty and retention of its employees. Specifically, there is no background justifying a rule like the one challenged, which seems excessive if the goal is to keep employees in the institution; for if it was indeed created as a mechanism to prevent an exodus of employees with the breaking of the INS insurance monopoly, it is now in a market regime that does not justify that type of action. The Chamber, consequently, is inclined to consider that the 7% increase is contrary to the principles of legality, austerity, and reasonableness in public spending (see judgments Nos. 6347, 6728-2006, and 3267-2012). Regardless of whether it would be aimed at producing worker loyalty or fidelity, 7% turns out to be a significant sum, since some employees would be consolidating their initial work experience upon completing five years, and there would not be a logical and fair relationship with a compensation of such a high percentage. Furthermore, this Chamber considers that workers must be efficient in their duties, receiving benefits for good performance, following objective, reasonable, and proportional criteria. But increasing the base salary by 7% after the first five-year period up to ten years is a very particular way of managing the experience and suitability of workers, as those with less experience at the beginning would receive a larger salary increase, and those with more experience would receive a smaller increase. In addition to the foregoing, the report from the INS executive presidency establishes that Article 54 of the Collective Labor Agreement currently provides for an annual salary increase of 6.8% and 9.99%, depending on the job category, from the first to the fifth year of service. This demonstrates that the increase in the annuity (anualidad) percentage has a greater impact over time, such as, for example, the fact that for this item, the 2007 budget doubled by the year 2015. Consequently, the action must be granted with regard to the unconstitutionality of the 7% annual increase for workers. Regarding the other percentages established in subsection c), it is denied; however, this Chamber declares these percentages constitutional provided they are granted conditional upon passing the performance evaluation.” Therefore, it is understandable that the legislator promoted legislation to regulate this type of compensation and established rules to prevent them from growing excessively, thereby fulfilling the conditions of reasonableness in their determination.

Now then, given that granting or recognizing annuities (anualidades) responds to criteria of opportunity and convenience that the legislator must establish, the established regulatory mechanism is not considered openly unreasonable or disproportionate. Within its legislative prerogatives, the legislator could choose the amount to be recognized prospectively, even making a legitimate distinction between percentages to be recognized for professional and non-professional classes.

It is true that matters regarding remunerations do not necessarily have to remain stagnant, as set forth supra; but regarding extra payments and their growth, attending to the serious fiscal situation, this is available to the legislator, and as it was now urgent to cap these extra payments to safeguard the state of public finances, it is also true that more favorable compensatory mechanisms may be established in the future to retain personnel; but that will respond to a public policy of the legislator itself, which, given the current state of public finances, cannot be anticipated.

Furthermore, the plaintiffs in case files (expedientes) Nos. 19-02620-0007-CO and 19-022051-0007-CO made generic arguments about the mechanism devised by the legislator, arguing that it lacks reasonableness and proportionality, that it violates substantive due process, that it lacks internal logic, that over time these extra payments will have a value close to "zero," and that the sacrifice is radical and "confiscatory." In this regard, this Chamber must reiterate the resolution of this Chamber No. 2024-007057, in the sense that these generic statements without adequate substantiation and without proof of their claims are to be rejected. On this matter, the Chamber has already resolved the following:

“b.- On the partial inadmissibility of the allegations of the plaintiff in this action. Once the writs initiating this process were analyzed, it emerges that there are allegations from the plaintiff that were not duly substantiated or that do not constitute matters of constitutionality, but of legality, and, therefore, prevent this Court from ruling on them.

1- As this Chamber has indicated on repeated occasions, the unconstitutionality action is a process with certain formalities, which, if not met, make it impossible for this jurisdiction to hear the challenge being attempted. One of those requirements corresponds to the necessary substantiation of the writ in which the unconstitutionality action is filed. The Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), in its Article 3, provides that “The Political Constitution shall be considered infringed when this results from the comparison of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles.” Now then, for this Court to deem the infringement as established and to declare the unconstitutionality of the challenged norm or act, with the consequent annulment and expulsion from the legal system, whoever promotes an unconstitutionality action bears the burden of demonstrating how that provision infringes Constitutional Law and, in addition, must indicate why the lawsuit should be granted. This is referred to by this Chamber as the burden of argumentation, that is, “a norm that facially (sic) is contrary to the Constitution shifts the burden of argumentation to those who maintain that there is in fact no conflict between that norm and the Political Constitution; the opposite occurs if action is brought against a norm that upon first examination does not appear contrary to the Constitution, in which case the plaintiff must advance arguments that convince regarding the unconstitutionality” (see judgment No. 1995-0184 of 4:30 p.m. of January 10, 1995).

(…)

The plaintiff alleges the following: a) The violation of the right to a dignified and fair salary, considering the reductions to be excessive, disproportionate, and unreasonable, not only because of the calculation they will apply to the payment of annuities (anualidades), but also regarding how the evaluation will be carried out subjectively. It is indicated that the percentage decrease in the payment of annuities (anualidades) is such that it contradicts the criteria of equity, justice, proportionality, and reasonableness, because that nominal value comes close to zero and will not grow over time. It is argued that it is unreasonable as an economic stimulus for the worker and disproportionate, as it will eventually eliminate the future payment of annuities (anualidades) in a composite salary. b) The violation of the principle of the prohibition of arbitrariness, by subjecting workers to unequal treatment in the management of their recognized rights and/or consolidated legal situations. c) The violation of the principle of the prohibition of misuse of power, due to the abusive, excessive, and unconstitutional use incurred by the Executive Branch in relation to its powers. d) The violation of the principle of equality, due to the drastic reduction that the questioned regulations will entail in the amount of payment of annuities (anualidades) for only some workers, and for making a distinction in the amount of that same item between professionals and non-professionals.

However, in the sub examine, a clear and sufficient substantiation regarding those allegations is lacking. The action requires rigor not only in setting forth the grounds for unconstitutionality observed in a regulation but in establishing them with due specificity and substantiation, so that an eventual judgment on the merits is congruent with the arguments raised, which is not fulfilled in these cases.

Without those elements of judgment to support their argumentation, it is not possible to undertake an examination of the reasonableness of a norm, due to the absence of a coherent line of argumentation supported by evidence. In this regard, the following has been pointed out:

“To undertake an examination of the reasonableness of a norm, the Constitutional Court requires the party to provide evidence or at least elements of judgment on which to base its argumentation, and the same procedural burden falls on whoever refutes the arguments of the action; failure to meet these requirements makes the claims of unconstitutionality unacceptable. The foregoing, because it is not possible to conduct an analysis of 'reasonableness' without the existence of a coherent line of argumentation that is supported by evidence. This, of course, when it does not involve cases whose 'unreasonableness' is evident and manifest” (Judgment No. 1999-005236 of 2:00 p.m. of July 7, 1999, reiterated in judgment No. 2016-014392 of 9:05 a.m. of October 5, 2016) In this sense, the Chamber considers the plaintiffs' approach to be abstract and general, as it is limited to mentioning a salary detriment to the workers that they consider disproportionate and irrational through a norm that is subjectively considered unreasonable; however, the reasons are not specified, and no solid data or evidence or elements of judgment are presented that allow conducting an analysis of the reasonableness of the decision made by the Executive Branch, as required by the jurisprudence of this Chamber. Thus, for this Tribunal, it is impossible to conduct an analysis of reasonableness in the absence of suitable evidence, which, as stated, is an essential requirement, unless it were an evident and manifest unreasonableness, which is not the case.

On the other hand, the plaintiffs consider that, to the extent that the granting of incentives such as annuities (anualidades) depends on subjective evaluations by those who rate them, the right to salary will be violated. However, in this Chamber's opinion, the questioning of the subjectivity in the evaluation to which the servant could eventually be subjected is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the potential violation of fundamental rights. And, in any case, any disagreements officials might have with the result of the examination performed is a matter of legality not for this Tribunal to assess, and which must therefore be discussed before the Administration or in the corresponding jurisdictional venue.

Furthermore, regarding the alleged harm to the principle of the prohibition of arbitrariness and the principle of the prohibition of misuse of power, the initial writ does not provide adequate substantiation of the reasons, on constitutional grounds, for which the potential violation of those principles is considered; rather, it refers to criteria that must be verified in the legality sphere.

In relation specifically to the principle of equality and non-discrimination, merely invoking its violation is not enough. In this sense, it is timely to remind the plaintiff that it has been a jurisprudential line of this Tribunal that, when the violation of the principle of equality or proportionality is alleged, as happens in this case, they have the duty to provide a parameter of comparison, along with the corresponding analysis. Hence, whoever invokes that type of violation is obligated to provide elements that allow making a full comparison between the subjects treated differently, that allows verifying whether the alleged inequality occurs or not. This, in doctrine, is known as the “tertium comparationis” (point of reference, of comparison), and regarding it, in judgment No. 1994-7261 of 8:30 a.m. of December 9, 1994, reiterated in No. 2021-24764 of 9:20 a.m. of November 3, 2021, and in No. 2022-13096 of 9:30 a.m. of June 8, 2022, it was stated:

“With respect to the principle of equality, as this Chamber has repeatedly held, the most important factual presupposition is that there exists a discriminatory treatment devoid of any objective and reasonable justification; this is the reason why whoever invokes the violation of this principle must provide, for the purpose of making a full comparison, parameters of comparison and thus collate whether the inequality is produced or not (see among others and by way of example, judgments Nos. 196-91 in Considering II; 1432-91, in Considering II and 1732-91).” In the sub examine, the plaintiff in the consolidated action did not provide, nor develop, a parameter of comparison that allows the Tribunal to make the corresponding analysis; they only questioned a differentiated treatment for the workers' sector in the area of Nursing, without referring to which other specific one and how the articles of the challenged regulations provoked it. Nor did they do so when questioning the difference in recognition in the payment of the annuity (anualidad) to the professional and non-professional sector; and the assessment they make regarding a future possibility that the payment of annuities (anualidades) might disappear is merely subjective, without objective parameters of constitutionality.

Consequently, the lack of substantiation of the action regarding these aspects prevents even assessing the violation of the indicated principles. As already indicated, the Chamber's jurisprudence is emphatic in pointing out this duty to substantiate the arguments of unconstitutionality (see also in this regard judgment No. 2023-31744 of 9:30 a.m. of December 6, 2023). In the case under study, the plaintiff is limited to indicating the constitutional principles presumably affected by the regulations they intend to challenge, without detailing or threading together a concrete argumentation that allows assessing whether, in fact, the stated defects are present.

It is therefore inadmissible for this Chamber to rule on the merits of norms challenged in an action when the person bringing the action does not substantiate the reasons why they are challenging them, given that this would imply carrying out an abstract constitutional review as an academic exercise, which is not compatible with the purpose of a process of this nature.” (Emphasis not in the original).

Thus, due to the way this set of arguments was raised by the plaintiffs and active coadjutors, the Chamber must dismiss them because they amount to no more than generic and abstract statements about the supposed effects of the questioned norms (loss of purchasing power). The absence of clear substantiation and a real demonstration of the grievances compels this Chamber to reject these arguments of presumed unconstitutionality.

Regarding these claims, the unconstitutionality action is denied.

On the Recognition of Annuities (anualidades) in the Month of June, Employment Continuity, and Revaluation The plaintiffs questioned the terms in which Article 12 of the Public Administration Salary Law (LSAP) was regulated in its version after the reform effected by the Law for Strengthening Public Finances (LFFP). Said norm, as set forth supra, stated as follows:

“Article 12.

The annual bonus (incentivo por anualidad) will be recognized in the first half of the month of June of each year.

If the employee is promoted, they will begin to receive the minimum of the new category; under no circumstances will previously recognized bonuses be revalued.” Regarding this provision, three grievances were raised: 1) that it radically changed the date of recognition of the annual bonus, no longer being the moment when each employee completes the corresponding annual period but artificially in the month of June, entailing a sacrifice for employees who, being entitled to receive the annual bonus in a specific month, must wait until the following month of June; 2) that paragraph d) of Art. 12 was eliminated, which allowed time accumulated in other public-sector entities to be considered for purposes of annual bonus payments, forcing them to start the count from zero if they change employing entity, generating discrimination and disincentives; and 3) that paragraph b) of the former Art. 12 of the LSAP established that if a person was promoted, upon moving to the new position they would be entitled to have the previously received annual bonuses revalued, meaning that people are discouraged from occupying positions of greater responsibility by freezing prior annual bonuses and not allowing the revaluation of annual bonuses already received.

To resolve these arguments, it is appropriate to reiterate the basic premises indicated above, in the sense that the recognition of annual bonuses responds to criteria of opportunity and expediency of the legislator, that there is no right to the immutability of the legal system, and that the legislator is empowered to regulate for the future the amounts and terms in which this type of salary incentives may be recognized, safeguarding acquired rights (constitutional Art. 34) and other constitutional principles such as reasonableness and non-discrimination.

In the opinion of this Chamber, based on the foregoing, the Chamber considers that the first two grievances are admissible, since, as the PGR acknowledged, there is no logical reason for the payment of the annual bonus to be made in all cases in the first half of the month of June, and there is no justification for such an odious distinction between employees who, for example, complete their annual period in the months of May and June and can receive payment of their annual bonus within a reasonably close timeframe; and other employees who must wait until the following month of June to receive the annual bonus that would correspond to them, for example, in the month of January. This Chamber agrees with the PGR that this is a discriminatory and unreasonable situation among public employees in equal conditions, that is, who have completed the calendar year of service and have received a “very good” performance evaluation, but whose salary recognition will be made in dissimilar periods.

As a second aspect, in the judgment of this Chamber, the fact that the recognition or counting of annual bonuses in other public-sector agencies was eliminated is also a decision lacking reasonableness; because if the general motivation behind the annual bonus incentive is the recognition of the public employee’s continued service, providing their services efficiently for the benefit of the Public Administration (see definition supra), it is not reasonable that said counting be carried out individually by particularized entities to the detriment of the public employee who has provided their services efficiently in said entities. In that sense, if the legislator decided—within the scope of its discretion—to contemplate this salary recognition, it must do so under conditions that do not generate discriminatory or unreasonable situations, i.e., contrary to the very reason for the recognition or the historical definition of “annual bonuses.” This Chamber must insist that, although it is an incentive available to the legislator, its regulation could not impair constitutional principles such as reasonableness and non-discrimination; therefore, if the definition and creation of the incentive itself responds to the desire to encourage efficient and continuous services in the Public Administration by public officials, it seems unreasonable to nullify the counting of prior annual bonuses.

Therefore, with respect to these grievances, it is appropriate to uphold the action solely for the effects it may have produced during the period the challenged provision was in force. It should be noted that the legislator itself proceeded to enact the LMEP and to expressly reform what was established in Art. 12 of the LSAP, such that the current provision reads as follows:

“Article 12- The annual bonus will be recognized in the month immediately following the anniversary of the entry or re-entry of the public employee who works under the composite salary scheme and in accordance with the following provisions:

• a)If the employee is transferred to a position of equal or lower category than the position they are occupying, there will be no interruption whatsoever regarding the counting of time for the salary increase.
• b)If the employee is promoted, they will begin to receive the minimum annual bonuses of the new category; under no circumstances will previously recognized incentives be revalued.
• c)For public employees, whether permanent or interim, the time of service rendered in other public-sector entities shall be counted for purposes of recognition of the annual bonus.

(As thus amended by Article 49, sub-paragraph a) of the Public Employment Framework Law, No. 10159 of March 8, 2022).” (The emphasis is not in the original).

Said provision—in the judgment of this Chamber—addressed the issues raised by the plaintiffs, in the sense that the annual bonus is recognized according to the anniversary of each specific employee and, additionally, that all time of service rendered in other public-sector entities will be counted for public employees—whether appointed permanently or on an interim basis.

Finally, regarding the argument that the challenged regulation limits salary improvements by virtue of promotions because paragraph b) of Art. 12 of the LSAP in its original version was suppressed, it is challenged that the provision maintained a logic insofar as it intended that a promotion would positively affect the person opting for a higher position, whereas now people are discouraged from occupying positions of greater responsibility by freezing prior annual bonuses and not opting for a revaluation. This Chamber considers that the discussion raised is one of regulatory interpretation and integration and not a constitutionality matter. Note, on this point, that the challenged provision in its original wording stated: “If the employee is promoted, they will begin to receive the minimum of the new category,” from which it is rejected that the public employee will not receive a salary improvement. It is true, and this Court has so verified, that the point has been the subject of analysis by the various competent bodies in its interpretation and application, and, just as the plaintiffs demand, the interpretation has been reached that, in effect, upon a promotion, the employee begins to receive the amount corresponding to the annual bonuses according to the characteristics of the new position they hold. In fact, Executive Decree No. 41564-MIDEPLAN-H explicitly explains this in Art. 14, providing that:

“d) In accordance with Article 12 of Law No. 2166, added by Article 3 of Law No. 9635, if the employee is promoted, the accumulated annual bonuses will be recognized at the annual bonus value corresponding to their new position, as a fixed nominal amount as provided in this article. Under no circumstances will the annual bonuses earned prior to the promotion be revalued. It shall apply equally in the case of demotions.” (The emphasis is not in the original).

It is also possible to find that through Circular No. DG-CIR-009-2019 of August 9, 2019, the DGSC explained the following:

“With the aim of facilitating the application of said reforms and for purposes of payment of annual bonuses for employees covered by the Statutory Regime, it is established that the calculation of these must be made according to the annual bonus amount established for the salary level to which the class of the position held by the employee is linked. The foregoing implies that when the official is part of a personnel movement that results in a promotion or demotion in the classification and position held, the total amount to be recognized for annual bonuses must be calculated considering the annual bonus amount established for the salary level in which the new position classification is assigned.” Additionally, it is verified that the PGR, through Opinion No. 075 of April 6, 2022, made the following considerations:

“Having said that, regarding the scope of the regulatory precept in question, two possible interpretations could arise. The first, given by Opinion C-396-2020, according to which, starting from the premise that the concept ‘revaluation’ in common language alludes to any increase in value, in cases of promotions, it is no longer possible to revalue or increase, based on the category of the position to which one is promoted, the nominalized annual increases that the employee carries forward, which will remain invariable. The second consists of the idea that ‘revaluation’ has a specific technical-legal meaning, which in the case of annual bonuses alludes to the automatic change or increase that, before the reforms instituted by the Public Finance Strengthening Law, occurred in them as a result of the increase to the base salary decreed by the Executive Branch, either generally for cost of living or by means of a technical adjustment to some salary levels. Thus, the invariability or non-revaluation—Arts. 50 and 12 of the Public Administration Salary Law—alludes to the increase in the value of annual bonuses resulting from those increases, but not to changes occurring in the classification or positions due to the employee's promotion, a scenario in which, due to the correlation with the respective salary level that the nominalization mechanism involves, in cases of promotions, the amount of annual bonuses that the employee carries forward must be adjusted, recognizing their value in accordance with the salary level of the new class of the position to be occupied.

Nonetheless, in special consideration of the sufficient and legally relevant reasons given by both the DGSC and MIDEPLAN, and for which the technical-legal opinion contained in our opinion is not shared, there are important arguments for opting this time for the second interpretation of the regulatory precept.

In the first place, we must recognize that, prior to the entry into force of the Public Finance Strengthening Law, No. 9635, annual bonuses were revalued automatically, taking into account the updated base salaries by adding to them the cost of living periodically decreed by the Executive Branch, as well as specific technical adjustments (Among many others, Opinion C-314-2018 of December 14, 2018), and that this produced an exponential increase in salaries, thus becoming one of the main drivers of public spending, the solution for which the legislator specifically sought through the nominalization of their economic value based on a fixed and invariable parameter—base salary corresponding to each category for the month of July 2018. It is not in vain that we have held that “the non-revaluation of previously recognized incentives alludes to the invariability both of the fixed nominal amount into which annual bonuses received before December 4, 2018—entry into force of Law No. 9635—are converted, and of those acquired after that date, which will also be calculated as a fixed nominal amount, as ordered by the Law,” the latter, according to Art. 50 of the Salary Law (Opinion C-153-2020 of April 24, 2020). Consequently, it is reasonable to affirm that the invariable aspect alludes to the inadmissibility of that revaluation of annual bonuses that previously occurred due to a constant change in their value resulting from a periodic salary increase decreed by the Executive Branch, and not to other scenarios involving changes in classification or positions, as is the case with promotions. This is the interpretation that best aligns with the objective of the Law.

In the second place, derived from the foregoing, by giving specific content or meaning to that indeterminate legal concept of ‘revaluation’ currently referenced in Article 12 of the Public Administration Salary Law, beyond the common linguistic meaning to which we resorted in Opinion C-396-2020, given the evident lack of precision in the regulatory precept, due to the autonomy, independence, and especially, the self-integration of Administrative Law with respect to other areas of law (Art. 9.1 LGAP), the first supplementary source to which the legal interpreter must turn in the event of gaps or deficiencies in the regulation of certain relationships of a public nature is constituted by the administrative legal system (Art. 9.2 Ibid.), encompassing the totality of existing written Public Law norms. Therefore, it is reasonable to resort to the linguistic-dogmatic meaning given by national law in the area of salaries, as referenced by the technical criteria of both the DGSC and MIDEPLAN, and which, as a direct conceptual reference, gives a very specific content to that concept; understanding by said term the ‘Modification of the salary of position classes due to increases decreed by the Executive Branch’ (Decree No. 38916-H of March 13, 2015, and its amendments). Without thereby limiting—we insist—other distinct scenarios involving changes in classification or positions, as is the case with promotions. An interpretation that is oriented in the most rational direction corresponding to the satisfaction of the public interest (Arts. 10 and 113 of the General Law of Public Administration).

Thus, contrary to what was originally concluded, a corrective interpretation that harmonizes the regulatory provisions contained in Articles 12 of the Public Administration Salary Law and 14, paragraph d) of the Regulation of Title III of the Public Finance Strengthening Law, Decree No. 41564-MIDEPLAN-H, such as the one made in Section II of Opinion C-396-2020, is not actually necessary. The literal tenor of the regulatory provision is self-sufficient: ‘In accordance with Article 12 of Law No. 2166, added by Article 3 of Law No. 9635, if the employee is promoted, the accumulated annual bonuses will be recognized at the annual bonus value corresponding to their new position, as a fixed nominal amount as provided in this article. Under no circumstances will the annual bonuses earned prior to the promotion be revalued. It shall apply equally in the case of demotions’ (As thus amended the previous paragraph by Article 1 of Executive Decree No. 41807 of July 23, 2019).

Consequently, contrary to what was stated in Opinion C-396-2020, it must be understood that, due to the correlation with the respective salary level that the nominalization mechanism for salary pluses and incentives involves, when an employee is promoted or demoted—temporarily or permanently—in the classification or position held, the amount or value to be recognized for accumulated annual bonuses carried forward must be calculated considering the annual bonus amount nominally established for the salary level of their new position. It is important to note that this adjustment situation should not be confused with the concept of annual bonus revaluation that the law prohibits and that alludes exclusively to the cost-of-living adjustment or any other increase decreed by the Executive Branch, which was previously done and which the legislator wanted to prevent.

(…)

Consequently, in view of the change of opinion set forth in this opinion, in the specific order of the questions formulated, we must indicate that, in the context of the objective desired by the legislator when enacting the Public Finance Strengthening Law, No. 9635, the ‘non-revaluation’ of annual bonuses refers to the inadmissibility of modifying the nominalized amount into which they are converted as a consequence of salary increases resulting from cost-of-living adjustments or other technical adjustments decreed by the Executive Branch. This allows, in the case of promotions or demotions, the previously accumulated annual bonuses to be given the nominalized value corresponding to the new position to be occupied.” (The emphasis is not in the original).

In accordance with such administrative precedents, it is corroborated that the issue raised in this specific section alludes to a legality question regarding the proper interpretation of the provision, which, in itself, does not generate the limitations argued by the plaintiff.

Regarding the alleged violation of the principle of reasonableness because the percentages of annual bonuses are established in transitory provisions The plaintiffs argue a violation of the principle of reasonableness because a transitory provision is what came to regulate the percentages of annual bonuses, which, in their view, should have been established in an ordinary provision. In this regard, the PGR concluded that such an objection serves to show that the legislator did not use good legislative technique, but it could not give rise to the unconstitutionality of the provision. This Chamber agrees with that viewpoint. It is true that transitory law has a purpose intended to regulate aspects related to the application of norms over time and precisely the transition that must occur between one regulation and a later one. In this regard, in Advisory Opinion No. 2021-017098, the following was stated:

“As is well known, transitory law is a legal technique that seeks to respond to the problems of applying norms over time, which arise as a result of the repeal and entry into force of another, in which it is necessary to adapt prevailing situations to the new reality created by the recently enacted law. Indeed, as doctrine has well held, transitory provisions form part of Intertemporal Law insofar as they aim to solve conflicts of laws. Faced with the problems of transition that the new law causes, the legislator establishes a legal regime applicable to pending legal situations. In that sense, the function of so-called transitory provisions is to regulate, temporarily, certain situations, for the purpose of adjusting or accommodating the new regulation or providing a different and temporary treatment, of an exceptional nature, to certain situations. It is worth highlighting that at the base of the transitory provision lies that need to respond to problems posed by the entry into force of the new law; that is its essence. It has been said that the content of transitory provisions seeks to solve several situations. First, whether the new regulations apply or not to legal situations prior to the law, either declaring the application of the new law, the survival of the old law, or establishing a transitory regime distinct from that set forth in both laws—the old and the new. Another option available to the legislator, within a range of alternatives, is to provisionally regulate new legal situations when this is intended to facilitate the definitive application of the new law.” It is evident that the content of XXXI of the LFFP, which regulates the calculation and amounts to be paid for annual bonuses as a fixed nominal amount of 1.94% of the base salary for professional classes, and 2.54% for non-professional classes, based on the base salary corresponding to the month of January 2018 for each salary scale, does not appear to be a truly transitory provision, because it does not respond to a need to address the application of norms over time, nor does it have a temporary purpose, but rather seeks to establish the rules for calculating annual bonuses going forward. However, the PGR is correct in the sense that this error in legislative technique does not imply the unconstitutionality of the provision, which in any event was adopted by the Legislative Assembly through the legitimate mechanisms for issuing legal norms. The plaintiffs are correct that it would have been more ideal for that provision to be incorporated into a substantive legal norm, but from the arguments raised, it is not apparent that we are facing an essential or substantial defect that invalidates the legislative will and warrants the unconstitutionality of the provision.

Regarding potential normative antinomies The representatives of ASDEICE (plaintiffs in Action No. 19-022051-004-CO), as well as the co-plaintiffs from SITUN, refer to specific situations and possible antinomies between the provisions of the LSAP and the specific norms—personnel statutes—regarding the payment of annual bonuses, and that, even in the case of UNA, the payment is disconnected from any type of annual evaluation.

On this point, beyond the possible unconstitutionality of such provisions that promote the recognition of salary incentives independently of the performance and effectiveness of public employees, it is appropriate to note that these challenges refer to mere legality discussions concerning which norms prevail for the recognition and payment of certain salary pluses.

In this regard, it is fitting to recall that this Chamber, when referring to the amendments to the National Teachers’ Pension Regime, warned that it is not its role to examine specific cases in order to resolve the potential legality problems that arise when applying a given regulation:

“[I]t is necessary to insist that in an acción de inconstitucionalidad it is not appropriate to carry out a legality analysis to examine whether the authorities of JUPEMA or the Ministry of Finance are undertaking an appropriate application of the legal system in light of the specific situation of each retired person. In this regard, this Chamber has reiterated that ‘the improper application of the law or its erroneous interpretation in the specific case’ is not a matter properly heard through the acción de inconstitucionalidad (Judgment No. 1994-5966). Each specific situation may be examined in accordance with the entire legality framework in the competent ordinary venues. Thus, for example, in Judgment No. 2001-02235, this Court warned of the following:

‘The Chamber finds no reasons to modify its prior opinion, aside from the fact that, as the transcribed judgment also adds, establishing whether there is an impairment of the essential content of the right is a matter that must be analyzed case by case.’ Additionally, in Judgment No. 2019-024201, the following was resolved:

‘On repeated occasions, this Chamber has indicated that challenges regarding the application of norms cannot be the object of an acción process, which is designed to exercise a constitutionality control over norms and not to examine the correct interpretation and/or application of the Law. Consequently, it is not for this Constitutional Court to determine which norm is applicable in the specific case, or whether the statute of limitations declared by JUPEMA applies or not, insofar as this alludes to an ordinary legality conflict that exceeds the scope of competence of this Court. For the same reasons, the claim seeking that this Court order the payment of a specific sum of money is rejected. In light of the foregoing, the action is inadmissible and must be dismissed.’ By reason of the foregoing, each specific situation may well be aired in the competent legality venues, venues in which all objections referring to the correct application and interpretation of current legal and regulatory provisions may be raised.” (Judgment No. 2024-006250).

Likewise, when raising challenges of this type regarding the prevalence of one legal norm or another concerning the payment and recognition of salary pluses, the Chamber stated the following:

“As the Attorney General's Office indeed explains, it is clear that the discussion presented in this section is one of ordinary legality, since it involves a conflict of norms applicable over time; i.e., of legal antinomies. What is under discussion is whether some of the provisions supporting the percentages regulated conventionally, or established by law, have been repealed; thereby discussing whether a presumed tacit repeal of various provisions of the Public Administration Salary Law, the Law on Economic Compensation for Prohibition Payment, occurs with the reforms introduced in the Public Finance Strengthening Law. As is evident, it must be defined whether paragraph a) of Article 1 of the Law on Economic Compensation for Prohibition Payment survives the legal reforms, and in these types of circumstances, the integration and interpretation of infra-constitutional norms is required, which is not the responsibility of the Constitutional Chamber, but of the administrative and judicial authorities, as appropriate.” (Judgment No. 2023-010798. The emphasis is not in the original).

Finally, it is necessary to note that the active co-plaintiffs also refer to a presumed violation of Art. 34 of the Political Constitution due to the alleged impairment of acquired rights. This grievance will be examined in the following section.

Conclusions

Based on the considerations made, the action must be partially upheld solely due to the unreasonableness of the recognition of the annual bonus incentive in the month of June each year and for breaking labor continuity. This is in accordance with what was regulated in Art. 12 of the LSAP in its version amended by the LFFP and during the period it was in force. In all other respects, the grievances are dismissed.

Magistrate Rueda Leal issues a separate opinion and upholds the action with respect to the phrase “The annual bonus will be recognized in the first half of the month of June of each year” contained in the challenged Article 12 of the Public Administration Salary Law amended by Law No. 9635 ‘Public Finance Strengthening’ during its period of validity.

Magistrate Lara Gamboa upholds the action solely with respect to the phrase “The annual bonus will be recognized in the first half of the month of June of each year” contained in the challenged Article 12 of the Public Administration Salary Law amended by Law No. 9635 ‘Public Finance Strengthening’ during its period of validity.

Magistrate Cruz Castro dissents and upholds the action regarding annual bonuses, particularly with respect to Article 50 and Transitory Provision XXXI.

XIV.- REGARDING THE ALLEGED VIOLATION OF the principle of non-retroactivity of the law and disregard for consolidated legal situations Preliminary clarification With regard to this section, and given that it is a cross-cutting issue in the consolidated cases, the arguments from several actions will be addressed, identifying in each case the respective grievances and the response provided by the PGR.

Challenged provisions The provisions challenged on these grounds are Arts. 50, 54, 56, 57 subparagraph 1) insofar as it amends Art. 12, and Transitory Provisions numbers XXVII and XXXI of the LSAP, amended by Law No. 9635.

The provisions read as follows:

“Art. 50- On the incentive amount. From the entry into force of this law, the annual bonus incentive for public officials covered by this title shall be a fixed nominal amount for each salary scale, an amount that shall remain invariable.

(As thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018).

Art. 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation that, upon the entry into force of this law, is expressed in percentage terms, its calculation going forward shall be a fixed nominal amount, resulting from the application of the percentage to the base salary as of January 2018.

(As thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018).

Art. 56- Application of incentives, caps, and compensations. The incentives, compensations, caps, or annual bonuses paid as of the date of entry into force of the law shall be applied going forward and may not be applied retroactively to the detriment of the official or their property rights.

(As thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018).

Art. 57. 1) l) Article 12 of Law No. 2166, Public Administration Salary Law, of October 9, 1957, is hereby amended.

Article 12- The annual bonus (incentivo por anualidad) will be paid in the first two weeks of June of each year.

If the employee is promoted, they will begin to receive the minimum of the new category; under no circumstances will already recognized bonuses be revalued.

TRANSITORIO XXVII. From the application of Article 39, Severance Pay (Auxilio de Cesantía), those employees covered by collective bargaining agreements (convenciones colectivas) that grant the right to more than eight years of severance pay are excepted, and they may continue enjoying that right, as long as the current agreements that so contemplate it remain in force, but in no case may the compensation exceed twelve years.

In cases where a right to severance pay exceeding eight years has been granted by legal instruments other than collective bargaining agreements, and which are in force, the number of years to be compensated may not exceed twelve years, in the case of those persons who have already acquired that right; for all other cases, any compensation exceeding eight years will be rendered void.

TRANSITORIO XXXI. To establish the calculation of the fixed nominal amount, as regulated in Article 50, for the recognition of the annual bonus, immediately upon this law's entry into force, one point ninety-four percent (1.94%) of the base salary for professional classes, and two point fifty-four percent (2.54%) for non-professional classes, shall be applied to the corresponding base salary for the month of January 2018 for each salary scale.” Grievances of the plaintiff (acción n.°19-002620-007-CO) The plaintiff claims that the legal technique used by the legislator in Articles 50, 54, 56 and subsection l) of 57 in relation to Article 12 of the reformed LSAP, and Transitorios XXVII and XXXI of Law n.°9635, is unconstitutional by ignoring that, in accordance with Article 34 of the Political Constitution, there are consolidated legal situations (situaciones jurídicas consolidadas) born from instruments such as collective bargaining agreements, regulations and personnel statutes (estatutos de personal), which should have been respected.

Article 50 of the LSAP and Transitorio XXXI impose an annual bonus at a fixed nominal amount that overrides what has been established in some institutions through collective bargaining agreements or other regulatory instruments that usually grant a higher and distinct annual bonus amount through a percentage payment calculated on the employee's base salary, meaning these rules impose calculation techniques for annual bonuses that directly clash with collective bargaining agreements and the regulations existing in the public sector on this matter. The legislator exceeded its powers and thereby violated consolidated legal situations by not establishing, as it did with the exclusive dedication (dedicación exclusiva) salary component –in Transitorio XXVI of Law n.°9635– or defectively on the issue of severance pay, provisions to mitigate the effect on consolidated legal situations.

The challenged Article 54, which refers to the "conversion of bonuses to fixed nominal amounts" (conversión de incentivos a montos nominales fijos), implies a direct and heteronomous intrusion into existing collective bargaining agreements and future ones that may be negotiated, which seriously harms the principle of non-retroactivity of legal norms, for two reasons: first, because the salary corresponding to January 2018 that the law uses as a reference to determine the nominal amount to be paid for the annual bonus had already been modified by the time the law was approved, therefore the legislator disregarded the principle of non-retroactivity in drafting the rule by using a delimiting parameter for the article's content that was already outdated; the second reason is that the rule's provision ignores that there are collective bargaining agreements and regulations or statutes that already contain provisions on the payment of bonuses or compensations in percentage form, such as the collective bargaining agreement of Banco Nacional, signed by his represented party where percentages have been set for productivity bonus payments in Article 63, called for several agreements now as a results bonus (incentivo por resultados), so for the persons to whom this collective bargaining agreement applies, there is a right and not a mere expectation of a right, that during the entire time the collective bargaining agreement is in force, that subjective right be respected.

Regarding the challenged Article 56 relating to the "application of bonuses, caps and compensations" (aplicación de los incentivos, topes y compensaciones), it is a rule that has an intelligibility problem, which is confusing even though it regulates a topic of great interest such as acquired rights and consolidated legal situations. If the legislator intended to refer to a future regulation, they could not state that what applies in the future are the previous bonuses, compensations, caps or annual bonuses, and interprets that perhaps what the legislator meant was that the new regulations on bonuses, compensations, caps or annual bonuses, govern prospectively and not retroactively. The rule is contrary to the principle of reasonableness (razonabilidad) and, therefore, to substantive due process, as well as violating Article 34 of the Political Constitution, since acquired patrimonial rights are not respected.

Regarding Article 57 subsection l) that amended numeral 12 of the LSAP, they claim that the provisions contained in collective bargaining agreements or other legal instruments creating subjective rights were also not respected on issues such as when the payment of each annual bonus is due, how it is calculated when there are promotions, the recognition of those rights for those coming from other public sector institutions or when they rejoin it, so there is no certainty about what happens with persons who were transferring from a company or institution within the public sector before the publication of Law n.°9635 but whose years worked in other public sector dependencies have not yet been counted, nor whether the consolidated legal situation of having their prior labor time registered should be disregarded. On this point, it is alleged that the law was neglectful in resolving conflicts of laws over time and this omission is visible throughout all its provisions, except regarding exclusive dedication where contracts for exclusive dedication signed before the law's entry into force are respected, and also, less rigorously, regarding severance pay.

Regarding Transitorio XXVII, which refers to the application of severance pay, it is a rule containing two defects of unconstitutionality: the first is the violation of the right to collective bargaining and the second is the disregard for the principle of non-retroactivity of the law and non-observance of consolidated legal situations. The rule limits the payment for severance pay with caps exceeding twelve years, without considering that many collective bargaining agreements in force when Law n.°9635 took effect established rules with higher caps, such as the one signed between his represented party and Banco Nacional which provided that it was a real right in favor of the institution's employees paid with a cap of twenty years and which was not deemed unconstitutional when analyzed in an action challenging it. The limitation introduced by this Transitorio extends to other legal instruments other than collective bargaining agreements in which the payment of severance pay is regulated under conditions more beneficial than those stipulated in Article 29 of the Labor Code, in which case the twelve-year limit is also imposed. The defect of unconstitutionality of the Transitorio resides in the omission to dimension the scope of its effects, in such a way that the consolidated legal situations in favor of public employees were duly safeguarded and not affected, which, under the protection of collective bargaining agreements in force or other legal instruments, at the time the legal reform entered into force, they had already accumulated a labor seniority that gave them the right to earn a compensation for severance pay exceeding eight or twelve years.

Grievances of the plaintiff (acción n.°19-004931-0007-CO) The plaintiff challenges Article 50, added to Law n.°2166 and also cites the provisions in Article 1 subsection a) of its regulation that establishes the definition of what is understood by annual bonus. The plaintiff alleges an injury to the constitutional principles of municipal autonomy and of decentralized entities, and thereby the principle of legality. Likewise, the principles of progressivity of labor rights, non-retroactivity of the law, reasonableness and proportionality, prohibition of arbitrariness, and the tax principles of non-confiscation, economic capacity and progressivity.

The consolidated legal situations of public officials who began working before the entry into force of Law n.°9635 are being harmed by the rules that reformed Article 12 of the LSAP and Transitorios XXVII and XXXI insofar as they establish new forms of payment, fixed amounts of annual bonuses for all public officials, even for those who under special rules (collective bargaining agreements, internal work regulations, autonomous service work regulations, Municipal Council agreements, etc.) have another modality of paying pluses, bonuses, annual bonuses, five-year bonuses (quinquenios). Although it is provided that they cannot be applied retroactively to the detriment of workers, an inadequate analysis has been made of what should be understood by acquired right and consolidated legal situations.

Grievances of the plaintiff (acción n.°19-022051-0007-CO) Article 50 of the LSAP, in conjunction with the aforementioned Transitorio XXXI, impose an annual bonus at a fixed nominal amount for each salary scale, overriding the fact that, in the institutions where it will be applied –among these ICE– an annual bonus amount higher and distinct from that contained in Transitorio XXXI has been established through the personnel statute and other instruments, via a percentage payment calculated on each employee's base salary. The percentage amounts with which the calculation of annual bonuses begins in the mentioned transitorio –which then go on to form a nominal amount–, the difference between professional and non-professional classes and that the annual bonus becomes an invariable amount that will cease to have economic value, are calculation techniques that directly clash with the workers' subjective rights and especially, in the case of ICE, which come from the Personnel Statute. Regulatory provisions must be interpreted and applied in the way most favorable to the human being or under the pro homine principle, therefore, under that context, the questioned rules must be interpreted in clear safeguard and protection of the consolidated legal situations that ICE employees have under the Personnel Statute.

Article 54 of the LSAP implies an absolute prohibition on collective bargaining in Public Administrations, which also harms the principle of non-retroactivity of legal norms, for two reasons: the first because the salary corresponding to January 2018 used as a reference to determine the nominal amount to be paid for the annual bonus had already been modified when the law was approved as a consequence of the salary readjustment applied semi-annually; the second reason is that it is ignored that there are collective bargaining agreements and regulations or statutes that already contain provisions on the payment of bonuses or compensations in percentage form, as is the case of the Personnel Statute of ICE. For all personnel covered by the cited statute, there is a right and not a mere expectation of a right, that during the entire time such an instrument is in force, the subjective rights that were born during its validity be respected, so there is a violation of Article 34 of the Political Constitution.

Article 56 of the LSAP contains confusing precepts, so that the rule would only have a logical and legally admissible sense if it were interpreted that the new caps, bonuses and compensations can only govern for new employees hired after the law's enactment and not for those who have subjective rights or consolidated legal situations prior from other regulations.

Article 57 subsection l) also does not respect the provisions already contained in other instruments, as is the case of the Personnel Statute of ICE on aspects as important as the time when the payment of each annual bonus is due, the way it is calculated when there are promotions, or the recognition of those rights for those coming from other public sector institutions or rejoining it.

Report of the PGR (acción n.°19-002620-0007-CO) The objections raised here revolve around the issue of the prevalence or not of a supervening law (the LFFP) over collective bargaining agreements in force and, in that sense, recalls that in opinion C-060-2019 the Procuraduría expressed its criterion that there are no reasons of constitutionality that justify giving prevalence to the mandates of a collective bargaining agreement or some other regulatory instrument, over the law. It notes that the foregoing does not mean disrespecting the acquired rights or consolidated legal situations of the subjects of collective bargaining agreements because the application of legal mandates that conflict with what was agreed upon in said agreements governs prospectively, which implies that the labor benefits incorporated into each person's patrimony by the application of conventional clauses repealed by the law will remain in the patrimony of each person who received them. It states that the right to severance pay is acquired only when the termination of the employment relationship occurs, and provided that said termination is due to one of the causes justifying the payment of that compensation, so that, before that happens, the interested party has only a mere expectation of a right that could not prevail over provisions of legal rank such as those introduced to the LSAP through the LFFP.

For the foregoing reasons, the Procuraduría does not consider that Articles 50, 54, 56, subsection l) of 57, and Transitorios XXVII and XXXI of the LSAP violate constitutional Article 34.

Report of the PGR (acción n.°19-004931-0007-CO).

In the PGR's judgment, the arguments related to the nominalization (nominalización) of annual bonuses must be dismissed. The foregoing, according to the following considerations:

“As we indicated in the original report of March 18 last, within this file, regarding the possible invalidity of granting a nominal value to annual bonuses permanently and indefinitely, without knowing if in the future the economic situation justifying that sacrifice will be maintained, we must indicate that, in the judgment of this Procuraduría, the legislator is called to establish the bonuses and the amount of the economic benefits granted to its employees; this as part of the so-called “Public Officials Statute (Estatuto de funcionarios públicos)” (constitutional Article 191).

Based on the foregoing, it must be understood that the economic amount granted for annual bonuses is a function of the intensity with which the legislator wants to incentivize the permanence in the post of public officials, and the economic possibility of paying the sums derived from that bonus.

We consider that the legislator could, even, eliminate the payment of annual bonuses, and incentivize efficiency and permanence in public service through a mechanism different from the one used now, since the obligation to recognize annual bonuses is not stipulated in norms of constitutional rank, but legal rank, as it is part of the remuneration regime or system typical of the so-called civil service "Statute" (Estatuto funcionarial), which the legislator has authorization to configure and regulate (constitutional Articles 105, 121.1 and 191), as we have noted when recently responding to the unconstitutionality actions processed under file Nos. 19-6416-0007-CO and 19-12772-0007-CO.

Allegations of the coadjuvants The general secretary of SIBANPO merely supported the plaintiff's thesis.

The president of the Cámara de Industrias de Costa Rica Association argued that all rules can be modified prospectively by another of equal or higher rank without this implying a violation of the principle of non-retroactivity of the law; a principle that is only violated when acquired rights and consolidated legal situations have arisen as a direct consequence of subjective legal situations created under the protection of previous legislation and warns that those derived from collective bargaining agreements, regulations or statutes are not considered consolidated legal situations nor acquired rights, because these are rules that regulate objective situations. None of the rules being challenged implies a violation of the principle of non-retroactivity of the law, since what the legislator has done is modify, with future effects, objective situations created by previous legislation.

Resolution of the Constitutional Chamber (Sala Constitucional) Preliminarily Firstly, on many of the questioned aspects, it is necessary to abide by what was already resolved on annual bonuses in the preceding whereas clause (considerando).

Furthermore, most of the arguments in acción n.°19-004931-0007-CO must be dismissed because they refer to municipal autonomy or that of decentralized entities and it was already established and defined that the plaintiffs' standing, based on a corporate matter and defense of the members' rights, is not sufficient to question aspects pertaining to autonomies. The arguments related to the alleged injury to the principles of reasonableness and proportionality, prohibition of arbitrariness, and the tax principles of non-confiscation, economic capacity and progressivity must also be rejected, since in their view, the State intends to render useless over time the amount paid for the annual bonus and to empty it of content. In this regard, it was already noted supra that said arguments lack adequate substantiation because the alleged injury to said principles is not justified nor demonstrated, in an appropriate manner.

Regarding the vicissitudes of the application of annual bonuses and the regulations related to the time of their recognition and labor continuity, that was resolved in the preceding considerations.

Amounts of annual bonuses and other pluses that disregard what is established in other legal instruments The arguments related to the fact that the questioned rules (Articles 50, 54 and Transitorio XXXI) supposedly violate Article 34 of the Political Constitution, reasonableness and substantive due process by disregarding consolidated legal situations or acquired patrimonial rights in collective bargaining agreements, regulations or personnel statutes must be rejected for the reasons explained below.

Firstly –regarding the alleged violation of Article 34 of the Political Constitution for the supposed injury to acquired rights– this Chamber must reiterate the considerations made in ruling n.°2024-007057 in which, after distinguishing between an acquired right and a consolidated legal situation –citing what was resolved by this Chamber in precedent n.°2019-1601– concluded as follows:

“In the sub examine, it must be noted that the future payment of an annual bonus is not an automatic effect incorporated into every official's salary, but rather, as recognized by the Procuraduría General de la República, it constitutes an expectation of a right if certain conditions are met, for example, reaching the annual term and also qualifying within the evaluation parameters. If such conditions are not met, the recognition in question would not be effected. In that sense, one cannot claim to establish as an acquired right the way in which these will come to be paid or the assumptions under which it must be done, because there is no right to the immutability of the legal system, according to the precedent cited above.

Certainly the challenged regulations also establish that, as of December 4, 2018, the payment of the annual bonus to officials will be recognized only through performance evaluation and when they manage to obtain a rating of "very good" or "excellent", or its numerical equivalent, according to the defined scale, no longer just by the passage of time. However, this is not an innovation of the regulation under study, since Law nro. 9635, in Article 48 so contemplates it, that is, there is a provision of legal rank that already establishes it, and the decree, as will be said later, develops said legal provision. Nor does it imply a retroactive application of the law, since it concerns future payments of annual bonuses, not those whose amounts have already entered the official's peculium, whose amount remains intact, regardless of whether the official was evaluated or not on previous occasions, nor the value obtained in their rating.

Thus, what was already acquired and contemplated in the salary that the worker received prior to the validity of Law nro. 9635, as explained, is maintained, with the officials conserving their acquired rights and without any effect on the salary that corresponds to them”. (The highlighted text does not correspond to the original).

Given its importance for clarifying the point, reference must also be made to ruling n.°2005-16394 in which the Chamber referred to acquired rights, explaining it as follows:

“Well, then, as acquired, one must understand that right (as an expression of a concrete legal relationship projected onto a certain subject) that has effectively entered a person's patrimony, such that it could not be eliminated without causing a concrete and evident impairment to the conditions they already held previously. Thus, a mere expectation for the future could not fall within this conception, even if objective parameters existed to calculate what could constitute its possible effective consequence, because the truth is that in this latter stage it has not yet become part of the subject's patrimonial sphere, ergo, it cannot therefore be considered "acquired". The spirit of Article 34 prevents the new law from affecting the legal effects already produced in certain concrete situations, subjective rights that already had an individualized expression in a person's patrimony at the time the new legislation supervenes. Under this reasoning, it must be admitted that the future projection of a certain legal relationship cannot be sheltered by this constitutional guarantee, since such a thing entails a sort of "freezing" or petrification of the legal system and the State's legislative and regulatory power, which does not align with the principle derived from constitutional Article 129, when it indicates that "laws are mandatory and take effect from the day they designate". The foregoing, because in the face of any possible variation in the legal regime concerning a certain matter, anyone could claim their "acquired right" for the previous regulatory conditions to be maintained or preserved, which in good logic is clearly inadmissible. Returning to what was said above, the constitutional prohibition applies only to assumed rights, integrated into the patrimony. In contrast, over pending, future situations, over what is not yet consummated, one can only possess an expectation. Within a legal relationship that is maintained over time, there is no retroactive application when the new regulatory conditions apply to the future development of the relationship, without affecting the effects already consummated in the previous situation (RSC N.° 05291, 10:42 a.m., June 30, 2000)”. (The highlighted text does not correspond to the original).

In the sub lite, these considerations must be reiterated, which are applicable to the issue of annual bonuses, but also to any other pluses. That is, the salary bonuses that the legislator provides within their liberality are conditioned upon fulfilling certain requirements, so if they are not already incorporated into the patrimony they are merely an expectation of a right and the legislator can validly regulate them prospectively, without any irregularity contrary to Constitutional Law arising from the generic arguments. From the text of Article 56 –challenged here– as from what was said in the precedent, it emerges with utmost clarity that the regulation is prospective and that “the bonuses, compensations, caps or annual bonuses remunerated as of the date of entry into force of the law will be applied prospectively and may not be applied retroactively to the detriment of the official or their patrimonial rights”. This was emphasized in Transitorio XXV of the LFFP by stressing that the total salary of employees who are active upon the law's entry into force “may not be decreased and the acquired rights they hold shall be respected”. That is, there was an express legislative decision to safeguard the patrimonial rights of public employees so that the amounts established by the legislator do not affect them retroactively, but rather the regulations will be for the new recognitions made. Now, the adequate application of this maxim in each specific case corresponds to an individualized assessment and not to the constitutionality of the challenged legislation, since, it is reiterated, the legislator expressly provided that the regulation cannot be applied retroactively to the detriment of the official or their patrimonial rights.

Secondly, it is necessary to insist on the fact that this Chamber is competent to guarantee the supremacy of constitutional norms and principles, and that in the control of constitutionality it is its responsibility to assess whether a general norm harms Constitutional Law by contradiction or omission. However, this Court is not competent to resolve application or interpretation problems of infra-constitutional norms to determine the prevalence of some over others for the resolution of labor conflicts such as those raised in these unconstitutionality actions, where what is sought is to resolve eventual antinomies between the law and collective bargaining agreements, regulations or personnel statutes. It is reiterated that the Constitutional Chamber is not competent for the integration and interpretation of infra-constitutional norms, but rather the administrative and judicial authorities, as appropriate. The arguments of acción n.°19-022051-0007-CO coincide with what was raised and more seem to seek that this Chamber resolve what must prevail –whether what the legislator provided in a law of general character and public interest such as the LSAP or the special provisions regulating the labor relations of various entities– which, as already stated supra, is a discussion of legality and not of constitutionality.

Additionally, the plaintiffs allege a violation of the indicated constitutional principles because the salary corresponding to the month of January 2018 that the law uses as a reference to determine the nominal amount to be paid for the annual bonus had already been modified by the time the law was approved as a consequence of the salary readjustment applied semi-annually, therefore the legislator disregarded the principle of non-retroactivity in drafting the rule. In this regard, it is necessary to reiterate that the recognition of annual bonuses obeys criteria of opportunity and convenience (oportunidad y conveniencia) of the legislator, there is no right to the immutability of the legal system and that, therefore, the legislator is empowered to regulate prospectively the requirements, amounts and terms in which this type of salary bonus can be recognized, safeguarding acquired rights (constitutional Article 34) and other principles of constitutional order such as reasonableness and non-discrimination. In that sense, the parameter that the legislator has used for opportunity and convenience to delimit the payment of future annual bonuses, under the arguments raised by the plaintiffs, does not appear unreasonable nor harmful to Article 34, given that, it is repeated, they are regulations that govern for the future annual bonuses to which the public employee aspires.

Regarding Transitory Provision XXVII, which refers to the application of the unemployment assistance (auxilio de cesantía) It is alleged that the norm limits the payment for unemployment assistance (auxilio de cesantía) with caps higher than twelve years, without taking into account that many collective bargaining agreements (convenciones colectivas) in force when Law No. 9635 came into effect established rules with higher caps, such as the one signed between his client and the Banco Nacional, which provided that it was a real right in favor of the institution's employees, paid with a cap of twenty years, and which was not considered unconstitutional when it was analyzed in an action challenging it. The vice of unconstitutionality of the Transitory Provision resides in the omission to dimension the scope of its effects, in such a way that the consolidated legal situations in favor of public employees would be duly protected and not affected, which, under the protection of current collective bargaining agreements (convenciones colectivas) or other legal instruments, at the time the legal reform came into effect, had already accumulated a labor seniority that granted them the right to earn an indemnity for unemployment assistance (auxilio de cesantía) greater than eight or twelve years. In this section, the matter relating to the alleged infringement of Article 34 of the Political Constitution is questioned.

It is necessary to point out that this Chamber has already examined cases in which it is questioned that the Labor Code has established the setting of a cap or a limit on the matter of unemployment (cesantía). In ruling No. 1995-2754, this Chamber examined grievances very similar to those raised on this occasion, namely, the possibility that the legislator introduces limits to the payment of unemployment (cesantía), as well as the alleged injury to the principle of non-retroactivity, that is, the matter concerning the alleged breach of acquired rights. Since that ruling, the Chamber has been emphatic in the sense that, in general terms, it is up to the legislator to regulate the form and the parameters within which the indemnity for unemployment (cesantía) shall be paid, and that "there is no fundamental right of the citizen to receive the unemployment assistance (auxilio de cesantía) in an unlimited manner," meaning it is legitimate and possible to introduce reasonable limits. Furthermore, as long as the monetary amount of the unemployment (cesantía) has not entered the worker's assets, one cannot speak of an alleged acquired right. The ruling under analysis explains it very clearly:

"The Political Constitution, in Article 63, embodies a principle that was previously established in Article 29 of the Labor Code, which is the right of the worker dismissed without just cause to receive an indemnity called unemployment assistance (auxilio de cesantía). From this constitutional statement, it is not derived, as the plaintiff claims, that it is an absolute and unlimited right not subject to any type of regulation; on the contrary, it is up to the legislator to regulate the form and the parameters within which such indemnity shall be paid. It is clear, then, that there is no friction whatsoever between Article 29 subsection d) of the Labor Code and the principle established in Article 63 of the Constitution; both norms complement each other. Within this same line of reasoning, the argument that the questioned norm violates the content of Article 50 of the Constitution is also unacceptable, in that unemployment (cesantía) is a form of wealth distribution and a method of social solidarity for the protection of the Costa Rican family, and for this reason it cannot be limited. There is no fundamental right of the citizen to receive the unemployment assistance (auxilio de cesantía) in an unlimited manner. The State opted for a specific way of regulating such indemnity, contributing to the well-being of citizens and developing, where corresponding, the mandate of Article 50. From this perspective, the substantive issue that the plaintiff intends to discuss is not a constitutional infraction but an issue of social and economic policy of the State, which must be resolved before other instances and not through this avenue.

III.- Regarding the violation of the principle of non-retroactivity of the law, the plaintiff's argument is summarized in that the cap on the unemployment assistance (auxilio de cesantía) undermines a legal situation consolidated by the passage of time, protected by acquisitive prescription, because each year that passes, the worker acquires the right to unemployment (cesantía) and it is incorporated into their assets. This argument is not acceptable. For there to be a retroactive effect of a law that is unconstitutional, it is necessary that the right considered injured was acquired before the enactment of the law:

\"Article 34 of the Political Constitution prohibits giving retroactive effect to the law when it goes to the detriment of acquired rights or consolidated legal situations. Both concepts have been clearly defined by constitutional doctrine and national jurisprudence. (...) A legal situation can consolidate -the Full Court has said it before- with a judicial ruling that declares or recognizes a disputed right, and also under the protection of a legal norm that establishes or guarantees certain consequences in favor of the holder of a right, a consequence that a later law cannot disregard without incurring a vice of unconstitutionality due to infringement of Article 34 of the Constitution (ruling number 1119-90 of fourteen hours on September eighteenth, nineteen ninety.)\" In the same sense, it has been said:

\"Article 34 of the Political Constitution prohibits giving retroactive effect to the law when it goes to the detriment, inter alia, \"of acquired patrimonial rights.\" A distinction must be made between:

• a)A law that regulates a past factual assumption to the detriment of those rights, what we could call retroactivity properly speaking and in principle unconstitutional, which affects consummated facts, and:
• b)The regulation of a factual assumption that comes from the past but that extends to the moment of the law's enactment -in which case the validity or invalidity of the indirect effects ex tunc must be examined on a case-by-case basis\" (ruling number 4691-94, of seventeen hours and thirty-nine minutes on August thirty-first, nineteen ninety-four).

There is no judicial ruling in favor of the plaintiff that declares or recognizes a disputed right, nor a prior law that guarantees him the receipt of the unemployment assistance (auxilio de cesantía) without being subject to the eight-year cap, since the provision of subsection d) of Article 29 of the Labor Code, which sets the unemployment (cesantía) cap, is prior to the beginning of his employment relationship with JAPDEVA. Therefore, and in accordance with this norm, the plaintiff never had an acquired right to receive the unemployment assistance (auxilio de cesantía) without the eight-year cap." Subsequently, the Chamber referred to the unemployment assistance (auxilio de cesantía) regarding public servants in ruling No. 2005-07180, where its origin in the Labor Code was explained –which is prior to the Political Constitution– where the stability of public servants was guaranteed, and in said ruling it was equally emphasized that it is not an unlimited or absolute right, but rather it is up to the legislator to design the way in which this indemnity is regulated:

“To facilitate the constitutional review of the challenged subsection b) of Article 586, it is worth referring to certain historical aspects of the challenged norm as well as the adoption of the figure of the State as the sole employer in our legal system. It is through Articles 585 and 586 of the Labor Code, located in Title Eight, called “Of the regime of the servants of the State and its institutions,” whose single chapter is titled “Special provisions for the servants of the State and its Institutions,” that the legislator recognizes, in favor of public servants, a minimum of rights, specifically: the unemployment assistance (auxilio de cesantía), the advance notice, and the payment of damages and losses (Articles 585 and 586 in relation to 28, 29 and 31 of the Labor Code). This normative body is prior to the Political Constitution of 1949, which came to guarantee, in its Article 192, the stability of public officials who had entered the civil service regime, a constitutional guarantee that covers all officials in the service of the State, both from the Central Administration and from decentralized entities (To this effect, see rulings of this Tribunal 5778-94 and 5222-94). In this regard, it is worth mentioning what is provided in Considerando V of ruling 2000-00229 of ten hours thirty-five minutes on February eighteenth of the year two thousand by the Second Chamber of the Supreme Court of Justice, insofar as it states that the legislative provision made through Articles 585 and 586 was explained by:

“V (…) the nonexistence, at that time, of the guarantee of irremovability or stability, since it was not until the Political Constitution of 1949 that it was incorporated into the national legal system (Article 192) (Second Chamber of the Supreme Court of Justice, Ruling No. 299, of 9:05 a.m., on October 11, 1996). (…)

It is in the same line of reasoning set forth by the Labor Cassation Chamber in the cited ruling, as well as by what was stated by the Office of the Attorney General of the Republic and SUGEF in their respective reports, that this Chamber, in agreement with the common jurisprudence on this matter, recognizes the right of every worker to be indemnified upon the termination of their relationship with the employer, not only because inalienable rights such as salary, vacations, and year-end bonus are included, but because labor laws, in cases where a cause for the employer's unilateral dismissal is not invoked, the employer must recognize the worker certain monetary compensation (In that sense, see ruling 942-97 of fifteen hours thirty-nine minutes on February twelfth, nineteen ninety-seven). Now, it is worth highlighting what was stated by SUGEF in its report, in that it says that the reimbursement of the sums paid for indemnity, when the servant is hired again by the State, with the exception of the amounts corresponding to the period in which they were actually unemployed, finds justification in the theory of the State as sole employer; a theory that, it should be remembered, arose to correct the situation of servants who moved to work for a different public entity or administration, without being recognized the time previously served, to the detriment of the benefits derived from seniority in the service, for the State as employer. The natural evolution of the concept of the State as sole employer fully justifies the proportional reimbursement of the money paid for unemployment assistance (auxilio de cesantía), if it is shown that the person held another remunerated position in the Public Administration.

VIII.- OF THE RIGHT TO THE INDEMNITY FOR UNEMPLOYMENT ASSISTANCE (AUXILIO DE CESANTIA) ARISING FROM ARTICLE 63 OF THE CONSTITUTION.- Regarding the provision of Article 63 of the Constitution that establishes the duty to pay the worker a sum for indemnity for the breaking of the employment relationship without just cause, and which, according to the Office of the Attorney General's report, does not regulate public service relations, this Chamber reiterates what was said in the previous Considerando, in the sense that Article 63 of the Constitution embodies a principle that was previously established in Article 29 of the Labor Code, which is the right of the worker dismissed without just cause to receive an indemnity called unemployment assistance (auxilio de cesantía). As already stated, Article 586 of the Labor Code, challenged in its subsection b), incorporated the right to indemnity in favor of public servants who cease their relationship without just cause; an assumption that, although it is difficult to imagine due to the prevalence of the guarantee of stability in the service for public servants provided for in the constitutional text in its Article 192, does not, for that reason, contend with the constitutional statement that establishes the duty to pay the indemnity for unemployment when the dismissal was not justified. But, on the contrary, the Chamber warns that in cases where the assumption of dismissal without just cause could occur, the payment of the unemployment assistance (auxilio de cesantía) in favor of the servant is justified, adjusted, and fully complemented by the norms contained in Articles 585 and 586 in relation to Articles 28, 29 and 31, all of the Labor Code, which give foundation to the indemnity for unemployment and seek to protect the right of every worker to be indemnified upon the termination of their relationship with the employer, regardless of whether or not it is the State. This, this Tribunal emphasizes, is not only because inalienable rights such as salary, vacations, and the year-end bonus are included, but because labor laws, in cases where a cause for the employer's unilateral dismissal is not invoked, the employer must recognize the worker certain monetary compensation that allows for their sustenance and that of their family, as well as preserve their dignity (in that sense, see ruling 942-97 of fifteen hours thirty-nine minutes on February twelfth, nineteen ninety-seven, already cited), which is what gives meaning to the assistance. Consequently, Article 63 of the Constitution must be understood as a guarantee for every worker to be indemnified for the breaking of the relationship without just cause.

As the informants rightly say, the right to the indemnity for unemployment elevated to constitutional rank, called unemployment assistance (auxilio de cesantía), is not an unlimited right, but rather it is up to the legislator to regulate the form and the parameters within which such indemnity shall be paid. It is in that sense that this Tribunal, through ruling 2754-95 of fifteen hours forty-five minutes on May thirtieth, nineteen ninety-five, said: “There is no fundamental right of the citizen to receive the unemployment assistance (auxilio de cesantía) in an unlimited manner. The State opted for a specific way of regulating such indemnity, contributing to the well-being of citizens and developing, where corresponding, the mandate of Article 50(…)”. (The highlighting does not correspond to the original).

Considerations that were also taken up by the Chamber in ruling No. 2012-008891, where it was justified that the payment of unemployment (cesantía) no longer proceeds only for dismissal, but also for workers who retire, take old-age or retirement pension, and in the contingency of death, but understanding, again, that it is not an unlimited or absolute right:

“Now then, in ruling number 17439-2006 of 7:36 p.m. on November 29, 2006, the Constitutional Tribunal held that unemployment (cesantía) has a proportional relationship with the worker's seniority:

“Although it recognizes an indemnity higher than the legal minimums, the truth is that it does not become unreasonable, if one takes into account that it is subject to a limit and that it is relatively proportional to the seniority of the official in the institution, so that only someone who has served for a long period of time holds that right. The benefit thus becomes a stimulus for permanence within the institution, avoiding the departure of officials with experience in handling issues pertaining to the Board's competencies. In this way, the Chamber considers that the challenged norm does not transgress the constitutional rules and principles invoked by the plaintiffs.” (The highlighting is not from the original).” From the cited texts, it is noted that unemployment assistance (auxilio de cesantía) is not an unlimited or absolute right. The law extended its application to workers who retire, take old-age or retirement pension, and to the contingency of death. Furthermore, the Chamber has conceived it as a deterrent mechanism against unjustified dismissal, but has also admitted that it is a stimulus for the permanence of the employed person in an institution”. (The highlighting does not correspond to the original).

In ruling No. 2018-008882, this Chamber examined its own antecedents regarding the breaking of the unemployment (cesantía) caps that were set in the Labor Code, arriving at the current point of assessment in the sense that, through collective negotiation, it was legitimate to expand the minimum provided in the Labor Code so that the servants regulated by such normative body who may eventually engage in collective negotiation have a constitutionally legitimate maximum cap, or a negotiation margin where the maximum is twelve years. In this regard, the following considerations were made:

“By assuming this approach, the majority of the Chamber verifies the existence of a very wide gap between the payment of unemployment assistance (auxilio de cesantía) applicable to the vast majority of public servants, whose cap is 8 years, and the payment that workers of Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months' salary for the same unemployment assistance (auxilio de cesantía). This is a difference of one hundred fifty percent (150%), which from the perspective of the majority of us who make up this Chamber, is abysmal and therefore should have clear and incontestable arguments justifying it, but rather lacks them and is disproportionate and unsustainable in such magnitude.

XXIII.Having said the above, the majority of the Chamber must face the need to determine then a limit or “ceiling” for those conventional clauses that could potentially be negotiated regarding the breaking of the cap on the payment of unemployment assistance (auxilio de cesantía), and for this, we find two main ideas that must guide the decision: on the one hand, there is the fact that a mere equalization with the eight-year cap established in the Labor Code would mean –in practice– a virtual exclusion of this matter from the possibility of collective negotiation, which would become an unjustified limitation on the exercise of that right whose fundamental nature has been recognized by the Tribunal. On the other hand, in the opposite sense, there is the need to take into account a sense of proportionality –which has led to rejecting a maximum cap of 20 years in the preceding considerandos– and to assess the economic environment in which the breaking of caps for the direct payment of unemployment assistance (auxilio de cesantía) to the worker operates –and is expected to operate for the coming years– the public finances from which they directly and exclusively draw. It cannot be alien to this particular type of decision the public and notorious fact that our country is facing a serious crossroads regarding the quality and quantity of public spending and the economic contribution that the different sectors are willing to provide for the maintenance of our social and democratic rule of law. It would be unacceptable in this environment for the Chamber to fail to take into account that pressing situation, which these types of negotiations could worsen further if an adequate balance of all the elements at play is not made. For what has been said, the Chamber considers that collective negotiation on this specific point of the breaking of the payment cap for unemployment assistance (auxilio de cesantía) must not exceed a cap of twelve (12) years, which allows a respectable margin of negotiation for the parties to the collective bargaining agreements in the public sector, which –eventually– would allow them to raise the floor of 8 years established by the Labor Code for this specific type of benefit chargeable to the public employer by up to 50 percent. This addresses the legitimate claims that could come into play, by allowing a negotiation margin considered relevant, but without significantly affecting public finances at a historical moment where their austere and careful management has an outstanding priority for the very subsistence of our institutional framework.

As a conclusion regarding this point, the majority of the Chamber agrees that the payment of unemployment assistance (auxilio de cesantía) agreed upon in clause 47, second paragraph, of the Bancrédito Convention cannot be made without any cap and that –for the reasons stated– said cap cannot be maintained at twenty (20) years as had been sustained, but rather the maximum that could be paid in this case is one month's salary for each year worked up to a maximum cap of twelve (12) years. In such a way, when the cancellation of such sums proceeds, it shall be made –as to the amount of unemployment assistance (auxilio de cesantía) to be paid– under similar conditions and terms contained in the Convention or in the applicable legislation for those cases of termination of the contract for causes not attributable to the worker's will, but on the understanding that the sums paid could not exceed the recognition of more than 12 years of service”.

In accordance with such arguments, it is necessary to conclude that it is legitimate for the legislator to regulate the form and the limits for the recognition of the unemployment assistance (auxilio de cesantía), as it has already been established that it is not an unlimited right. Due to the above, the fact that the LSAP introduces a norm in identical sense to that established in the Labor Code with a concrete cap does not appear illegitimate or harmful to the acquired rights of workers. As it can be seen, this Chamber had to reconsider its jurisprudential lines in the sense that it is not valid or legitimate to pay indemnities for unemployment (cesantía) without a cap or a reasonable parameter, as this would be contrary to the principle of equality and the sound management of public finances. In this order of ideas and in the context of the approval of the LFFP, the challenged norm is understood as reasonable, which does not affect the acquired rights of workers because if the necessary condition to aspire to the indemnity in question has not been met, what is maintained is a mere expectation of a right and not an acquired right. For there to be a retroactive effect of a law and for this effect to be unconstitutional, it is necessary that the right considered injured was acquired before the enactment of the law. In the case sub lite, it speaks of the mere expectation of acquiring the indemnity without the caps introduced by the legislator, with which an injury to Article 34 of the Political Constitution is not verified. Moreover, as can be seen, what was agreed by the legislator within the framework of their discretion responds to and is consistent with the jurisprudential lines of this Chamber, given that since 2018 it has been reiterated that the maximum to be recognized for unemployment (cesantía) indemnity within the framework of collective negotiation is 12 years, which was respected by the legislator since Transitory Provision XXVII warns that “those officials covered by collective bargaining agreements that grant the right to more than eight years of unemployment (cesantía) are exempted from the application of Article 39, Unemployment Assistance, who may continue to enjoy that right, as long as the current conventions that so contemplate it remain in force, but in no case may the indemnity be greater than twelve years”. In that sense, it is observed that the Transitory norm established by the legislator seeks to recognize what was agreed upon conventionally, introducing a limit of constitutional order derived from the jurisprudence of this Chamber. From this perspective, the viewpoint of the plaintiffs regarding the alleged injury to Article 34 of the Political Constitution is not shared.

As a corollary of the considerations made, it is imperative to declare without merit the allegations related to the alleged injury to the principle of non-retroactivity and to Article 34 of the Political Constitution.

Magistrate Cruz Castro partially dissents and declares Articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.

XV.- Violation of the principle of free collective negotiation Prior Clarification Regarding this section, and given that it is a transversal theme in the accumulated proceedings, the allegations of several actions will be addressed, identifying in each case the respective grievances and the response given by the PGR.

Challenged Norms In general terms, the plaintiff says that with the challenged norms, a hollowing out of collective negotiation occurs.

The norms challenged in this section are the following:

Art. 39- Unemployment assistance (Auxilio de cesantía). The indemnity for unemployment assistance (auxilio de cesantía) for all officials of the institutions, contemplated in Article 26 of this law, shall be regulated according to what is established in Law No. 2, Labor Code, of August 27, 1943, and shall not exceed eight years.

(As added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018).

Art. 50- On the amount of the incentive. As of the entry into force of this law, the annual increment incentive for public officials covered by this title shall be a fixed nominal amount for each salary scale, an amount that shall remain unchanged.

(As added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018).

Art. 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation that, upon the entry into force of this law, is expressed in percentage terms, its future calculation shall be a fixed nominal amount, resulting from the application of the percentage to the base salary as of January 2018.

(As added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018).

Art. 55- Legal reserve in the creation of salary incentives and compensations.

The creation of incentives or compensations, or salary bonuses may only be carried out by means of law.

(As added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018).

Art. 57.1 l) Article 12 of Law No. 2166, Public Administration Salary Law, of October 9, 1957, is amended. The text is as follows:

Article 12- The annual increment incentive shall be recognized in the first fortnight of the month of June of each year.

If the servant is promoted, they shall begin to receive the minimum of the new category; under no circumstance shall the incentives already recognized be revalued.

TRANSITORY PROVISION XXVII. Those officials covered by collective bargaining agreements that grant the right to more than eight years of unemployment (cesantía) are exempted from the application of Article 39, Unemployment Assistance, who may continue to enjoy that right, as long as the current conventions that so contemplate it remain in force, but in no case may the indemnity be greater than twelve years.

In cases where a right to unemployment (cesantía) greater than eight years has been granted by legal instruments other than collective bargaining agreements, and which are in force, the number of years to be indemnified shall not exceed twelve years, in the case of those persons who have already acquired that right; for all other cases, any indemnity greater than eight years shall become void.

TRANSITORY PROVISION XXXI. To establish the calculation of the fixed nominal amount, as regulated in Article 50, in the recognition of the annual increment incentive, immediately upon the entry into force of this law, one point ninety-four percent (1.94%) of the base salary for professional classes, and two point fifty-four percent (2.54%), for non-professional classes, shall be applied to the base salary corresponding for the month of January of the year 2018 for each salary scale.

TRANSITORY PROVISION XXXVI. As of the entry into force of this law, the heads of public entities are obligated to denounce the collective bargaining agreements upon their expiration.

In the event that it is decided to renegotiate the convention, it must be adapted in all its aspects to what is established in this law and other regulations issued by the Executive Branch”.

Grievances of the plaintiff (file action No. 19-2620-0007-CO) It is reproached that the regulation established by Law No. 9635 leaves no space for these matters to be regulated through collective negotiation and thus surpass the minimums contemplated in ordinary legislation. The above, despite the fact that these are essential labor matters and that the Labor Procedural Reform, approved by Law No. 9343, in its Article 690 subsection i), established the possibility for unions and employer representatives to negotiate clauses of salary content.

The articles of the LSAP introduced or amended by Law No. 9635 that are challenged absolutely exclude all negotiation of salary components or bonuses, as well as prohibit negotiation on the right to unemployment assistance (auxilio de cesantía), all of which is observed in the unsurpassable cap of eight years for the indemnity of the payment of unemployment assistance (auxilio de cesantía) (Art. 39), or with the establishment of a single annual increment payment that has only one way of calculating it through an inelastic division between professional classes and non-professional classes and an invariable amount anchored in time based on the salaries earned in January 2018 (Arts. 50 and 57 subsection l), or imposing a prohibition on establishing incentives or compensations in percentage terms (Art.

54), or establishing a legal reserve for the creation of all types of incentives, economic compensations, or salary bonuses (Art. 55) and, furthermore, obligating agency heads to denounce collective bargaining agreements upon their expiration (Transitory Provision XXXVI). The right to collective bargaining of incentives and salary components contemplated in subsections h) and i) of Art. 690 of the Labor Code has been emptied of all economic content; its legal framework derives from ILO Convention No. 98 and Art. 62 of the Political Constitution. The intention of the legislator who enacted Law No. 9635 was to create a kind of legal reserve regarding supplemental salaries and annuities, supplanting the constitutional legislator in clear violation of Arts. 60 and 62 of the Political Constitution, but Arts. 26 of the ACHR and 8(a) of the Protocol of San Salvador are also transgressed.

When ruling on legislative file No. 20.580, the Constitutional Chamber was clear that it was not possible to establish a total prohibition on the creation of supplemental salaries via collective bargaining agreements; notwithstanding the foregoing, the rules challenged herein do precisely that: establish that type of prohibition, despite the warning made by the Chamber, such that Law No. 9635 was approved according to the text decreed in the first debate that the Chamber reviewed, and this confirms the unconstitutionality claimed.

For this reason, the challenged rules violate the principle of free collective bargaining, which implies a violation of ILO Convention 98, Art. 8(a) of the Protocol of San Salvador, and Art. 62 of the Political Constitution.

Art. 39 of Law No. 2166, as amended by Law No. 9635, by imposing an eight-year cap on severance pay, imposes very serious limitations that impact the constitutional order of collective bargaining, and it notes that even the Constitutional Chamber, on repeated occasions even with restrictive criteria, has endorsed clauses of collective bargaining agreements signed in the public sector that establish severance caps exceeding eight years, on the understanding that exceeding the legal cap is constitutionally valid and conforms to parameters of reasonableness and proportionality.

The alleged defect of unconstitutionality is magnified by the existence of Transitory Provisions XXVII and XXXVI of Law No. 9635, from which it is evident that the legislator's purpose has been none other than to establish an absolute prohibition so that, via collective bargaining agreements, rules on compensation for severance pay (auxilio de cesantía) can be negotiated that differ from those established in Arts. 39 of the Salary Law under review, as amended by Law No. 9635, and 29 of the Labor Code, without taking into account that in Costa Rica, the payment of severance pay with caps exceeding those established by the Labor Code has been accepted for more than thirty years, since the approval of the Solidarist Associations Law No. 6970 of November 7, 1980, which establishes the payment of severance pay chargeable to the employer—public or private—without any type of year cap and as a real right, that is, its recognition applies under any circumstance regardless of the cause that extinguishes the employment relationship. Based on the foregoing, an unequal and unjustified treatment is also created to the detriment of the trade union organization compared to the solidarist association, given that the latter can do so under a special law, while the union cannot, which generates a disparity of conditions in the legal treatment that the legal system offers to one organization and the other.

Transitory Provision XXVII constitutes a clear intrusion and imposition by the legislator on the content to be negotiated in the collective bargaining agreements that were in force when the reform contained in Law No. 9635 entered into force, because this transitory rule limits the payment for severance pay to a maximum of twelve years, despite the fact that there are conventional rules that provided for higher limits.

Those provisions are unconstitutional because they disregard the legal nature that the Political Constitution grants to collective bargaining agreements, but also because they violate the right to free collective bargaining, by supplanting the negotiating will of the parties signing those normative instruments.

It reiterates that Art. 50 of the LSAP, together with Transitory Provision XXXI contained in Law No. 9635, by imposing an annuity in a fixed nominal amount, implies an unreasonable and disproportionate limit on free collective bargaining, but also a total prohibition on negotiating the payment of annuities in collective bargaining agreements as had been negotiated before the entry into force of Law No. 9635; Art. 54 of the LSAP is unconstitutional because it denies all possibility of negotiating a different amount for incentives or compensations, which have now been transformed into a fixed percentage, anchored in the month of January 2018, without any possibility of future improvement, in contrast to the provisions of Art. 690, subsection h) of the Labor Code, which contemplates the possibility that salary incentives may be negotiated; With the reform made in Law No. 9635 to Art. 55 of the LSAP, the legislator sought to create a legal reserve so that any incentive, compensation, or salary bonus had to be created by law; however, this is unconstitutional because Art. 62 of the Political Constitution and ILO Convention No. 98, duly approved by Costa Rica, prevent establishing a limitation of such a nature, but also because that provision injures the principle of free collective bargaining; Transitory Provision XXXVI is one of the most pronounced intrusions of the Public Power into the right to collective bargaining, since it obligates the heads of public entities to denounce collective bargaining agreements upon their expiration, thereby suppressing the content of Art. 62 of the Political Constitution and ILO Conventions 87 and 98, in conjunction with Arts. 26 of the ACHR and 8(a) of the Protocol of San Salvador, and therefore considers it contrary to the Law of the Constitution; this regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements are negotiated, they must adapt to the provisions of Law No. 9635, which means that labor conditions that worsen the previous ones will have to be inserted, without respect for consolidated legal situations. Furthermore, the rule leaves the door open for the Executive Branch to be able to establish any content to those agreements, all of which is also introduced in a rule of a transitory nature but which causes permanent and definitive effects.

Grievances of the plaintiff (Action No. 19-004931-0007-CO) The representative of ANEP alleges that the challenged Art. 39 injures the principles of collective bargaining, rationality, proportionality, progressiveness of rights, and most favorable condition, as well as constitutional Arts. 33 and 62.

This provision closes the possibility for the public sector to sign collective bargaining agreements, which have the force of law between the parties, injuring constitutional Art. 62. The challenged rule not only injures the right to collective bargaining, but also the acquired rights, the consolidated legal situations of the officials who, at the time the rule entered into force (December 3, 2018), had already acquired labor conditions that cannot be affected.

On the other hand, this provision overlooks the fact that there are collective bargaining agreements and regulations or statutes that already contain provisions on the payment of incentives or compensations in percentage form.

Collective bargaining is a fundamental right contained in Art. 62 of the Political Constitution, such that the possibility of negotiating better working conditions between the parties that sign a collective bargaining agreement is a fundamental right that must be protected. Expressly prohibiting the possibility of negotiating a higher severance pay cap, through an agreement of the parties, limits not only the right of collective bargaining, but also the possibility of obtaining better working conditions for officials, which empties it of content.

Art. 7 of the Political Constitution establishes that international treaties and conventions have a higher authority than laws. For its part, trade union freedom is a right contained in Art. 16 of the American Convention on Human Rights, in Art. 8 of the Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador; also in Art. 23 of the Universal Declaration of Human Rights, and Art. 22 of the American Declaration of the Rights and Duties of Man and, therefore, must be observed in Costa Rica. ILO Convention 87, called the "Convention concerning Freedom of Association and Protection of the Right to Organise", duly ratified by Costa Rica, establishes the obligation of the Costa Rican State to put the provisions of said convention into practice. The challenged Art. 39 injures Article 4 of that convention, which orders that the State must seek to promote collective bargaining and not limit or hinder it, and recognizes that the collective bargaining agreement is the quintessential mechanism by which social organizations improve employment conditions. The fact that the country's economic situation is difficult does not make collective bargaining unconstitutional.

Likewise, the plaintiff challenges Art. 55 by asserting that the legislator's intention is clear in seeking to ensure that there is no other way to create incentives other than the legislative route. This, in ANEP's judgment, injures the right to collective bargaining and violates municipal autonomy and that of decentralized entities, whose powers derive from the Political Constitution and the respective laws. The regulatory power in administrative matters enjoyed by minor entities is undermined by a legal rule that intends to legislate in a field outside its purview. This injures the principle of legality.

Grievances of the plaintiff (Case file Action No. 19-022051-0007-CO) The representation of ASDEICE challenged that Art. 39 of the LSAP in relation to Transitory Provision XXVII are rules that infringe the right to collective bargaining. They point out that although the provision exempts the application of Art. 39 of the law for those public officials covered by collective bargaining agreements or other legal instruments in which the right to payment for severance pay is granted with caps exceeding that established in Art. 29 of the Labor Code, such exception is relative insofar as the rule always ends up limiting the payment of the right to a cap of twelve years, without taking into account that in many normative instruments existing before the law entered into force, rules for the payment of severance pay are established with caps exceeding twelve years.

Report of the PGR (Action No. 19-2620-0007-CO) The PGR indicates that the regulation of collective bargaining agreements is a matter of law, as is fulfilled in this case. It states that public employment is called to be governed by statutory rules and, therefore, the legislator can indeed establish restrictions on the exercise of the right to collective bargaining in the public sector, such as those regulated in Art. 55 of the LSAP and in Transitory Provision XXXVI of the LFFP. Imposing certain restrictions on collective bargaining in the public sector regarding severance pay, the valuation of annuities and incentives, and the creation of new supplemental salaries, does not empty the right to collective bargaining of its content, nor does it affect its essential core. Establishing certain restrictions on collective bargaining in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been publicly known and whose attention has required sacrifices, not only from persons linked to the State through a public employment relationship, but from all economic and social sectors.

It is not possible to compare unions with solidarist associations, as they are distinct figures, with their own characteristics, very different from each other, and, in that sense, it recalls that solidarist associations have not been granted the right to collective bargaining, nor the right to strike, without thereby being in a situation of disadvantage or unconstitutional discrimination with respect to unions.

Regarding the Transitory Provision that includes permanent rules: with respect to the objection concerning the permanent and non-temporary nature of what is regulated in Transitory Provision XXXVI of the LFFP (related to the obligation to denounce collective bargaining agreements upon the expiration of the agreed term), it can be considered as an eventual infraction of adequate legislative technique, but it does not generate the unconstitutionality of the affected rules, as it is not a serious defect that justifies annulling those provisions.

Report of the PGR (Action No. 19-004931-0007-CO) The PGR suggests dismissing the alleged unconstitutionality attributed to Art. 39. This is based on the following considerations:

"In this regard, as we indicated in the original report of this action, dated March 18, 2019, the institutional position of this advisory body on said topic was expressed in our opinion C-060-2019, of last March 5. In said pronouncement, the conclusion was reached that collective bargaining agreements are subject to the law, even if the latter is supervening, especially when that law is expressly aimed at repealing (with effect for the future, consequently respecting acquired rights and consolidated legal situations) conventional rules that have a specific content. (...)" Below, the PGR cites the referred opinion, from which the following is essentially derived:

"And we must be clear and emphatic in pointing out that the legal modification operated by Law No. 9635 does not seek the denial, much less the suppression, of collective bargaining and its effective exercise as a negotiating faculty of the unions in our environment, nor is it rendering inoperative or without content—by administrative dispensation or non-application—the collective bargaining agreement signed in that institutional sphere, but rather the future adaptation of working conditions to the new prevailing circumstances that, by provision of the legislator, require conjunctural measures of reorganization and rationalization, for the containment and reduction of personnel expenses of the Public Administrations, demanded by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budgetary balance. Which makes said legal precept compatible in itself with the effectiveness of the agreed collective bargaining agreements." (The highlighted text does not correspond to the original).

Then, the PGR adds the following:

"The conventional rules agreed 'previously' may be affected in their effectiveness by a supervening rule with the rank of Law, which would have an undoubted prevailing character—due to strict subjection to the principle of normative hierarchy—over that one in matters of mandatory law and of absolute content thus regulated by the legislator. Thus imposing the preeminence of the supervening Law, and for the future, with respect to the collective agreement previously agreed.

A similar solution occurs in the case of collective bargaining agreements renegotiated and approved after December 4, 2018, as they must adapt in all their extremes to what is established in the cited Law No. 9635 and other regulations issued by the Executive Branch; this in accordance with Transitory Provision XXXVI of the cited Law." Regarding Art. 55, on the prohibition of generating new incentives via collective bargaining agreements, the PGR reported the following:

"Although we know that in resolution No. 2018-019511 of 9:45 p.m. on November 23, 2018, the Chamber indicated that the cited Article 55, insofar as it imposes the creation of incentives and compensations only through a formal law, is not unconstitutional, provided it is understood that it does not apply to public employees and workers who can enter into collective bargaining agreements, in accordance with the reform introduced by the Labor Procedural Reform, Law No. 9343, to Article 112, subsection 5) of the General Public Administration Law (LGAP), according to the inverse or contrario sensu determination that Articles 683 and 689 make of these, since in those provisions, it is rather defined who are those who participate in public management; thus enabling all other employees, except those listed therein, to conclude collective agreements. This is in order not to empty the right to enter into collective bargaining agreements and trade union action itself of their content.

Which leads us to reaffirm that, for the rest of the public officials who, because they participate in public management, do not have the right to enter into collective agreements and for whom trade union action can reasonably be limited or even prohibited (ILO Conventions 87, 98, 151, and 154; See OJ-035-2019, of May 17, 2019), that legal reserve is constitutionally feasible.

As we indicated in the original report of last March 18, within this file, in the judgment of this Attorney General's Office, the legislator is the one called to establish the incentives and the amount of the economic benefits granted to its employees; this as part of the so-called 'Civil Service Statute' (constitutional Art. 191), which is characterized by its determination, not by contract or collective agreements, but by objective rules, laws, or regulations, which, depending on their nature and hierarchy, can be unilaterally modified by the competent body. Hence it is properly affirmed that the official does not have a contractual relationship with the Administration, but a statutory one. An idea omnipresent even in our original constitutional framework of the public function, according to which: 'A civil service statute shall regulate the relations between the State and the public employees, for the purpose of guaranteeing the efficiency of the administration' (Art. 191).

(...)

Thus understood, that legal rule is not per se unconstitutional in the terms alleged, insofar as it is interpreted in its proper dimension, as the Chamber itself has dimensioned it, regarding its scope, in that advisory precedent." (The highlighted text does not correspond to the original).

Report of the Ministry of Finance Regarding the severance pay cap established in the legislation, the Minister suggests dismissing the objections raised and agrees with the PGR in the sense that it can be perfectly regulated by a law of the Republic. The report states the following:

"[T]he constituent limited itself to establishing the worker's right to receive that compensation when they have been dismissed without just cause, but did not establish the form, nor the specific guidelines for the payment of that compensation; that is, it did not define the way to calculate the quantum that must be granted for that concept; in that context, the ordinary legislator is the first called to regulate the conditions and limitations under which that compensation is paid, in accordance with the policy on the matter maintained at a specific socioeconomic moment, but must always respect the constitutional framework established in Article 63 of our Magna Carta. It is thus that Article 29 of the Labor Code contains a series of guidelines that regulate the granting of that compensation only in cases of dismissal without just cause. And although said provision has been subject to various changes especially referred to the salary percentages to be received per year worked (Art. 88 of the Worker Protection Law), the truth is that it maintains an apparent cap of eight years as an indemnification limit, which has been interpreted in our context as an improvable or surpassable legal minimum for the benefit of the worker.

However, in the Public Sector, although it has been admitted that the severance cap can be exceeded when there are specific and special rules—which may be collective bargaining agreements or autonomous service regulations—'that must inexorably apply until they are repealed, modified, or declared illegal or even unconstitutional' (OJ-116-2005, of August 8, 2005; OJ-072-2008, of August 22, 2008; OJ-018-2017, of February 15, 2017; C168-2012, of July 2, 2012 and C-146-2016, of June 24, 2016), we have been clear and emphatic in warning that its establishment by regulatory or conventional rule must inexorably respect what has until now been an unwritten rule (Arts. 7 of the LGAP and 13 of the Constitutional Jurisdiction Law) derived from constitutional jurisprudence, and according to which, the payment of severance cannot be unlimited, or rather, must have a reasonable cap (Opinions C168-2012 and C-146-2016 op. cit.)... ...In this regard, emphasis has been placed on the fact that, in the case of that scenario where one of the parties is a public institution, what is negotiated in a collective bargaining agreement regarding the severance cap must be subject to the principle of reasonableness. This is because public institutions have the duty to avoid agreeing on exceeding the severance cap in a way that implies an improper use of public funds, that affects the public services that the institution is called to provide, or that lacks any objective reason that allows the differentiation established in favor of that group of officials. (...)

Continuing, it is important to note that, as constitutional jurisprudence has pointed out, it is evident that those conventional provisions that provide for a severance payment without any cap, either because they do not establish a limit for the number of years to be recognized for the payment of the compensation, are unreasonable because they constitute an improper use of public funds. This is because said compensations would constitute a disproportionate burden on the public treasury that would eventually imply a detriment to the public services provided by the institution. (...)

From the reading of the considerations presented by the Attorney General's Office of the Republic, it is clearly evident that, unlike what was stated by the plaintiff, the right to severance pay is acquired only upon the termination of the employment relationship. The foregoing implies that as long as this does not occur, what the interested party has is an expectation of a right, which consequently does not prevail over legal provisions such as those added to the Salary Law, through Law No. 9635 and its reform. Based on the foregoing, it can be affirmed that the provisions of Articles 50, 54, 56, and 57 do not infringe Article 34 of the Magna Carta, as they do not disrespect acquired rights or consolidated legal situations." Regarding both the limitations on trade union freedom and the possibility of developing rights via collective bargaining agreements invoked by the plaintiff, the Minister of Finance also suggests dismissing the accumulated actions and, for this purpose, refers to reports of the PGR and precedents of the Constitutional Chamber. In this regard, she dictates the following passages:

"[O]ur Legal System merely recognizes the existence of collective bargaining agreements in the Public Sector and indicates the binding nature of what is agreed in them. But this does not imply attributing constitutional rank or the rank of law to the content of any agreement, but rather that this content must remain within administrative legality, since state laws are competent to establish the hierarchy of legal sources (Art. 6 of the LGAP), and the law applicable in this regard (Art. 57 of the current Labor Code) has provided that the collective agreement is subordinated to the Laws.

Judicial jurisprudence has been clear and consistent in recognizing and warning of the supremacy of the Law over the collective bargaining agreement, as something normal, insofar as the latter must be inserted into the general Legal Order in a descending order, so to speak; that is, subordinating itself to the former, which is the Law of state origin and of a compulsory nature (Resolution No. 2004-00335 of 9:40 a.m. on May 7, 2004, Second Chamber); by which it is meant that collective bargaining agreements are subject to and limited by public order laws (Resolution No. 1355-96 of 12:18 p.m. on March 22, 1996, Constitutional Chamber). Hence, the force of law is conferred upon them, insofar as the collective bargaining agreements have been agreed upon in accordance with the legislation (Resolution No. 783 of 3:21 p.m. on June 3, 2010, Second Chamber). From which a subordination of these to the legislative power of the State is derived, which produces a normative precept of public order, non-derogable in essence by simple private initiative—constitutional Art. 129—, such that a collective agreement cannot leave imperative rules without effect (Resolution No. 2007-000213 of 11:00 a.m. on March 30, 2007. And in a similar sense, among many others, Nos. 108 of 9:40 a.m. on March 12, 2003, 2015-000399 of 9:00 a.m. on April 14, 2015, 2016-000011 of 9:45 a.m. on January 8, 2016, and 2016-000075 of 9:45 a.m. on January 27, 2016, all from the Second Chamber. No. 94-2013-I of 1:00 p.m. on August 28, 2013, of the Contentious-Administrative Tribunal, First Section. No. 18485 of 6:02 p.m. on December 19, 2007, Constitutional Chamber). And this is so because, in Labor Law, the agreement can only decide on those aspects not regulated by public order rules or imperative rules dictated by the legislator when it is considered that there are fields of interest that warrant imposing the will of the State in the negotiation (Arts. 1, 11, 14 to 17 of the Labor Code); cases in which the principle of autonomy of the collective will does not apply in its full extent, because those imperative laws lead to establishing, between employer and worker, certain principles or rules that are incorporated into the legal relationship and prevail over the will of the parties (Resolution No. 100 of 10:40 a.m. on March 29, 1995, Second Chamber). All of which shows that the Law operates on a double channel: as an instrument that comes to configure another source of lower law: the statutory collective agreement; with the obligation to provide it with a material space so that it can be real, existing, and effective; and secondly, the Law as a concurrent source with the collective agreement, a proper source of law that can directly regulate the matter regulated by the statutory agreement or even reserve for itself certain matters that are, therefore, excluded from collective bargaining; which implies that the collective agreement must adapt to what is established by the Law. It is not possible, then, to allege the immutability or inalterability of the collective agreement against the Law, even if it is a supervening state rule, since by virtue of the principle of normative hierarchy, it is the collective agreement that must respect and submit to the Law, and not the contrary; especially when the indeclinable and permanent task of the legislator to configure, with public order character, the legal regime applicable to public officials and employees is at stake (constitutional Art. 191), including the regulatory framework in which the right to enter into collective bargaining agreements must be exercised, especially in the Public Sector; whether with normative provisions of different imperative configuration, as we explain; whether through imperative, dispositive, or dispositive rules that enable or do not enable the concurrence of collective autonomy; legislating in this regard is a general, permanent competence entirely available to the legislator, who can discretionally choose to maintain or not said regulations. So that, although collective agreements in the Public Sector have binding force between the parties that have signed them and constitute perhaps the most direct and specific rule that regulates the legal-labor relations existing between them, the truth is that from the formal and material point of view, in the system of sources of Law, it is always subject to the Law; which, as an undisputed source of law of a higher hierarchical rank than the other, has the permanent capacity to, among other matters, regulate labor conditions and, therefore, is automatically incorporated into the employment contract, and can even have, unlike the collective agreement, general effectiveness. Therefore, in case of conflict, the Law imposes its primacy over the collective bargaining agreement." For all these reasons, even though the principle of collective autonomy in regulating labor relations in the public sector is embedded in the rights of freedom of association and collective bargaining; the latter being understood –with some degree of conceptual narrowness– as the power of consensual regulation and ordering of labor relations as a whole that has been recognized for workers' representatives, with direct legal effectiveness – force of law, as a special norm – over individual contracts (arts. 54 and 55 of the Labor Code), the truth is that this binding force of collective agreements (convenios) does not make them immune to what is established in the Law, even if the latter is subsequent to them and alters their internal balance, since that right to collective bargaining and the binding force of agreements is in no way opposable to the general normative competence of the legislator, which is an expression of the popular will in democratic systems and which cannot remain defenseless or inactive in the face of social reality and the transformations it imposes, regardless of its impact on prior legal situations and the production of differentiated treatments over time (arts. 105 and 121 of the Constitution). Thus, the collective agreement must conform to what is provided in the Laws. And consequently, there is no right whatsoever for what is established in the collective agreement to remain unchanged and be immune to what is established in a subsequent law until the moment it expires; the existence of collective agreements can in no way prevent the effects provided by the laws from taking place on the date established by them; this would be equivalent to contradicting the mandate of constitutional article 129, developed in arts. 7 and 8 of the Civil Code… The foregoing confirms that the prevalence of the law in our constitutional system is, therefore, solidly and unequivocally established in the sphere of public employment (art. 191 of the Constitution). And consequently, we can only affirm the primacy of rank of the normative provisions contained in Law No. 9635 over collective agreements and any other products of collective bargaining, as well as the inexorable subjection of the latter to the provisions of the former as mandatory and absolutely imperative law5. And we must be clear and forceful in pointing out that the legal modification effected by Law No. 9635 does not seek the denial, much less the suppression, of collective bargaining and its effective exercise as a bargaining faculty of unions in our environment, nor is it rendering inoperative or without content –by administrative waiver or non-application– the collective agreement signed in that institutional sphere, but rather the future adaptation of working conditions to the new prevailing circumstances that, by provision of the legislator, require conjunctural measures of reorganization and rationalization, for the containment and reduction of personnel expenses of the Public Administrations, demanded by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budgetary balance. Which makes said legal precept compatible per se with the effectiveness of the agreed collective agreements." Subsequently, the minister refers to what was resolved in the advisory opinion on this bill and directs to the report rendered by the PGR in the action of unconstitutionality promoted by the union of the National Bank.

Allegations of the coadjuvants Active coadjuvants The general secretary of SIBANPO, Miguel Ernesto Carranza Díaz, expressed support for the petitioner's thesis.

The general secretary of SITUN, regarding the payment of the severance assistance (auxilio de cesantía), states that the reform contained in law No. 9635 did not consider the latest reform to the Workers' Protection Law which stipulated the right of severance assistance (auxilio de cesantía) as an effective right for workers without being subject to a limit of years, as provided in art. 8 of law No. 7983, therefore, in his view, the norm contained in art. 3 of law No. 9635 which added art. 39 of law No. 2166 and the Transitorio XXVII challenged here, would also be contrary to art. 7 of the Political Constitution, because the ILO conventions are higher authority over the ordinary laws of Costa Rica in which it has been established that collective bargaining, labor relations in the public administration, and the right to unionization are acquired rights, and he recalls that convention 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of voluntary negotiation procedures between employers and employers' and workers' organizations with the object of regulating, through collective contracts, the conditions of employment. He indicates that the allegations raised in the action of unconstitutionality in relation to the severance assistance (auxilio de cesantía) are fully applicable to the workers of the National University where, by way of a collective agreement, the severance pay (cesantía) limit has been fifteen years and this remains in force in the recently extended IV Collective Labor Agreement UNA-SITUN, with a progressive and staggered increase up to twenty years as the maximum limit, its full application taking effect from the year 2017.

The general secretary of UNEBANCO stated that the cut of the severance assistance (auxilio de cesantía) to a maximum amount of eight years is incompatible with the evolution that the development of that right has had in Costa Rica and violates the principle of progressivity of fundamental rights, substantive due process, collective bargaining, and is openly discriminatory against unions. He refers that the questioned norms, instead of developing and strengthening the severance assistance (auxilio de cesantía), as is proper, impair that right and instead of promoting the maximum effectiveness of that right, they impose a regressive regulation, incompatible with the principle of progressivity. They violate reasonableness and proportionality because the eight-year regression lacks any foundation and that legal limit (tope ex lege) has no equivalence or proportional relationship with the average career or work seniority of public servants.

The general secretary of UPINS says that collective agreements have the force of law allowing both the institution and the unions to have the legal certainty that what was agreed upon will be fulfilled, and therefore, the challenged norms cannot limit nor tacitly derogate the rights contained in a norm of a collective agreement without distorting its nature. The challenged norms are unconstitutional because they also contravene the provisions of arts. 188 and 189 of the Constitution, according to which, autonomous institutions ‒such as INS‒, have administrative independence and are only subject to the law in matters of governance, so it is unconstitutional for law No. 9635 to attempt to regulate and limit its administrative independence, which undermines its autonomy.

The representative of UNDECA states that the challenged art. 39 and Transitorio XXVII are unconstitutional, firstly, because of the limit imposed on the severance assistance (auxilio de cesantía) for a maximum of eight years, which is totally incompatible with the evolution that the development of that right has had in Costa Rica and which implies a violation of the principle of progressivity of fundamental rights, substantive due process, the right to collective bargaining, and for being discriminatory against unions. He concludes that, in relation to Transitorio XXXI, its second paragraph violates the principle of collective bargaining because it imposes the obligation that agreements be submitted not only to provisions of this law, but also to any other regulation of the Executive Branch.

Passive coadjuvants The president of the Asociación Cámara de Industrias de Costa Rica reiterated that collective agreements are only applicable to public enterprises and to the economic services of the State that are governed by private law; therefore, the challenged regulations are applicable to all public servants since the signing of collective agreements in the state sphere is prohibited, so the legislator can modify the maximum payment amount of the severance assistance (auxilio de cesantía) of public servants without incurring a violation of the freedom to enter into collective agreements.

The representatives of UCCAEP set forth that the Sala has been reiterative in its jurisprudence that the relationship between public servants and the State is of a statutory nature, so it is not possible to obtain benefits from collective agreements signed in the state sphere since that prerogative is only limited to public enterprises and the economic services of the State.

Resolution of the Constitutional Chamber Preliminarily As previously warned, many of the allegations of action No. 19-004931-0007-CO filed by ANEP must be dismissed because they refer to municipal autonomy or that of decentralized entities, and it has already been established and defined that the standing (legitimación) of the petitioners ‒based on a corporate theme and the defense of the rights of the members of the union corporation‒ is not sufficient to question aspects relating to institutional autonomies. In the same vein, the allegation of the alleged injury to the regulatory power of the minor entities and the alleged injury to the principle of legality must be rejected.

Secondly, it was previously clarified that all arguments related to potential antinomies or discussions about the prevalence of certain norms such as collective agreements or internal labor statutes must be dismissed. Such reproaches refer to analyses of ordinary legality that are the responsibility of the competent instances. It is not for this Chamber, in a constitutional review process, to examine particular situations of prevalence of supposed acquired rights in the light of another particular legal framework. It is reiterated that everything related to the analysis of eventual antinomies or the resolution of specific cases must be raised and resolved in the ordinary instances of legality.

Finally, many of the allegations raised by the petitioners and coadjuvants must be referred to what was stated in the preceding recital (considerando) regarding the issue of severance pay (cesantía) and the supposed acquired rights to a severance pay amount exceeding the limit established in the LFFP based on the precedents of this jurisdiction (maximum of twelve years).

What was ruled by this Court in advisory opinions No. 2018-019511 and No. 2021-017098 In advisory opinion No. 2018-019511, the Chamber referred to several doubts of constitutionality raised in relation to art. 55 of the LSAP added by virtue of Title III of the LFFP. On that occasion, the consultants questioned whether the norm in question affected the right to collective bargaining contemplated in article 62 of the Political Constitution and art. 690 subsections h), j) and m) of the Labor Code. Additionally, the consultants raised an alleged clash with art. 4 of Convention No. 98 on the Right to Organise and Collective Bargaining of the ILO, which calls for adopting measures appropriate to national conditions to stimulate and promote the full development and utilization of voluntary negotiation procedures, with the object of regulating, through collective contracts, the conditions of employment.

Similarly, the consultants raised doubts of constitutionality regarding the provisions of Transitorio XXXVI of the LFPP (in the bill it appeared identified as Transitorio L), which is the article establishing the obligation of the heads of public entities to denounce (denunciar) collective agreements when these reach their expiration period. Likewise, that norm warns that if it is decided to renegotiate the agreement, it must be adapted in all its aspects to what is established in that law and other regulations issued by the Executive Branch. In this regard, the legislators warned that such obligation possibly limited the right to renegotiation or automatic extension under the conditions stipulated in the Labor Code.

When developing the issue, the Chamber first referred to the constitutional origins of the concept of collective bargaining, for which the following considerations were made:

"Collective agreements (Convenciones Colectivas) indeed have support in article 62 of the Political Constitution. The antecedents of this article are found in the incorporation, in July 1943, of the Chapter on Social Guarantees into the Political Constitution of 1871 - which was in force at the time - whose most important legislative development is the Labor Code. With this, the Costa Rican State is transformed into a true Social State of Law.

Subsequently, in the National Constituent Assembly of 1949, in Act No. 122, article 2, a motion was presented so that article 57 of the Political Constitution of 1871, which contained what relates to collective labor agreements and was the text that served as the basis for the current Magna Carta, would read as follows:

'Regarding article 57 of the 1871 Constitution, the Social Democratic faction presented a motion for it to read as follows:

"Collective labor agreements that, in accordance with the law, are concluded between employers and legally organized workers shall have the force of law." [62] The previous motion, when put to a vote, was approved.' Later, in Act No. 171, article 2, the following modification was made:

'Deputy MONGE ALVAREZ presented a motion, which was approved, to add the concept "or employers' unions (sindicatos de patronos)" to article 63. Article 63 was approved and will read:

Article 63.- "Collective labor agreements that, in accordance with the law, are concluded between employers or employers' unions (sindicatos de patronos) and legally organized workers' unions shall have the force of law."' This text of the original constitutional regulation is what remains to date. With this, the Original Constituent guarantees not only that validly concluded collective agreements have the force of law, but also clearly establishes the right to the free conclusion of this type of collective bargaining –since 'concluding' (concertar) has the sense of free agreement or pact of wills– which implies that it is not possible to mandatorily impose collective bargaining, nor impose its denunciation. Furthermore, this guarantee is part of freedom of association. It must be kept in mind that collective bargaining is a process of dialogue and rapprochement between employers and workers that, eventually, can lead to an agreement on certain working or labor conditions. Thus, the parties must be completely free to negotiate a collective agreement, renegotiate it, or denounce it.

In this regard, it should not be lost sight of that the referred article 62 of the Political Constitution is part of Title V of the Constitution (Social Rights and Guarantees), whose article 74 indicates the following:

"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 as indicated by law; they shall be equally applicable to all concurrent factors in the production process, and regulated in a social and labor legislation, in order to pursue a permanent policy of national solidarity." The content and scope of the right to collective bargaining must be understood, consequently, in harmony with the aforementioned constitutional article 74, and also with the conventions of the International Labour Organization (OIT) No. 87, concerning freedom of association and the protection of the right to organize (approved by Law No. 2561 of May 11, 1960), No. 98, concerning the application of the principles of the right to organize and collective bargaining (approved by Law No. 2561 of May 11, 1960), No. 135, concerning the protection and facilities to be granted to workers' representatives in the undertaking, (approved by Law No. 5968 of November 9, 1976), and No. 151, concerning labor relations in the public administration (not yet ratified by Costa Rica)." Subsequently, this Chamber, echoing its own precedents, delimited the scope of the possibility of conducting collective bargaining in the public sector. In this regard, the Chamber stated the following:

"On the other hand, the issue of collective agreements in the public sector has been recurrent in the pronouncements of this Court. In Judgment No. 2006-17441 of 19:39 hours on November 29, 2006, this Court ruled in this regard, in the following terms:

'The possibility of collective bargaining for workers who do not participate in the public management of the Administration, the employees of State enterprises or economic services, tasked with management subject to common (private) Law, has been repeatedly recognized by this Chamber starting from judgment number 03053-94, a criterion that is reiterated or ratified later in judgments 2000-07730 and 2000-04453. It is admitted as a general theory of Collective Labor Law, that it is mainly composed of a trilogy of rights aimed at making reality and providing a solution to the need of workers to group together to compensate for the real inferiority they find themselves in when acting isolated, before the employer and before the generic regulation of their rights in the Labor Code; these are the right to unionization, collective bargaining, and the effective resolution of collective conflicts. There are two regimes in labor matters: one regulated by the Labor Code and the other by Public Law norms. This Chamber has therefore recognized that the relationship between the State and public servants, as a matter of principle, is a public or statutory employment relationship; in other words, the servant under the public employment regime finds himself in a relationship with the Administration in a state of subjection; the latter can unilaterally impose the conditions of the organization and provision of the service to guarantee the public good. This conclusion implies that collective bargaining cannot be tolerated in the public sector, in accordance with articles 191 and 192 of the Constitution. Finally, in judgment number 1696-92 of this Chamber, the unconstitutionality of the mechanisms of direct arrangement, conciliation, and arbitration for officials performing public management was declared, but recognizing that it is valid that public workers, laborers, or employees who do not participate in the public management of the Administration can enter into collective labor agreements, such that entities with an employment regime of a labor nature (not public), such as, for example, State enterprises, can indeed bargain collectively in accordance with the provisions that inform Collective Labor Law.' Based on the recognition of a public employment regime, the jurisprudence of this Constitutional Court has been consistent regarding the conditions under which it is possible to apply article 62 to State workers and regarding the content of the negotiation." Once the above was established, the Chamber reiterated that collective bargaining is a fundamental right that is provided for the benefit of working people for the purpose of improving labor and wage conditions:

"From the foregoing jurisprudential citations, it is deduced that collective agreements not only have the force of law but also a minimum intangible core for the legislator, among which is the improvement of minimum labor and, therefore, also wage conditions. The foregoing is based on the Christian principles of social justice and solidarity, which, as indicated, are contained in article 74 of the Political Constitution. (...) the right to collective bargaining stems from the possibility of a free and voluntary negotiation; and also from a minimum or essential core, which is the possibility of negotiating better socio-economic conditions for workers." (The emphasis does not correspond to the original).

Later on, the Chamber also pointed out that the possibility of entering into collective agreements falls within the scope of freedom of association and the correlative union action. On this subject, the following was said:

"Hence, that as an essential part of freedom of association -and its counterpart union action- is the right of workers to collective bargaining, as an instrument for the improvement of their socio-economic conditions, through incentives, compensations, or salary pluses. This falls within the four rights that freedom of association encompasses: a) freedom to form trade union organizations; b) freedom of joining a trade union organization; c) freedom to cease belonging to a trade union organization; and d) freedom of the member to participate democratically within the union; to which must be added the right of every trade union organization to operate freely in relation to the State and in relation to society, considered as a whole, always within the respective legal framework." Subsequently, the Chamber referred to the limits of collective bargaining. In this regard, it cannot be ignored that although it is a fundamental right, the constitutional text itself provides that these negotiations must be concluded "in accordance with the law." To the above must be added that this Chamber, through its jurisprudence, has limited that collective agreements must also be subject to the values and principles emanating from the Constitution itself. However, the limitations imposed on the possibility of entering into collective agreements and their content must also be limited and respect the Law of the Constitution, since it is also not lawful to empty the fundamental right under analysis of content. For this reason, the Chamber made the following statement:

"[S]aid capacity for negotiation cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, through law, of the minimum core of that right. The legal restrictions imposed on the right to collective bargaining must be in conformity with the Political Constitution and the International Instruments relating to the matter." (The emphasis does not correspond to the original).

Specifically, regarding the limits, the Chamber reviewed its precedents to reach these conclusions:

"[T]he Chamber has indicated that the laws, regulations, or governmental directives in force must be respected, as well as the legal competencies of public entities, assigned based on the normative hierarchy or on the special conditions of the Public Administration in relation to its workers.

Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected in the interest of the citizen's right to the sound management of public funds, derived from article 11 of the Constitution (see Judgment No. 2017-013443 of 9:15 am, August 25, 2017).

It must also be understood that the faculty of negotiation is subject to legal and constitutional controls, in consideration of the principles of reasonableness, proportionality, and good use and management of public funds." (The emphasis does not correspond to the original).

To these effects, the Chamber relied on its jurisprudential lines that make these reflections:

"[B]ecause these are decisions that entail financial consequences charged to the Public Treasury, it is clear that clauses such as those now challenged can be subject to review not only regarding compliance with the procedures for their creation but even regarding their adaptation to substantive constitutional norms and principles. The obligations contracted by public institutions and their employees can be subject to an analysis of reasonableness, economy, and efficiency, whether to prevent that through a collective agreement the rights of the workers themselves are limited or injured or to prevent an abusive use of public funds." (The Chamber cited judgment No. 2006-17441 on that occasion, but it is a criterion sustained in subsequent resolutions, for example, see judgments numbers 2013-007931, 2019-017398, 2020-012800, 2021-018421, 2022-016287 and 2023-010798, among others).

That is to say, collective agreements must be subject to certain limits so that the negotiation conforms to the Political Constitution, constitutional principles, and the legal norms regulating the matter. However, this Court has been emphatic that the limitations cannot be of such magnitude as to render the fundamental right nugatory. For this reason, the Chamber made these reflections:

"[I]t must be insisted, the fact that these controls exist cannot lead to emptying the minimum core of the right to collective bargaining, nor to forcing its denunciation. And, therefore, it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally possible, only through a formal law, emanating from the Legislative Branch, can incentives or compensations, or salary pluses be created, as this, according to what has been stated, would empty the core of that right and, therefore, would violate the principle of freedom of association, which has been developed by this Chamber through its jurisprudence." (The emphasis does not correspond to the original).

Based on all the above premises, the Chamber concluded that it is contrary to the Law of the Constitution ‒specifically to freedom of association and the right to collective bargaining‒ for the legislator to prevent that the aspects related to salary components can be agreed upon within a collective bargaining process and only remain reserved to formal law. In which case, the Chamber determined that art. 55 should not be perceived as unconstitutional, under the understanding that it does not apply to those public sector workers who can indeed enter into collective labor agreements, all of which must be subject to the corresponding constitutional and legal controls in consideration of the principles of reasonableness, proportionality, and the good use and management of public funds. In the operative part of the advisory opinion, the following was recorded:

"H) Concerning article 3 of Title III 'Modification to the Public Administration Salaries Law' of the bill adding article 55 of Chapter VII 'General Provisions', the consultation is resolved in the sense that it is not unconstitutional, provided it is understood that this provision does not apply to Public Sector employees who can validly enter into collective agreements in accordance with the Constitution and the law; in the latter case, without prejudice to the controls of legality and constitutionality over the result of the negotiation, in consideration of the principles of reasonableness, proportionality, and the good use and management of public funds. Justice Rueda Leal gives different reasons regarding this point, since he considers that article 62 of the Constitution, by referring to the law, and in order to guarantee the sound management of public funds, empowers the legislator to regulate the creation of incentives, compensations, or salary pluses through law, provided that through this means the right to collective bargaining is not emptied of its content." (The emphasis does not correspond to the original).

Regarding the constitutionality of the Transitorio, the Chamber considered that the mandatory nature of the denunciation (denuncia) is contrary to the principle of free and voluntary negotiation. For these purposes, this Court relied on ILO criteria which state the following:

"[T]he International Labour Organization (OIT), in Report No. 344, of March 2007, Case No. 2460, paragraph 990, expressed:

'990. As regards the court's ruling in the Atkins case, according to which the legal prohibition of collective bargaining is acceptable under the United States Constitution because it contains no provision – including the right of free association, enshrined in the First Amendment – that obliges a party to conclude a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith for the maintenance of a harmonious development of professional relations, wishes to point out that the voluntary negotiation of collective agreements and, therefore, the autonomy of the social partners in bargaining, constitutes a fundamental aspect of the principles of freedom of association.'" For collective bargaining to be effective, it must be voluntary in nature and does not imply recourse to coercive measures that would alter the voluntary nature of said bargaining. No provision of Article 4 of Convention No. 98 obliges a government to coercively impose a system of collective bargaining on a specific organization, governmental intervention that would clearly alter the nature of such bargaining [see Digest, op. cit., paragraphs 925-927 and 934]. Therefore, while a legal provision that forced a party to conclude a contract with another would be contrary to the principle of free and voluntary bargaining, provisions such as paragraphs 95-98 of the NCGS, which prohibit public authorities and public employees, including those who do not participate in the administration of the state, from concluding an agreement, even if they wish to do so, are equally contrary to that principle.'.” (The highlighting does not correspond to the original).

For the foregoing, the Chamber concluded that “a legal provision that forced a party to conclude a collective agreement with another would be contrary to the principle of free and voluntary bargaining.” Therefore, the Chamber concluded with the following reflection:

“Likewise, in relation to Transitory Provision L of the bill under review, it must be interpreted that each head of public entities has the power to denounce or not the respective collective agreement, in accordance with the current legal system.” The considerations made were taken up again in advisory opinion No. 2021-017098, concerning the analysis of the constitutionality of the LMEP. In that resolution, the Chamber conducted an analysis of the background:

“2) Jurisprudential Background on the Fundamental Right to Collective Bargaining The trilogy of fundamental rights derived from Collective Labor Law are: the right to unionize, the right to collective bargaining, and the right to effective resolution of collective disputes (see judgment No. 2006-03002 of 10:40 a.m. on March 9, 2006). These rights seek to realize and provide a solution to the need of workers to group together to compensate for the real inferiority in which they find themselves when acting in isolation, vis-à-vis the employer and the generic regulation of their rights in the Labor Code. Specifically, regarding collective agreements, Article 62 of the Political Constitution provides for their constitutional recognition, their character as having the force of law, and the need for such agreements to conform to what the law provides. Indeed, this constitutional provision states that:

“Article 62. Collective labor agreements that, in accordance with the law, are concluded between employers or unions of employers and legally organized unions of workers shall have the force of law.” The location of the provision in the Chapter on Social Rights and Guarantees of the Political Constitution and its content indicate that what is sought to be guaranteed is the right to “collective labor bargaining.” On this matter, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, this Court highlighted the three aspects derived from this provision, namely: a) the recognition of collective bargaining as a constitutional right; b) that the bargained agreements thus concluded have the character of having the force of law; and c) that such agreements must be agreed upon as provided by law. All of which is, moreover, ratified by the Inter-American Court of Human Rights, through Advisory Opinion OC-27/21 of May 5, 2021, when it indicates the following:

“94. In consideration of the aforementioned, and by way of a corollary, the Court considers it pertinent to point out that the right to collective bargaining, as an essential part of freedom of association, is composed of various elements, which include, as a minimum: a) the principle of non-discrimination of the worker in the exercise of union activity, since the guarantee of equality is a prerequisite for bargaining between employers and workers; b) the direct or indirect non-interference of employers in workers' unions in the stages of formation, functioning, and administration, since it can produce imbalances in bargaining that violate the objective of workers to improve their living and working conditions through collective bargaining and other lawful means; and c) the progressive encouragement of voluntary bargaining processes between employers and workers, which allow for the improvement of employment conditions through collective contracts.” Specifically regarding the right to collective bargaining in the public sector, first, judgment No. 1696-92 of 3:30 p.m. on August 23, 1992, can be cited, where the Chamber declared the unconstitutionality of the mechanisms of direct settlement (arreglo directo), conciliation, and arbitration for officials who carry out public management (gestión pública), but recognized that it is valid for workers or employees who do not participate in the public management (gestión pública) of the Administration to enter into collective labor agreements, such that entities with an employment regime of a labor nature (not public), such as, for example, State enterprises, can indeed bargain collectively. A criterion that is reiterated in several subsequent judgments (see No. 2000-07730 and No. 2000-04453). Later, in judgment No. 2020-008396 of 9:20 a.m. on May 6, 2020, this Court resolved the following regarding collective agreements in the public sector, ratifying that they are permitted only in the case of workers who do not perform public management (gestión pública):

“V.- On collective bargaining in the public sector.- As emerges from the jurisprudence of this Chamber, as a principle thesis, the employment relationship established between the State (including Municipalities) and its workers is governed by Public Law —and not the Labor Code—, a relationship that has been termed public or statutory employment. Now, it is said that in principle thesis the State's workers are subject to a public employment regime because an exception has been made, namely, workers who do not participate in public management (gestión pública), being workers of state enterprises. Thus, it has been established that workers who do not participate in public management (gestión pública), being subject to common law, may resort to the procedures for resolving collective disputes of an economic and social nature provided for in the Labor Code (resolution No. 94-3053) and to arbitration under certain limitations (resolution No. 92-1696); and may enter into collective agreements (resolution No. 00-4453), although also under certain limitations. Thus, the possibility of bargaining collectively for workers who do not participate in the public management (gestión pública) of the Administration (employees of companies or economic services of the State, in charge of activities subject to common law), has been repeatedly recognized by this Chamber starting from judgment number 03053-94, a criterion it subsequently reiterates or ratifies in judgments 2000-07730 and 2000-04453. The rest of the State's employees, who therefore do participate in public management (gestión pública) (these being in general, not only institutional heads and legal and financial control bodies as the Union representative says, but all those workers who exercise public competences), can neither resolve their collective labor disputes through arbitration (resolution No. 92-1696), nor can they enter into collective agreements (resolution No. 00-4453), it being unconstitutional to enter into collective agreements entered into in the public sector when dealing with personnel governed by a statutory relationship. Which implies that collective bargaining in the public sector cannot be tolerated, in accordance with Articles 191 and 192 of the Constitution. In conclusion, collective agreements are not entirely prohibited in the public sector, but rather are permitted only in the case of workers who do not perform public management (gestión pública), that is, those covered under Articles 3, 111, and 112 of the General Law of Public Administration. The determination in each specific case of which workers are covered by said provisions being a matter outside this constitutional jurisdiction and corresponding to legal operators.” (judgment No. 2013-14499) IV.- On the challenged regulations. (…) it must be reiterated that there is no absolute prohibition on entering into collective agreements in the public sector or that these are per se unconstitutional, since, as already indicated, there is a group of public-sector employees who can validly enter into collective agreements in accordance with the Constitution, specifically, it is “constitutionally possible to apply the institution of collective agreements…. in the so-called companies or economic services of the State and in those personnel nuclei of public institutions and entities in which the nature of the services provided does not participate in public management (gestión pública)” (vote No. 2000-004453. The highlighting does not correspond to the original). In this way, with respect to the collective agreements challenged in this action, these are constitutionally valid as far as the aforementioned personnel nuclei who work or provide their services for the entities or institutions in question are concerned. However, as already indicated in the partially transcribed precedent, it corresponds:

“(…) to each Public Administration to define which are those officials covered by the collective agreement or with the possibility of negotiating or agreeing on this type of collective agreement, all in accordance with the criteria of the Public Administration, or that of the Courts of Justice, depending on the corresponding decision.” (vote No. 2015-7221)”.

Regarding the content of collective labor bargaining, the Chamber has referred to the so-called normative clauses (which regulate the interaction arising from the provision of the worker's service and the payment of salaries or remuneration by the employer), configuration clauses (which specify the personal, temporal, and spatial scope of the agreement and among which the employer's disciplinary power and the exercise of his right to organization and management are included), and obligatory clauses (which create rights and obligations between the parties and which primarily have to do with social peace and the duty to execute the agreement, such as the creation of labor relations boards, installation of training centers), in the following terms:

“Within the specialty of the matter, the parties may only validly agree on what they can legally fulfill, due to the contractual nature of the collective agreement and as a principle thesis, it is admitted that its scope is the working conditions or labor conditions, without this purpose being able to be extended to regulate extra-labor matters. In other words, the collective agreement has as its purpose to regulate, on the one hand, the conditions to which individual employment relationships must be subject, or what is the same, the so-called normative clauses, which regulate the interaction arising from the provision of the worker's service and the payment of salaries or remuneration by the employer, as stated by the majority of Labor Law doctrine, and this leads to the conclusion that everything that could be the subject of an individual employment contract can be the subject of a collective agreement; also, within this content, the so-called configuration clauses can be the object of collective bargaining, which are those that specify the personal, temporal, and spatial scope of the agreement and among which are included those that limit or set procedures for the exercise of the employer's rights, especially regarding the disciplinary power and the exercise of his right to organization and management. Secondly, the obligatory clauses, which are those that create rights and obligations between the parties and which primarily have to do with social peace and the duty to execute the agreement, such as the creation of labor relations boards, the institution of employer benefits destined for social works within the labor community, installation of training centers, among others. In summary, we will say that collective agreements, by constitutional provision, have as their immediate purpose the revision, inter partes and with the character of law, of the minimum content of the legal benefits that govern employment relations, all with the aim of improving or surpassing that essential minimum.” (see judgment No. 2007-18485 of 6:02 p.m. on December 19, 2007).

On this same topic, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, the Chamber considered that a greater right than that recognized by law can be recognized:

“Likewise, it is also not admissible to argue that through collective bargaining, greater rights can be recognized for the parties, which is certainly the case, but it must be pointed out that it concerns greater concessions regarding validly and legitimately recognized rights, which is not the case for limiting the free bargaining of any of the parties involved. In other words, a collective agreement may recognize a greater right than that recognized by law, but it cannot limit it. And, in any case, that greater recognition, in accordance with what was said in the previous recital (considerando), must likewise be subject to the Law of the Constitution, to thus achieve the legal harmony on which a legal system depends.” (the highlighting is not from the original).

For its part, in judgment No. 2008-003935 of 2:48 p.m. on March 12, 2008, the Chamber indicated that Public Administration entities may grant certain incentives or benefits to their workers, which will be constitutionally valid only when they are supported by objective reasons that also translate into better provision of the public service. In this regard, it indicated:

“In other words, this Chamber has not questioned that any Public Administration entity may recognize certain incentives or benefits for its workers, since this may constitute a suitable measure to remunerate a special requirement of the job position, which implies certain professional qualifications or skills for those who perform it, or to compensate for a particular risk that characterizes the performance of such functions, be it a material risk (for example, physically dangerous work) or one of a legal nature (for example, work susceptible to generating civil liability).” Now, while the right to collective bargaining in the public sector is recognized, through which rights or benefits may be granted or recognized more broadly than what is legally predefined, there are also limits to such bargaining, inasmuch as they must be reconciled with the exercise of the legal competences of public entities, and respect the limitations necessary to harmonize public spending with budgetary availability and the sound management of public funds. On this matter, the Chamber has referred to the limits of collective bargaining, such as the constitutional principles of reasonableness, proportionality, economy, and efficiency, and the law:

“It has also been indicated that without any detriment to the fact that collective bargaining is a right recognized constitutionally and by international instruments of the International Labour Organization, the truth is that its content is also subordinated to constitutional norms and principles, insofar as the decisions taken therein, in many cases, imply consequences for public finances. Within this context, its adoption and validity are not solely subject to the mere verification of the adoption procedure, but also to an analysis of substance, to the extent that its content must conform to constitutional norms and principles because public funds are involved. In this way, the obligations agreed upon by public institutions with their employees, as occurs in this type of bargaining, may be the object of an analysis of reasonableness, economy, and efficiency, with the aim of avoiding that through a collective agreement, the rights of the workers themselves are disproportionately limited or harmed, or to prevent an abusive use of public funds” (see judgment No. 2021-009580 of 9:15 a.m. on May 12, 2021).

It is of particular interest to mention judgment No. 2018-19511, not only because it compiles relevant constitutional jurisprudence on the matter, but because it ratifies that the right to collective bargaining starts from free and voluntary bargaining; and, furthermore, from a minimum or essential content, which is the possibility of bargaining for better socioeconomic conditions for workers. The Chamber stated that (…)

Likewise, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, it was indicated as relevant:

“Under this understanding, a provision in that sense would be not only contrary to the principle of free bargaining but clearly would also be antagonistic to the principles of reasonableness and proportionality.

It is in this sense that in the same judgment 2018-19511, the Chamber stated that:

“[E]ach head of public entities has the power to denounce or not the respective collective agreement, in accordance with the current legal system.” -emphasis added- Thus, if the provision now being challenged indicates, as it indeed does, that both parties to the Collective Labor Agreement of the National University commit not to unilaterally denounce said Agreement, a duty is being imposed on both parties, not only on the University but also on the union, that contradicts the constitutional provision on collective bargaining, by preventing both from the free exercise of bargaining to which they are entitled within a framework of reasonableness and proportionality, and on the plaintiff party, by forcing it to be unable to validate, together with the union, situations related to the proper use of public funds.

In this sense, the action must be granted, because the aforementioned phrase of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to the Law of the Constitution, in the terms stated.

-Conclusion. - Ultimately, since the first part of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to the Law of the Constitution, the corresponding action is to grant this unconstitutionality action, annulling as unconstitutional the phrase “The parties commit not to unilaterally denounce this Agreement.” Derived from the constitutional recognition of the right to collective bargaining in the public sector, as well as from the constitutional limits indicated above, the competence of this jurisdiction to exercise control over the content and scope of collective labor agreements is verified. Thus, in judgment No. 2020-024200 of 12:11 p.m. on December 16, 2020, the Court highlighted that there are no zones of immunity or public actions that escape constitutional submission, even in the case of public enterprises, in the following terms:

III.- COLLECTIVE LABOR AGREEMENTS IN RELATION TO THE CONSTITUTIONALITY PARAMETER. This Constitutional Court has established solid jurisprudence to the effect that there is a need to subject collective labor agreements to the constitutionality control exercised by this Chamber. From judgment No. 2006-17441 onwards, it was considered that whatever the normative rank recognized for this type of instruments, it is clear that they are subordinated to constitutional norms and principles. It is for this reason that, despite the constitutional recognition of the right to collective bargaining and its development in various international instruments, there are no zones of “constitutional immunity” in the Costa Rican legal system, that is, public actions that escape submission to the principle of constitutional regularity. Based on this, the Chamber has been consistent in that although they have a constitutional origin, specific collective agreements can indeed be subjected to an assessment of their constitutional conformity, including in the case of public enterprises. Likewise, emphasis has been placed on the fact that the obligations undertaken by public institutions and their employees may be subject to an analysis of reasonableness, economy, and efficiency, either to prevent the rights of the workers themselves from being limited or harmed through a collective agreement, or to prevent an abusive use of public funds (see, among others, judgments 2019-008679, 2019-009222, 2019-016791, and 2019-017398).” From the extensive jurisprudential compendium alluded to, it can be concluded that the right to collective bargaining is a constitutional right recognized in Article 62 of our fundamental charter that has as its immediate purpose the revision, inter partes and with the character of law, of the minimum content of the legal benefits that govern employment relations, all with the aim of improving or surpassing that essential minimum. This Chamber has recognized that collective bargaining in the public sector can only be admitted for those workers who do not perform public management (gestión pública), the employees of companies or economic services of the State, and those in charge of activities subject to common law. Regarding the content of collective bargaining in the public sector, it has been indicated that the parties may only validly agree on what they can legally fulfill, due to the contractual nature of the collective agreement and it is admitted that its scope is the working conditions or labor conditions, without this purpose being able to be extended to regulate extra-labor matters. In this way, everything that could be the subject of an individual employment contract can be the object of a collective agreement (that is, those that regulate the interaction arising from the provision of the worker's service and the payment of salaries or remuneration by the employer), as well as the provisions that limit or set procedures for the exercise of the employer's rights, especially regarding the disciplinary power and the exercise of his right to organization and management, and the provisions that create rights and obligations between the parties and that primarily have to do with social peace and the duty to execute the agreement, such as the creation of labor relations boards. It is not about recognizing other rights different from those validly and legitimately recognized, but about seeking greater concessions on those validly and legally recognized rights, hence a collective agreement may recognize a greater right than that recognized by law, but it cannot limit it. In this sense, the possibility of recognizing salary incentives or supplemental wages (sobresueldos) has been admitted, as instruments to incentivize greater quality, permanence, efficiency in service, loyalty, and suitability; hence, it would be contrary to the Law of the Constitution, specifically to freedom of association and the right to collective bargaining, for the legislator to prevent these extremes from being agreed upon within a collective bargaining process and to have them only reserved for formal law. Thus, the Public Administration may grant certain incentives or benefits to its workers, when these are supported by objective reasons that seek a better provision of the public service. There is “a constitutional doctrine of collective agreements in the public sector (indispensable in the absence of a formal law regulating them), which can be summarized as follows: all rights, benefits, and advancements in the legal minimums (arising from social legislation of the mid-last century) contemplated in a collective labor bargaining process must be based on objective reasons that seek a better provision of the public service, while signifying joint and solidary social progress for public servants and the Administration, respectful of an adequate and reasonable management of public funds.” And that “collective agreements not only have the force of law, but also a minimum content that is intangible for the legislator, among which is the improvement of minimum labor conditions and, therefore, also salary conditions. The foregoing is based on the Christian principles of social justice and solidarity, which, as indicated, are contained in Article 74 of the Political Constitution…” (judgment No. 2012-08891 of 4:02 p.m. on June 27, 2012). As public entities that manage public funds are involved, its content is also subordinated to constitutional norms and principles. In this way, the validity of collective bargaining in the public sector is not solely subject to the mere verification of the adoption procedure but also to a substantive analysis of legality and constitutionality controls, in light of the principles of reasonableness, proportionality, and proper use and management of public funds, the foregoing with the aim of preventing, through a collective agreement, the rights of the workers themselves from being disproportionately limited or harmed, or to prevent an abusive use of public funds from being made. In the Public Administration, the authorization to bargain collectively cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since the laws, regulations, or governmental directives in force must be respected, as well as the legal competences of the public entities, attributed based on the normative hierarchy or the special conditions of the Public Administration in relation to its workers. In this way, the obligations undertaken by public institutions and their employees may be subject to an analysis of reasonableness, economy, and efficiency, either to prevent the rights of the workers themselves from being limited or harmed through a collective agreement, or to prevent an abusive use of public funds from being made. The right to collective bargaining is subject to the jurisdictional control of the Chamber, since as indicated, it is subordinated to constitutional norms and principles.” (The highlighting does not correspond to the original).

Based on what has been said by the Chamber, in the sub lite case it must be reiterated that Art. 55 (legal reserve in the creation of salary incentives and compensations) —and, therefore, all the provisions related to the questioned bonuses (pluses), namely Arts. 39 (severance pay (auxilio de cesantía)), 50 (longevity incentive (incentivo por anualidades)), 54 (incentives transferred to fixed nominal amounts), and Transitory Provision XXVII (recognition of the severance pay (auxilio de cesantía) covered and respected by the current collective agreements)— must be understood as constitutional, since the legislator can perfectly establish the general regulations for relationships subject to the public employment regime. The foregoing, under the understanding that the restriction on bargaining for certain salary improvements does not apply to Public Sector employees who may validly enter into collective agreements in accordance with the Constitution and the law. This Court was emphatic and warned that, for those persons who legitimately can participate in a collective bargaining process, their fundamental right to bargain for certain salary benefits cannot be emptied of content —within the margins of the Constitution and the law, as well as financial possibilities, reasonableness, proportionality, and the constitutional principles emanating from the jurisprudence of this Chamber—. Due to its importance, what has been said by this Court is reiterated, to the effect that it is contrary to the very essence of collective bargaining that, even in those sectors where this is constitutionally and legally possible, only through a formal law emanating from the Legislative Power can incentives or compensations, or salary bonuses (pluses salariales) be created, since said absolute limitation would empty that right of content and, therefore, would violate the principle of freedom of association, which are fundamental rights recognized by our Political Constitution.

In a second order of ideas, following what was established in the advisory opinion, this Chamber must declare the unconstitutionality of what is provided in Transitory Provision XXXVI, paragraph 1 of the LFFP, since said numeral sets aside the free and voluntary nature of collective bargaining and, quite to the contrary, establishes the obligation for all heads of public entities to denounce the collective agreements, once the expiration date arrives.

The interpretation proposed by the Chamber in the advisory opinion is incompatible with the express text of the rule adopted by the Legislative Assembly. Therefore, it is necessary to declare the unconstitutionality of the provision contained therein, in the sense of subjecting the heads of institutions to the obligation to denounce collective bargaining agreements (convenciones colectivas) to the detriment of the fundamental rights examined herein.

Regarding the alleged injury to the principle of equality by distinguishing with respect to solidarist associations (asociaciones solidaristas) With respect to the right to collective bargaining, the possibility of negotiating higher severance pay caps, and union rights, both the plaintiffs and active coadjuvants allege a supposed injury to the principle of equality. They challenge unequal and unjustified treatment to the detriment of unions, given that through the Worker Protection Law (Ley de Protección al Trabajador), the payment of severance pay without a limit of years was established, while in the case of unions there is no such possibility, generating a disparity of conditions regarding these organizations and injuring Article 7 of the Political Constitution by disregarding international instruments that recognize the right to voluntary bargaining.

In this regard, the PGR explained that it is not possible to compare unions with solidarist associations, as they are very different figures with very different characteristics, and recalls, for example, that solidarist associations have not been recognized as having the right to collective bargaining or to strike, without this implying alleged discrimination.

In this Chamber's opinion, the allegations merely raised and not developed are insufficient to examine a supposed injury to the Law of the Constitution, because the characteristics of both organizations are not detailed in order to distinguish where the unconstitutional differences lie, nor is it explained in what manner Article 7 of the Political Constitution is injured. However, given that what is challenged relates to the payment of severance pay negotiated through collective bargaining agreements, it is necessary to revisit and recall the considerations made by this Chamber in judgment No. 2018-008882, in which this Chamber reconsidered the constitutionality of severance payments exceeding twelve years and, furthermore, highlighted the existing differences with other forms of labor organization. In this regard, the following arguments were made:

"XX.- Apparently, the first of the arguments (the link of the benefit to the employee's seniority) would seem to be scarcely debatable, insofar as conventional clauses in general and the one collected in the Bancrédito Collective Bargaining Agreement establish a benefit that recognizes the payment of severance assistance (auxilio de cesantía) to the favored workers, hand in hand with their seniority in the service of the institution and, therefore, directly proportional to it. The problem that the majority of the Chamber finds here—and which does not seem to have been specifically addressed previously—arises when the magnitude of the benefit is contrasted, not only internally within the group of employees favored by the Agreement, as was done in the cited judgments, but when the magnitude of that severance assistance payment is analyzed within the complete universe of public servants in a broad sense; this extension of the comparative framework is justified insofar as for all employees in the service of state institutions, the source of financing for that severance assistance payment is one and the same: the taxes and public prices paid by all the people who inhabit the Republic. And it does not matter that, both in this case and in many others, it involves state companies acting in a competitive market and administering funds from consumers, savers, and borrowers, since, insofar as such institutions belong to the State and have its backing, their financial health and practices can be—and are in fact—extremely relevant to public finances, as clearly demonstrated by the well-known current condition of Bancrédito and the estimates that have been made about the impact its closure will have on the national budget.

Thus, it must be affirmed that the provisions of an economic nature agreed upon by the administrators of public institutions when they bargain collectively with their workers cannot evade the necessary coherence and proportionality in relation to what constitutes the general framework of economic benefits that the State (in its broad concept) has been recognizing over time in favor of its workers, nor can the financial possibilities of the entities in general be ignored, nor the way in which these provisions will impact state expenses and economic obligations, given that such commitments determine and are simultaneously determined by the different economic variables and situations and directly affect the general economic situation of the country.

In adopting this approach, the majority of the Chamber verifies the existence of a very wide gap between the severance assistance payment applicable to the vast majority of public servants, whose cap is 8 years, and the payment that the workers of Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements will receive, who, in identical circumstances, could receive a direct disbursement in their favor of up to 20 months of salary for the same severance assistance. This is a difference of one hundred fifty percent (150%), which from the perspective of the majority of those who make up this Chamber, is abysmal and, therefore, should have clear and incontestable arguments to justify it, but rather lacks them and becomes disproportionate and unsustainable in such a magnitude.

It must be remembered, on the one hand, that this Chamber, in tune with the development of fundamental rights linked to the labor environment, has exercised its constitutional review function in this matter with great restraint, understanding that the fundamental nature of the right to collective bargaining—one of the fundamental pillars of the right to work—has as its legitimate purpose the improvement of workers' labor conditions, and this necessarily entails the generation of differentiations and disparities that are in no way unjust or illogical in themselves, and even less can be labeled unconstitutional for the mere fact of benefiting a group of people who have achieved such demands through the instrument of collective bargaining. But the foregoing cannot completely deactivate the need for the improvements to which the State commits to be proportionate and reasonable, not only with respect to the condition in which other state workers not protected by collective bargaining agreements remain, but also with respect to the burden that society must bear to cover such sums. Thus, a difference of 150 percent (that is, a difference halfway between double and triple the normal sums) between what may correspond to some public servants above all others for the same concept is located far beyond what can be understood as proportionate and acceptable as a legitimate demand in the condition of state workers.

On the other hand, and in relation to this same issue of disproportion in this particular form of disposition of sums from the state treasury, it must be pointed out that another reason for considering this 20-year cap disproportionate is that said expense has the characteristic of being a mere transfer of funds from the public coffers directly to the worker's assets, without such transfer being nuanced by options for economic improvement or advantages for third parties or for the country's economy as a whole. This last alternative, in which resources from different sources, including state sources, are pooled to finance, among other economic improvements, those related to the payment of severance assistance, is what characterizes the so-called savings and retirement funds, solidarist associations, and even the figures under the Worker Protection Law, which—for this very reason—can be clearly distinguished from the figure of the simple increase in the severance assistance payment cap analyzed here. For the Court, those figures encompass mechanisms for improvement in the condition of workers, but they do so through the use of much more sophisticated wealth redistribution mechanisms and with a more moderate participation of the public coffers. Furthermore, it must be pointed out that many of the Savings Funds and, of course, all Solidarist Associations and the advantages of the Worker Protection Law have passed legislative scrutiny and approval, which grants them—from the outset—much greater legitimacy compared to the financial commitments acquired by the State that affect the community. For all the foregoing, the adjustment to the principles of proportionality and reasonableness of state resources delivered to workers under the shelter of these recently mentioned legal figures cannot be judged by the same measure as simple breaches of the cap for severance assistance payments, which are nothing more than mere transfers, as explained, and which therefore require much stricter scrutiny, a scrutiny that is not overcome when we are faced with a cap of 20 months of salary." (The emphasis does not correspond to the original). See in identical sense judgments No. 2020-11168, 2020-24200, 2019-8679, 2019-9222, 2021-15419, 2023-012086, among many others.

In accordance with the foregoing, it is observed that this Chamber expressly distinguished between the mere transfer of funds for severance pay and those forms of organization in which, with the workers' contributions, capitalization funds are constituted for better performance of the amounts collected.

Likewise, for several years now, this Court has been reiterating that solidarist associations and unions differ substantially, and therefore it would be valid for the legislator to establish differentiated regulations:

"Solidarist associations are clearly distinguished from the other two types of forms of social organization with express constitutional mention: Unions and Cooperatives. They differ substantially from the former, insofar as, according to the provisions of Article 339 of the Labor Code, Law No. 2 of August 23, 1943, a '(...) Union is any permanent association of workers or employers or persons of an independent profession or trade, constituted exclusively for the study, improvement, and protection of their respective common economic and social interests (...)'. Union prerogatives are special, guaranteed by international conventions (Nos. 87 and 98 of the International Labor Organization) and irreplaceable in matters of collective bargaining (...)

Despite being different forms of organization with goals of social advancement, truly, each has its own nature translated into its form of integration and separate fields of action, which necessarily caused the legislator to issue independent regulation for each of them, as well as prohibitions of interference, expressed in Article 8 of the Solidarist Associations Law, No. 6970 of November 7, 1984. In a truly democratic society, these three forms of social organization must exist fully." (Advisory opinion No. 2010-009927). See likewise judgment No. 2023-014796.

In light of the preceding considerations, it is not observed that, from the merely generic and declarative arguments made by the plaintiffs and active coadjuvants, an injury to the invoked principles of equality or to Article 7 of the Political Constitution is verified. Regarding the latter, it is not even explained in what manner it would be being injured. In which case, these objections must be dismissed.

Regarding the constitutionality of Transitory Provision XXXVI, second paragraph As has been pointed out, in general terms, the plaintiff parties challenged the unreasonable limitations on collective bargaining and the possibility of arranging salary improvements through said instrument. Additionally, it is observed that plaintiffs and coadjuvants challenged the provisions of Transitory Provision XXXVI, second paragraph of the LFFP. It is alleged that the right to collective bargaining is injured because through a transitory rule—but with a vocation for permanent and definitive effects—it is established that if a collective bargaining agreement is decided to be renegotiated, it must be adapted in all its aspects to what is established in the law and "other regulations issued by the Executive Branch." It is debated that "the door is left open" for the Executive Branch to be able to establish any content to those regulations. Thus, it is alleged that collective bargaining agreements must now not only submit to legal provisions but also to any other regulation of the Executive Branch.

As we just recently mentioned, in the advisory opinion rendered through resolution No. 2018-19511, the Chamber extensively referred to the right to collective bargaining—which is not unrestricted—, to collective bargaining agreements in the public sector, and, specifically, to the limits and control of the content of collective bargaining agreements. For the resolution of this point, it is important to emphasize the following:

"2.4.- On the limits and control of the content of collective bargaining agreements: It is clear that said bargaining capacity cannot be unrestricted, as this Chamber has said on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must be in accordance with the Political Constitution and the International Instruments relating to the matter.

In this sense, what was decided by this Chamber in Judgment No. 2000-004453 at 2:56 p.m. on May 24, 2000, must be understood, in which it was stated:

'Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector in which the application of the institution of collective bargaining agreements is constitutionally possible, that is to say, in the so-called state enterprises or economic services and in those personnel nuclei of public institutions and entities in which the nature of the services provided do not participate in public management, in the terms of subsection 2 of Article 112 of the General Law of Public Administration, the Chamber repeats and confirms its jurisprudence in the sense that the authorization to bargain cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since by that route, current laws, regulations, or governmental directives cannot be dispensed with or excepted, nor can laws that grant or regulate competencies of public entities, attributed by reason of normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion that is inferred from Article 112, subsection 3) of the General Law of Public Administration and from considered statement XI of judgment No. 1696-92 of this Chamber.' (See in the same sense judgments No. 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261, and 2006-17436). (...)

Thus, with respect to public sector agreements, the Chamber has pointed out that current laws, regulations, or governmental directives must be respected, as well as the legal competencies of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected for the sake of the citizen's right to the sound management of public funds, derived from numeral 11 of the Constitution (see Judgment No. 2017-013443 at 9:15 a.m. on August 25, 2017).

It must also be understood that the bargaining faculty is subject to legality and constitutionality controls, in accordance with the principles of reasonableness, proportionality, and good use and management of public funds." (The emphasis does not correspond to the original).

Echoing said considerations, this Chamber examined the legitimacy of the Policy Commission for the Negotiation of Collective Bargaining Agreements in the Public Sector (Comisión de Políticas para la Negociación de Convenciones Colectivas en el Sector Público). This through judgment No. 2021-005668, in which it was concluded that the challenged regulations are not unconstitutional as long as it is interpreted that the guidelines issued by said Commission—Article 3, subsections b) and c) of the Regulation for the operation of the Policy Commission for the Negotiation of Collective Bargaining Agreements in the Public Sector, No. 41553-MTSS, of November 30, 2018—are not binding. Of importance for the sub lite, it is worth noting that this Court was emphatic that "since the employer entity is a public authority and it concerns the disposition of public funds, these negotiations must be delimited and based on constitutional principles (reasonableness, proportionality, continuity of public services), as well as on legal and regulatory provisions that make what is agreed upon by the parties coincide with the principle of legality." In fact, if the Labor Code is examined in detail, it can easily be concluded that within the parameters of regularity are not only the laws but also the provisions of the Executive Branch that are legitimately issued. Article 690 of the Labor Code states the following:

"Article 690.- With the limitations to which reference will be made, the following matters may be subject to resolution in said form:

• a)Union rights and guarantees, both for the leaders of the organizations and for the unions themselves as legal entities of indefinite duration. These rights and guarantees include those of assembly, facilities for the use of premises, leave for leaders with and without pay, facilities for the dissemination of activities, as well as any other contained in Recommendation Number 143 of the International Labor Organization or in the specific recommendations of the Committee on Freedom of Association of the latter organization. It is understood that the application of the guarantees mentioned herein must not seriously or imprudently alter the efficient functioning or the continuity of the essential services of each institution or department.
• b)Everything related to the application, interpretation, and regulation of current collective law norms.
• c)The disciplinary regime, provided that no express or tacit waiver is made, nor delegation of the legal or regulatory powers granted in this matter to the heads of the institutions or departments.
• d)The regulation and oversight of the regimes of entry, promotion, and professional career, without prejudice to what is established by the legal and regulatory norms existing in each institution or department, which shall be of mandatory observance.
• e)The internal elaboration of descriptive job manuals and the application of internal procedures for the assignment, reassignment, reclassification, and restructuring of positions, within the limits established by the general directives of the Executive Branch, the norms of the Civil Service Statute and its regulation, or other statutory norms. It is understood that any decision adopted in this field that does not expressly contravene the provisions of the general directives of the Executive Branch may in no case be objected to by the external control authorities or by the Budgetary Authority.
• f)Safety and hygiene and occupational health measures, as well as precautionary measures in case of natural disasters. Union organizations and the heads of each institution or department may create bipartite and parity bodies for the purposes of determining the needs of the latter and of their workers in the field of occupational safety and health.
• g)The procedures and policies for the allocation of scholarships and work incentives.
• h)The establishment of salary incentives for productivity, provided that they are agreed upon within the framework of the policies that the boards of directors of each entity or the Executive Branch itself have previously designed regarding their general objectives and public spending limits.
• i)Matters related to salaries and the allocation, calculation, and payment of all types of salary bonuses, such as exclusive dedication, availability, travel, zoning, hazardous duty, and any other economic claim, provided that it does not contravene any prohibitive legal or regulatory provision or the consistency of the salary structures, and subject to what is established in Article 695.
• j)The creation and operation of bipartite and parity bodies, provided that no competencies or attributions of public law, corresponding to the heads of each institution, defined by law or regulation, are delegated to any of them.
• k)The right of workers and their organizations to have timely and truthful information on the projects or decisions of the collegiate bodies and managements of each institution or department, when they directly affect them or may represent a public interest.
• l)The right of workers' organizations and their leaders to have their requests addressed and responded to in the shortest possible time by the heads of each institution or department, with the sole exception of requests that are openly impertinent or unnecessary.
• m)Other supplementary matters, benefits, or incentives of labor collective bargaining that, in accordance with the law, do not exceed the competence of the administrative bodies.

(Thus added by Article 2 of Law No. 9343 of January 25, 2016, 'Labor Procedural Reform'.)" (The emphasis does not correspond to the original).

More forcefully, Article 692 of the Labor Code, regarding negotiations in the public sector, provides the following:

"Article 692.- Likewise, it is absolutely prohibited to dispense with or except current laws or regulations, duly promulgated, by means of the resolution mechanisms.

It is understood that when it concerns expenditures that affect the national budget or that of a particular institution or company, the decisions issued by the hierarchies and the arbitral bodies must be subject not only to the restrictions resulting from this regulation but also to the constitutional norms regarding the approval of public budgets, which, if disrespected, will entail the absolute nullity of what is provided." (The emphasis does not correspond to the original).

Additionally, Article 695 orders the following:

"Article 695.- The agreements and accords adopted in a collective bargaining process of any type, with servants under a public employment regime, shall be subject, for their validity and effectiveness, to the approval of the hierarchical body of the institution or company with the competence to bind it, after verification of the limits and validity requirements.

The respective act must be issued within the month following the agreement.

The non-approval of the agreement by the Administration does not constitute an infraction punishable through repressive channels.

In the case of norms that, by their nature or their impact on the principle of budgetary legality, require legislative or regulatory approval, their effectiveness shall be conditioned upon inclusion in the budget law or in the respective regulations, as well as upon approval by the Comptroller General of the Republic, when it affects the budgets of institutions whose ordinary and extraordinary budgets or budgetary modifications require approval from this latter entity. In any case, the agreements reached through the Salary Negotiating Commission of the Public Sector shall be binding on the parties, and for this purpose, the administrations shall issue the necessary administrative acts to make them effective throughout the centralized and decentralized public sector." In this way, it is observed that when authorizing collective bargaining in public employment, reasonable limitations were included in accordance with legal and regulatory provisions, since it is reiterated that the authorization to bargain cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, because by that route, general laws, regulations, or current governmental directives cannot be dispensed with or excepted. This responds, naturally, to the principle of legality that prevails throughout the Public Administration (Article 11 of the Political Constitution), in concordance with the mandate that a civil service statute will regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the administration (Article 192 of the Political Constitution), and with the principles of budgetary coverage and balance derived from the provisions of Article 176 of our Constitution, according to which:

"Article 176- Public management shall be conducted in a sustainable, transparent, and responsible manner, which shall be based on a multi-year budgeting framework, in pursuit of the continuity of the services it provides.

The ordinary budget of the Republic comprises all probable income and all authorized expenses of the Public Administration, during the entire economic year. In no case may the amount of budgeted expenses exceed that of probable income.

The Public Administration, in a broad sense, shall observe the foregoing rules when issuing its budgets.

The budget of the Republic shall be issued for a term of one year, from the first of January to the thirty-first of December." (The emphasis does not correspond to the original).

Based on the considerations made, it must be reviewed that in the sphere of the public function, the legislator itself left a space to allow collective bargaining and, within that framework, to aspire to salary improvements, as the contrary would be to empty the content of a fundamental right enshrined in the Political Constitution. However, the possibility of negotiation must be nuanced in the public sector, since the bargaining capacity has a limited scope, as it cannot be compared to the bargaining capacity of a private employer, and, furthermore, the negotiation must occur within the mentioned constitutional margins. Among the cited margins is precisely the principle of legality, which derives even from Article 62 of the Political Constitution itself. Within that framework of legality, provisions of a regulatory rank can be included, as even the Labor Code foresees. Thus, the challenged norm is not unconstitutional by itself. That is, the provision that at the time of renegotiating collective bargaining agreements, their content must be adapted to the provisions of the Executive Branch is not unconstitutional because it is a norm reflecting what is regulated in the Labor Code and the principle of legality.

Now, this general determination by the Chamber does not prevent the subsequent submission to constitutional review of the provisions issued by the Executive Branch for the purpose of regulating this matter. Note that what is being challenged here is the norm that requires the subjection of renegotiations to the law or to the regulations issued by the Executive Branch. However, no specific provision has been challenged or enumerated that would allow a particularized review to determine a presumed injury to the fundamental right to collective bargaining, in which case the grievance raised must be dismissed.

Conclusions

Based on the considerations made, it must be concluded that the objections raised against the challenged norms—namely, Articles 39, 50, 54, 55 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP, in the sense that the fundamental right to collective bargaining is injured and no space is left for matters related to salary bonuses to be eventually improved through said bargaining—must be dismissed under the understanding that they be interpreted in the terms explained. In the advisory opinion regarding this regulation, it was already established that public servants are subject to a statutory relationship that regulates most issues related to salary aspects, and in such cases, the legislator has sufficient legitimacy so that, within the margins of reasonableness and proportionality, it can regulate what corresponds to salary incentives and establish rules for their recognition and payment.

However, there is a space where certain Public Administration workers can validly exercise union action through collective bargaining and, in such cases, the restriction established in Article 55 of the LSAP would not be applicable, since the contrary would be equivalent to admitting an emptying of the fundamental right enshrined in Article 62 of the Political Constitution. Consequently, Article 55 ‒and, therefore, all provisions related to the questioned bonuses, namely, Articles 39, 50, 54 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP‒ must be deemed constitutional under the understanding that the restriction on bargaining does not apply to Public Sector employees who may validly enter into collective bargaining agreements in accordance with the Constitution and the law. All the foregoing, without prejudice to legality and constitutionality controls over the outcome of the negotiation, in consideration of the constitutional principles of reasonableness, proportionality, and the good use and management of public funds.

Finally, the unconstitutionality of the provision contained in Transitory Provision XXXVI, paragraph 1 of the LFFP is declared, since said article sets aside the free and voluntary nature of collective bargaining and, quite to the contrary, establishes the obligation for all heads of public entities to denounce collective bargaining agreements once their expiration date arrives. Regarding the second paragraph of said transitory provision, the action must be declared without merit.

Judge Cruz Castro partially dissents and declares Articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.

Judge Cruz Castro sets forth additional reasons regarding Transitory Provision XXXI.

Grievances of Action No. 19-004931-0007-CO In the ruling that admitted the unconstitutionality action and consolidated it with this proceeding, it was established that the rules subject to challenge and admissible for these purposes are Articles 28, paragraphs 2 and 4; 30; 31, subsection 1); 32; 33; 35; 36; 39; 40; 46; 47; 48; 52; 53; 54; 55; 57, subsections f), g), h), i), m), n), o), and p), added to Law No. 2166; Title IV of the LFFP No. 9635 of December 5, 2018; Articles 23, 24, 25; and Articles 1, subsection a); 3; 4; 7; 9; 14; 15; 16; 17; 21; and 22 of Executive Decree No. 41564-MIDEPLAN-H, the latter by connection.

GRIEVANCES THAT PRIMA FACIE MUST BE DISMISSED XVI.- Article 3 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 Regarding Public Employment The claimant challenged Article 26 added to the LSAP and Article 3 of Regulation No. 41564-MIDEPLAN-H for infringing the principle of municipal autonomy and Articles 11, 169, 170, and 188 of the Political Constitution. All the allegations revolve around the alleged injury to the autonomy of autonomous corporations to set their own salary policies.

In this regard, it must be noted that these allegations related to municipal autonomy and the possibility of autonomous entities setting their own salary policies were dismissed in interlocutory judgment No. 2019-010635 of June 12, 2019. Consequently, the matter concerning Article 26 was dismissed by this Chamber:

"II.- ON THE PARTIAL INADMISSIBILITY OF THE ACTION. Based on the foregoing, the action is not admissible in relation to the violation of the principle of autonomy and, therefore, is rejected outright regarding Article 26 of Law No. 2166 and Articles 5 and 11 of Law No. 9635. Additionally, the alleged violation of this principle is rejected outright in relation to Articles 28, paragraphs 2 and 4; 40; 46; 47; 48; 50; 52; 53; 54; and 55 of Law No. 2166; 17, 23, 24, and 25 of Law No. 9635; and 1, subsection 1°; 6; 15; 16; 17; 21; 22 of Executive Decree No. 41564-MIDEPLAN-H. Finally, the violation of Articles 169, 170, 188, and 189 of the Political Constitution is rejected outright regarding Articles 26 and 55 of Law No. 2166 and Articles 5, 11, and 17 of Law No. 9635." There remains, however, the supposed challenge to Article 3 of the regulation of Title III of the LFFP, Law No. 9635 Regarding Public Employment, Decree No. 41564-MIDEPLAN-H. Said provision was included in interlocutory judgment No. 2019-010635 as an admissible rule subject to the action, even though Article 26 of Law No. 2166 was rejected outright and matters relating to municipal autonomy, as well as the autonomy of decentralized entities, were also rejected outright in that ruling. Likewise, it is observed that it was included as a rule challenged for study in the ruling expanding the proceeding.

However, this Tribunal, upon better consideration, must dismiss this aspect of the action. In the first place, its inclusion in the filing brief was made together with Article 26, a grievance already rejected by this Chamber because the claimant lacks standing to assume the representation of autonomous institutions. The regulatory provision challenged by the claimant precisely refers to the scope of application of the rule, and no additional concrete or specific allegation was made regarding this article; rather, it is framed under the alleged infringement of the referred autonomy, which, as noted, must be dismissed.

Consequently, due to a lack of specific substantiation and because the claimant's standing regarding an alleged infringement of the principle of autonomy was rejected, the declared – but undeveloped – unconstitutionality of Article 3 of the regulation of Title III of the LFFP, Law No. 9635 Regarding Public Employment, Decree No. 41564-MIDEPLAN-H, must likewise be dismissed.

XVII.- Articles 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 Regarding Public Employment Due to a material error in interlocutory judgment No. 2019-010635, Articles 4, 9, and 14 of the regulation were included as rules admissible for study in the "object of the action" (see Considerando IV).

However, upon careful review of the brief in which the claimant responded to the prevention issued by the Presidency of this Chamber, such articles were not included as challenged, nor were concrete arguments made regarding their unconstitutionality. By virtue of the foregoing, said provisions were not included in the ruling expanding the proceeding for the unconstitutionality action.

Therefore, as they were not expressly challenged by the claimant and there is no concrete and substantiated allegation against them, the Chamber must dismiss the action against Articles 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP.

XVIII.- ON THE FISCAL RESPONSIBILITY RULES. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC Challenged Rules The claimant challenges Articles 15, 23, 24, and 25 of Title IV on Fiscal Responsibility of the LFFP, No. 9635. In the claimant's opinion, Articles 7, 11, and 50 of the Constitution and the principle of progressivity of fundamental rights are infringed by granting the Executive Branch the power to vary specific allocations (destinos específicos) in a clear deviation of power that would affect institutional goals and neglect fundamental rights. The challenged rules are as follows:

"Article 15- Specific allocations. If the Central Government's debt exceeds fifty percent (50%) of the nominal GDP, the Ministry of Finance may budget and disburse legal specific allocations considering the availability of current revenues, the levels of budget execution, and the free surplus (superávit libre) of the beneficiary entities.

Article 23- Criteria for budget allocation. The National Budget Directorate shall allocate budgetary transfers according to the following criteria:

• a)Government priorities, according to the National Development Plan.
• b)Commitments established in the multi-year programming.
• c)The social purpose of the beneficiary institution in providing public services of collective benefit, such as education boards, development associations, and associations administering community aqueduct and sewer systems.
• d)Compliance with institutional objectives and goals.
• e)Budget execution for the three periods prior to the budget formulation year.
• f)Accumulated resources from prior fiscal years in the State's single treasury account.
• g)Availability of financial resources.
• h)Variations in the consumer price index.
• i)The effective fulfillment of the rights intended to be financed and the principle of progressivity of human rights.
• j)Other criteria used by the National Budget Directorate in the exercise of its constitutional powers.

Article 24- Budget allocation. The National Budget Directorate shall perform the budget allocation of transfers using the criteria from the previous article. Said allocation may not be less than the current budget at the time of approval of this law; including the specific allocations established for the regional campuses of public universities repealed in this law.

(Thus amended by the sole article of Law No. 9732 of November 19, 2019) Article 25- Administrative management of specific allocations. In the case of specific allocations that are not expressly provided for in the Political Constitution, or whose financing does not come from a special revenue created to exclusively finance the social service, the Ministry of Finance shall determine the amount to be budgeted, according to the state of public finances for the respective budget period and the criteria set forth in Article 23 of this law." The original version of Article 24 provided the following:

"Article 24- Budget allocation. The National Budget Directorate shall perform the budget allocation of transfers using the criteria from the previous article. Said allocation may not be less than the current budget at the time of approval of this law." Allegations of the Claimant The claimant argues that Article 15 injures Articles 7, 11, 50, and 74 of the Political Constitution and the principle of progressivity of fundamental rights.

Specifically, regarding Article 15, the claimant states that the Constitutional Chamber has recognized the State's obligation to respect the amounts of specific allocations established by legal rule, especially when these are aimed at financing social welfare programs, serving vulnerable populations, or fulfilling fundamental rights in general. Granting the Executive Branch the power to vary these amounts or allocations constitutes a clear deviation of power and a serious violation of fundamental rights that the State must guarantee. The Ministry of Finance's omission to disburse special funds in such an open-ended manner, without the rule making any exception, is irrational and violates the Law of the Constitution. It is not possible for the State to cease meeting its obligations due to a fiscal crisis.

In relation to Articles 23, 24, and 25 of Law No. 9635, the claimant states that these violate the principle of progressivity of human rights, according to which "as the level of development of a State improves, the level of commitment to guarantee rights improves." Article 23, the source of unconstitutionality invoked for the three rules, contains a list of criteria for the Costa Rican State's budget allocation. The budget allocation places the protection of rights and their progressivity in ninth position, behind even the availability of financial resources, compliance with institutional goals, and the priorities of the government of the day. The order of state priorities set forth in this law will allow any public law institution to invoke a lack of budget in order not to finance the human rights the State is obliged to protect, or allow the State to establish budgets neglecting or minimizing the fulfillment of human rights.

Articles 24 and 25 are closely related to Article 23, in the understanding that the National Budget Directorate must use those criteria to budget transfers to State institutions. PGR Report For the PGR, the allegations raised by the claimant are entirely unfounded. Firstly, the PGR refers to the legitimacy of the fiscal rule – a figure that, as such, is not challenged in this unconstitutionality action – to analyze the legitimacy of the State adapting to certain fiscal rules derived from the constitutional norms themselves. The PGR states the following:

"Reiterating the considerations we have made in various reports before this Chamber (case files No. 19-0011540-0007-CO and 19-013318-0007-CO), the establishment of fiscal rules by Western States has become a popular vehicle for imposing a certain fiscal discipline, in the face of problems of fiscal deficit and increasing public debt, particularly since the economic crisis that ravaged the world's most developed economies about a decade ago and whose aftermath is still being felt. In the case of the European Union member states – following the American example – the path taken has been to elevate these rules to the highest legal rank, incorporating, through constitutional reform, a series of mechanisms limiting fiscal and budgetary power that go beyond budgetary stability per se, to the point that some authors have termed it the 'constitutionalization of the economic crisis.' In this way, the intervention of the Federal Government or central Administration is legitimized – as guarantor of the State's overall economic stability – imposing budgetary limits on the various subnational territorial organizations endowed with political and financial autonomy and, therefore, free to prepare their own budgets (as in the case of federated States, Autonomous Communities, and local Governments), insofar as budgetary policy is conceived as an instrument of general economic policy, the ordering of which is attributed to the State.

The need to maintain a certain balance between public revenues and expenditures, which sums up the principle of budgetary stability, finds a response in our legal system in the first paragraph of Article 176 of the Political Constitution. (…)

From the foregoing provision, the jurisprudence of this Chamber has extracted the foundation of the constitutional principle of financial or budgetary equilibrium, recently reaffirmed in the well-known ruling No. 2018-19511, of 9:45 p.m. on November 23, 2018, and which the legislator defined in Article 5, subsection c), of the Ley de la Administración Financiera de la República y Presupuestos Públicos, in the following terms:

'c) Principle of budgetary equilibrium. The budget must reflect the equilibrium among revenues, expenditures, and sources of financing.

We are, then, facing a constitutional mandate that, as such, binds all public powers and which therefore, in its principal sense, lies outside the availability or competence of the State and other public entities, regardless of their degree of autonomy.'" Following that generic reference to the fiscal rule, the PGR explains that the LFFP entails a paradigm shift regarding the regulation of specific allocations and the establishment of a floor for the budgeting of public resources. The PGR cites its own administrative jurisprudence to state the following:

"'The Republic's budget has been affected by the creation of specific allocations through ordinary laws, which hinder the programming and allocation of budgetary resources according to public needs, economic and social development priorities, and the availability of resources available, thus making it difficult for the Executive to allocate resources and decide on their execution.

The Ley de Fortalecimiento de las Finanzas Públicas produces a substantial modification to the relationship between ordinary law and budget law from two points of view: Firstly, repealing certain specific allocations created by law. Secondly, because it authorizes the Budget Law to affect spending obligations established by ordinary law, so that they are adjusted according to the country's fiscal conditions, to achieve the objective of budgetary equilibrium.

Thus, the Executive Branch, when drafting the budget bill, and the Legislative Assembly, when approving it, may adjust the resource allocations to which it is bound by virtue of laws creating specific allocations, according to fiscal conditions. There is a shift from strict adherence to the percentages and sums established by the legislator to a possibility of evaluating the financial resources available to give content to the spending obligation established by law, as well as other public policy imperatives, in order to, where appropriate, budget an amount lower than what would correspond in application of that law creating the obligation.

We emphasize, various provisions of the Law determine that, under certain conditions, the Budget Law will not include, or once approved, the Ministry of Finance will not disburse, the budgetary transfers or specific allocations originating from ordinary laws that are in force. This implies that the budget allocation will not be determined by the ordinary law creating the allocation; in other words, the beneficiary entity of the allocation will not see the resources provided by the ordinary law secured.

This possibility is even considered a provision of Fiscal Responsibility. Indeed, Chapter III of the Law establishes the provisions on Fiscal Responsibility, including the following among them:

'ARTICLE 15- Specific allocations. If the Central Government's debt exceeds fifty percent (50%) of the nominal GDP, the Ministry of Finance may budget and disburse legal specific allocations considering the availability of current revenues, the levels of budget execution, and the free surplus of the beneficiary entities.' In that scenario, the budgeting of specific allocations would depend on the availability of revenues, the levels of budget execution, and, where applicable, the existence of a free surplus." (Opinion C-099-2019, of April 5, 2019. Opinion C-292-2019, of October 8, 2019, in a similar vein)." The PGR explained that a previous opinion – OJ-064-2019, of June 12, 2019 – addressed the provision in the challenged Article 15:

"'Although the inquiring party develops the potential application of Article 15 of Title IV 'Fiscal Responsibility of the Republic' as an argument for the unconstitutionality of subsection c) of article 31, prima facie no contradiction of that article with our Fundamental Charter is observed. On this point, the Deputies argue that Article 15 allows the Ministry of Finance to budget (in the budget formulation process) amounts lower than those indicated in legal specific allocations (such as the legal specific allocation of article 24 of the bill itself) and, even if already budgeted, to disburse (in the execution process) amounts lower than those indicated in the Budget Law; however, this article constitutes a manifestation of the constitutional principle of Budgetary Equilibrium, therefore, a priori, no incompatibility is evident in its wording.'" Subsequently, the PGR extensively cites Opinion C-099-2019, to reach the following conclusions:

"'Hence, contrary to what is alleged, the Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 of December 3, 2018, as a legitimate manifestation of the constitutional principle of Budgetary Equilibrium, allows the Ministry of Finance to budget the allocation of resources provided by laws creating specific allocations based on the assessment of fiscal conditions and other public policy imperatives. Therefore, it allows adjusting that allocation to the available financial resources.

And in the exercise of these new powers, the Executive Branch has as limits the specific allocations created by the Constitution, as well as those created by law to exclusively finance a social service. Conversely, allocations related to taxes intended to finance public expenditures generally, such as allocations funded by taxes like income tax or now the value-added tax, do not constitute a limit.

In any case, as ordered by Article 24 of the Ley de Fortalecimiento de las Finanzas Públicas, the Ministry of Finance and the Executive Branch are obliged to allocate a sum no less than that allocated in the 2019 budget. Therefore, that allocation from the current budget constitutes the minimum amount that must be granted. So that the Ministry of Finance may allocate a greater amount of resources than budgeted in 2019, but can never reduce what was allocated in the currently effective budget, in order to guarantee the non-affection of associated social benefits.'" Ruling of the Constitutional Chamber In summary, the claimant's allegations regarding Articles 15, 23, 24, and 25 of Title IV on Fiscal Responsibility of the LFFP, No. 9635, relate to the fact that the order of state priorities set forth in the law "will allow any public law institution to invoke a lack of budget in order not to finance the human rights the State is obliged to protect." In the opinion of this Chamber, the standing invoked by the claimant – as representative of the Sindicato de la Asociación Nacional de Empleados Públicos y Privados – is the representation of the conglomerate of public officials affiliated with said union. However, his standing cannot encompass the purported protection of all the fundamental rights of the inhabitants of our country for an alleged injury to the principle of progressivity regarding budget allocation. The invoked union standing cannot become a popular action through which any other rule that may indirectly affect the national community, for example, the right to education, may be challenged, as the claimant invokes in the filing brief for this unconstitutionality action. In fact, if one looks at and carefully examines judgment No. 2019-010635 that admitted this proceeding, the Chamber expressly noted the following:

"'In the case under study, the claimant states that the standing of his represented party to file this action derives from the defense of diffuse interests, since he defends the interests of public officials and their families, which constitute a more or less determined group. He also claims to defend a larger community, made up of taxpayers, those subject to the municipal regime, local governments, and public officials working in various public institutions that are entitled to a certain level of autonomy. The Chamber does not share the claimant's criterion regarding his standing for the defense of diffuse interests. The claimant is a legally constituted association, whose objectives include, among others, 'b. Watch over the rights and interests of all members;' 'c. Study, advocate for, and defend better working conditions for workers affiliated with the union' (Articles 2 and 3). It is clear that we are in the presence of corporate interests, also derived from collective interests, which are what the claimant Association seeks to defend. There is a clear relationship between the challenge to the rules and the interests of its affiliates, which legitimizes it to file the action. However, that relationship is not sufficient to protect the rights of its affiliates' families or of an even larger community, made up of taxpayers, those subject to the municipal regime, local governments, and public officials working in various public institutions that are entitled to a certain level of autonomy. Accepting that the Association has standing to defend the interests of that broader, more general and diverse group would mean accepting the existence of a kind of popular action, which is reserved to law in our legal system, so it must be expressly provided for by law, which is not the case.' (Emphasis does not correspond to the original).

Thus, these grievances must be dismissed on the grounds that the claimant lacks standing.

Judge Cruz Castro dissents and admits standing.

XIX.- FISCAL RESPONSIBILITY. DESTINATION OF FREE SURPLUSES Challenged Rule The claimant challenges Article 17 of Title IV on Fiscal Responsibility of the LFFP, No. 9635, which reads as follows:

"Article 17- Destination of free surpluses generated by the application of the rule. In the event that public entities with liabilities generate a free surplus at the end of the fiscal year, this shall be used to amortize their own debt. In the case of free surplus generated by entities receiving transfers from the national budget as a consequence of the application of the fiscal rule, such surplus must be reimbursed to the national budget in the year following the one in which said surplus was generated, to be used for debt amortization or public investment." Grievance of the Claimant According to the claimant, this rule violates the independence of autonomous institutions in fulfilling their purposes; it is not valid to order them to pay the Central Government's debt with resources that are their own and that are intended to fulfill specific purposes.

PGR Report Regarding Article 17 of the LFFP, they do not consider that the rule can be considered unconstitutional for the defects alleged, especially when they reiterate, as in other reports (19-0011540-0007-CO), its interpretation in conformity, in the sense that it may only be applied to free surpluses, not to resources with specific allocations determined by the Constitution, which could only give rise to specific non-free or tied surplus, in constitutional language, unavailable to the ordinary or budget legislator.

Ruling of the Constitutional Chamber Due to a material error, this provision was included in the expansion of the proceeding for the unconstitutionality action. However, given that the grievance revolves around the alleged injury to the autonomy of autonomous institutions, it must be dismissed by virtue of the fact that, as has been reiterated, the claimant lacks standing to assume the representation of municipalities or any other autonomous institution (see judgment of this Chamber No. 2019-010635). In said ruling, it was noted that the claimant acts in his capacity as representative of a workers' organization, which is why he is not legitimized to act in defense of municipal autonomy or that of any other autonomous entity. By virtue of the foregoing, this aspect of the action must be dismissed, on the grounds that the claimant lacks standing.

Judge Cruz Castro dissents and admits standing.

ANALYSIS OF RULES RELATING TO PUBLIC EMPLOYMENT CONSIDERED ON THE MERITS XX.- ON EXCLUSIVE DEDICATION CONTRACTS Challenged Rules Article 28, paragraphs 2 and 4 of the LSAP, as well as Article 6 of Regulation No. 41564-MIDEPLAN-H, are challenged. The aforementioned rules read as follows:

"Article 28- Exclusive dedication contract. The additional payment for exclusive dedication (dedicación exclusiva) shall be granted, exclusively, by means of a contract between the granting Administration and the official who accepts the conditions to receive the economic compensation, in accordance with this law.

The term of this contract may not be less than one year, nor greater than five.

Once the contract is signed, the payment for exclusive dedication shall not constitute a permanent benefit or an acquired right; therefore, upon the expiration of its validity, the Administration shall have no obligation to renew it.

Not signing an exclusive dedication contract does not exempt the official from the duty to refrain from participating in activities that compromise their impartiality, create a conflict of interest, or favor private interest to the detriment of public interest.

(Thus added by Article 3 of Title III of the Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 of December 3, 2018)." (The highlighted portion is what is specifically challenged by the claimants).

And the regulation reads as follows:

"Article 6.- Terms of the exclusive dedication contract.

The maximum term of the exclusive dedication contract may not be less than one year, nor more than five.

Once the respective term has ended, the contract may be renewed when the Administration, after reviewing and analyzing the existing conditions, certifies through a reasoned and duly justified administrative resolution the institutional need to proceed with the extension, as indicated in article 29 of Law No. 2166, added through article 3 of Law No. 9635. Extensions may not be less than one year nor more than five.

In those cases where it is legally appropriate to hire personnel for fixed terms, substitutions, replacements, or any other figure that is not of indefinite duration, exclusive dedication contracts shall be signed for the same term as the appointment.” Grievances of the plaintiff The plaintiff argues that the challenged norms violate the principles of autonomy, legal certainty, reasonableness and proportionality, progressivity of rights, and freedom of contract, as well as the content of art. 28 of the Constitution. The challenged norm is unconstitutional insofar as it imposes on public institutions in general, and mainly on autonomous and decentralized ones, an obligation to sign dedication contracts for a specific time under this law, violating the institutions' autonomy to decide under what terms, according to their interests and particular conditions, and for how long (duration of the contract) they may sign this type of contract with their employees. Establishing in this article the obligation to sign exclusive dedication contracts within the stated temporal range (from one to five years maximum) also makes it impossible for specific norms, such as collective bargaining agreements or internal labor regulations, to establish provisions on the matter that are more beneficial to the worker or more in line with institutional needs, which harms the principles of progressivity of labor rights and the protective principle of labor law.

Paragraph 4 of the norm has flaws of unconstitutionality to the extent that it violates the principle of legal certainty, by ambiguously establishing an express prohibition for officials who, without having an exclusive dedication contract or receiving economic compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over public interest. It considers this prohibition to be completely confusing, ambiguous, and, therefore, violates the principles of rationality insofar as there is no certainty as to what should be understood by public interest, its scope, and effects.

Report of the PGR The PGR issued a report, in general terms, in which it referred to the exclusive dedication regime and, in addition, the characteristics of public servants, together with the Administration's powers to establish rules to avoid conflicts of interest. In general, the PGR states that the exclusive dedication regime is a legal creation and not a constitutional one, and, therefore, the alleged defects are untenable. Where relevant, the following was reported:

“Through the exclusive dedication regime, the Administration seeks, for reasons of public interest, to have personnel exclusively and permanently dedicated to the state function, making it a suitable and more efficient workforce, by contracting the exclusive services of a professional-level official in exchange for a salary supplement (plus salarial). In this regime, the servant evaluates whether it suits him or not to avail himself of it, and may agree with the Administration, if it is also in its interest, on the payment of the salary supplement or to continue freely exercising his profession.” (Resolution No. 2011-000174 of 09:35 hrs. on February 23, 2011, Second Chamber).

Thus, conceptually and legally, the so-called “exclusive dedication” in our system is contractual; that is, the product of a formal agreement between the employer entity (Public Administration) and the professional public servant, in the sense that the latter will dedicate himself exclusively to exercising the functions of the public office for which he is employed, renouncing the private practice of his profession, and for which the former will compensate him economically, as a supplement (plus) – not as a permanent salary component – a specific additional percentage calculated on the base salary of that specific position.

And it is worth noting that at the judicial level, it has been recognized that the signing or not of that exclusive dedication contract by Public Administrations involves an undeniable discretionary power; that is, a liberality in the sense that the basis for granting it or not is openly discretionary (See judgments No. 019-2015-VI of 08:30 hrs. on February 6, 2015, and 2432-2009 of 09:45 hrs. on November 3, 2009, both from the Administrative Litigation Tribunal (Tribunal Contencioso Administrativo), Sixth Section).

Now, that inter partes agreement is materialized in a contract that, according to the rules established – before the legal reform introduced by the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), said regime was regulated by infra-legal provisions issued by the General Directorate of Civil Service (Dirección General de Servicio Civil), in the case of servants attached to the merit regime of the Central State Administration (ministries and attached bodies) – had to be “endorsed” (refrendado) by the Human Resources Departments of each institution (art. 145 LGAP), and once endorsed, it shall take effect during the agreed term; which, once expired or having elapsed, renders said agreement ineffective, without it being possible to state that there is a right in favor of the servant, with a correlative obligation of the Administration, to sign a new contract or extend the previous one, because, as stated, the signing or not of that agreement involves discretionary powers of the Administration.

Therefore, there is no obligation to grant that type of salary supplement (Resolution No. 2016-001113 of 10:25 hrs. on October 19, 2016, Second Chamber), nor to maintain it when the original term has expired. Thus, there is no subjective right to the extension of that contract, nor to the perpetual maintenance of the salary conditions derived from that supplement. And therefore, it cannot be affirmed either that there is a consolidated situation for the extension of that contractual bond, as is unfoundedly claimed, and even less that this can be understood to derive from Constitutional Law.

In the context explained, many of the alleged defects would lack constitutional relevance, since the exclusive dedication regime is, in reality, a matter of legal regulation.

Undoubtedly, the regulation of the “exclusive dedication” regime established by the Law for Strengthening Public Finances, and specifically its Title III, referring to the Amendment of Law No. 2166, Public Administration Salaries Law (Ley de Salarios de la Administración Pública), of October 9, 1957, and its amendments, and other applicable Transitory provisions, forms part of the remuneration regime proper to the so-called public servant “Statute” (Estatuto), over which there is an express constitutional authorization for the legislator, in the exercise of its inexhaustible power, to configure and regulate the conditions of employment that must prevail throughout the Public Sector (arts. 105, 121.1, and 192 of the Political Constitution); especially regarding its professional stratum.

With that legal regulation, the aim is not to establish, by way of artificial homogeneity, a unitary statute in formal terms; that is, a single normative instrument – but rather, it established a series of postulates and norms in remuneration matters that, in general terms and with a clear claim to generality, tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State.

And according to hermeneutical rules duly and reasonably applied, the Office of the Attorney General (Procuraduría General), recently, in the exercise of its binding consultative function, determined that given its scope of general application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option to regulate the remunerative conditions of employment throughout the public sector (art. 192 of the Constitution), the provisions on public employment contemplated in the Public Administration Salaries Law related to, among other topics, the way in which salaries and their components must be calculated in the Public Sector, and why not, in matters of exclusive dedication, prevail over any other provision of legal or lower rank pre-existing at the sectoral level; this as a tacit repeal (derogación tácita) – total or partial – due to normative incompatibility of their contents (Opinion C-281-2019, of October 1, 2019); even recognizing its supervening prevalence over pre-existing collective bargaining agreements (convenciones colectivas), especially when that law is expressly aimed at repealing (with future effect, consequently respecting acquired rights (derechos adquiridos) and consolidated legal situations) conventional norms that have specific content incompatible with it (Opinion C-060-2019, of last March 5).

And starting from the concept of «Statute of public officials» and its scope, it is worth remembering that what has traditionally characterized the legal regime of the public function in general is that employment conditions are not established in a contract or by collective agreement, but are meticulously determined by objective norms, laws, or regulations, which, depending on their nature and hierarchy, can be unilaterally modified by the competent body. Hence, it is appropriately stated that the official does not have a contractual relationship with the Administration, but a statutory one. An idea omnipresent even in our original constitutional framework of the public function, according to which: “A civil service statute shall regulate the relations between the State and the public servants, with the purpose of guaranteeing the efficiency of the administration” (art. 191). Therefore, the sub-principles derived from the protective principle of labor law invoked by the plaintiff are not applicable in the dimension that is erroneously argued.

And what the plaintiff incorrectly qualifies as discrimination for an alleged imposition of exclusive dedication without remuneration is, in reality, a misunderstood regime of functional incompatibility, which, as part of the essential ethical content of the public employment relationship, seeks to enhance the principles of impartiality and independence that must govern the exercise of the public function.

From the above, it follows that the principle of impartiality, together with independence in public management, constitutes the pillar on which all legislation on incompatibilities rests. Indeed, to obviate or to avoid conflicts of interest and safeguard the public interest, the legislator has developed a set of ethical rules that must be observed by all officials in the exercise of the public function.

Thus, within the diffuse regime of incompatibilities of the Costa Rican public function, we find the duty of impartiality, which has a direct connection – according to doctrine – with the institutional purpose of Public Administrations to serve the general interests with objectivity; which implies, in the first place, political neutrality or independence, or indifferent efficacy of administrative action, as it is also called, according to which every public servant is obliged to exercise his or her functions observing the strictest ideological neutrality, without favoritism or discrimination (Among many others, I refer to resolutions No. 932-95 of 15:33 hours on July 18, 1995, 2883-96 of 17:00 hours on June 13, 1996, and 11524-2000 of December 21, 2000, 1749-2001 of 14:33 hours on March 7, 2001, from the Constitutional Chamber).

But that impartiality is not exhausted in the aforementioned duty of political neutrality, rather it also manifests itself in the official's relations, in the performance of the position, with society; which implies that, as a derivation of the principle of legal equality and non-discrimination of those administered (articles 4, 8, and 10 of the General Law of Public Administration (Ley General de la Administración Pública) and 33 of the Constitution), every public servant must refrain from any action that implies illegitimately or illegally favoring himself or third parties, social organizations, or private groups.

That is why, as the Chamber itself has stated, based on a moral and ethical demand from society in relation to the specific provision of public service and under the aegis of the constitutional principles of legality, responsibility, transparency, equality of treatment for all those administered, and the requirement of suitability and efficiency in public employment (In this regard, see resolution No. 2883-96 of 17:00 hrs. on June 13, 1996), the official is not allowed to place himself in situations or circumstances that could compromise official impartiality or independence, or because they could impede or undermine the strict fulfillment of his duties, and even harm the general interests – cases of conflict or opposition of direct and immediate interests –. All for the sake of ensuring that the Administration makes its decisions solely in accordance with the legal system and for the general interest purpose that motivates it; that is: “(...) the attainment of objective, impartial, independent, and crystalline justice, characteristic of democratic and rule-of-law regimes” (Resolution No. 7531-97 of 15:45 hours on November 12, 1997, Constitutional Chamber)”. (The highlighting does not correspond to the original).

Report of the Ministry of Finance The Minister requests that these aspects of the unconstitutionality action be dismissed, since, in her opinion, the issue of public salaries and employment is dynamic, and the adjustments made do not harm the principles of progressivity and non-regression:

“In this sense, the plaintiff's statements are unfounded, because, as has been proven since its very granting, exclusive dedication is not a right of the servant; rather, it is conferred when, for certain functions, the Administration assesses that it requires the official not to work in a private capacity. Precisely, in relation to the final paragraph of article 4 of the Regulation of Title III and its amendments, the Office of the Attorney General of the Republic recently stated: '...The same does not occur with what is established in the last paragraph of article 4 of the Regulation to Title III of the Law for Strengthening Public Finances, according to which it is necessary "to prove an institutional need to sign the exclusive dedication contract", as well as "to verify full compliance with the applicable legal and academic requirements", because these requirements are deduced, by themselves, from the figure of exclusive dedication, and are reasonable and in accordance with the purposes of the law...' (See Opinion C-166-2019 of June 13, 2019). It is striking that a constitutional violation is invoked for the fact that within the questioned norms, one of them provides that the Exclusive Dedication contracts are subject to a term and that it excludes the possibility of automatic or tacit extensions as the plaintiff points out. In this regard, like any contract, for reasons of security and legal certainty, the Exclusive Dedication contract must have its term clearly established, as well as the procedures or steps required to extend it; hence, enacting a regulation that contemplates these aspects, far from violating the principles of legal certainty, reasonableness, and proportionality, on the contrary, complies with them; furthermore, it does not imply any regression that supports the claim that progress in the recognition of an already established labor right is being set back. V- In this same line of thought, the plaintiff points out that the Principle of Progressivity implies that gradual progress only occurs when there is an increase, an assertion that is not so true, because for example, when a labor right is regulated in a diffuse manner and norms are issued that, although they do not imply an increase – be it economic or in the scope of the right –, but do manage to standardize and concentrate the regulatory framework, they are contributing to that progress.” Next, any injury to the principle of legal certainty is rejected, because the norms establish the guidelines under which the extension of exclusive dedication contracts would operate, as well as the recognition of said contracts in their various forms.

It denies an injury to the principle of equality, since, as the PGR explained, the general parameters contained in Title III of Law No. 9635 and its amendment apply to all employment relationships in the public sector, given that the legislator is empowered to generally regulate employment conditions throughout the public sector.

Resolution of the Constitutional Chamber First, it must be noted that the issue of institutional autonomy cannot be alleged in this constitutional review process. In the resolution partially rejecting the unconstitutionality action No. 19-004931-0007-CO, the Chamber resolved that “a person who does not hold the judicial and extrajudicial representation of an institution lacks standing to defend its autonomy. In this scenario, it must be made clear that the defense of any fundamental right of the plaintiff is not being sought, but rather, it is repeated, solely the defense of the institutional autonomy of an entity for which some of its associates work” (judgment No. 2019-010635). Therefore, it is necessary to reiterate that in the sub lite case, the plaintiff is acting in his capacity as a union representative, and thus lacks standing to bring an action in defense of the autonomy of municipal entities, or any other autonomous entity. Thus, the grievances related to the alleged illegitimate imposition on autonomous entities to sign contracts for the term defined in the law, as well as the duration of the contract – aspects that, in the plaintiff's view, could be regulated in other types of provisions more in line with institutional needs – are dismissed (art. 28, paragraph 2 of the LSAP and art. 6 of the regulation).

Regarding the perspective of the public servant, the plaintiff claims that the principles of progressivity of labor rights and the protective principle are harmed. However, in this Chamber's opinion, this mere statement, without an adequate analysis of the norms and the impact they may have on workers' labor rights, prevents an appropriate constitutional analysis. Such statements must be dismissed due to improper and insufficient grounds provided by the plaintiff.

In a second line of thought – regarding the perspective of the public servant –, the plaintiff does not explain to what extent the norm harms the principle of legal certainty. He only points out an alleged confusion or ambiguity in the sense that the servant, despite not receiving financial compensation, must refrain from participating in activities that compromise his impartiality or favor private interest over public interest (art. 28, paragraph 4 of the LSAP). In this regard, it is necessary to clarify the concept and scope of the exclusive dedication contract figure. This Chamber, in reiterated jurisprudence, has examined that matters concerning the exclusive dedication figure are mostly matters of ordinary legality (legalidad ordinaria) because its origin has a contractual nature between the parties. Since 1995, this Chamber has referred to this contractual figure in the following terms:

“IV.- THE EXCLUSIVE DEDICATION REGIME: Before rendering the judgment of constitutionality of the norm challenged here, it is necessary to describe in general terms the exclusive dedication regime and to point out the modifications it has undergone. In that sense, it is understood that exclusive dedication is defined as the regime of reciprocal benefits agreed upon between the State and its professional-level servants, and whose purpose is that the servant may choose not to practice his profession outside the position he holds, in exchange for additional financial remuneration beyond his salary. For its part, the Administration obtains the servant's complete dedication to the public function. (...)

From a simple reading of the challenged norm, it is clear that its purpose is to define what should be understood by exclusive dedication, meaning the obligation acquired by the professional who commits, through a contract, to work exclusively for a public institution. The norm establishes a general scope of application: any professional who agrees to dedicate himself exclusively to working for the State. This generality of the norm is not harmful to the principle of equality as argued, because the professions held by a specific official do not constitute a relevant element to be considered for the purposes of being given different treatment. This is because the norm regulates a general situation, namely, the possibility for an official to voluntarily obligate himself to work exclusively for the State. Regarding the right to equal pay, the Chamber considers that it is not applicable to this case, since the challenged norm does not generate a difference in treatment in salary matters, and, on the contrary, regardless of the official's personal conditions, it establishes a determined general percentage as payment for exclusive dedication. It remains to be analyzed in this section whether the application of the norm generates the alleged discriminatory treatment. The Chamber considers that the challenged provision, by defining a general scope of application – any professional who signs an exclusive dedication contract with the State – and by enabling the official to voluntarily place himself within the factual presumption of that provision, excludes the possibility of arbitrary exclusion or undue inclusion. On this point, it is appropriate to note that it is the official, in association with the Administration, who decides to obligate himself not to practice the professions he holds outside the institution for which he works; it follows that it is not the norm that establishes, strictly speaking, that prohibition. Regarding the legal reservation (reserva de ley) in matters of imposing obligations and the limitation of the right to work, it is pertinent to point out that legal norms, regardless of the hierarchy that corresponds to them, are capable of imposing obligations on individuals. Therefore, the argument put forward by the promoter in that sense would lack any basis. What does require a legal reservation is the limitation of fundamental rights, so it is appropriate to correct the plaintiff's perspective and analyze the point as a potential problem of limitation of the right to work through a norm of a hierarchy lower than law. In that sense, it is pertinent to specify what was indicated by the Office of the Attorney General of the Republic regarding the contractual nature of the obligation not to practice the professions one holds when an exclusive dedication contract has been signed with the State. From the contract, which is understood as a voluntary agreement between parties, arises the limitation on practicing professions outside the institution for which one works. From this, it is inferred that it is not the norm that generates the described obligation, but rather it results from the signing of the contract between the official and the institution. Consequently, it is not appropriate to allege the unconstitutionality of the challenged norm for the stated reason. (...)

From that perspective, it is understood that through the exclusive dedication regime, the Administration seeks, for reasons of public interest, to have personnel exclusively and permanently dedicated to the state function, making it a suitable and more efficient workforce, to contract the exclusive services of a professional-level official in exchange for a salary supplement. Thus, the system allows the servant to calculate whether the benefit of the private practice of his profession is greater or lesser than the salary compensation that the State gives him in exchange for the exclusive provision of his services. Consequently, the servant evaluates the situation and voluntarily decides to agree with the Administration (if the latter, in turn, agrees) on the payment of the salary supplement, or to continue freely exercising his profession. This system is not irrational, and it differs from the prohibition regime that, by legal impediment, limits the official from freely practicing the profession. In that latter case, the servant is not empowered to decide about the economic compensation, because it is part of the salary and is inherent to the employment relationship. The reasonableness of the exclusive dedication regime, in the manner defined by the challenged norm, thus arises from its contractual or conventional nature, which grants the official the possibility of requesting or waiving it according to his convenience. In consideration of the foregoing, and given that no violation of fundamental rights by the challenged norm is observed, the action is dismissed.” (Judgment No. 2312-1995. The underlining does not correspond to the original).

Echoing that resolution, this Chamber has said the following:

“[I]t is an agreement of a voluntary nature (naturaleza facultativa), whose scope and fulfillment constitute a matter of mere legality (mera legalidad). Indeed, the payment of exclusive dedication claimed by the petitioner implies the granting of a benefit that may or may not be agreed upon by the parties, and the employment relationship can subsist with or without it, as it is an element extraneous to the essential services that comprise the labor contract (see in this sense, judgment number 2725-97 of ten hours forty-eight minutes on May sixteenth, nineteen ninety-seven).” (Judgment No. 2002-04003. The underlining does not correspond to the original).

And more recently, it resolved that:

“For its part, in this sense, the Chamber has also established that determining the appropriateness or not of the payment of this salary item is a matter of mere legality that must be aired in the ordinary jurisdiction:

'III.- (...) However, determining when this item is appropriate or not is a matter of mere legality that must be aired before the ordinary courts.' (Judgment No. 03502-94, of fifteen hours eighteen minutes on July twelfth, nineteen ninety-four).

In this sense, see also judgments No. 95-0893, of seventeen hours on February fifteenth; No. 95-04160, of ten hours three minutes on July twenty-eighth, both of nineteen ninety-five; and No. 96-01536, of ten hours fifty-one minutes on March twenty-ninth, nineteen ninety-six.)” It should be added that in judgment No. 2019-018480 of 09:30 hours on September 24, 2019, the Chamber declared the following:

“(...) disputes regarding the payment of salary supplements (pluses salariales) do not affect the essential content of the right to a salary, from a constitutional perspective (article 57 of the Political Constitution), and are therefore conflicts that must be resolved in the venue of legality. Thus, in judgment No. 2011014174 of 09:58 hours on October 21, 2011, the Chamber ordered:

'(...) This Tribunal has repeatedly stated that complaints and disagreements regarding salary supplements – such as double working hours and exclusive dedication – are a matter whose knowledge corresponds to the judicial review of legality (vía de legalidad), since this does not affect the essential content of the right to a salary from a constitutional perspective.' In this way, if the appellants consider it arbitrary and improper that the respondent authority has decided not to pay them the amount corresponding to exclusive dedication for the current year, this is a matter they may raise and discuss, if they so wish, in the corresponding judicial review of legality through the means of challenge granted to them by the legal system, given that, due to its contractual nature, it turns out to be a problem of ordinary legality and not constitutionality. (See in similar sense judgments No. 2022-8002 of 09:50 hours on April 5, 2022, and No. 2022-4883 of 09:15 hours on February 25, 2022).” (Judgment No. 2023-002002. The underlining does not correspond to the original).

Likewise, of special importance for this and the following sections, it is pertinent to cite judgment No. 2004-07764, in which the following considerations were made:

“III.- On the merits.

In accordance with the criterion repeatedly set forth by this Chamber (see, for all, judgments number 1995-02312 of 4:15 p.m. on May 9, 1995, 1995-04160 of 10:03 a.m. on July 28, 1995, 1996-04494 of 11:18 a.m. on August 30, 1996, and 2000-00444 of 4:51 p.m. on January 12, 2000), lifetime tenure (dedicación exclusiva) constitutes a regime of reciprocal benefits for public servants and the Administration, through which the Administration decides, for reasons of public interest, to contract exclusively the services of one or several of its professionals and attempts to agree with them on the payment of an economic compensation for the benefits they will cease to receive by not being able to privately practice their profession. Hence, it is clear that lifetime tenure (dedicación exclusiva) has a consensual or conventional nature, because it arises from an agreement between the parties. This implies, for the time being, that both the servant's obligation not to practice their profession outside the institution for which they work, and the Administration's obligation to pay the economic compensation, arise from the agreement between both parties. Thus, the servant is free to choose whether or not to avail themselves of this benefit and provide their services exclusively to the Administration, just as the latter, in the exercise of its discretionary power, is free to choose whether or not to agree with the servant on the granting of that salary bonus. From the foregoing, it also follows that lifetime tenure (dedicación exclusiva) is a matter available to both parties, since in the exercise of its discretionary power, the Administration has a greater margin of decision in this case, just as the servant has the possibility of assessing whether the compensation offsets the benefit produced by the private practice of their profession and deciding whether or not to accept its recognition. As a consequence of the conventional or contractual nature of lifetime tenure (dedicación exclusiva), its condition as an element not inherent or consubstantial to the public employment relationship also results, a situation that reinforces the idea that under these conditions, the Administration is not legally obligated to contract or agree with all professional servants on lifetime tenure (dedicación exclusiva). It will simply be a decision that it will make within the framework of the existence or not of a true public need to have all or part of the professional staff dedicated exclusively and permanently to the state function. It is understood that as it is not an essential benefit of the public employment relationship, if an agreement is not reached between the parties regarding the recognition of lifetime tenure (dedicación exclusiva), said relationship is not affected in the least.

IV.- In the instant case, the plaintiff exclusively alleges a violation of the right to equality because she has been denied the recognition of lifetime tenure (dedicación exclusiva) despite being in equal conditions with other fellow servants who receive said benefit. From the reasons set forth in the preceding recital (considerando), it is clearly deduced that in the case of lifetime tenure (dedicación exclusiva), given its condition as a non-substantial element of the public employment relationship and, consequently, a matter available to the contracting parties (the Administration and the servant), one cannot be faced with a problem involving the right to equality, above all, because the Administration has in this case the possibility, in the exercise of its discretionary power, to agree or not with professional servants on the recognition of that salary benefit. Hence, the Administration is not legally obligated, at all times, places, and circumstances, to agree to the payment of lifetime tenure (dedicación exclusiva) with all or some professionals of a given institution, because that economic compensation does not form part of what could be called the essential core of the public employment relationship (set of essential benefits, in principle, not available). Under these conditions, it is not possible to allege an infringement of the right to equality, because the Administration could, in the exercise of its discretionary power, deny the recognition of lifetime tenure (dedicación exclusiva) to some servants and recognize it to others for reasons of public interest, institutional convenience, and opportunity. On the other hand, if what the plaintiff intends with this amparo is for the Chamber to review the conditions under which the recognition of lifetime tenure (dedicación exclusiva) was denied to her, she must understand that as this is a matter of ordinary legality, this Court does not issue any pronouncement in this regard as it is not within its competence. The foregoing, of course, without prejudice to the possibilities available to the appellant to resort to the corresponding administrative and judicial challenge avenues in defense of her rights and interests. In view of the reasons stated, it is necessary to declare the appeal without merit." (The highlighting does not correspond to the original).

In Integrated (Legal) Report No. AL-DEST-IJU-110-2018 of the Department of Studies, References, and Technical Services, dated March 21, 2018, regarding the bill processed under file No. 20.580, on the LFFP bill, the following analysis was carried out in relation to lifetime tenure (dedicación exclusiva) contracts:

"For its part, lifetime tenure (dedicación exclusiva) has a contractual basis, through a contract signed between the public official and the Administration, in which the former commits to dedicating their professional services exclusively to the institution, and the latter grants them compensation for that exclusivity.

Regarding lifetime tenure (dedicación exclusiva), the Office of the Attorney General of the Republic (Procuraduría General de la República), in Opinion C-294-2014, stated:

'For its part, the lifetime tenure (dedicación exclusiva) regime is a regime of a contractual nature, which arises from the agreement of wills between the administration and the official, in order to achieve greater efficiency in the public service. "Such institute (referring to lifetime tenure (dedicación exclusiva)), is feasible in the Public Administration through a contract signed between it and the official, who, by virtue of the profession they hold, their exclusivity in the position they occupy is required, and consequently it is necessary that they do not practice the profession or professions or trade, in any other public or private institution. The foregoing, in exchange for receiving a constant salary bonus. With this, the aim is also to incentivize the servant (who does not receive any emolument similar to lifetime tenure (dedicación exclusiva), such as the prohibition on practicing the profession established by Law No. 5867 cited above) so that they not only perform their functions with greater efficiency, but also guarantee their permanence in the provision of their services. In this sense, the Constitutional Chamber has repeatedly pronounced itself. By way of example, in resolution No. 2312-95 of 10:15 a.m. on May 9, 1995, it said: '...through the lifetime tenure (dedicación exclusiva) regime, the Administration intends, for reasons of public interest, to have staff dedicated exclusively and permanently to the state function, turning them into a suitable and more efficient workforce, to contract with the professional-level official for their exclusive services, in exchange for a salary bonus. Thus, the system allows the servant to calculate whether the benefit of the private practice of their profession is greater or less than the salary compensation that the State gives them in exchange for the exclusive provision of their services. Consequently, the servant evaluates the situation and voluntarily decides to agree with the Administration (if it, in turn, agrees to it) on the payment of the salary bonus or to continue liberally practicing their profession (...)’ .

The Office of the Attorney General established in the aforementioned opinion the characteristics of the lifetime tenure (dedicación exclusiva) contract, stating that it is: public, synallagmatic, and commutative. On this matter, it comments the following:

'It is concluded then that the contract under our analysis presents three fundamental characteristics: //It is public. Inasmuch as the employing entity that authorizes and signs the bond is precisely the Administration, having as counterpart an official of the same nature, the only one possible to sign a contract granting such a benefit. It becomes synallagmatic, since it imposes obligations on both parties, in this case on the professional not to practice their career in favor of third parties and on the Administration to compensate them with a salary bonus. Moreover, the obligation charged to one party correlatively becomes a right for the other. That is, the Employer has the right to demand that the official not act as a professional in the service of others, and the latter has the right to require the former to pay the agreed amount. It is commutative, because the benefit in favor of each stipulant in exchange for what they give consists of a certain advantage. For the servant, a salary-related patrimonial increase and for the State, the exclusivity of the official.' (Opinion C-206-2009 of July 23, 2009)' Likewise, an important aspect that the Office of the Attorney General pointed out in its Opinion No. C-294-2014 -cited above- is that currently lifetime tenure (dedicación exclusiva) not only applies to liberal professionals, but also applies to any professional. The foregoing, because Decree 23669 of October 18, 1994, Norms of Application of Dedicación Exclusiva by the Public Enterprise Institutions covered by the scope of the Budgetary Authority, does not establish that the contractual object must be solely the practice of liberal professions, but rather refers in generic terms to the practice of the profession.

For its part, the General Directorate of Civil Service (Dirección General de Servicio Civil), according to resolution DG-254-2009 of 1:00 p.m. on August 12, 2009, regulates lifetime tenure (dedicación exclusiva) for the purposes of officials subject to the Civil Service, as follows:

"Article 1.- "Dedicación Exclusiva" is understood as the professional practice of the official solely for the public body that contracts their services, which demands that the same hold a university degree with the corresponding academic degree and that it be duly accredited." "Article 2.- Dedicación Exclusiva under the Civil Service Regime, due to its contractual nature, requires that it be agreed upon for a determined period and obliges the servant to professional practice solely in favor of the public body with which they work and where it assigns them. The servant may not practice in a private capacity, whether remunerated or ad honorem, the profession they hold and which constitutes a requirement to perform the position they occupy, nor any other activity related to it, with the exceptions that will be indicated. The Dedicación Exclusiva regime allows an economic compensation in favor of the servant, agreed upon and in agreement with the Administration, for which the latter must ensure that there is budget availability to support it, for the term expressly provided for within the contract or respective extension." (...)

In lifetime tenure (dedicación exclusiva), there is no prohibition on liberal practice, but rather what exists is an agreement for exclusivity in the practice of the profession with respect to a body or entity.

Likewise, it is recommended to elaborate the definition of "dedicación exclusiva" according to its nature, object, and characteristics, for which it must be considered that it does not necessarily imply the legal prohibition of practicing the profession, but rather it is a decision to dedicate oneself exclusively to one's position, a decision that proceeds from an agreement between parties, that is, between employer and worker and not from the law, where the worker decides to request that this salary compensation be paid for exclusivity and the employer decides, within its discretion, if the occupied position requires that lifetime tenure (dedicación exclusiva). This definition should include some other aspects, such as the term of the lifetime tenure (dedicación exclusiva) contract, whether its payment will proceed only for liberal professions or for all professions, as well as the form of termination since it is waivable and does not constitute an acquired right.

(...)" In the LSAP, we can find the definition of what is understood by lifetime tenure (dedicación exclusiva), in the following terms:

"Art. 27. 1. Dedicación exclusiva: a regime of a contractual nature that arises at the initiative of the Administration when the need is identified for whoever holds a public position to perform in that position exclusively, which implies that they do not practice their liberal profession or professions related to said position in any other public or private institution, for a defined period of time. It is optional and may only be granted to public sector officials who sign the respective contract. Its economic compensation is granted depending on the academic degree and the characteristics of the position." In turn, the regulation defines it as a salary bonus of a contractual nature that arises at the initiative of the Administration when the need is identified for whoever holds a public position to perform in that position exclusively, which implies that they do not practice their liberal profession or professions related to said position in any other public or private institution, for a defined period of time. It is optional and may only be granted to public sector officials who sign the respective contract. Its economic compensation is granted depending on the academic degree and the characteristics of the position (Article 1, subsection d)).

On the other hand, it is appropriate to refer to the general postulates that must characterize the public servant of the entire Public Administration, centralized or decentralized. In this regard, it must be borne in mind that the public employment labor relationship is subject to certain specificities and principles, such as those of merit and capacity in access, and also to certain norms of public law, such as the incompatibility regime, which guarantee objectivity and impartiality in the provision of public service. In this sense, it should not be forgotten that the constitutional mandate is that the public servant be appointed based on proven suitability (idoneidad comprobada) in order to always aspire to efficiency in the Public Administration (Articles 191 and 192 of the Political Constitution). Furthermore, Article 11 of our Constitution establishes the following:

"Art. 11.- Public officials are simple depositaries of authority. They are obliged to fulfill the duties that the law imposes on them and cannot arrogate powers not granted therein. They must take an oath to observe and comply with this Constitution and the laws. The action to demand criminal liability for their acts is public. The Public Administration in a broad sense shall be subject to a procedure of results evaluation and accountability, with the consequent personal responsibility for officials in fulfilling their duties. The law shall indicate the means for this results control and accountability to operate as a system that covers all public institutions.

(Thus amended by the single article of Law No. 8003 of June 8, 2000)." (The highlighting is not from the original).

This is reiterated in Article 194 of the Constitution regarding the constitutional oath that public officials must take.

Additionally, the United Nations Convention against Corruption, Law No. 8557 of November 29, 2006, stems from the international concern about "the seriousness of the problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law" and calls upon States to take preventive measures in order to ensure the proper management of the public interest. Therefore, Article 5 states the following:

"Each State Party, in accordance with the fundamental principles of its legal system, shall formulate and implement or maintain in force coordinated and effective anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability." (The highlighting is not from the original).

Likewise, said Convention, in Article 7, paragraph 4, calls upon each State Party, in accordance with the fundamental principles of its domestic law, to endeavor to adopt systems designed to promote transparency and to prevent conflicts of interest, or to maintain and strengthen such systems. The Inter-American Convention against Corruption, Law No. 7670 of April 17, 1997, in its Article 3, for its part, establishes the following:

"Preventive Measures For the purposes set forth in Article II of this Convention, the States Parties agree to consider the applicability of measures within their own institutional systems to create, maintain and strengthen:

1.- Standards of conduct for the correct, honorable, and proper fulfillment of public functions. These standards shall be oriented to prevent conflicts of interests and ensure the preservation and proper use of resources assigned to public officials in the performance of their functions." (The highlighting is not from the original).

To this must be added what is expressly established in Articles 113 and 114 of the LGAP, which expressly provide the following:

"Art. 113.- 1. The public servant must perform their functions in a manner that primarily satisfies the public interest, which shall be considered as the expression of the coinciding individual interests of the administered parties. 2. The public interest shall prevail over the interest of the Public Administration when they may be in conflict. 3. In assessing the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, to which mere convenience cannot in any case be placed before.

Art. 114.- 1. The public servant shall be a servant of the administered parties, in general, and in particular of each individual or administered party who relates to them by virtue of the function they perform; each administered party must be considered in the individual case as a representative of the collectivity on which the official depends and for whose interests they must watch. 2. Without prejudice to what other laws establish for the servant, any act, fact, or omission that, through their fault or negligence, causes unjustified or arbitrary hindrances or obstacles to the administered parties is considered, especially, irregular performance of their function." (The highlighting is not from the original).

On the other hand, the Law against Corruption and Illicit Enrichment in the Public Function, Law No. 8422 of October 6, 2004, establishes the duty of probity and reiterates that the public servant is obliged to orient their work to satisfy the general interest:

"Art. 3º- Duty of Probity. The public official shall be obliged to orient their management to the satisfaction of the public interest. This duty shall manifest itself, fundamentally, by identifying and attending to priority collective needs, in a planned, regular, efficient, continuous manner and under conditions of equality for the inhabitants of the Republic; likewise, by demonstrating rectitude and good faith in the exercise of the powers conferred by law; by ensuring that the decisions adopted in compliance with their duties conform to impartiality and the proper objectives of the institution in which they serve, and, finally, by administering public resources in accordance with the principles of legality, effectiveness, economy, and efficiency, rendering accounts satisfactorily." (The highlighting is not from the original).

Finally, the General Law of Internal Control, Law No. 8292 of September 4, 2002, establishes "the minimum criteria that the Office of the Comptroller General of the Republic and the entities or bodies subject to its oversight must observe in the establishment, operation, maintenance, improvement, and evaluation of their internal control systems." Among them, "to maintain and demonstrate integrity and ethical values in the exercise of their duties and obligations" (Article 13, subsection a)).

Consequently, the fact of being a public servant implies a series of responsibilities and commitments to the function and the public interest. Thus, the challenged norm – Article 28 of the LSAP – is not unconstitutional, since the prohibition on participating in activities that may compromise impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest is practically intrinsic to the public function. The norm is consistent with the postulates mentioned in the sense that although it is optional for the Administration to sign lifetime tenure (dedicación exclusiva) contracts as it is an agreement for exclusivity in the practice of the profession with respect to a body or entity, this does not diminish the principle and duty of probity in the public function, as well as the constitutional bases of the duty of objectivity and impartiality of public officials. By the very nature of the public function, the servant cannot place themselves in a situation where there is conflict or collision between public interests and their private interests. In this regard, this Chamber – when examining in general the incompatibility regime of public servants – has affirmed the following:

"Undoubtedly, this matter contains a deep content of the democratic values that inform the Costa Rican State - Article 1 of the Political Constitution -, as they impose the need for impartiality in the functioning of the State, as derived from the principle of legality, objectivity, and respect for the fundamental rights of citizens (...)

[I]n accordance with Article 192 of the Political Constitution, the proven suitability (idoneidad comprobada) required for the appointment of public officials leads to the prohibition of undue favoritism that harms or jeopardizes the correct exercise of the public function." (Judgment No. 2013-011454).

Furthermore, since Judgment No. 1995-3932, it has been affirmed that:

"It must be noted that Article 11 of the Political Constitution establishes the principle of legality, as well as lays the constitutional bases of the duty of objectivity and impartiality of public officials, by stating that they are subject to the Constitution and the laws; herein lies the foundation of incompatibilities, the public official cannot be in a situation where there is a collision between public interest and private interest." In said judgment, an alleged violation of the principle of equality was even examined, which was argued as violated because, pursuant to Article 5 of the Family Code, some servants of the National Children's Trust (Patronato Nacional de la Infancia) are prohibited, under penalty of losing their respective positions, from sponsoring, directly or indirectly, in the exercise of their profession, in judicial or administrative instances, in their respective jurisdictions, family matters involving the interest of minors. On that occasion, it was questioned that such servants have said obligation, despite not necessarily having a lifetime tenure (dedicación exclusiva) contract. In this regard, this Chamber resolved the following:

"In the case under examination, the plaintiff alleges the violation of the right to equality and the principle of human dignity, arguing that this occurs when the PANI requires the same professional and labor obligations and responsibilities, both from officials under the lifetime tenure (dedicación exclusiva) regime – who receive payment of that economic compensation – and from officials not under said regime. The Chamber believes that there is no such discrimination here, by virtue of the fact that the employment contract entails a series of duties and responsibilities, which, regardless of whether the official has availed themselves of the lifetime tenure (dedicación exclusiva) regime or not, the servants of said institution must comply with, as they are duties intrinsic to the position. On the other hand, it is neither logical nor reasonable to think that human dignity is impaired when a servant is required to fulfill the duties of the position they voluntarily perform, provided that the working conditions respect the dignity of the worker. Human dignity is the due respect owed to every human being, for their condition as such; which prevents that, due to various circumstances, a detriment is caused to them in the exercise of their fundamental rights. A contrario sensu, if a fundamental right is not threatened or violated, therefore, human dignity is not impaired." (The highlighting does not correspond to the original).

Consequently, it is in no way apparent that the challenged norm (Article 28, paragraph 4) is harmful to the principle of legal certainty. It is a provision of a general nature that brings together and summarizes the provisions pertaining to the public function stated herein. In the judgment of this Court, it is impossible to list in a law all the possible conducts that could rightly compromise the impartiality of the public servant and generate a conflict of interest that tends to favor a private one, over the public interest. But the norm does bring together general principles in the sense that regardless of the signing of a contract, all public servants owe themselves to the principle of legality, which imposes respecting the duties of objectivity and impartiality and, in contrast, avoiding activities or conducts that compromise impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest. Consequently, there is, in the opinion of this Chamber, no violation of the principle of legal certainty. In any case, it will be in specific and punctual cases where the adequate and reasonable exercise of disciplinary action for eventually violating these principles pertaining to the public function can be assessed in a particularized manner.

Magistrate Cruz Castro records a note regarding the lifetime tenure (dedicación exclusiva) contract (Article 28 of the Public Administration Salary Law).

XXI.- ON THE EXTENSION OF LIFETIME TENURE (DEDICACIÓN EXCLUSIVA) CONTRACTS Challenged Norms The plaintiff challenges Article 30 of the LSAP, added by the LFFP, which states the following:

"Art. 30- Extension of the contract. Sixty calendar days before its expiration, the official must request the extension from the immediate superior so that the Administration reviews the request, in order to determine the institutional need for the extension, by means of a duly reasoned resolution established in Article 29 above, an extension that may not be less than one year, nor greater than five. (Thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018)." As well as Article 7 of the regulation of Title III of the LFFP, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H, which states:

"Art. 7.- Extension of lifetime tenure (dedicación exclusiva) contracts. No payment whatsoever for lifetime tenure (dedicación exclusiva) shall apply in those cases in which the signed contracts, whether or not prior to the entry into force of Law No. 9635, are not extended by the Administration." Grievances of the Plaintiff The plaintiff states that the provisions under analysis violate the principles of legal certainty, reasonableness, the protective principle and non-regressivity of labor rights, as well as Article 34 of the Constitution. Both norms contain defects of unconstitutionality insofar as they represent a regression of rights and guarantees for the most vulnerable party in the employment relationship, which is the worker. The fact that through these normative provisions a situation of legal uncertainty is generated for officials whose contracts have not been extended, including those contracts that were signed before the entry into force of Law 9635, and by prohibiting tacit extension, a situation of disadvantage and uncertainty is created, violating the protective principle. They allege a possible violation of the principle of non-retroactivity – by virtue of the provisions in the regulation – because contracts signed prior to the law are disregarded. They refer, finally, to a violation of the principle of autonomy so that the parties can agree on their salary conditions.

Report from the PGR As previously revealed, the PGR suggests dismissing the grievances related to the issue of payment for lifetime tenure (dedicación exclusiva) contracts because the alleged defects lack constitutional relevance, being a matter of legal regulation.

Resolution of the Constitutional Chamber In the judgment of this Chamber, the challenged norms are not unconstitutional. It has already been stipulated that the regulation of this type of contract is of a legal nature, so the aspects pertaining to the renewal process or the term of the contracts is not a matter of constitutional relevance, but rather falls within the aspects of opportunity and convenience that the legislator can define.

The petitioner might perhaps be correct in that having to manage the renewal of his contract himself constitutes a burden for the worker, but that falls within the margin of discretion the legislator has in regulating this type of contract, and it is not apparent that such a requirement—or the condition that the Administration must justify the need to extend the contract, which moreover must be subject to a term—is contrary to the fundamental rights of public servants. Furthermore, no injury to Article 34 of the Political Constitution is apparent, given that, as these are contractual benefits, they should be linked to a term of validity, and the content of the rules in no way suggests that contracts already in force would be disregarded. The rules merely establish the obligation to manage the contract extension and that, in the event of a decision not to extend it by the will of either party (employer or worker), there is no obligation to make any payment—which is reasonable considering the very characteristics of the figure examined above, namely, a consideration for a contractual commitment that, where public funds are involved, must be reasonably justified—a contractual regime arising at the Administration’s initiative when it identifies the need for a person holding a public office to perform that role exclusively. To that extent, it is reasonable that the contracts must be subject to a term and that, in each case, the extension and duration of the contract be assessed based on the server’s qualities, the position held, and institutional needs; the opposite—tacit extensions without adequate evaluation—could indeed lead to improper lack of control over the public function, the principle of legality, and the proper management of public funds. It should be recalled that this is a contractual matter in which the server and the employer decide, on the one hand, to restrict professional activities and dedicate themselves entirely to public service and, on the other, to compensate that restriction. In the absence of a contract, while the server must certainly adhere to general rules of probity and the prevalence of public interest over private interest, they could well engage in professional activities outside of working hours that do not involve an overlap of schedules. All of this must be assessed and weighed by the Administration and by the public servant himself.

The petitioner’s remaining arguments lack adequate substantiation because he does not explain how the rules in question cause uncertainty, or how they prohibit the negotiation of employment relationships. Such objections, lacking adequate substantiation, must be dismissed.

XXII.- REGARDING SERVERS WHO MAY BE RECOGNIZED FOR EXCLUSIVE DEDICATION OR PROHIBITION Challenged rules The petitioner claims to challenge Article 31(1) of the LSAP, added by the LFFP, which regulates the requirements for servers who aspire to sign exclusive dedication or prohibition contracts. In relevant part, the challenged rule provides as follows:

“Art. 31- Requirements for officials. Officials who sign an exclusive dedication contract and those designated by law as possible beneficiaries of the additional payment for prohibition must meet the following requirements:

1. To be appointed or designated by a formal act of permanent appointment, on an interim basis, as a substitute, or in a position of trust.” Grievances of the petitioner It is challenged that the rule does not include, within the positions that could be subject to the payment of the exclusive dedication and prohibition salary supplement, all possible modalities of contracting within the Public Administration. The provision, insofar as it establishes a numerus clausus of persons who may be subject to the payment of exclusive dedication and prohibition within the Public Administration, generates a clear inequality and a situation of legal uncertainty in relation to other officials whose categories are not contemplated.

Report of the PGR As has been stated, the PGR suggests dismissing the grievances related to the payment of exclusive dedication contracts because the alleged defects lack constitutional relevance, being a matter for legal regulation.

Report of the Ministry of Finance Regarding Article 31, the Minister states she does not understand the petitioner’s objections, since that article merely enumerates the requirements or conditions for opting for the salary benefit in question:

“With respect to Article 31, in his assertions the petitioner indicates that this rule violates rights, since it does not include all contracting modalities, causing—in his view—inequality and uncertainty for those not in those categories, a view from which we differ, given that this provision contains the requirements that officials must meet to sign the Exclusive Dedication contract or to be possible beneficiaries of the prohibition. From reading the requirements set forth in Article 31, the petitioner’s considerations are not understood, since, for example, subsection 1) refers to those appointed permanently, on an interim basis, as substitutes, or in positions of trust; therefore, it is unclear which modality of the service relationship would be excluded. Moreover, in order to practice privately, one must meet the academic requirements inherent to the profession and, if a Professional Association exists, be incorporated into it; thus, it is not considered that the enumeration of these requirements conflicts with Article 33 of the Constitution.” Ruling of the Constitutional Chamber In the Chamber’s opinion, the grievance must be rejected because, as already established, the requirements and conditions for signing exclusive dedication or prohibition contracts are matters of ordinary legality and not of constitutionality. To that effect, the LGAP precisely defines, in its Articles 111, 112, and 113, which public servants provide their services in the name of the Public Administration, which coincides with the investiture referred to in the challenged article: “to be appointed or designated by a formal act of permanent appointment, on an interim basis, as a substitute, or in a position of trust.” The petitioner challenges that the challenged rule omits other types of special contracts that the Administration might sign, such as—according to him—contracts for special services or occasional services. It must therefore be inferred that these are precisely special contracts that the Public Administration can validly enter into for special tasks, and in whose contract the specific conditions of the work or labor commissioned and the corresponding remuneration must be agreed upon; it being in no way illegitimate that these services—having a different contractual modality—are excluded from the fixed salary remuneration that the LSAP precisely establishes for servers who provide services to the Administration or in the name and on behalf thereof as part of its organization by virtue of a valid and effective act of investiture.

On the other hand, it must be reiterated that, when a violation of the principle of equality and of alleged legal uncertainty among servers is alleged, as in this case, the petitioner has the duty to provide a parameter of comparison, along with the corresponding analysis. Hence, whoever invokes such violations is obliged to provide elements that allow a full comparison between subjects treated differently, enabling a check as to whether the alleged inequality occurs or not. In the sub examine, the petitioner of the consolidated action did not provide or develop a parameter of comparison that would allow the Court to conduct the corresponding analysis; he only challenged a differentiated treatment with respect to other officials or other types or modalities of contracting, without specifying which other specifically and how the articles of the challenged legislation cause an alleged injury. It is true that the Chamber explained above that this matter is available to the legislator, but that when regulating it, the legislator must do so in reasonable terms. However, in this section, the petitioner does not enumerate or even minimally justify which other public servants are being harmed or threatened by this provision. Consequently, the claims must be dismissed.

XXIII.- ON THE OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION AND PROHIBITION CONTRACT Challenged rules Articles 32 and 33 of the LSAP, added by the LFFP, are challenged, which regulate the following:

“Art. 32- Obligations of officials. The official subject to an exclusive dedication contract who holds more than one profession may not practice, in a private capacity or ad honorem, the profession or professions that are related to the position held and that constitute a requirement for holding the position occupied, nor any other activity related to the contractual commitment to exclusivity in the function.

The contract shall be signed by reason of the profession required for the position. Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become entitled to the compensation for this concept.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018) Art. 33- Extent of the limitation. In the event that the official holds more than one profession and has signed an exclusive dedication contract with the Administration, they may practice the profession or professions not covered by the signed contract, provided that those related to the position the server holds do not contravene the institution’s working hours, nor the interests of the State. For officials designated by law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, for remuneration or ad honorem, the profession or professions they hold.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).” Grievances of the petitioner The petitioner alleges a presumed violation of the principles of legal certainty, equality, reasonableness, and proportionality, and the prohibition of arbitrariness, and Article 33 of the Constitution. Establishing limitations such as those set forth in Articles 32 and 33 creates a clear situation of inequality between officials who have an exclusive dedication or prohibition contract and, therefore, are paid the corresponding amount, versus officials who do not have this salary incentive and yet, the State prohibits them from practicing their profession, according to the cited rules, which is clearly unconstitutional.

Report of the PGR The PGR noted that the principle of impartiality, together with that of independence in public management, constitutes the pillar upon which all legislation on incompatibilities rests. Indeed, to obviate or prevent conflicts of interest and safeguard the public interest, the legislator has developed a set of ethical rules that must be observed by all officials in the exercise of the public function. Moreover, it insists that the public function is governed by a set of values, principles, and norms of high ethical and moral content, with the purpose of guaranteeing impartiality and objectivity (see, among others, decisions numbers 1749-2001 and 5549-99 of the Constitutional Court, which, although relating to incompatibilities, have a general scope), independence, and even to avoid nepotism in the exercise of the public function, as a typical manifestation of conflict of interest. And from this perspective, the aim is to “provide independence to public servants, in order to place them in a position of impartiality to avoid conflicts of interest and unfair competition” (decision No. 1995-3932). In this matter, evidently, the public interest prevails over the private interest; therefore, the petitioner’s grievances are inadmissible.

Report of the Ministry of Finance Regarding Articles 32 and 33, the grievances are rejected, appealing to the very definition of the salary supplements in question:

“The limitations contained in the aforementioned rules have their raison d’être in preventing officials from compromising their impartiality and even from practicing their other professions during their working hours. In this regard, it is worth recalling the concept of overlapping schedules, which has been maintained over time and to which the aforementioned rules are estimated to conform.” Regarding an alleged violation of the principle of legal certainty by subjecting servers to principles of impartiality, the claim is rejected. On that specific point, the following is reported:

“This Office does not understand the petitioner’s assertion that, by ambiguously establishing an express prohibition for officials who, without having an exclusive dedication contract or receiving economic compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over public interest, the principle of legal certainty is violated. In this regard, said provision is not ambiguous and, on the contrary, conforms to other bodies of the legal system that refer to that impartiality, which even finds its foundation in Article 11 of the Political Constitution itself.” The Minister reiterates the intent for uniformity in the system and the safeguarding of acquired rights:

“Finally, it is necessary to indicate that, in order to safeguard acquired rights, and because Transitory Provision XXV of the Law for Strengthening Public Finances so provides, the total salary of servers who were active as of December 4, 2018, the date on which that law entered into force, may not be reduced… The arguments developed by the Office of the Attorney General of the Republic in its repeatedly cited Opinion, unlike what the petitioner states, are clearly substantiated, demonstrating that the regulations set forth in Law No. 9635 and its reform, far from entailing arbitrary, discriminatory, disproportionate, and irrational actions, are directed at establishing a uniform regulatory framework, by legal means, for all employment relationships in the public sector.” Ruling of the Constitutional Chamber Firstly, the challenge is general and encompasses both servers who have an exclusive dedication contract and servers covered by the prohibition. However, the challenged rules directly allude to the fact that servers who are possible beneficiaries of economic compensation for prohibition may not practice privately the profession they hold. The challenged excerpts state: “Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become entitled to the compensation for this concept” (Article 32, paragraph 2, in fine) and “For officials designated by law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, for remuneration or ad honorem, the profession or professions they hold” (Article 33, in fine). Therefore, the objections must be examined solely from the perspective of the “prohibition.” To examine these claims, it is necessary once again to refer to conceptual aspects and the rationale and constitutionality of the prohibition regime. In accordance with the LSAP, prohibition is defined in the following terms:

“restriction legally imposed on those who hold certain public positions, with the aim of ensuring an absolute dedication of such servers to the public duties and responsibilities entrusted to them. Every public official who receives the payment for prohibition shall be unable to practice their profession or professions in any other position, in the public or private sector, whether or not related to their position, whether remunerated by salary, wages, per diems, fees, or any other form, in cash or in kind, or even ad honorem.

Officials under the prohibition regime shall obtain economic compensation for the limitation on the liberal practice of their profession or professions under the terms set forth in this law.” (Highlighting does not correspond to the original).

A definition that is replicated in the regulation, as it provides the following:

“Prohibition: restriction legally imposed on those who hold certain public positions, with the aim of ensuring an absolute dedication of such servers to the public duties and responsibilities entrusted to them. Every public official who receives the payment for prohibition shall be unable to practice their profession or professions in any other position, in the public or private sector, whether or not related to their position, whether remunerated by salary, wages, per diems, fees, or any other form, in cash or in kind, or even ad honorem.” This Chamber has dealt with examining the constitutionality and the origins of the figure of prohibition. In decision No. 3369-1996, the following analysis was made:

“III).- Article 1 of Law No. 5867, challenged herein, establishes the payment of economic compensation for Tax Administration personnel who are subject, by reason of their positions, to the prohibition contained in Article 113 -118 according to the current numbering- of the Code of Tax Rules and Procedures, and extends that compensation to a series of officials, among them, the ‘technical staff’ and ‘professional technical staff’ of the National Budget Office, the National Treasury, the Mechanized Technical Office of the Ministry of Finance, the General Directorate of Industries of the Ministry of Industry, Energy, and Mines, and those of the General Forestry Directorate of the Ministry of Agriculture.- The prohibition referred to in Article 118 of the aforementioned legal body is set forth as follows: (…)

The foregoing means that the officials or employees subject to that prohibition are absolutely prevented not only from holding other public positions but also from performing, in the private sector, activities related to the positions they hold in the State, except, of course, for the exceptions that the rule itself establishes, based either on the nature of the activity –teaching– or when it involves defending personal interests or those of close relatives.- Said limitation is imposed, as all those involved in this proceeding acknowledge, when the liberal practice of the profession or activity is incompatible with the public position held, that is, when it may generate serious harm to the interests of the Public Administration, so that the impediment carries with it an additional payment to the official as compensation, in order to avoid not only the departure of personnel but also disloyal performance of the function.- It is clear, from what has been said, that only those activities whose private practice is incompatible with the function the server performs are subject to the prohibition under analysis and, therefore, are subject to the compensation established in Article 1 of Law No. 5867, whose constitutional validity is at issue.- The absence of such incompatibility, on the contrary, authorizes the public servant to practice their profession or trade privately, subject to the liabilities of the case if they thereby incur any labor fault; and therefore, the Administration is also not obligated to grant any economic compensation, as sought in this proceeding. (…)

It must be noted, first, that for this Chamber, the payment of the aforementioned compensation does not constitute, under any circumstances, an unjustified benefit or a privilege for a specific group of servers; rather, it is the fair recognition for those who, by reason of the function they perform, and for the protection of the highest public interest, are unable to practice their profession or trade beyond the administrative unit where they work; therefore, the existence of alleged discrimination must be dismissed from now on, based on the claim that said payment is a form of privileged treatment for a few public servants. It is a limitation on the private practice of the profession or trade, for whose establishment the State decided to provide economic recognition on top of its employees’ base salary. It would seem that, at bottom, and in order to obtain a percentage salary increase, there is a desire to compel the State to prohibit public servants from performing any private work at all, despite the absence of any incompatibility with the public function performed—a situation that would indeed constitute an unjustified and therefore illegitimate payment, given that if the server is free to practice their profession or activity outside office hours, there is no logical, legal, and much less constitutional reason to claim that the non-payment of the ‘professional prohibition’ in such cases constitutes unreasonable discrimination. In any case, it is clear that these are not identical situations that merit equal treatment in the terms sought: first, there are, on the one hand, public servants subject to a legal prohibition on the private practice of a specific profession or activity, and, on the other, servants not subject to it; furthermore, there certainly is no identity of functions, even though they may hold the same class of position (‘technical staff’ and ‘professional technical staff’).” (Highlighting does not correspond to the original).

Subsequently, in decision No. 2008-00591, the compensatory nature of the prohibition was justified by virtue of the impossibility of engaging in the liberal practice of the profession. In that regard, the following was resolved:

“Thus, as indicated, the petitioner’s assertion that this is some kind of perquisite or privilege of the upper hierarchy of the public sector is patently incorrect. Rather, the act declaring a given public position subject to the incompatibility regime—understood as prohibition in this case—constitutes a typical act of burden and not—as is often believed—a benefit. Indeed, we are not in the presence of acts declaratory of rights, but rather of a determination that reduces, deprives of, or extinguishes the right or faculty that the public officials in question would otherwise have for the liberal practice of their respective professions. In this way, the remuneration provided for by Article 15 of Law 8422 is, in reality, strictly compensatory in nature, precisely because that limitation imposed on the liberal practice of the profession entails the possibility of generating a loss, namely, the opportunity cost for the affected server of not being able to practice their profession privately.” (Highlighting does not correspond to the original).

More recently, the Chamber reiterated those considerations in the sense that the prohibition “is a limitation on the private practice of the profession or trade, for whose establishment the State decided to provide economic recognition on top of its employees’ base salary,” and ruled on the constitutionality of Article 15 of the Law against Corruption and Illicit Enrichment in the Public Function, Law No. 8422, in which the following was resolved:

“In which case, the petitioner’s objection requires clarifying, preliminarily, that the payment of the economic remuneration provided for in Article 15 of Law No. 8422 does not constitute, as the petitioner seems to understand, a mere additional or accessory payment to the salary to guarantee ‘economic stability’ for the public official, but rather constitutes economic compensation as a specific consequence of the imposition of a prohibition on the practice of a liberal profession. Likewise, this Court has stated that this type of prohibition or incompatibility, in the sense of preventing or limiting certain public officials from the private practice of their profession or the performance of private activities related to the position they hold, aims to guarantee the duty of objectivity and impartiality in the exercise of the public function, that is, to prevent the public servant from being in a situation where there is conflict or collision between public and private interests and, in such a scenario, from being able to act for their own benefit in the exercise of their public powers. Moreover, if there is no rule establishing the respective prohibition or incompatibility, then the public official is free to practice their profession or trade privately once their workday has concluded. To which it is added that this Chamber has resolved that it cannot be considered that there exists a sort of general obligation on the State to prohibit the performance of any private work or activity by its public servants, with the subsequent recognition of economic compensation.” (Highlighting does not correspond to the original. Decision No. 2018-008127).

That conception, i.e., that it is an indemnifying economic remuneration for the restriction of a personal freedom, has also been recognized in the case law of the Second Chamber of the Supreme Court of Justice, where the following has been repeatedly stated:

“II.- A distinction must be made between the economic compensations known as prohibition and exclusive dedication. The former was formulated as a way of compensating the worker for the impossibility dictated by law of practicing their profession outside the position held; for that reason, it operates automatically and it is not within the powers of the employee or official to request it, nor does the employer have discretion to pay it. The mere acceptance of the permanent position implies its payment. It began to be granted for the first time in the Public Sector through Law No. 5867 of December 15, 1975, which contemplates additional salary benefits or supplements for Tax Administration officials who are subject, by reason of their positions, to the prohibition contained in Article 113 of the Code of Tax Rules and Procedures.” (Highlighting does not correspond to the original. See decisions numbers 171-1989, 58-1991, 2019-000293, and 2023-000749, among many others).

Finally, it is worth highlighting that even the PGR, in Opinion No. 421 of December 7, 2005, also justified that it is a regime that imposes limitations on the exercise of a freedom. The following considerations emerge from that opinion:

“In any case, it cannot be overlooked that the regime of fundamental rights is characterized by the principle of legal reserve in its regulation, as well as by the ‘pro libertatis’ principle that informs its interpretation, the latter dictating that every legal norm must be interpreted in a manner that favors freedom. Under that basic premise, it must be understood that the prohibition on the practice of liberal professions constitutes a regime that imposes limitations on the exercise of a freedom; hence, its interpretation must necessarily be restrictive, and consequently, it cannot be intended to extend its application to scenarios not contemplated in the rule.

It is for this reason that, referring specifically to the prohibition on the liberal practice of the profession, we have stated that:

‘we must be clear and consistent in warning that in no way could it be attempted to expand, by analogy, the scope of action of burdensome or restrictive provisions imposing the commented prohibition, for we are undoubtedly facing what the doctrine knows as “odious matter,” since it restricts the natural faculties or the freedom of persons (BRENES CÓRDOBA, Alberto. “Tratado de las personas,” Editorial Costa Rica, San José, 1974, p. 44); an area reserved to the law—in a formal and material sense—or a norm superior to it.

Admitting the contrary would lead us to commit a flagrant arbitrary action, which would violate not only administrative legality, but the very Law of the Constitution.’ And for this reason, the Constitutional Chamber itself has determined that if the Law has not established a prohibition on the private practice of the profession or on carrying out private activities related to the position held, or if no incompatibility exists, the official is free to decide to practice such profession or carry out such activities (See in this regard, resolutions No. 2312-95 of 4:15 p.m. on May 9, 1995, and 3369-96 of 10:27 a.m. on July 5, 1996); that is, in the absence of a rule referring to a specific profession, or in the absence of incompatibility, it must be understood that the professional is free to work privately." (legal opinion No. OJ-200-2003 of October 21, 2003) Therefore, it would be openly improper to attempt to subject the generality of the management heads existing in the institution to the prohibition regime, when it is a regime that limits the exercise of a fundamental freedom and therefore the limits established by the law that regulates it must be strictly observed, as has been explained.

Likewise, it is important to draw attention to the fact that the compensation provided for in Article 15 of Law No. 8422 is strictly compensatory in nature, precisely because that limitation imposed on the liberal exercise of the profession carries the possibility of generating a detriment, which is the opportunity cost of not practicing the profession privately." (The emphasis does not correspond to the original).

In light of these explanations, in the specific case, it is appropriate to declare the unconstitutionality of the challenged provisions. It must be insisted that the legislator is empowered to regulate the aspects pertaining to public service, but always within the margins of Constitutional Law (values, principles, and norms). In the specific case, it is observed that, on one hand, the figure of prohibition is regulated and contemplated as a restriction on a freedom so that certain servants perform their profession with "absolute dedication," with "economic compensation for the limitation on the liberal exercise of their profession or professions" being intrinsic to said restriction (see the legislative definition of the figure of prohibition). But, on the other hand, it is intended to include an identical restriction, but "regardless of whether or not they meet the requirements to become eligible for the compensation." At the very least, the rule is unintelligible, as its wording is not clear. But the claimant is correct in the sense that it imposes an identical restriction of being subject to the prohibition regime, establishing limitations on professional practice, and, on the other hand, seems to ignore the corresponding compensation for such restrictions.

The terms of the questioned rules lack reasonableness and proportionality because, it is repeated, they cause a situation of inequality among servants with identical restrictions, but in some cases they do access the compensation and in other cases they do not. Therefore, what is appropriate is to declare the unconstitutionality of the following paragraphs: "Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become eligible for compensation for this concept" (Art. 32 para. 2 in fine) and "For the officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold" (Art. 33 in fine).

It is fitting to conclude this section by explaining that there is no contradiction here between these considerations and those made supra, in relation to the general regime of incompatibilities, regarding impartiality, avoidance of conflicts of interest, and probity. Such qualities are intrinsic to all public servants. What is questioned here is not the respect for such principles, which must always prevail in public service; but rather the prohibition on practicing the profession in other areas where there are no conflicts of interest or overlapping schedules. If the legislator has made the determination to indemnify the restriction on a professional freedom, it must do so under equivalent conditions for all public servants and not merely impose the restriction without the consequent remuneration, as this implies an unreasonable regulation harmful to the rights of servants who have the restriction but not the compensation.

Consequently, this aspect of the action must be declared with merit.

Magistrate Rueda Leal issues a dissenting vote and declares the action with merit in relation to the paragraphs: "Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become eligible for compensation for this concept" (Art. 32 paragraph 2 in fine) and "For the officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold" (Art. 33 in fine), both from the Public Administration Salary Law, added by Article 3 of Title III of the "Public Finance Strengthening" Law, No. 9635 of December 3, 2018.

XXIV.- ON THE NEW PERCENTAGES FOR EXCLUSIVE DEDICATION AND PROHIBITION.

Challenged Rules The challenged rules are the following:

Art. 35- Compensation percentages for exclusive dedication.

The following economic compensations are established on the base salary of the position held by professional officials who sign exclusive dedication contracts with the Administration:

| --- | --- | | 1. Twenty-five percent (25%) for servants with a licentiate level or another higher academic degree. | | | | | | 2. Ten percent (10%) for professionals with a university bachelor's level. | | | | | | (Thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018) | | | | | Art. 36- Prohibition and compensation percentages.

Public officials who, by legal means, have been imposed the restriction on the liberal exercise of their profession, called prohibition, and who meet the requirements established in Article 31 of this law, will receive economic compensation calculated on the base salary of the position they hold, in accordance with the following rules:

| --- | --- | | 1. Thirty percent (30%) for servants at the licentiate level or another higher academic degree. | | | | | | 2. Fifteen percent (15%) for professionals at the university bachelor's level. | | | | | | (Thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018) | | | | | Grievances of the Claimant The claimant alleges that the rules violate the principles of progressivity of rights, equality, efficiency and effectiveness, reasonableness, proportionality, and Articles 7, 33, 50, 56, 57 of the Constitution. It is questioned that the new recognition percentages for additional salaries for exclusive dedication and prohibition, under less beneficial conditions, harm the principle of progressivity of rights, as previously indicated. The approved regulation worsens working conditions within the public sector, justified by the country's poor fiscal situation, which cannot be permanent. However, the approved reforms do not provide for the workers' situation to change if the country's economic situation is reestablished, thus turning that into a permanent sanction.

The new compensation rules for public officials harm the principles of progressivity of rights and efficiency and effectiveness in the Public Administration. This will generate, in the short term, a flight of experienced professionals, as there are no attractive salary conditions to keep them within the system. The reduction applied to the additional salaries for exclusive dedication and prohibition is irrational and lacks a technical study that can support this impairment of working conditions, without certainty that it is the cause of the country's fiscal problem, when it has been pointed out that the causes of the fiscal deficit derive from more complex problems such as tax evasion and elusion. In the near future, there will be officials performing identical or similar functions, but receiving a completely different income. The set of rules challenged in this section makes it clear that the purpose of the law to "standardize and unify" public employment regimes is false, and that the State is creating gross and unjustified differences between officials of the same category, promoting the violation of the constitutional principle of equality.

The claimant details that the reduction of more than half of the additional salaries for exclusive dedication and prohibition, to practically half of the items that had been paid, is irrational, given that there is no technical study that can support this impairment of working conditions; one cannot be fully certain that worsening the salary conditions of public officials will solve the country's fiscal problem.

The reduction of percentages, both in exclusive dedication and prohibition contracts, generates a clear inequality of conditions among the same officials, both those who were hired by the Administration before the entry into force of Law 9635, compared to new hires. That is, officials who would be performing the same functions under equal conditions are limited in the exercise of their profession, but with completely different salary conditions. This, in the claimant's opinion, harms the principle of equality enshrined in Art. 33 of the Political Constitution by generating odious discrimination.

It warns of a situation of inequality in the law and in the derogations contained in Art. 57 subsections g), i), l), m), n), o), and p) and Art. 58 subsection a), specifically on the issue of recognition percentages for prohibition, given that a serious inequality is created by having derogated the rules that regulated prohibition payment compensation in the entire public sector, except Art. 1 subsection a) of the Prohibition Payment Compensation Law (Law 5867), which is applicable only to officials of the Treasury Regime and a few others, disproportionately and unjustifiably increasing inequalities in the public sector because it is the only sector that maintains the prohibition payment at 65% of the salary, compared to all other servants for whom the corresponding item is reduced.

Report of the PGR Regarding the new compensation amounts, the PGR reported the following:

"Regarding that argument, as we indicated in the report submitted in the unconstitutionality action processed under file No. 19-6416-0007-CO, belonging to the exclusive dedication regime does not constitute a fundamental right, as the claimant seems to understand it. Exclusive dedication is based on an agreement or contract between the public employer and the servant, such that, if the latter considers that the economic compensation to be granted for refraining from the liberal exercise of their profession is too low, they have the possibility of not signing the respective contract.

In any case, the Public Finance Strengthening Law respected the acquired rights and consolidated legal situations of officials who already had a signed and valid exclusive dedication contract. This provision occurred in two ways: ensuring that the total salary of servants active as of December 4 would not be decreased (Transitional Provision XXV of Law No. 9635); and establishing that those who had valid exclusive dedication contracts would maintain the percentages granted by the previous regulations (Transitional Provisions XXVI and XXVIII of Law No. 9635). (…)

Subsequently, through the cited Decree No. 41564, the Executive Branch issued the "Regulation of Title III of the Public Finance Strengthening Law, Law No. 9635 referring to Public Employment." Articles 4 and 5 of that regulation also preserved the acquired rights and consolidated legal situations of officials active at the date Law No. 9635 entered into force (…)

Based on the foregoing, this Attorney General's Office does not consider that the changes introduced by Law No. 9635 regarding exclusive dedication violate Constitutional Law, especially if it is taken into account that said changes did not affect officials who had entered the regime before the entry into force of that law.

If the claimant Union estimates that the percentages of economic compensation for exclusive dedication applicable to officials who entered public service after the validity of Law No. 9635 violate the principle of reasonableness, they must have demonstrated it, because as this Chamber has indicated, it is not enough to allege the unreasonableness of a rule, but it is necessary to demonstrate it. The fulfillment of this requirement, according to repeated rulings of this Chamber, is indispensable for carrying out the validity examination of the challenged provision (…)

In this case, the claimants do not provide technical proof or solid arguments that allow it to be taken as true that the percentages of economic compensation for exclusive dedication set forth in Article 35 of the Public Administration Salary Law are unreasonable.

On the other hand, this Advisory Body does not consider that the new regulation on exclusive dedication makes the salary of professionals who enter to work in the public sector after December 4, 2018, ruinous, since it is, as we already indicated, an accessory compensation to the salary, based on a figure that is contractual and, therefore, waivable by the worker. That is, if the worker considers that the economic compensation is not sufficient to replace the income they could receive from the private practice of their profession, they have the possibility of declining to sign the exclusive dedication contract and obtaining, in private practice, the respective economic resources.

From that perspective, it is not possible to support the claimant Union's statement that the amount of economic compensation for exclusive dedication constitutes a human right, nor that its decrease (for people hired after the entry into force of Law No. 9635) affects the principle of progressivity, since people who were already subscribed to the exclusive dedication regime before the entry into force of Law No. 9635 maintain the previously provided percentages, and those who entered after that date have the right to decide whether or not to accept the regime, increasing their total salary in any case. If they decide not to accept it, they could in any case practice their profession privately and earn additional economic remuneration for it, which would complement their total income.

Thus, it is not true that with Law No. 9635 excessive, disproportionate, and unreasonable reductions in the salary of professionals were produced, because as we already indicated, said law took the precaution of not affecting the total salary of officials active as of December 4, 2019; for whom the percentages for exclusive dedication were maintained provided that at that date they had valid exclusive dedication contracts.

And in any case, we must highlight that the legal regulation of the civil service regime is an express power of the legislator (Art. 191 of the Constitution), in relation to which the Legislative Assembly exercises its legislative power discretionally, which is moreover inexhaustible (Arts. 105 and 121.1 of the Constitution).

The alleged unconstitutionality defects are not admissible." Report of the Ministry of Finance The minister, when referring to the percentages in question, says that they can be reviewed and adjusted, just as occurred with the enactment of Law No. 9635, and this does not violate the constitutional framework. She states that the variants set forth in Title III of the LFFP regarding the Exclusive Dedication percentages, in the opinion of this Ministry, do not conflict with the provisions contained in the Political Constitution. This assessment is also applicable to the variants in the percentages for the economic recognition of prohibition.

Resolution of the Constitutional Chamber What pertains to these aspects must be rejected. The claimant affirms that these provisions were adopted in light of a specific fiscal situation, but translate into a kind of "permanent sanction." It is generically argued that the principles of reasonableness, proportionality, progressivity, efficiency, and effectiveness in the Public Administration are harmed, and it alludes to supposed hypothetical harms: flight of professionals and the impact on the functioning of the Public Administration. It is invoked that the reduction is unreasonable, without being certain that the salary issue is the cause of the fiscal problems, and alleged differences between officials of the same category. This Chamber considers that the claimant's allegations lack adequate substantiation and demonstration of the grievances they state.

In the first place, it is not observed that this is a kind of sanction, but rather a legal definition of the amounts that can be subsequently recognized for new public servants. The foregoing, in response to the serious fiscal situation of our country. An extensive recital was already made detailing the motivation for the legislative proposal that not only contemplates salary aspects, but it was an urgent element to address. The Chamber previously emphasized that the fulfillment of the principle of financial or budgetary balance is an objective and reasonable justification for regulating salary aspects and that "in the face of a critical condition in public finances (duly supported by technical studies), which puts the effective or adequate execution of constitutionally relevant services at risk, the decision of the competent authorities to define and apply suitable measures to alleviate or solve the problem is not only reasonable but, even more so, unavoidable" (consultative opinion No. 2018-18505).

It is true that the salary aspects of public servants should not remain frozen indefinitely or cause salaries insufficient to guarantee the conditions of dignity and well-being of public servants (see recital VII). However, the claimant's allegations are based on mere premises and statements lacking adequate substantiation. In this regard, the claimant must be reiterated and referred to the resolution of this Chamber No. 2024-007057, in the sense that these generic statements without adequate substantiation and without proof of their affirmations must be rejected. For their identity, it is fitting to reiterate:

"In this sense, the Chamber considers that the claimants' approach is abstract and general, as it is limited to mentioning that a salary impairment occurs to workers that they consider disproportionate and irrational through a rule that, subjectively, is not considered reasonable; however, the reasons are not specified, they do not present solid data or evidence or elements of judgment that allow an analysis of the reasonableness of the decision taken by the Executive Branch, as required by the jurisprudence of this Chamber.

(…)

Likewise, regarding the alleged harm to the principle of prohibition of arbitrariness and the principle of prohibition of deviation of power, the filing brief does not provide adequate substantiation of the reasons on constitutional grounds for which the eventual harm to those principles is considered, but rather refers to criteria that must be verified through the legality channel.

In relation specifically to the principle of equality and non-discrimination, simply invoking its violation is not enough. In this sense, it is opportune to remind the claimant party that it has been a jurisprudential line of this Court that, when the violation of the principle of equality or proportionality is alleged, as occurs in this case, they have the duty to provide a comparison parameter, along with the corresponding analysis. Hence, whoever invokes this type of breach is obliged to provide elements that allow a full comparison between the subjects treated differently, making it possible to check whether the alleged inequality occurs or not.

(…)

Consequently, the lack of substantiation of the action regarding these aspects prevents even assessing the violation of the indicated principles. As already stated, the Chamber's jurisprudence is emphatic in pointing out this duty to substantiate the arguments of unconstitutionality (see also in this regard judgment No. 2023-31744, of 9:30 a.m. on December 6, 2023). In the case under study, the claimant party limits itself to pointing out the constitutional principles presumably affected by the regulation it seeks to question, without detailing or threading a concrete argument that allows assessing whether, in effect, the stated defects are present.

It is improper, therefore, for this Chamber to rule on the merits of rules challenged in an action, when the claimant does not substantiate the reasons why they challenge them, since this would imply carrying out an abstract constitutional control as an academic exercise, which is not compatible with the purpose of a proceeding of this nature." (The emphasis does not correspond to the original).

These considerations can be replicated in the specific case, given that the substantiation provided by the claimant is insufficient to carry out an examination of the reasonableness of the provisions (alleged unreasonableness of the new amounts, flight of professionals, and eventual impact on the functioning of the Public Administration), as well as the alleged harm to the principle of equality. It is reiterated, for such purposes, that they do not present solid data, evidence, or elements of judgment that allow contrasting and analyzing the reasonableness of the decision taken by the Legislative Assembly, and it is not appropriate for this Chamber to supply the noted omissions.

Magistrate Cruz Castro issues a dissenting vote and declares Articles 35 and 36 of the Public Administration Salary Law unconstitutional.

XXV.- ON THE PROHIBITION OF ADDITIONAL INCENTIVES Challenged Rules The rules being challenged are Art. 40 of the LSAP, a regulation added by the LFFP, and also Art. 16 of the Regulation of Title III of the LFFP, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H, which state the following:

"Art. 40- Improper additional incentives.

The creation, increase, or payment of remuneration for the concept of 'discretion and confidentiality,' nor the payment or recognition for the concept of bienniums, quinquenniums, or any other remuneration for accumulation of years of service different from annual increments, is not applicable in any of the institutions contemplated in Article 26 of this law.

(Thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018).

Art. 16.- Improper additional incentives.

The payment of benefits for confidentiality and discretion, bienniums, quinquenniums, or other accumulation of years of service different from annual increments, may not be granted in any case to servants who are appointed for the first time in one of the institutions that recognize said incentives, as of the entry into force of Law No. 9635." Grievances of the Claimant The rule, in the claimant's opinion, constitutes State interference that is unconstitutional, by affecting the self-government possibilities that the Municipal regime possesses. It is a rule of a prohibitive nature, which eliminates the possibility for local governments to determine their own needs and possibilities in salary matters and to establish incentives so that work personnel remain in their jobs. It affirms that it violates the principle of progressivity of labor rights, as it causes regression in some institutions that already pay the quinquennium incentive, whether by legal means (Art. 90 subsection c) of the General Police Law, Art. 27 of the Legislative Assembly Personnel Law) or regulatory means (Arts. 99 and 100 of the Autonomous Regulation of the Costa Rican Tourism Institute) or through collective bargaining (Junta de Protección Social de San José).

Report of the PGR The PGR suggests dismissing the allegations raised. To that end, it makes the following reflections:

"From the analysis of Law No. 9635 and its Regulation (issued through Decree No. 41564 of February 11, 2019), it does not appear that the legislator's intention, using the broad configurative powers of the Public Service Statute granted by the Constitution (Arts. 105, 121.1, and 191), was to derogate the provisions, of different ranks, that governed the remuneration of public servants (except in the cases expressly provided for in the law itself) but rather to adapt that regulation to a general and transversal framework applicable to each of the existing salary components, in what is normatively incompatible with it.

The foregoing is evident, for example, with the provision in Article 54 of the Public Administration Salary Law, according to which, 'Any other existing incentive or compensation that at the entry into force of this law is expressed in percentage terms, its future calculation will be a fixed nominal amount...' That rule does not derogate the incentives or compensations existing before the Public Finance Strengthening Law, but rather establishes the way they must be calculated in the future, no longer as a percentage, but as a fixed nominal amount.

The fact that Article 40 of the Public Administration Salary Law, in relation to Article 16 of the Regulation to Title III of Law No. 9635, decided to render ineffective some specific additional salaries such as that for confidentiality and discretion, bienniums, quinquenniums, and any other related to accumulation of years of service different from the annual increment, supports the statement that additional salaries existing before the entry into force of that law, and which are not those mentioned in the aforementioned Article 40, remain in force and are applicable to the personnel of the institutions referred to in Article 26 of the Public Administration Salary Law, including personnel appointed in the future, but nominalized.

On the other hand, as regards the reservation of law for the creation of new additional salaries, such reservation applies as of the entry into force of Law No. 9635 and into the future. This follows from the express text of Article 55 of the Public Administration Salary Law, according to which, 'The creation of incentives or compensations, or salary bonuses may only be done through law.' (The underlining is ours).

Although we know that in resolution No. 2018-019511 of 9:45 p.m. on November 23, 2018, the Chamber indicated that the cited Article 55, insofar as it imposes the creation of incentives and compensations only through a formal law, is not unconstitutional, provided it is understood that it does not apply to public employees and workers who may enter into collective agreements, pursuant to the reform introduced by the Labor Procedural Reform, Law No. 9343, to Article 112, subsection 5) of the General Law of Public Administration (LGAP), according to the inverse determination or contrario sensu that Articles 683 and 689 make of these, since in those articles it is rather defined who those who participate in public management are; thus all other servants, except those stated therein, are enabled to negotiate collective agreements. This in order not to empty the right to enter into collective agreements and the union action itself of content." Resolution of the Constitutional Chamber In relation to the alleged harm to municipal autonomy, the claimant party must abide by what was already resolved by this Chamber in judgment No. 2019-010635 which partially admitted this action and dismissed the allegations raised regarding a presumed harm to the principle of autonomy:

"II.- ON THE PARTIAL INADMISSIBILITY OF THE ACTION. Based on the foregoing, the action is not admissible in relation to the violation of the principle of autonomy and, therefore, is rejected outright regarding Article 26 of Law No. 2166 and Articles 5 and 11 of Law No. 9635.

Additionally, the alleged violation of this principle in relation to articles 28, paragraphs 2 and 4, 40, 46, 47, 48, 50, 52, 53, 54, and 55 of Law No. 2166, 17, 23, 24, and 25 of Law No. 9635, and 1(c)1°, 6, 15, 16, 17, 21, 22 of Executive Decree No. 41564-MIDEPLAN-H is rejected outright. Finally, the violation of articles 169, 170, 188, and 189 of the Political Constitution by articles 26 and 55 of Law No. 2166 and articles 5, 11, and 17 of Law No. 9635 is rejected outright." (The highlighting does not correspond to the original).

In which case, only the allegation regarding possible harm to the constitutional principles of progressivity and non-regressivity subsists because a "regression" is caused in those cases where these bonuses are already recognized by law, regulation, or collective bargaining agreements. Under this panorama, it is observed that we are not actually facing a duly substantiated conflict of constitutionality, but rather a dispute of ordinary legality regarding the prevalence of general or special rules in those cases where different salary items or incentives are paid. This analysis of potential antinomies in different specific cases must be carried out, examined, and resolved in the competent legality instances. In this regard, for example, in judgment No. 2024-009406, the following was resolved:

"In which case, although an alleged infringement of a constitutional norm is claimed, the truth is that the underlying conflict raised by the plaintiff constitutes a dispute of ordinary legality, concerning the correct interpretation and application of the provisions of articles 333, 339, and 340, subsection 2), of the Labor Code and its potential confrontation with the provisions of clauses 8 subsections c) and i), 10, 13 subsection b), 15, and 17 of the Bylaws of the Union of Health Workers of Public and Private Institutions (SITHOSAJUDI-SINTRASALUD). A conflict that, prima facie, cannot be elucidated through an unconstitutionality action. Thus, for example, in vote No. 2018-000521 at 9:15 a.m. on January 17, 2018, this Chamber resolved:

'What the plaintiff raises, on the contrary, is a discussion about the adequate interpretation and application of various infra-constitutional norms and about an eventual collision between said regulations. This refers to a conflict of ordinary legality that cannot be elucidated by this Chamber. This Court has indicated, first, that "the improper application of the law or its erroneous interpretation in the specific case" is not a matter suitable to be heard through the unconstitutionality action (judgment No. 5966-94 at 3:54 p.m. on October 11, 1994). To which it is added that it is also not within its competence to resolve eventual antinomies between norms of legal rank.' For its part, in vote No. 2021-020701 at 10:15 a.m. on September 16, 2021, this Chamber also indicated:

'(...) the argument about a collision of laws or infra-constitutional regulations, as well as the erroneous interpretation and improper regulatory application, is a conflict of legality that must be analyzed in the ordinary channel and not as an argument of constitutionality in this venue. The action proceeding is intended to exercise a control of constitutionality of norms and not to control the correct application of the law.' Therefore, definitively, it is not the competence of this Chamber to elucidate whether the provisions of the cited statutory clauses fully conform or not to the provisions of the Labor Code. Such extremes must be resolved in the ordinary channels." (The highlighting does not correspond to the original).

In which case, the discussion presented to us by the plaintiff regarding whether the regulations of the LSAP or special provisions such as the General Police Law, the Law on Personnel of the Legislative Assembly, regulations, or collective bargaining agreements prevail is a matter of legality and not of constitutionality.

The matter regarding the alleged harm to the principles of efficiency and effectiveness, legal certainty, the right to collective bargaining, and the protective principle must be rejected. In this regard, the statement was made, but it was not substantiated how such constitutional rights and principles are harmed. It was already warned above that it is not the responsibility of this Court to supply the omissions in the argumentation required of the person asserting the unconstitutionality of a norm.

XXVI.- ON THE GOVERNING AUTHORITY OF MIDEPLAN Challenged Norms The challenged norms are Art. 46 of the LSAP, regulations added by the LFFP, and also Art. 22 of the Regulation of Title III of the LFFP, Law No. 9635 regarding Public Employment, No. 41564-MIDEPLAN-H, which provide the following:

Art. 46- Governing Authority of Public Employment. All public sector employment matters shall be under the governing authority (rectoría) of the Minister of National Planning and Economic Policy, who must establish, direct, and coordinate general policies, coordination, advisory services, and support for all public institutions, and define the guidelines and administrative regulations aimed at the unification, simplification, and coherence of public sector employment, ensuring that public sector institutions adequately respond to the defined objectives, goals, and actions.

Furthermore, they must evaluate the public employment system and all its components in terms of efficiency, effectiveness, economy, and quality, and propose and promote the necessary adjustments for the better performance of public officials and institutions.

(Thus added by article 3 of title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018) Art. 22.- Application of provisions of Law No. 9635. It shall be the responsibility of the Ministry of National Planning and Economic Policy to advise and provide support to all public institutions that fall within the scope of the provisions of Title III of Law No. 9635, regarding the application of said regulatory body and of what is indicated in this regulation.

Likewise, in relation to the performance evaluation of public servants, said Ministry, in its governing authority role, shall provide the corresponding methodological instruments to coordinate with the different institutions for its effective implementation.

It is pertinent to mention that the recently cited norm, with said wording, was in force for only a few months, as it was subsequently reformed by Art. 1 of Executive Decree No. 41729 of May 20, 2019. The norm currently states the following:

"Article 22.- Application of provisions of Law No. 9635 and institutional competencies. It shall be the responsibility of the Ministry of National Planning and Economic Policy, in coordination with the General Directorate of the Civil Service and the Ministry of Labor and Social Security, according to their scope of competence and technical experience, to advise and provide support to all public institutions that fall within the scope of the provisions of Title III of Law No. 9635, with respect to the application of what is indicated in this regulation.

For this purpose, each institution must submit its query accompanied by the legal opinion of its Legal Advisory Unit and the technical opinion of its Human Resources Office, when the latter is necessary, for the purpose of evacuating the same. Queries that are not accompanied by the corresponding legal opinion will not be addressed.

The General Directorate of the Civil Service shall continue issuing technical resolutions regarding job valuation, in accordance with the provisions of articles 13 and 48 of the Civil Service Statute, as well as 1, 4, and 11 of the Public Administration Salary Law, being the sole body within the Executive Branch with the authority to value jobs within the Civil Service Regime, as well as the other resolutions it is responsible for issuing according to its scope of competence.

The Ministry of Finance, in accordance with article 28, subsection a) of the Law of the Financial Administration of the Republic and Public Budgets No. 8131, is the Governing Body of the Financial Administration System, therefore it is responsible for directing, coordinating, and supervising everything related to the required adjustments and the proper functioning of the Payment Information Systems INTEGRA 1 and INTEGRA 2 by virtue of the entry into force of Title III of Law No. 9635.

The Ministry of Labor, in accordance with the provisions of the Organic Law of the Ministry of Labor and Security No. 1860, shall handle everything related to union matters, collective bargaining agreements, and pensions.

Likewise, in relation to the performance evaluation of public servants, the Ministry of National Planning and Economic Policy, in its governing authority role, shall provide the corresponding methodological instruments to coordinate with the different institutions for its effective implementation." Grievances of the Plaintiff The plaintiff questions that MIDEPLAN is granted powers to "define the guidelines and administrative regulations aimed at the unification, simplification, and coherence of public sector employment, ensuring that public sector institutions adequately respond to the defined objectives, goals, and actions." This constitutes a very clear intrusion into the administrative, political, and organizational powers of the decentralized entities, in direct violation of the three degrees of autonomy that the Constitution and the laws of creation have granted to each of those administrations, stripping them of their power of self-administration. Each of the decentralized entities is a distinct legal entity, with a specific legal purpose and addressing concrete needs established by law. For this, they are assigned a budget, which in many cases is their own as it comes from taxes created in their favor or from a commercial activity. On the other hand, the Ministry of Planning is alien to the reality of each institution and the community or public interest it serves, despite which it is granted the power to decide on multiple aspects of the public employment regime. A violation of the principle of legal certainty also occurs, as the duality in regulation (decentralized regime and regulatory powers of the Executive Branch) causes a state of insecurity for the entities and their workers.

Report of the PGR The PGR suggests rejecting this part of the appeal, based on the following considerations:

"Contrary to what the plaintiff unfoundedly accuses, with the Law for the Strengthening of Public Finances and specifically its Title III, referring to the Amendment of Law No. 2166, Public Administration Salary Law, of October 9, 1957, and its reforms, and other applicable Transitory provisions, the intention was not to establish, by way of artificial homogeneity, a unitary public employment statute in formal terms; that is, a single regulatory instrument—but rather, it established a series of postulates and norms on remunerative matters that, in general terms and with a clear claim to generality, tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State.

And as the own numerals 46 of Law 9635 and 22 of its accused Regulation state, the governing authority that the Law grants to MIDEPLAN is to issue general policies and advise public institutions to achieve unification, simplification, and coherence in public employment matters. This is based on policies of administrative efficiency and effectiveness, following criteria of planning and measuring public management results; this in accordance with constitutional article 140, subsection 8).

It was not the legislator's intention to repeal the powers granted to other public agencies in their respective laws of creation; which is a legally viable option and does not affect the Law of the Constitution in the terms accused." Resolution of the Constitutional Chamber The majority of the grievances raised were dismissed ab initio by this Chamber, as everything related to the defense of institutional autonomy was rejected outright due to the plaintiff's lack of standing (interlocutory judgment No. 2019-010635).

It is also worth recalling that, by resolution of this Constitutional Chamber No. 2024-7057 of March 14, 2024, it was decided to reject the accumulated unconstitutionality actions—which included Art. 22 of the regulation—with the understanding that the norms of the questioned decree must be applied only to the officials of the institutions that are not excluded from the application of the LFFP in salary matters in accordance with the provisions of the advisory opinion No. 2018-19511, at 9:45 p.m. on November 23, 2018.

By virtue of the foregoing, only the argument of an alleged violation of the principle of legal certainty to the detriment of the workers remains, as on one hand the autonomy of the decentralized entities is enshrined and, on the other, it grants powers to MIDEPLAN to make decisions and issue guidelines via decree, inverting the hierarchy of norms in case of compliance with said policies, or of liability in case of non-compliance. In summary, it questions the governing authority of MIDEPLAN due to the juridical insecurity it could entail for the workers. In the opinion of this Court, the plaintiff's argument relates to potential normative conflicts in the application of provisions of infra-constitutional rank that say nothing about the constitutionality itself of the questioned numerals and of a certain harm to the Law of the Constitution or to the fundamental rights of public servants. The potential normative conflicts would fall to be assessed and resolved in the first instance by the competent legal authorities, but in the sub lite, the arguments provided are not sufficient to assess and determine a direct confrontation of the norms with the Political Constitution and, much less, harm to the fundamental rights of public officials. It is merely a statement about an eventual situation of insecurity regarding what should prevail in each specific case; in respect of which, legal operators naturally must make use of the tools offered by the legal system and particularly the General Law of Public Administration to resolve any normative conflicts. However, it is repeated, such conduct typical of the application of any regulation does not imply its unconstitutionality. Once again, the plaintiff omits to provide solid and sufficient arguments to recriminate the norm in question, and it is not appropriate for this Chamber to supply the argumentative deficiencies. Consequently, the reproaches made must be dismissed.

XXVII.- ON THE MEASUREMENT OF THE PERFORMANCE EVALUATION Challenged Norms Art. 47 of the LSAP is challenged, regulations added by the LFFP, which orders the following:

"Art. 47- Methodological foundation of the performance evaluation. The performance evaluation of the officials shall be based on quantitative indicators of compliance with individual goals for products and services rendered, linked to the processes and projects carried out by the unit to which they belong, and that of the managerial body at all levels for the fulfillment of institutional goals and objectives.

It shall be the responsibility of each superior to define the processes and projects of the unit, as well as the products and services rendered, in accordance with the current regulations and the governmental institutional strategic plans.

The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy (Mideplán), with the objective of homogenizing and standardizing, with the respective exceptions, the evaluation methods and the respective information systems.

(Thus added by article 3 of title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)." Grievances of the Plaintiff In addition to the alleged harm to the autonomy of the decentralized entities, the plaintiff considers that there is also a violation of the principle of equality and the principle of prohibition of arbitrariness, insofar as the Administration can disapply its own evaluation methods whenever it wishes, without objective criteria established in the law. The violation of the principle of equality derives—according to the plaintiff—from paragraph 1 of the norm which establishes "quantitative indicators of compliance with individual goals for products and services rendered." It is argued that the services rendered by the Public Administration are never comparable to the type of services rendered in the private sector, such as to establish quantitative evaluation methods. It considers that MIDEPLAN is unaware of the realities of the different institutions and the diverse workers of the public sector to define standardized and quantitative guidelines for goals and results evaluation. It is questioned, for example, how to quantify the work of a police officer or a teacher?

Report of the PGR Insofar as what is accused by the plaintiff would seem to refer to an aspect of simple and strict interest of ordinary legality, in which no alleged infringements of constitutional norms and principles are accused, in the terms of Art. 73 subsections a) and b) of the LJC, but rather refers to a clear aspect of interpretation and regulatory application of the scope of article 47 of the LSAP reformed by the cited Law No. 9635, what is thus challenged cannot be the object of an unconstitutionality action as intended, as said process is intended to exercise a control of constitutionality of norms and not to control the correct application of the Law; this last aspect being a matter of mere ordinary legality that would fall to be heard and resolved by the competent ordinary jurisdiction, which in this case could be the Administrative Litigation Court.

Resolution of the Constitutional Chamber It must be insisted again that the grievances related to the harm to municipal autonomy and that of the decentralized entities were preliminarily rejected.

Subsequently, the plaintiff alludes to an alleged harm to the principles of equality and the prohibition of arbitrariness because "the Administration can disapply its own evaluation methods whenever it wishes." However, from a careful reading of the norm, it is not possible to appreciate on what basis the plaintiff makes these assertions. Indeed, from the argumentation made by the plaintiff, it is not possible to derive harm to the Law of the Constitution, but mere suppositions about the practical difficulty regarding the performance evaluation and, specifically, the measurement of objectives or results for the diverse ranges of servants of the Public Administration. In this regard, in the Chamber's opinion, the recriminations of the plaintiffs do not go beyond mere practical or operational difficulties about what should be understood by individual goals for products or services rendered; but which, in the terms stated by the plaintiff, do not reflect a problem of constitutional relevance, but rather mere suppositions of the alleged difficulty in designing individual goals for products or services rendered for public servants that are necessarily linked to the processes and projects carried out by the unit to which each servant belongs. In that sense, this Chamber agrees with the opinion provided by the PGR insofar as this process is not designed to control the correct application of infra-constitutional norms but to assess the confrontation of the provisions with the Law of the Constitution, given that such an evident confrontation does not emerge or is corroborated from the arguments raised.

It must be remembered that by imposition of the Political Constitution, the Public Administration and its public servants are subject to a procedure for evaluating results and accountability with the consequent personal responsibility for all public servants in the fulfillment of their duties. The Constitution also states that it is for the law to indicate the means so that the control of results and accountability operates as a system that covers all public institutions (Art. 11 of the Political Constitution). Precisely, this challenged regulation aims to establish the general guidelines to comply with the constitutional mandate of subjecting public servants to a continuous process of results evaluation that demonstrates efficiency, without it being appreciated that such general provisions harm the fundamental rights of public officials.

This pronouncement refers, of course, to the general provision challenged here, which does not prevent that, eventually, the specific methodologies for performance evaluation that are issued may be questioned for alleged harm to the principles of reasonableness or equality of the potentially affected workers.

XXVIII.- ON THE CRITERIA OF THE PERFORMANCE EVALUATION Challenged Norms The plaintiff questions the norm that establishes the general criteria for performance evaluation. The originally challenged norm stated the following:

Art. 48- Criteria for performance evaluation. Each head of the Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products, and services of the unit, establishing delivery deadlines and estimated time for their preparation. It shall be the responsibility of each hierarchical superior to monitor this annual work plan; its non-compliance shall be considered a serious fault in accordance with the applicable regulations.

For the regular and frequent follow-up of the work plan activities, each administration must establish a computerized system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and the compliance with deadlines and times. It shall be the responsibility of each official, including the entire managerial level, to update and keep up-to-date the information necessary for their performance evaluation, in accordance with the processes, projects, products, and services assigned specifically, their delivery deadlines, and estimated times for their preparation, in said computerized system that the Administration will make available to them. Its non-compliance shall be considered a serious fault in accordance with the applicable regulations.

The longevity pay (anualidad) incentive shall be granted exclusively through performance evaluation for those servants who have met a minimum rating of "very good" or its numerical equivalent, according to the defined scale. Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter, and twenty percent (20%) shall be the responsibility of the head or superior.

(Thus added by article 3 of title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018) It is appropriate to note that said norm was reformed by the LMEP, so its current wording is the following:

"Art. 48- Criteria for performance evaluation. Each head of the Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products, and services of the unit, establishing delivery deadlines and estimated time for their preparation. It shall be the responsibility of each hierarchical superior to monitor this annual work plan; its non-compliance shall be considered a serious fault in accordance with the applicable regulations.

For the regular and frequent follow-up of the work plan activities, each administration must establish a computerized system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and the compliance with deadlines and times. It shall be the responsibility of each official, including the entire directive level, to update and keep up-to-date the information necessary for their performance evaluation, in accordance with the processes, projects, products, and services assigned specifically, their delivery deadlines, and estimated times for their preparation, in said computerized system that the administration will make available to them. Its non-compliance shall be considered a serious fault in accordance with the applicable regulations.

The longevity pay (anualidad) incentive shall be granted exclusively through performance evaluation for those public servants who work under the composite salary (salario compuesto) scheme, who have met a minimum rating of 'very good' or its numerical equivalent, according to the defined scale, in accordance with the following rules:

• a)Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter.
• b)Twenty percent (20%) shall be the responsibility of the head or superior, which shall be evaluated according to good performance in accordance with the competencies necessary for the performance of the position.

(Thus added by article 3 of title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018) (Thus reformed by article 49 subsubsection a) of the Framework Law on Public Employment, No. 10159 of March 8, 2022) Grievances of the Plaintiff The plaintiff states that, as with Arts. 46, 47, and 48, this numeral constitutes an intrusion by the Central Administration into the administrative competencies of the decentralized entities. The norm, viewed in light of the referenced articles, contains arbitrary provisions. It creates a new obligation for public officials, at any level, to update and keep up-to-date the information for their performance evaluation, in a computerized system, under penalty of being charged with committing a serious fault. This is a new obligation that translates into more work and less time to attend to daily obligations, and it also does not clarify to which workers it refers.

On the other hand, it establishes that 80% of the evaluation shall be the measurement of goals and 20% "the responsibility of the head." Thus, a fifth of the total percentage of the worker's evaluation is granted to the subjective considerations of each head, understanding that this 20% is the difference between the official obtaining or not their longevity pay, granting power to the heads to leave their subordinates, without any visible objective criterion, without the increases for time served for as many periods as they wish.

Report of the PGR The PGR suggests dismissing the grievances of the plaintiff. In this regard, it makes the following observations:

"A feature that characterizes the particular legal regime of the public function (rights, duties, and responsibilities), unlike private relationships governed by common Law, is that employment conditions are not established by contract or collective agreement, but are determined by objective norms, whether laws or regulations that can be modified unilaterally. Hence, it is properly affirmed that the relationship is statutory, in the manner of a specific regime of public employment or personnel management, founded and governed by principles of Public Law, whose configuration, extension, and content can be variable, according to the bureaucratic model that is legislatively chosen, according to the conception of the State in force at the time. Therefore, reforms of the public function are always connected with a preconceived strategy (public policy) of modernization of the Administration that requires introducing necessary reforms in the organization and operating regime, as well as changing traditional habits and values of its agents.

In any case, it must be considered that from the brief but significant references to the legal regime of the public function made by our Political Constitution (Arts. 191 and 192) derive a series of legal consequences, by way of consubstantial principles. Among them is that the personnel in the service of the Administration must be regulated by a statute for the purpose of guaranteeing efficiency, which implies: legislative authorization and a reservation of law on the matter; that their recruitment and selection shall be carried out under criteria of equality, merit, and proven capacity; and that their performance in the exercise of their functions is based on the guarantee of stability and impartiality with full subjection to the Law and the Law in general." All of these postulates must be taken into account by any bureaucratic model that seeks to be developed.

In this context, directly associated with the annuity incentive is the performance evaluation (evaluación de desempeño). A system in which a paradigm shift has occurred, overcoming that subjective criterion of merely assessing the individual performance of the server in their work in general, and methodologically transcending to objective criteria based on quantitative indicators of compliance with individual goals for products and services provided, directly linked to processes and projects carried out by the unit to which the server belongs (Articles 45 to 50 of the Public Administration Salary Law, introduced by Law No. 9635). And its link to the payment of the annuity is evident, since its payment depends on the result of the performance evaluation.

Given this special and novel configuration operated in the performance evaluation, the alleged defects of unconstitutionality are unfounded, because the legislator, in exercise of its broad, inexhaustible power to configure the Statute of public officials (Articles 102, 121.1, and 191 of the Constitution), sought to clearly establish postulates and norms that in general lines tend toward the unification, simplification, and coherence of the different existing subsystems of human resources management in the Public Sector.

And even the determination of administrative faults accused by the plaintiff as unconstitutional fully complies with the nuanced postulates of the principle of specificity (principio de tipicidad) in disciplinary matters that the Chamber itself has established in its jurisprudence (Among others, resolution No. 2002-10359 of 2:48 p.m. on October 30, 2002). And in any case, it will be in the competent ordinary jurisdiction, not in this constitutional venue, where the legitimacy or not of the specific application of the challenged norm can be analyzed.” Resolution of the Constitutional Chamber In the first place, regarding the alleged injury to autonomies, it is necessary to reiterate that the plaintiff lacks standing to question said alleged affectation. Moreover, this topic was addressed in general terms in judgment No. 2024-007057, where the considerations of advisory opinion No. 2018-19511 were reiterated and it was emphasized that, regarding the payment of annuities (salary matters) and performance evaluation, what is applicable to the Branches –Judicial and Legislative–, the Supreme Electoral Tribunal, and decentralized public entities –municipalities, state universities, and the C.C.S.S.– are their own special laws. Likewise, in said judgment, grievances very similar to those raised in this action of unconstitutionality were examined, in the sense that the plaintiffs denounce a supposed subjective measurement by the heads of department. On this matter, this Chamber resolved the following:

“On the other hand, the plaintiffs estimate that, to the extent that the granting of incentives such as annuities depends on subjective evaluations of those who grade them, the right to salary will be violated. However, in the opinion of this Chamber, the questioning of the subjectivity in the grading to which the server could eventually be subjected is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the eventual violation of fundamental rights. And, in any case, the disagreements that officials may have with the result of the examination carried out is a matter of legality that this Court should not assess and that, therefore, must be discussed before the Administration or in the corresponding jurisdictional venue.

Likewise, regarding the accused injury to the principle of prohibition of arbitrariness and the principle of prohibition of misuse of power, the filing brief does not provide an adequate foundation of the reasons on constitutional grounds for which the eventual injury to these principles is considered, but rather refers to criteria that must be verified in the legality venue.” (Judgment No. 2024-007057. The emphasis is not from the original).

Such considerations must be reiterated in the sub lite, as the plaintiff precisely alludes to an alleged subjectivity of the heads of department regarding the performance evaluation of subordinates, which would affect the obtaining of the annuity. In the first place, the fact that the eventual obtaining of annuities is linked to the performance of the public server is consistent with the jurisprudential lines of this Chamber. Let us see, by way of example, what was resolved by this Chamber as of judgment No. 2020-001807, in which the following was considered:

“Regarding this additional increase established for the case of non-professional workers, certainly a minimum grade is not established to be a beneficiary of the increase. Which means that, even if the grade had been 0, an increase of 3% would always be obtained. Thus then, subsection a) is evidently unconstitutional. The basis for the increase, which is supposedly for the good result of the performance evaluation, would be left in a contradiction. Although the Union representative certifies that only 6 officials were in such a situation, this does not prevent more from resulting in the future, and the impact on public finances from being greater. From all of which it is concluded that the norm is disproportionate, contrary to the constitutional principles that promote suitability and good management of public services and funds. As indicated by the Attorney General's Office in its report, this situation violates the principles of reasonableness and proportionality, by rewarding insufficient grades in public service, which violates the constitutional principles of proven suitability (article 192 of the Political Constitution) and continual evaluation of results (article 11 of the Political Constitution), insofar as the payment of the recognition should not be automatic.” (The emphasis is not from the original).

In the second place, the processes of evaluation of results and the measurements and scores assigned –like any administrative act preceded by a substantiation procedure– must be duly reasoned (Title Six, Chapter Three of the LGAP) and, furthermore, in the face of disagreement with the results, the ordinary appeals that the legal system provides can be filed. Therefore, the plaintiff's suppositions refer to eventual discussions about the correct or incorrect application of the norm, all of which can be controlled in the ordinary venues of legality.

Nor is any illegitimacy or injury to the Law of the Constitution observed by the fact that the legal norm establishes the responsibility of public servers to record and support the necessary information that demonstrates compliance with their performance evaluation goals, being that in the absence of such backing, the disciplinary regime can be applied. Such responsibilities of public servers –in general, demonstrating efficient results in carrying out assigned tasks– derive directly from the Law of the Constitution, which precisely imposes on the entire Public Administration the requirement to submit to a procedure of evaluation of results and accountability with the consequent personal responsibility for all servers in fulfilling their duties. Our Constitution precisely orders that it is up to the law to indicate the means for this control of results and accountability to cover all public institutions. Therefore, far from creating a new unreasonable obligation, the act of submitting to the procedure of evaluation of results and accounting for compliance with assigned goals –backing, recording, demonstrating compliance with assigned goals– is consistent with the constitutional obligation imposed and derived from Article 11, but it is also a manifestation of the principle of transparency and proven suitability that must characterize the hiring and performance of public servers (Article 192). Furthermore, as the PGR warns, the determination of administrative faults accused by the plaintiff as unconstitutional fully complies with the nuanced postulates of the principle of specificity in disciplinary matters.

Finally, we repeat, everything related to its individualized application, namely the results obtained and the eventual instruction of the disciplinary regime, are aspects that must be valued and examined in the ordinary venues of legality, but regarding the content of the norm and the arguments raised, no injury to the Law of the Constitution is appreciated.

XXIX.- ON THE EXCLUSION OF BENEFITS FOR HIERARCHS AND OTHER SERVERS Norm challenged Article 51 of the LSAP is challenged, a regulation added by the LFFP, which orders the following:

“Art. 51- Exclusion of benefits. The prohibitions and exclusions established in articles 691 and 694 of Law No. 2, Labor Code, of August 27, 1943, shall be applicable to hierarchs and officials who negotiate regulations, contracts, statutes, or acts that grant advantages of any nature.

(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018).” Grievances of the plaintiff The plaintiff questions the norm for an alleged violation of the constitutional principles of reasonableness and proportionality and the rights to collective bargaining, union freedom, and the singular non-derogability of regulations. He states that the purpose of the norm is to disincentivize collective bargaining, prohibiting public officials who negotiate collective bargaining agreements from benefiting from them. This –in the plaintiff's opinion– constitutes a violation of Article 4 of ILO Convention 98.

PGR Report The PGR suggests dismissing the grievance. For this, it refers to the limitations to which servers are subjected regarding the possibility of signing collective bargaining agreements in the public sector.

The PGR states the following:

“In the explained context, it is obvious that the plaintiff ignores that, far from what he baselessly accuses, Article 51 of the Public Administration Salary Law, reformed by the Law for the Strengthening of Public Finances, No. 9635, validly establishes, as necessary content of the Functional Statute (Article 191 Constitutional), a specific type of incompatibility through which an attempt is made to avoid a possible conflict of interest, by which it is justifiably and reasonably excluded officials who, by reason of their superior hierarchical position, by the very nature of their functions or by their participation in negotiations as employer representatives, have the capacity to configure and express the will of the Administration before the other employees, and may be directly benefited from those negotiations; a matter that is highly inconvenient. (Cf. Constitutional Chamber, judgment No. 2531-94 of 3:42 p.m. on May 31, 1994). Functional incompatibility that must be related to Article 48 of the Law against Corruption and Illicit Enrichment in Public Office -No. 8422 of October 6, 2004-, not only recognizes and expressly establishes the analyzed incompatibility but also typifies it as criminal conduct (Opinion C-159-2007 op. cit.).” (The emphasis is not from the original).

Resolution of the Constitutional Chamber Regarding these grievances, this Chamber refers to its own precedents, in the sense that while it is true that a window has been accepted for certain public servers to negotiate aspects related to employment contracts through collective bargaining, that right does not cover all public servers. It was already warned supra that:

“In conclusion, collective bargaining agreements are not entirely prohibited in the public sector, but are only permitted in the case of workers who do not perform public management (gestión pública), that is, those covered by Articles 3, 111, and 112 of the General Law of Public Administration. The determination in each specific case of which workers are covered by these norms is a matter beyond this constitutional jurisdiction and corresponds to the operators of the law.” In that sense, it is also worth remembering that the right to collective bargaining is a fundamental right exercised in accordance with the law and, to that extent, the legislator has chosen to define which public servers are excluded from collective bargaining. It should be recalled that the Chamber has affirmed that the right to collective bargaining does exist for certain categories of public servers, but it has also explained that it is not up to the Chamber itself to determine which workers would and would not be covered by such collective bargaining agreements, a matter that must be determined within the scope of legality (see, for example, judgment No. 2013-014499).

In that legitimate exercise of defining the servers who may validly benefit from collective bargaining, the legislator issued the Labor Procedural Reform, which came to regulate the conditions of legitimacy of collective bargaining agreements in the public sector. In this way, the articles to which the challenged norm alludes state the following:

“Art. 691.- The public servers indicated in Articles 683 and 689 are automatically excluded from the advantages of any nature that may derive from collective bargaining agreements, conciliatory agreements, arbitrations, and any agreement for the solution of a conflict of an economic and social nature, whether by inclusion or express or indirect reference.

It is also expressly prohibited to make technical adjustments in application of any collective instrument, for the direct or indirect benefit of the indicated servers.” “Art. 694.- No person who may receive a real or potential benefit from the signed collective bargaining agreement may be part of the delegations that intervene in representation of the employer. Likewise, there shall be an impediment if the result could benefit their spouse, partner, companion, or cohabitant or their relatives, as indicated in the second paragraph of Article 48 of Law No. 8422, Law against Corruption and Illicit Enrichment in Public Office, of October 6, 2004.

(Thus added by Article 2 of Law No. 9343 of January 25, 2016, "Labor Procedural Reform".)” (The emphasis is not from the original).

In Articles 683 and 689, the corresponding delimitation is made, which is also reflected in the reform to the LGAP according to which:

“All public servants who do not participate in the administrative public management (gestión pública administrativa) have the right to negotiate collective work agreements, in accordance with the provisions of Article 62 of the Political Constitution, both in the public enterprises and economic services of the State and in the rest of the Public Administration, according to the determination of these made by Articles 683 and 689 of Law 2, Labor Code, of August 27, 1943.” (Art. 112 subsection 5)).

It is observed, in this way, that the legislator chose to list the governing officials and other public servers who participate in “public management,” and who are, therefore, excluded from unionizing and from entering into collective bargaining agreements in the Public Sector (see on this matter the PGR opinion No. 018 of January 22, 2020).

Such restrictions, contrary to what the plaintiff affirms, do not seek to disincentivize collective bargaining, but rather that these negotiations be carried out by persons who –due to their hierarchical situation– are not benefited themselves and to avoid a conflict of interest. This type of norm has been examined by the Chamber and, for example, it has been said that they do not harm the principle of equality. In judgment No. 2531-1994, the following was established:

“Thus, in accordance with the content of the principle of equality indicated by the jurisprudence of this Chamber, it is admissible to establish unequal treatment among those who are unequal, but not among those who are equal, which is why it can be concluded that it is possible to make restrictions or exclusions among the potential beneficiaries of a collective work agreement due to the special institutional hierarchical location of the employees, such is the case of confidential workers or employees or those who hold high-level, management, and very high-responsibility positions. This measure is justified by virtue of the conflict of interest that may arise, since these employees, who participate in the negotiations as employer representatives, or fulfill a function with close ties to them -in accordance with Article 4 of the cited Bank's Internal Work Regulations, which establishes, as pertinent: 'Persons who hold positions of Management, Headship, or Administration are employer representatives ...'-, may be benefited from these negotiations that depend on them directly or indirectly, which is why it is not convenient for them to be covered by collective work agreements. As observed, this exclusion is objective and sufficiently reasonable, so it does not harm the principle of equality enshrined in Article 33 of the Constitution, as alleged by the plaintiff, making it appropriate to reject the action on the merits in this regard, in accordance with the second paragraph of Article 9 of the Law of Constitutional Jurisdiction.” (The emphasis is not from the original).

Additionally, in judgment No. 2000-10358, the following considerations were made:

“[I]n what properly concerns the managerial classes of autonomous institutions and public enterprises such as RECOPE, the Chamber has understood in preceding cases that the placement of a public official at the managerial level has certainly served as a suitable element to justify a rule of differentiated treatment in matters of Collective Bargaining Agreements –as the Attorney General's Office rightly recalls–:

'It is unnecessary to recall here at length that the collective bargaining agreement is the result of a bilateral negotiation that has taken place between the public entity (in this case, JAPDEVA) and its officials. Evidently, the interests of the latter in obtaining certain employment conditions are not necessarily coincident with the institutional ones, and in some cases may even be opposed, given that the public entity, which inscribes its policies or decisions in personnel matters within the broader framework of government policies or decisions, is the holder of public interests, it is the employer, against which its officials or employees oppose their own interests, which being theirs are really private interests. The structure of the negotiation -on one end, the hierarchy that expresses the will and interests of the employer (the specific Public Administration), and on the other, the union, which upholds those of the employees- explains and justifies the exclusion of some officials from the application of the benefits of the negotiation. It concerns those whose position and functions are such that they are incompatible with the possibility of having them also as beneficiaries of the right to collective bargaining, without risk to the interest of the Administration, of the public interest: since it is in them that the capacity to configure and express the will of the Administration before the other employees really lies, that is to say, since it is they who directly hold or decisively influence the decisions that the Administration takes in the negotiation with its employees, the exclusion imposes itself on common sense as objective, reasonable, and, therefore, non-discriminatory.' From the above it is inferred that in the case of the promoter, the principle of equality was not harmed, since the distinction in relation to the other workers of his Department has an objective and reasonable justification, therefore, on this point, the appeal must be declared without merit. (Resolution No. 4325-96 of nine hours twenty-one minutes on August twenty-third, nineteen ninety-six).” (The emphasis is not from the original).

Consequently, while it is true, as has been developed, that the fundamental right to engage in collective bargaining exists and facilities must be granted for such purposes –with the adequate safeguarding of public funds and the constitutional principles of reasonableness, proportionality, and good use of public funds– it is also legitimate to establish certain negotiation guidelines, among them subjective coverage. In this sense, although it has not been formally incorporated into our legal system, one can turn to the “Labor Relations (Public Service) Convention, 1978 (No. 151)” as a mere hermeneutical or illustrative criterion. Said convention urges States to adopt “measures appropriate to national conditions to encourage and promote the full development and utilization of machinery for negotiation between the competent public authorities and public employees' organizations of conditions of employment, or of such other methods as will allow representatives of public employees to participate in the determination of these conditions” (Article 7). But beforehand, it makes the warning and recognition that “national legislation shall determine the extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as having policy-making or managerial responsibilities, or to employees whose duties are of a highly confidential nature” (Article 1, paragraph 2). This illustrates and corroborates that the legislator could legitimately assess and list the positions that, due to their high managerial level, may be excluded from the benefits of collective bargaining, without this being in itself illegitimate or unconstitutional. Also recall what Article 48 of the Law against Corruption and Illicit Enrichment in Public Office provides in this regard, which typifies as a crime the conduct of a public official who signs acts or agreements that benefit them directly, which clearly illustrates the incompatibility being examined here. The norm in question contemplates the following illicit act:

“Art. 48.- Legislation or administration for self-benefit.

Shall be sanctioned with imprisonment from one to eight years, the public official who sanctions, promulgates, authorizes, subscribes, or participates with a favorable vote in laws, decrees, agreements, acts, and administrative contracts that grant, directly, benefits for themselves, for their spouse, partner, companion, or cohabitant, their relatives up to the third degree of consanguinity or affinity, or for enterprises in which the public official, their spouse, partner, companion, or cohabitant, their relatives up to the third degree of consanguinity or affinity hold shareholding participation, either directly or through other legal persons in whose capital stock they participate or are legal representatives or members of any corporate body.

The same penalty shall apply to whoever favors their spouse, partner, companion, or cohabitant or their relatives, up to the third degree of consanguinity or affinity, or favors themselves, with patrimonial benefits contained in collective bargaining agreements, in whose negotiation they have participated as a representative of the employer.” (The emphasis is not from the original).

So the article questioned in the sub lite is nothing more than a replica of other norms in force in the legal system and the general duty of probity that establish prohibitions for certain hierarchs to regulate or agree on aspects for their own benefit, without a violation of the invoked constitutional principles and rights being deduced from the arguments raised.

XXX.- ON THE PAYMENT MODALITY FOR PUBLIC SERVERS Norms challenged Article 52 of the LSAP, added by the LFFP, No. 9635, and Article 21 of Regulation No. 41564-MIDEPLAN are questioned. The challenged legal norm established, in its original wording, the following:

“Art. 52- Payment modality for public servers. The institutions contemplated in Article 26 of this law shall adjust the payment periodicity of the salaries of their officials to the monthly payment modality with a biweekly advance.

(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018).” Subsequently, the norm was reformed with the purpose of adding the specific case of payment in the Caja Costarricense de Seguro Social (CCSS). Consequently, the current norm states the following:

Art. 52- Payment modality for public servers.

The institutions contemplated in Article 26 of this law shall adjust the payment periodicity of the salaries of their officials to the monthly payment modality with a biweekly advance.

Excepted from the provisions of the preceding paragraph is the Caja Costarricense de Seguro Social (CCSS), which shall maintain the periodicity of payment of the salaries of its officials under the biweekly modality.

(Thus reformed by the sole article of the Law to maintain the biweekly periodicity of salary payment for workers of the Caja Costarricense de Seguro Social, No. 10102 of December 8, 2021) While the regulatory norm provides the following:

Art. 21.- Payment modality for public servers. Payments must be adjusted to the monthly payment modality with a biweekly advance, as provided in Article 52 of Law No. 2166, added through Article 3 of Law No. 9635.

The institutions must carry out the corresponding procedures to adapt the technological payment systems to said provision, within the period indicated in Transitory XXIX of Law No. 9635. The Administration shall be responsible for ensuring full compliance with the change of payment modality and the corresponding salary recognitions, so that no decrease or increase in the servers' salary occurs.” (The emphasis is not from the original).

The transitory norm that was issued to make this modification operative was not challenged by the plaintiff. However, it is necessary to transcribe it to be able to carry out an appropriate analysis of the matter. Transitory XXIX states the following:

“TRANSITORY XXIX. Institutions that pay the salaries of their servers with a modality different from that contemplated in Article 52 must make the corresponding adjustments within the three months following the entry into force of this law. The necessary calculations and adjustments will be made so that the change in payment periodicity does not produce a decrease or increase in the servers' salary.” (The emphasis is not from the original).

Grievances of the plaintiff The plaintiff states that the referred norms harm municipal autonomy and that of decentralized entities, and the principles of legality, reasonableness, proportionality, progressiveness of labor rights, as well as the constitutional right to collective bargaining. He points out that the norm harms the administrative autonomy of decentralized entities insofar as they are ordered how to regulate their remuneration system. Although the law provides that the salary not be varied, it orders the institutions how to manage salaries, thereby committing an abusive ius variandi. There are workers who have planned their obligations according to the biweekly periodicity, as they have received their salary that way for years. The mere change of payment modality can suppose a detriment to these officials. The fact that the State, through the legislator, orders these institutions to adapt to this article and its transitory provision directly harms the Law of the Constitution and conventional law, by disregarding these rights of a rank superior to the legal one, causing a regression in labor rights and, therefore, equally harming the principle of progressiveness thereof. The norm is not reasonable or proportionate, because according to Transitory XXIX there must be no decrease or increase; in that sense, there is no reason whatsoever to affect the autonomy of the entities. As there is no palpable purpose, the norm lacks all reason and proportion.

PGR Report The PGR suggests that this Chamber dismiss the grievances raised. For such purposes, the following reflections are made:

“We cannot lose sight of the vocation and character of generality and uniformity with which the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018, was issued, with a clear purpose of subjecting everything concerning the salary policy of the Public Administration to uniform criteria (arts.

105, 121.1, 140 subsection 7), and 191 of the Constitution); Now, regarding the periodicity or frequency of salary payment, as one of the reordering measures for the containment and reduction of personnel expenses of the Public Administrations, the reform introduced to the Public Administration Salary Law by the Public Finance Strengthening Law, No. 9635 of December 3, 2018 (articles 26.2 and 52 and Transitional Provisions XXV first paragraph and XXIX) and its Regulation –Executive Decree No. 41564-MIDEPLAN-H- (articles 2, 3 and 21), establishes that the public institutions covered by article 26 –including Municipalities– will adjust the periodicity of payment of their employees' salaries to the monthly payment with biweekly advance modality (article 52); that is, the salary agreed upon per monthly time unit will be paid at a biweekly periodicity or frequency. For this purpose, as established in its Transitional Provision XXIX, they must make the corresponding adjustments within three months following the effective date of that Law –the cited Law No. 9635 was published and entered into force on December 4, 2018–; which includes the adaptation of the available technological payment systems (article 21 of Executive Decree No. 41564-MIDEPLAN-H), as well as carrying out the necessary calculations and adjustments to ensure that the legally prescribed change of payment modality does not produce a decrease or increase in the employees' salary (Transitional Provision XXIX and article 21 op. cit. in fine).

It would then be, in accordance with such legal norms, of a clearly mandatory, imperative nature and absolute content, that all public institutions covered by that legal regulation would have to regulate the salary payment modality or periodicity of their employees, and no other.

As we were categorical in opinions C-060-2019, of March 5, 2019, and C-281-2019, of October 1, 2019, and reaffirm now, the cited state Law, although supervening, would prevail over the provisions of any other pre-existing legal or lower-ranking provision at the sectoral level, such as previously signed collective bargaining agreements; this by way of tacit repeal –total or partial– due to normative incompatibility of their contents.

Therefore, the alleged defects are not admissible.” Resolution of the Constitutional Chamber In the first place, like all the previous sections, the issue of municipal autonomy and that of other autonomous entities must be rejected due to the plaintiff's lack of standing.

Secondly, it is pertinent to note that what is challenged is a general rule aimed at organizing the Public Administration regarding public employment and specifically adjusting the periodicity of payment of public employees' salaries to the monthly payment with biweekly advance modality. That is, it has the purpose of standardizing the payment periodicity in the public service. The foregoing, with the express exception that in no case –given a potential change– shall a decrease in the salary of public employees occur. In the judgment of this Chamber, this measure tends to avoid provisions with different periodicities with the consequent impact on public budgets, which in some cases has been considered unreasonable and harmful to the proper disposition of public funds. For example, in judgment No. 2019-016791 already cited previously, this Chamber examined the regularity of the Collective Bargaining Agreement of the Municipality of Limón in which the following had been agreed: "The Municipality shall pay its workers every two weeks the equivalent of what corresponds to fifteen (15) days of total salary." In this regard, the Chamber considered legitimate the possibility of establishing a differentiated payment modality since the collective bargaining agreement predated the LFFP, but this Court declared the unconstitutionality of the fictitious creation of an additional working day with the corresponding payment. On that occasion, the following was resolved:

“- The requirement of legality in salary payment.

The Municipality of the Canton of Limón and the Union of Municipal Workers of the Province of Limón (SINTRAMUPL), agreed to pay the employees of that corporation with a biweekly system (salary every two weeks), whereby they obtain, per year, more than the payment of fifty-two weeks, and not forty-eight weeks, as occurs with the biweekly or monthly payment modality. Precisely, through the challenged norm, the Collective Bargaining Agreement adds one more day to the aforementioned biweekly payment. The Office of the Attorney General of the Republic argues that this Chamber has accepted social benefits above the established minimums, but in this case, they miss objective parameters that seek a better provision of the public service, as well as the principles of reasonableness and proportionality, and technical criteria. Likewise, it indicates that it lacks suitability and necessity, since there is already compensation for the days worked as consideration for effective work. It also brought up several official letters that are important to cite, such as Official Letter DJ-0782-2011 of July 20, 2011, from the Office of the Comptroller General of the Republic, on salary adjustments that:

"In that sense, it cannot be ignored that this type of modification must have adequate motivation: in cases of salary policy. Singularly, it will be necessary not only to have the legal basis for the decision, but also adequate technical justification that accredits the content of the administrative conduct. For the scenario being analyzed, said foundation will be determined—essentially—by the technical study that demonstrates a substantial increase in the cost of living and/or the need to make a larger increase, which would justify that the salary increase is required and not whimsical.

[...] the text of article 16 of the General Law of Public Administration must be considered /...]. It is evident then that to make a salary increase, whether within the budget programming, or by salary adjustment, one must have the necessary studies that, from a technical or scientific point of view, demonstrate its necessity and suitability for the (licit) purpose of that administrative conduct.

The Chamber considers that article 24 of the challenged Collective Bargaining Agreement entails several problems that affect its constitutional legitimacy: first, insofar as it governs a public employment system in a municipal corporation where the principle of legality prevails; and, second, because it creates a legal fiction that is contrary to reasonableness and proportionality. The first thing that must be said is that although municipalities can enter into Collective Bargaining Agreements, the public employment relationship governed by public or statutory law is not lost thereby, where the liberalities that private employers can observe in favor of their workers, typical of common labor law, do not apply. In this sense, it must be pointed out that there is a responsibility of the higher authorities of the municipal corporations to maintain the validity of the principle of budgetary and financial legality. In this sense, Collective Bargaining Agreements are instruments that must be negotiated periodically, and what is agreed upon cannot or should not always be maintained over time, as these must evolve from one era to another, with social benefits keeping pace with the improvements or contractions of the country's economy. In this sense, it can be said that the challenged norm is an old clause that entered into force in 1994, and that could not respond to current needs. Therefore, its analysis is pertinent.

The Office of the Attorney General of the Republic, in its report, cites likewise Official Letter No. 003418 of March 27, 1989, which states:

“The benefit that the public employee obtains with a weekly or biweekly payment system lies in that they will be recognized for the fifty-two weeks of the year and not only forty-eight as occurs when the form of payment is monthly or biweekly. In essence, this payment system (weekly or biweekly) implies, at the time of implementation, a salary increase for the employee (annual or monthly, that is distinct) of 8.33%, given that four more weeks are being compensated. It starts from the fact that in the Public Sector, a monthly-based salary system is used that the employee earns, which is increased by 8.33% Although, this Chamber considers that the Collective Bargaining Agreement of the Canton of Limón could agree upon a better annual salary with biweekly payment, as part of the agreed socio-economic benefits, the truth is that it is improper for an additional day to be added to each biweekly payment to incorporate non-existent workdays in the annual calendar. If the fifty-two weeks of the year are divided by the two weeks of salary payment, one obtains twenty-six installments of biweekly salary payment, for which the municipal employee receives one additional day for every fourteen days of payment for their work. As observed, the norm does not remain a simple mathematical equation but obliges the gratuitous addition of one more day, since: "The Municipality shall pay its workers every two weeks the equivalent of what corresponds to fifteen (15) days of total salary." This means that if twenty-six additional days are added to the twenty-six biweekly payments, to the three hundred and sixty-five days of the year, a real and effective payment of three hundred and ninety-one days is obtained, which the municipal corporation pays annually to its employees. It should be remembered, that if the three hundred and sixty-five days of the year are divided among the fifty-two weeks of the year, the seven days of the week are obtained. Another way to see it is that they receive approximately fourteen months of salary: the twelve annual months, the Christmas bonus (aguinaldo), and the remaining twenty-six days.

The manner in which the payment of salary is regulated in the first paragraph of challenged article 24 of the Collective Bargaining Agreement translates into a transfer of public funds, without an objective justification or reason, that results in a better provision of service as consideration from the workers in favor of the municipality and the residents of the canton. In this sense, these funds do not comply with the principles of morality, legality, efficiency, austerity, and reasonableness in public spending, in which it is mandatory not to use public funds as private funds, and the discretion of spending is not free. For this reason, the Chamber must conclude that the provision, as will be stated below, is unconstitutional. The Chamber does not observe that the mechanism devised in the Collective Bargaining Agreement seeks a just defense of the indecorous salaries that municipal employees earn, as alleged by the Union of Municipal Workers of Limón; on the contrary, this is not a receivable argument, especially since it must be demonstrated, at least with accredited case information, regarding liberalities of the Public Administrations, in its judgment No. 2012-003267 of 4:01 p.m. of March 7, 2012. which established:

"This principle of legality is manifested in the management, administration, destination, and custody of public resources, which is why the legislator, through Law No. 8131 of September 18, 2001, Financial Administration and Public Budgets Law, indicates, in article 5, the different principles, among them the principle of financial management. The norm defines it as follows:

'For the purposes of the previous article, the following budgetary principles must be observed:

...

Principle of financial management. The administration of the financial resources of the public sector shall be oriented towards the general interests of society, observing the principles of economy, efficacy, and efficiency, with full submission to the law.

• c)[...]

In this sense, the legislator inserted into the legal system and developed, within the Public Administration, the principle of financial legality fully consistent with article 140 subsection 7) of the Political Constitution, eliminating unauthorized use of public resources with the mere discretion of the Public Administration through an Autonomous Regulation or Public Law act not expressly authorized by law. Precisely, the legislator cleared any doubt about the scope of the principle by radically indicating full submission to the law.

Similarly, through article 107, when referring to the principle of legality, it states that:

“The administrative acts and contracts issued in matters of financial administration must substantially conform to the legal system, according to the hierarchical scale of its sources. The legality of the acts and operations of public bodies and entities subject to this law is presumed, but evidence to the contrary shall be admitted.” Consequently, they must substantially conform to the legal system, so that there is no total discretion of the Public Administration to create sources of expenses, but, on the contrary, legal authorization must mediate. It is equally important to note that the economic obligations of the Public Treasury can originate in the Law, they can likewise originate in jurisdictional resolutions (articles 122 and 153 of the Political Constitution), and in contracts and administrative acts when some form of obligations based on certain manifestations of the State's will mediates. However, it is important to clarify that these manifestations cannot be understood from a private civil or labor point of view, not only for what was indicated supra, but, on the contrary, given that it refers to contractual forms whose origin is precisely found in the law or that the law indicates the mechanisms to generate these economic obligations." In the case at hand, the challenged provision could not be justified by the protection of workers against human rights violations, because it cannot be affirmed that the workers receive a ruinous salary from the corporation, and in violation of the minimum wage for workers. Although an improvement could be produced through collective bargaining, the state will must be validly expressed and conformed to the legal system, which, in this case, it is not.

- Regarding the infringement of the principle of reasonableness and proportionality. The union alleges that the violation of reasonableness and proportionality is not demonstrated; however, the Chamber considers that the plaintiff party provided sufficient elements of judgment on which it is possible to sustain the questioning of the challenged norm, when it claims the lack of justification for an extra payment, as well as the breaking of reasonableness and proportionality, given that this part of the salary generates an improper and unjustified use of public resources. As noted in the previous section, the provision openly conflicts with the legal system, in its legality and legitimacy, because, as will be seen, it creates a benefit whose reasonableness is very tenuous, it is a privilege that lacks a valid legal foundation, and a plain and simple transfer of public funds of twenty-six days not worked, nor being the fruit of the work received by the municipal corporation, is produced. There is a total absence of consideration, which every employer owes the worker for the work performed.

(...)

[I]n the public sphere, the agreed-upon provisions would be subject to their legal (analyzed supra) and constitutional validity. Having overcome the foregoing, the examination of weighing reasonableness must be carried out, as cited in the previous judgment; thus, when there is a certain antecedent, a certain performance is demanded, provided it is equivalent or proportionate. In this case, dealing with an employment or statutory relationship, for a specific labor performance by the worker, the corresponding remuneration is received as consideration. But here lies the crux of the problem of reasonableness or test of the challenged provision, which is its absence of equivalence and proportionality. Why? If for a certain antecedent, such as effective and continuous work of two weeks or fourteen days, payment of fifteen days is received, it is evident that one must conclude that there is a presumed right constructed on a fictitious or artificial consideration, which would be contrary to the legality of the analyzed salary payment, to the univocal rules of science or technique, or to the elementary principles of justice, logic, or convenience (article 16.1 of the General Law of Public Administration), since the weeks paid annually are much more relative to the year, than for weekly, biweekly, monthly, or biweekly salaries (article 165 of the Labor Code). And even so, accepting that through collective bargaining an improvement of economic conditions is possible, surpassing the payment of the forty-eight weeks that corresponds to a biweekly or monthly payment, as occurs for many public workers, and managing to agree upon a payment of fifty-two weeks, which effectively exist in the calendar, this would not be commensurate with the creation of a fiction without technical or scientific, legal support, or one created to solve a superior interest of the legal system. This reality is mathematically verifiable, without much effort. Thus, the performance (payment of remuneration for fifteen days) received for the antecedent (workday of fourteen days) in question, results in a salary mechanism that is fictitious, upon which a performance or payment obligation of an additional day is created that compromises public resources, a source of expense is created without a well-defined legal basis, and hardly without the technical justification to demonstrate that it is the appropriate means for solving ruinous salaries. In this sense, there is an obligation of the state apparatus to ensure that if collective bargaining materializes in a Collective Bargaining Agreement, which, as has been reasoned, must not openly infringe the legal system, since the ends do not justify the means.” (The highlighting does not correspond to the original).

From the foregoing precedent, it follows that, although it might eventually be legitimate to establish a different payment periodicity, these modalities must be duly justified and not create additional days of payment in a fictitious manner. All the foregoing, to the detriment of public finances.

In light of such considerations, it is legitimate that –in order to avoid measures such as these where days are added in a fictitious manner to the detriment of public finances– the legislator establishes general rules of recognition in the payment periodicity for the Public Administration. In this regard, it is worth remembering –as analyzed supra– that the reform to the LSAP had as its guiding purpose to aspire for the remunerations of the public service to be governed by a scheme of efficiency and quality in public spending –that is, uniformity measures–. The standardization in the payment schedule can perfectly be considered a measure for the Administration to be more efficient regarding payroll payments.

Now, detailing the aspects questioned by the plaintiff, in the opinion of this Chamber, the mere assertion that this constitutes an abusive ius variandi because the working persons could be harmed by the change of modality is nothing more than a subjective appreciation and lacks motivation or objective evidence that reliably proves an injury or regression in the fundamental rights of public employees. To the extent that there can be no pecuniary harm to the workers as expressly established by the legislator, the plaintiff's affirmations to the effect that this represents a setback in labor rights or that the principle of progressiveness is harmed are not understood. Likewise, the allegations regarding the alleged harm to the principles of reasonableness or proportionality lack adequate and sufficient motivation. It is not for this Court to supply the argumentative deficiencies and try to supply or understand the potential harm due to the alleged unreasonableness of the norm.

Finally, as has already been warned, it is not for the Chamber, through an unconstitutionality action, to evaluate specific situations of workers or the prevalence between this norm and the current collective bargaining agreements, as this refers to discussions of ordinary legality.

Consequently, the reproaches raised must be dismissed.

XXXI.- REGARDING THE PROFESSIONAL CAREER INCENTIVE Preliminary Clarification Regarding this section and given that it is a cross-cutting issue in the unconstitutionality actions that were accumulated, the allegations will be addressed by identifying in each case the respective grievances and the response given by the PGR, MIDEPLAN, DGSC, and the Ministry of Finance.

Challenged Norms Article 53 of the LSAP, added by the LFFP No. 9635, and article 15 of regulation No. 41564-MIDEPLAN are questioned:

“Article 53- Professional career incentive. The professional career incentive shall not be recognized for those academic titles or degrees that are a requirement for the position.

Training activities will be recognized for public employees provided that these have not been paid for by public institutions.

New professional career points shall only be salary-recognized for a maximum period of five years.

(Thus added by article 3 of title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018) Art. 15.- Professional career. The professional career incentive shall be granted under the following conditions:

• a)It shall be recognized for those academic titles or degrees that are not requirements for the position.
• b)Recognition of professional career shall proceed when training activities are paid for by the interested employee, whether during working hours or outside of them, provided they are pertinent to the position they hold. For those training activities not paid for by public institutions, leave with pay may be granted on a reasoned basis to receive the training.
• c)New professional career points shall be salary-recognized for a period of 5 years.
• d)Professional career points may be recognized, according to the parameters prior to the entry into force of Law No. 9635, solely and exclusively in the cases of those applications submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that have not been processed by the Administration.” In addition, a reflexive allusion is made to articles 1 and 4 of resolution DG-139-2019 of 3:00 p.m. of July 24, 2019, of the DGSC, which state the following:

“Article 1. Modify articles 1, 2, 4, 5, 6, 9, and 18 of Resolution DG-064-2008 of February 28, 2008, so that they respectively read as follows:

(...)

“Article 9: Each point considered in any Professional Career factor shall have a unique and independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Offices must establish the corresponding controls, so that upon completion of said period, the respective scores are expired and the inherent payments cease.

Said Offices must also establish the necessary control mechanisms, so that the academic titles and professional-level training certificates, presented by each employee, are recognized exclusively on one occasion and furthermore that the five-year validity limit is not transgressed.” “Article 4. Modify articles 1, 2, 3, 7, 8, 9, 10, 18, 20, and 21 of Resolution DG-333-2005 of November 30, 2005, so that they respectively read as follows:

(...)

“Article 10.- Each point considered in any Teaching Professional Career factor shall have a unique and independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Office of the Ministry of Public Education must establish the corresponding controls, so that upon completion of said period, the respective scores are expired and the inherent payments cease.

Said office must also establish the necessary control mechanisms, so that the academic titles and professional-level training certificates, presented by each employee, are recognized exclusively on one occasion and furthermore that the five-year validity limit is not transgressed.” Grievances of the plaintiff party (action No. 19-004931-0007-CO) The plaintiff highlights that the challenged norm represents a setback in relation to the purpose of hiring suitable employees, by providing that professional career points will only be recognized when they cover the training they receive. This constitutes a serious disincentive for State professionals to improve their academic and training conditions. Additionally, the norm causes the appearance of two types of employees: those who can invest in their training and those who depend on the Administration investing in it. Both would perform the same functions, but the training scenario would cause them to receive different incomes, which harms the principle of equality. The training incentive could be stipulated in a collective bargaining agreement, in which case, the norm would also harm the right of collective bargaining. Finally, the wording of the norm causes legal uncertainty, as it is ambiguous and does not allow one to determine with certainty what the spirit of the legislator was: whether to recognize up to five years of training or to pay only for five years.

Grievances of the plaintiff party (action No. 19-023575-0007-CO) The President of the APSE also questioned the provisions of article 53, paragraph 3, article 15 of the decree, and by derivation refers to the content of the DGSC resolution that merely reiterates what is provided in the law, that is, that “New professional career points shall only be salary-recognized for a maximum period of five years.” On this point, this Chamber clarifies that, given that what is provided in said resolution is a mere reiteration of what is indicated in the law, this Chamber will limit itself to assessing the content provided in the legal norm, since moreover its content is repeated in the regulation and in the resolution that gives compliance to what was ordered by the legislator.

The allegations regarding this provision consist of a presumed infringement of articles 34, 45, and 74 of the Political Constitution by introducing a temporal limitation on the recognition of professional career points, since professionals who are recognized for professional career points are punitively sanctioned in a confiscatory manner, given that after five years, the incentive ceases to be paid, harming subjective rights and the inalienability of the right.

The challenged norm infringes the fundamental right to salary (enshrined in article 57 of the Constitution and ordinals 23 of the Universal Declaration of Human Rights, 7 of the International Covenant on Economic, Social and Cultural Rights, and 7 of the Protocol of San Salvador), as the employee's subjective right to continue earning the professional career remuneration is nullified, once the referred five years have elapsed after its respective recognition, despite the fact that it was granted because they met the requirements established in the legal system and, therefore, constitutes an acquired right. The challenged regulation infringes article 34 of the Constitution since it eliminates –in an arbitrary manner– the corresponding recognition and produces a cessation of remuneration without there being a legitimate reason that justifies the interdiction of that right. The challenged regulation removes from the worker's patrimony, after five years, an economic benefit, of a salary nature, which was recognized because they met the established requirements; suppression that implies a manifest violation of an acquired right. Such regulation discourages the professional development of public employees, to the detriment of efficiency in the provision of public service and to the impairment of the consolidated rights of professional employees who are responsible for the provision of the service. The challenged regulation furthermore infringes the principle of intangibility of the worker's patrimony and, consequently, becomes a confiscatory or expropriatory provision, in violation of numerals 34, 40, and 45 of the Political Constitution.

The challenged regulation violates the principle of intangibility of assets (intangibilidad del patrimonio), since when a worker's salary is unjustifiably reduced, a detriment to their assets occurs without any compensation being granted for such impact. It is not justified that if the corresponding economic incentive was recognized because the professional public servant met the requirements established by the regulation and continues to meet them, the law should suppress that recognition after five years. Article 74 of the Constitution is infringed, which declares the inalienable nature of the rights and benefits contained in the Sole Chapter of Title V of the Political Constitution and any other derived from the Christian principle of social justice. This principle binds the ordinary legislator, who cannot arbitrarily dispose of a fundamental right, restricting its essential content, limiting its scope, or extinguishing a subjective right. The deprivation of the remuneration of the economic incentive for professional career development (carrera profesional) constitutes an abusive regulation, which nullifies a fundamental right, a treatment that is incompatible with Article 74 of the Constitution.

In summary, their disagreement is based on the fact that these legal norms establish that the recognition, and subsequent payment, of new points of the so-called professional career development (carrera profesional) in the public employment regime, after the reform introduced by Title III of the Public Employment Framework Law (LFFP) No. 9635, will have a unique and independent validity for a period of five years; which, in the plaintiff's opinion, is contrary to the fundamental right to a salary, violates the principles of non-retroactivity to the detriment, intangibility of assets (intangibilidad patrimonial), and non-confiscation, as well as the principle of inalienability of social rights.

PGR Report In the first place, the PGR proposes a doctrinal approach to the concept of the professional career development incentive and subsequently requests that the objections be dismissed. The foregoing, according to the following reflections:

"As is obvious, the recognition of the professional career development (carrera profesional) has the ultimate objective of ensuring that the Administration has the highly qualified personnel it needs for an adequate performance of the public function. But the effective achievement of this and other objectives of the professional career development depends on its normative regulation; that is, on the career scheme that is established and regulated normatively (C-099-2008 of April 3, 2008; C-184-2013 of September 5, 2013 and C-315-2018 of December 14, 2018).

It is important to reaffirm then that the regime of the rights of public officials is not a static regime, but variable by essence, especially with regard to rights of economic content, whose amount can even be modified within the limits of the Constitution (Article 34 of the Constitution), since the public servant does not have an acquired right before the legislator, and even before the same normative power of the employing Administration, to maintain a specific regulation of their rights, when experience shows that it must be subjected, in accordance with the Law, to a more or less continuous process of adjustments and reforms for reasons of general interest (Resolution No. 10340 at 12:47 hrs. of June 11, 2010, Constitutional Chamber).

And the legal change brought about by Law No. 9635 on the matter, which is of general application in the Public Sector, does not seek to create an odious differentiation or a salary detriment as is unfoundedly accused, but is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified; a need that goes beyond overcoming a temporary or conjunctural economic crisis, as it constitutes an economic objective that is desirable to maintain over time. Without any violation of the right to equality before the Law being truly appreciated, as is unfoundedly accused.

Remember that the State has the obligation to promote efficiency in the provision of public services, for which it is fundamental to promote the efficiency of public employment. In fact, part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenses generated by the State's payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation, and the availability of resources." (The highlighting does not correspond to the original).

Second PGR Report In the report requested from the PGR ‒in relation to the grievances of case file No. 19-023575-0007-CO‒ it was explained that there is no injury to Article 34 of the Political Constitution because the reform safeguards the acquired rights of public servants who already enjoyed that incentive.

Then, regarding the recognition period for new professional career development points, it is alleged that it is not true that the new regulation on professional career development, which introduces a five-year validity ‒for points acquired and remunerated under this concept after December 4, 2018‒ is contrary to the principle of non-confiscation, since it is a quantitatively tiny economic compensation, accessory, complementary, and optional to the total salary, which in the terms of the Chamber itself does not affect the essential core of the constitutionally protected minimum salary ‒Article 57 of the Constitution‒. Therefore, it cannot be affirmed that it turns out to be confiscatory in the terms alleged, especially when the plaintiff does not base or develop any technical, precise, and solidly supported argument in this regard.

Nor is any violation of the principle of inalienability of social rights observed ‒Article 74 of the Constitution‒, since as there is no right to the immutability of the legal system, the matter of salary supplements for those still under the composite salary scheme is a tangible and available subject for the legislator, as it is not part of the constitutional labor regime.

Mideplan Report It is reported that from the application of Article 56 in concordance with the provisions of Transitory Provision XXV of Title III of Law No. 9635, the State (as sole employer, as long as labor continuity subsists) is compelled to safeguard salary amounts as a manifestation of the principle of salary indemnity (indemnidad salarial), the acquired rights, and the consolidated legal situations of the public servants covered by the scope of application of the law, so that the amounts that had already entered the patrimonial sphere of the public servants at the time of approval of said law cannot be reduced or applied retroactively in an undue manner. However, the acquired rights and consolidated legal situations over the amounts recognized for professional career development (carrera profesional) before the entry into force of the LFFP cannot be equated with the expectations of rights that public servants may have regarding the recognition of new points, nor can they aspire to a recognition that exceeds the maximum cap set by law, as this would indisputably incur a flagrant violation of the principle of legality.

DGSC Report This Directorate rejects the arguments of unconstitutionality.

It affirms that additional salary payments (sobresueldos) that depend on some condition to be granted ‒as is the case at hand‒ do not constitute an acquired right, as this cannot be considered part of the salary itself, since its granting depends on the objective conditions for which it was recognized. Regarding the incentive for professional career development (carrera profesional), it is understood that, in accordance with the legal reform introduced by Law No. 9635, it is widely known from the moment of its granting that said bonus will be recognized and remunerated on a temporary basis.

When referring to the granting of salary incentives, such as the recognition of points for professional career development (carrera profesional), we are not in the presence of an administrative act generating acquired rights as the plaintiff erroneously posits; on the contrary, it is a benefit granted and conditioned not only on the fulfillment of certain assumptions and requirements but also that its enjoyment is legally conditioned to a previously established period, so that its suppression cannot be considered an abusive ius variandi of the Administration, upon the fulfillment of the temporal condition ‒five years‒ of enjoyment of the said salary bonus.

It refers to the background of the approval of the reform to conclude that the legislator not only could but had to introduce changes in the legal norms in force regarding the remuneration of public servants, without this implying the violation of the principle of non-retroactivity and intangibility of assets (intangibilidad patrimonial), since what is constitutionally prohibited is to suppress a legally granted benefit, not the possibility of the Administration regulating future situations, as happens in this case when the legislator regulates new conditions, requirements, and deadlines for granting the salary incentive for professional career development. In this section, it must be considered that the honorable deputies, when enacting Law 9635, respected the cited principles, which can be verified from the reading of numeral 56 and Transitory Provision XXV of that legal body.

Consistent with this legal position and the legal change introduced in our environment, this General Directorate issued Resolution No. DG-139-2019 of July 24, 2019, which modified Resolutions Numbers DG-064-2008 of February 28, 2008, and DG-333-2005 of November 30, 2005, this with the purpose of adjusting these regulations to the precepts established in Law 9635 and its regulations.

The actions carried out by this General Directorate were not only opportune and diligent but also conformed to the norms in force, and were developed in adherence to the principle of legality.

The cessation of the recognition of points for the professional career development incentive, as it is not an acquired right but a salary bonus granted by the Administration for a determined period, in no way transgresses the principle of inalienability of the labor rights of public servants.

Ministry of Finance Report In application of the principle of salary indemnity (indemnidad salarial), public servants who had professional career development points recognized before December 4, 2018, will retain ‒without temporal limitation and as long as the employment relationship is maintained‒ the quantity of points accumulated and recognized before that date, and based on which they receive the respective economic compensation; but the points obtained after the entry into force of Law 9635 and other aspects regulated in matters of professional career development will be subject to the normative modifications introduced by the cited law. The alleged violation of salary does not occur, since rights of economic content can be modified within the limits of the Constitution (Article 34 of the Constitution).

The purpose of Law 9635 is not to seek a differentiation or salary detriment, but rather it was proposed for the purpose of complying with budgetary and financial limitations, with the clear objective of seeking to maintain a balance in public finances and that this economic objective be maintained over time and not only applicable to a fiscal crisis. In this sense, it is the State's obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet employer obligations towards public officials and the payroll payment expenses it must make, adjusted to the reality of the country's finances. The payment of salary bonuses or incentives must be related to the balance of public finances. Said reform introduced by Law No. 9635 aims to promote this balance without it meaning that it has violated constitutional norms and/or principles. It is important to point out that, to safeguard salaries, and because Transitory Provision XXV of the LFFP so provided, the total salary of public servants who were active as of December 4, 2018 ‒the date on which that law entered into force‒ cannot be reduced.

Finally, it refers to the state of public finances, to conclude that it is clear that the State is obliged to guarantee the principle of efficiency by ensuring the necessary resources to meet obligations, adjusted to the reality of the country's finances, so the payment of salary bonuses or incentives must be related to the balance of public finances.

Resolution of the Constitutional Chamber General Aspects of Professional Career Development Points Historically, it has been recognized that the so-called "professional career development" (carrera profesional) corresponds to an economic incentive applicable to professional-level officials in the service of the Public Administration, through which their academic improvement and training are pecuniarily recognized. This remuneration has also been intended to contribute to the recruitment and retention of the best-qualified professionals in each area of activity, for an adequate performance of the public function, as well as to increase the productivity of professionals.

The definition of "professional career development" (carrera profesional) can currently be found in the Regulations of Title III of the LFFP, Executive Decree No. 41564 of February 11, 2019:

"Article 1.- Definitions. For the purposes of these regulations, the following shall be understood as:

(…)

• b)Professional career development (carrera profesional): salary incentive recognized for those academic titles or degrees that are not a requirement for the position, as well as for those training activities that have not been funded by public institutions." Also in the "Norms for the application of professional career development for public entities covered by the scope of the Budgetary Authority," No. 42945-H, in which it is defined as follows:

"Article 1-Denominate Professional Career Development (Carrera Profesional) as the regime that recognizes through a complementary and optional economic incentive, the merit of the professional official, who provides services in the public entities covered by the scope of the Budgetary Authority, achieved through their optimal performance and permanent involvement in activities in at least one of the following areas:

1.1 Academic training at the level of university degrees and postgraduate degrees, additional to the requirements of the position.

1.2 Training in professional training activities." The Second Chamber of the Court has defined this salary bonus in the following terms:

"III.- ON THE INCENTIVE OF RECOGNITION FOR PROFESSIONAL CAREER DEVELOPMENT: Since its origins, the recognition for professional career development was conceived as an economic incentive whose fundamental objective is to stimulate the academic and professional improvement of the professionals at the service of the Public Administration; and to contribute to the recruitment and retention of the best-qualified professionals in each area of activity, all with a view to a better and more adequate fulfillment of the purposes of the public function, within which, undoubtedly, is efficiency in service (Article 4 of the General Law of Public Administration). Like any salary benefit that compromises public finances, its recognition and granting can never be an arbitrary or indiscriminate act. On the contrary, subject as the Public Administration is to the principle of budgetary legality, it must also, in this case, guarantee the fulfillment of the legally established requirements without, on the other hand, being able to fail to recognize, when applicable, the right of the official." (Judgment No. 2007-000721. The highlighting does not correspond to the original).

Being a salary benefit or an incentive, it is pertinent to reiterate what was mentioned supra regarding other types of incentives ‒such as the recognition of seniority bonuses (anualidades)‒ in the sense that no one has the right to the immutability of the legal system, i.e., that the rules never change. Therefore, while it is true that the recognition of the professional career development (carrera profesional) has the ultimate objective of ensuring that the Administration has the highly qualified personnel it needs for an adequate performance of the public function, it is also true that for the effective achievement of this and other objectives of the professional career development, its recognition and payment conditions depend on what is provided and regulated by the legislator.

In the sub lite, it has been amply established that our country was going through a fiscal situation that implied the commitment and sacrifice of all Costa Ricans in many matters. Among them, budgetary limitations for the recognition of salary bonuses and incentives, with the purpose of achieving a balance in public finances. In this regard, we agree with the PGR in the sense that it is the State's obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet employer obligations towards public officials and the payroll payment expenses it must make, adjusted to the reality of the country's finances. Therefore, the legislator can make changes in the conditions under which services are provided to the State. That is, it has the competence to dictate the general guidelines for regulating remunerations and, in that sense, it is appropriate to establish that there is no fundamental right to maintain a specific regulatory mechanism. The foregoing, provided that the acquired rights and the consolidated legal situations of the persons who maintained an employment relationship before those changes are made are respected and, also, constitutional principles such as reasonableness and non-discrimination are respected.

On an Alleged Disincentive and Regression Regarding Proven Suitability Such arguments are not sufficiently developed by the plaintiff as would be required and, therefore, it is appropriate to dismiss them. All personnel of the Public Administration must be hired on the basis of proven suitability, both personally and professionally speaking, and, in that sense, it must be taken for granted that public servants must meet the qualities for the position for which they are appointed. Therefore, no logical relationship is found in the plaintiff's statement that the norm represents a regression in terms of hiring suitable officials, when that is the basic premise of all hiring in the Public Administration.

On the Reasonableness of Recognizing the Incentive to Public Servants Who Paid for Their Training The fact that incentives are recognized to those persons who pay for the corresponding training out of their own pocket is reasonable. If the public servant invested their own time and money in training, it is reasonable for the Administration to pay this person the corresponding incentive. Conversely, as a matter of principle and with the arguments provided by the plaintiff, it seems reasonable that, if it was the public institution itself that invested in the training of the public servant and they did not have to pay for their studies, in contrast they would not receive an additional pecuniary amount for the incentive under analysis. In the context of the approval of the regulation under analysis, it seems reasonable that someone who paid for their own studies receives a stipend, but not someone whose corresponding studies were paid for with public funds.

On the Alleged Injury to the Principle of Equality On the other hand, the construction made by the plaintiff regarding a presumed injury to the principle of equality is artificial. He alludes that there will be two types of public servants: some who can invest in their education and others who cannot, which would ultimately lead to different incomes. In this regard, the plaintiff errs in his assessment because he constructs a false hypothesis. In reality, any public servant could invest time and resources in training activities, but only those who actually procure the means for their professional and personal improvement will receive the corresponding incentive. It would be unequal for a public servant who received training paid for with public funds to additionally receive a stipend as an incentive, unlike a public servant who made the effort to pay for their own training.

Consequently, the grievances in the terms they were presented by the plaintiff are rejected.

On Collective Bargaining The plaintiff merely states that the training incentive could be part of a collective bargaining agreement and therefore the norm would injure that right. As for this aspect, it is appropriate to refer the parties to what was previously resolved. Restrictions on collective bargaining are not absolute and, in the cases of public servants who can agree to them, it is perfectly possible to negotiate these types of salary improvements that respond to the training needs of the respective workplace. However, this does not prevent that, as a general criterion, the legislator establishes the conditions for the recognition of this type of salary incentives. Consequently, the grievances raised must be dismissed.

On the Correct Interpretation of the Norms The plaintiff alleges a supposed threat to the principle of legal certainty because the norm is not clear in its wording. Said argument, merely stated as such, is not sufficient to decree the unconstitutionality of the norm. It has been repeatedly insisted that, when questioning the content of a provision for supposedly injuring the Law of the Constitution, the party must present solid and duly substantiated arguments. The argument is not appropriately developed here, given that, moreover, the aspects related to the correct interpretation and application of ordinary legal norms correspond to the operators of the corresponding venues and not to this Constitutional Court.

On the Alleged Injury to Acquired Rights and Inalienability of Rights In Action No. 19-023575-0007-CO, the party insists on a presumed injury to acquired rights, citing the violation of Articles 34, 45, and 74 of the Political Constitution.

Regarding these points, it is appropriate to distinguish between the professional career development (carrera profesional) points obtained prior to the approval of the LFFP and those that will be and have been recognized subsequently.

Regarding the former, i.e., officials who have had professional career development points recognized prior to the approval of the LFFP, it is necessary to recall the provisions of Article 56 of the Public Administration Salary Law (LSAP) and Transitory Provision XXV of the LFFP regarding Public Employment. These norms provide, as relevant, the following:

Art. 56- Application of incentives, caps, and compensations. The incentives, compensations, caps, or seniority bonuses (anualidades) remunerated as of the date of entry into force of the law shall be applied in the future and may not be applied retroactively to the detriment of the official or their patrimonial rights.

TRANSITORY PROVISION XXV. The total salary of public servants who are active in the institutions contemplated in Article 26 upon the entry into force of this law may not be reduced and the acquired rights they hold shall be respected. (…)". (The highlighting does not correspond to the original).

As can be appreciated, the new provisions on the recognition of salary incentives ‒such as professional career development (carrera profesional) points‒ safeguard and protect the acquired patrimonial rights of public servants who enjoyed the incentive under the originally agreed conditions. In no way can the salary amount already consolidated by the public servants be affected. In that vein, there is no impact on salary or acquired rights, much less a waiver of salary aspects. The reporting authorities are correct in the sense that the State is compelled to safeguard salary amounts as a manifestation of the principle of salary indemnity (indemnidad salarial), the acquired rights, and the consolidated legal situations of the public servants covered by the scope of application of the law, so that the amounts that had already entered the patrimonial sphere of the public servants at the time of approval of said law cannot be reduced or applied retroactively in an undue manner.

Now then, as already noted, the situation of public servants with such incentives already incorporated into their salary differs from the situation of those expectations of rights of those public servants who seek the recognition of new professional career development (carrera profesional) points by virtue of subsequent training. In such cases, public servants must inevitably conform to the new conditions defined by the legislator by virtue of the state of public finances. This is not, as the plaintiff claims, a sanction, but rather the future incentive is subject to compliance with the applicable provisions for its recognition and payment ‒it is, it is repeated, a mere expectation‒ and, in such a case, its authorization and payment will be made in accordance with the new legal conditions imposed, given that the public servant will know in advance that the recognition and payment of the incentive will be made for a specific period and not for life. The reporting authorities are correct in the sense that with the legal reform introduced by Law No. 9635, it is widely known from the moment of its granting that the said bonus will be recognized and remunerated on a temporary basis. Consequently, it is appropriate at this point to reiterate what was said regarding the future recognition of seniority bonuses (anualidades) and to allude to the considerations made in Judgment No. 2024-007057:

"In the sub examine, it must be noted that the future payment of a seniority bonus (anualidad) is not an automatic effect incorporated into the salary of every official, but rather, as recognized by the Office of the Attorney General of the Republic, it constitutes an expectation of right if certain conditions are met, for example, reaching the annual period and also qualifying within the evaluation parameters. If such conditions are not met, the recognition in question would not be made. In that sense, it cannot be attempted to establish as an acquired right the way in which these will come to be paid or the assumptions under which it must be done, since there is no right to the immutability of the legal system, according to the precedent cited supra.

(…)

Nor does it imply a retroactive application of the law, since it concerns future payments of seniority bonuses (anualidades), not those whose amounts have already entered the official's assets, whose amount remains intact (…)

Thus, what has already been acquired and contemplated in the salary that the worker received prior to the validity of Law No. 9635, as explained, remains, with officials retaining their acquired rights and without any impact on the salary that corresponds to them." (The highlighting does not correspond to the original).

In which case, it is necessary to insist that there is no right to the immutability of the legal system and it cannot be argued that there is an acquired right to a specific regulation on the recognition of salary incentives. The fiscal situation prompted the legislator to establish the recognition of this salary bonus for a limited period and the public servant knows in advance that the new incentive is not permanent, but rather its payment will be for a determined period, which in the opinion of this Chamber does not violate the right to salary or Articles 34 and 74 of the Political Constitution, nor the principles of intangibility of assets (intangibilidad del patrimonio) or non-confiscation. The public servant is not waiving their rights, nor is the legislator injuring an acquired right, because the latter has provided within the framework of legislative discretion that new professional career development incentives may only be recognized for a single and determined period, with the prior knowledge and acceptance of the respective public servant.

The Chamber does not ignore the importance of these bonuses and, of course, advocates for the training and retention of the best human capital that the Administration has available. All of this contributes to promoting general well-being through the provision of an effective and efficient public service. However, again, from the perspective from which this action is brought, no infringement of the Law of the Constitution is observed because the bonuses that had entered the assets of public servants prior to the reform remain absolutely untouched according to the legal provisions in force.

While the expectation of new pluses, that is, in the future or henceforth, may be recognized when the legal and regulatory conditions established for such cases are met; however, said recognition shall be for only five years, with the prior knowledge and acceptance of the employee who processes the salary plus.

There is no subjective right of the official, as such, to continue earning the professional career remuneration once the five years following its respective recognition have elapsed. Neither is there an injury to the core of the salary, since this is not subject to variation, but rather the plus recognized and payable for a specific period of time.

It is true that the State as an employer must promote policies to incentivize the continuous training of its employees so that staff continue to receive training and, ultimately, the entire Public Administration aspires to have and retain the best officials for the benefit of the public interest and the services to be provided to all users and administered parties. In this sense, it is desirable for the State to promote decent and competitive salaries to retain staff. However, with the elements provided so far in this proceeding, an injury to the invoked rights is not appreciated as such. Therefore, this claim of the action is dismissed, without prejudice to the debate being reopened or reframed in other terms if it is determined that the provisions cause an impoverishment of the professionals' salaries or if it is verified that this aspirational measure for the retention of the most suitable public employees is being harmed by the flight of trained personnel.

Finally, and if there were eventually an illegitimate application of the norm, that would have to be examined on a case-by-case basis through the ordinary channels of legality, but the objections raised do not prove an injury to the Right of the Constitution.

Conclusions

As a corollary to the considerations made in light of the arguments raised by the plaintiffs, no injury to the invoked constitutional rights and principles is proven.

Magistrate Cruz Castro dissents and declares Article 53 of the LSAP, added by the LFFP No. 9635, Article 15 of Regulation No. 41564-MIDEPLAN, as well as Resolution No. DG-139-2019 of the DGSC, unconstitutional.

XXXII.- CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS Challenged Norms Article 54 of the LSAP added by the LFFP No. 9635 and Article 17 of Regulation No. 41564-MIDEPLAN are challenged.

The original version of Article 54 literally provided the following:

“Art. 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation that, upon the entry into force of this law, is expressed in percentage terms, its future calculation shall be a fixed nominal amount, resulting from the application of the percentage to the base salary as of January 2018.

(As added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)”.

Said numeral was subsequently reformed by the sole article of the Law to Prevent the Reduction of the Salaries of Costa Rican Educators, No. 10137 of February 17, 2022. The current regulation provides the following:

“Article 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation, that upon the entry into force of this law is expressed in percentage terms, its future calculation shall be a nominal amount, resulting from the application of the percentage to the base salary as of July 2018.

In the specific case of the salary component called \"Incentive for the Development of Teaching\" (Incentivo para el Desarrollo de la Docencia), which is received by teaching staff under Title Two of the Civil Service Statute, it must be calculated as a fixed nominal amount, resulting from the application of eight point thirty-three percent (8.33%) to the total salary, understood as the sum of the base salary plus its respective salary components, that the employee earns at the time the work is performed, with reference to the salary scale in force as of July 2018.

At all times, the incentive for the development of teaching shall be calculated proportionally according to the number of lessons, the working day, and other salary components that the public employee holds.

TRANSITORY- The amounts received by the personnel of the Ministry of Public Education corresponding to the Incentive for the Development of Teaching (Incentivo para el Desarrollo de la Docencia), which were calculated as a percentage from the entry into force of Law 9635, Law for Strengthening Public Finances, of December 4, 2018, until February 17, 2022, shall be considered as an item duly paid by the Administration and received in good faith by the personnel of Title II of the Civil Service Statute (teaching, administrative, and technical teaching staff of the Ministry of Public Education), who are released from the obligation to reimburse them. In accordance with the foregoing, the Ministry of Public Education is exempted from the obligation to claim their payment.

Likewise, the sums received by the personnel of the Ministry of Public Education for the concept of Incentive for the Development of Teaching (Incentivo para el Desarrollo de la Docencia), from February 17, 2022, until its effective nominalization in the corresponding payment systems, shall be considered as duly paid, thus they do not generate overpaid sums and therefore the Ministry of Public Education is exempted from the obligation to claim their payment.

(Thus the previous transitory was added by the sole article of Law No. 10423 of November 20, 2023) (As added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018) (As reformed by the sole article of the Law to Prevent the Reduction of the Salaries of Costa Rican Educators, No. 10137 of February 17, 2022)”.

Likewise, the original version of the decree stated the following:

Art. 17.- Conversion of incentives to fixed nominal amounts. In accordance with the provisions of Article 54 of Law No. 2166, added through Article 3 of Law No. 9635, any other existing incentive or compensation that is expressed in percentage terms upon the entry into force of Law No. 9635, must be calculated as a fixed nominal amount, resulting from the application of the percentage to the base salary as of January 2018.

Said provision was reformed, such that the current version orders the following:

“Article 17.- Conversion of incentives to fixed nominal amounts. The amounts for incentives or compensations already received prior to the entry into force of Law No. 9635, are conserved and maintained over time as fixed nominal amounts, product of the manner in which they were revalued before December 4, 2018, this in accordance with the provisions of Articles 54 and 56 of Law No. 2166, added through Article 3 of Law No. 9635, and Transitory XXV of Law No. 9635.

In order with the provisions of Article 54 of Law No. 2166, added through Article 3 of Law No. 9635 and transitory provisions XXV and XXXI of Title Three of Law No. 9635 and in accordance with Resolution of the General Directorate of the Civil Service DG-087-2018 of nine o'clock on July 2, 2018, any other existing incentive or compensation that is expressed in percentage terms upon the entry into force of Law No. 9635, must be calculated as a fixed nominal amount, resulting from the application of the percentage to the base salary as of July 2018.

(As reformed by Article 1 of Executive Decree No. 41729 of May 20, 2019)”.

Objections of the Plaintiff The plaintiff argues that, like the challenged Article 50, this rule empties any future content from any existing incentive established by legal, conventional, or regulatory provision, by decreeing it nominally, subjecting it to the loss of the currency's purchasing power. They consider it to be a poor legislative technique that harms the progressivity of rights and the autonomy of decentralized entities and that directly affects the purchasing power of public officials, whose salary would be confiscated. The unreasonable and disproportionate relationship of what the legislator seeks is clear: higher consumption taxes and a reduction in labor rights. The harm is not only for the professional class, but also for municipal laborers, administrative police officers, etc. The legislator intends to refinance the State at the expense of the rights of Costa Ricans, above all, of public officials, regardless of their salary level.

Allegations of the Active Coadjuvant (SINAME) It argues that Article 17 of Executive Decree No. 41564-MIDEPLAN-H must be declared unconstitutional because it violates the acquired rights and consolidated legal situations of public officials, since the rule is being given retroactive effect, to the detriment of the administered parties, in complete disregard of Article 34 of the Constitution. What is established in that numeral of the regulation of Law No. 9635 is contrary to the Political Constitution because it nominalizes all annuities and salary pluses despite the fact that those amounts were established as percentages since their creation and this creates an impact on the economic rights of the administered parties, leaving them completely unprotected and without legal certainty despite the fact that those are rights deriving from collective bargaining. In accordance with the principle of non-retroactivity, a subsequent law cannot be admitted to influence this type of relationship forged under the protection of the law. The legal system must protect the intangibility of these acquired rights and consolidated legal situations that are being threatened by the challenged norms.

Report of the PGR The PGR suggests declaring the unconstitutionality action without merit based on the following reasoning:

“As we indicated in the original report of March 18, within this file, in the judgment of this Attorney General's Office (Procuraduría), the legislator is the one called to establish the incentives and the amount of the economic benefits granted to its employees; this as part of the so-called ‘Statute of Public Officials’ ('Estatuto de funcionarios públicos') (Article 191 of the Constitution).

And based on the foregoing, it must be understood that the economic amount granted for incentives or pluses depends on the intensity with which the legislator wants to incentivize the permanence in the position of public officials, and on the economic possibility of paying the sums derived from that incentive.

See that maintaining the pre-existing salary components as percentages implies a greater expenditure of resources that is not consistent with the intention of balancing public finances that currently prevails, out of necessity. Faced with this situation, it is up to the legislator to decide – as they have already done – to effect this conversion by nominalizing them and thus foster the balance of public finances, without opting for one or another decision implying any violation of constitutional norms or principles, since these alternatives are constitutionally valid in light of the basic regulation of the constitutional regime of public employment (Article 191 of the Constitution), which it falls to the legislator to configure (Articles 105 and 121.1 Ibid.).

So the permanent nature implicit in granting these salary components a nominal value that is stable over time does not have the purpose of worsening the situation of public employees, but is validly justified by the real need to achieve a situation of balance in public finances; a need that goes beyond overcoming a temporary or circumstantial economic crisis, as it constitutes an economic objective that is desirable to maintain over time.

As we reaffirmed, the State has the obligation to promote efficiency in the provision of public services, for which it is fundamental to promote the efficiency of public employment. In fact, part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenditures generated by the State payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation and the availability of resources.

In any case, we must insist that this norm (Article 54) does not repeal the incentives or compensations existing before the Law for Strengthening Public Finances, but rather establishes the way in which they are to be calculated in the future, no longer as a percentage, but as a fixed nominal amount. (Legal Opinion C-153-2018, of June 6, 2019). This means that, by express legal mandate, all salary components that before December 4, 2018, were calculated as a percentage, without exception must be nominalized according to what is provided. A position we reaffirmed in pronouncements OJ-041-2019, of May 29, 2019, in the case of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social); OJ-068-2019, of June 20, 2019, in the case of the Judicial Branch (Poder Judicial); legal opinions C-166-2019, of June 13, 2019, in the case of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones); C-194-2019, of July 8, 2019, in the case of the Municipalities (Municipalidades); C-281-2019, of October 1, 2019, in which it was determined that, given their general scope of application and their undeniable vocation for uniformity and homogeneity, as a constitutionally valid option to regulate the remunerative conditions of employment in the entire public sector (Article 192 of the Constitution), the provisions on public employment contemplated in the Law on Salaries of the Public Administration related, among other topics, to the way in which salaries and their components in the Public Sector must be calculated, prevail over any other pre-existing provision of legal or lower rank at the sectoral level; this by way of tacit repeal – total or partial – due to normative incompatibility of their contents.

Recall that the regime of rights of public officials is not a static regime, but inherently variable, especially regarding rights of economic content, the amount of which can even be modified within the limits of the Constitution (Article 34 of the Constitution), since the employee does not have an acquired right against the legislator, and even against the same normative power of the employing Administration, that a certain regulation of their rights be maintained, when experience demonstrates that it must be submitted, according to the Law, to a more or less continuous process of adjustments and reforms for reasons of public interest (Resolution No. 10340 of 12:47 hrs. on June 11, 2010, Constitutional Chamber (Sala Constitucional)).

And as the employment relationship is framed within an objective regime, defined by law or regulation, as explained, it is also modifiable by one or another normative instrument, without, consequently, being able to pretend that this statutory situation remains frozen in time, for ‘no one has the right to the immutability of the legal system, that is, that the rules never change, which is why the principle of non-retroactivity does not prevent that once the rule that connects the fact with the effect is born into legal life, it cannot be modified, and even suppressed by a subsequent norm' (Resolution No. 6134-98 of 17:24 hours on August 26, 1998, Constitutional Chamber (Sala Constitucional)).

Thus, it has been a consolidated criterion that the official lacks a general acquired right to the maintenance of a specific regulation of their working conditions or to prevent its modification, clarifying that the mere conditions objectively provided for in the norms or the advantageous situations or mere expectations that could potentially derive from them are not acquired rights if they are not accompanied by a singular legal act that confers the subjective right to an individualized legal situation that originates from facts protected under the expressed objective norm, and always born during its validity. (See in this regard, among others, Judgment No. 84-2014-I of 11:30 hrs. on November 28, 2014, of the Contentious-Administrative and Civil Tax Court (Tribunal Contencioso Administrativo y Civil de Hacienda), Section I).

And in this case, it must not be lost sight of that in the face of the nominalization of pre-existing percentage incentives and pluses, ordered by the legislative provisions of the Law for Strengthening Public Finances, No. 9635, those salary components are conserved but under a fixed economic value; that is, they are not repealed, but are preserved in the future under a fixed amount resulting from the application of the percentage to the base salary as of July 2018; this to safeguard ‘acquired rights’ (‘derechos adquiridos’), as provided by Transitory XXV of the Law itself, in the sense that the total salary of the employees who were active as of December 4, 2018, the date on which that Law entered into force, cannot be reduced.

Finally, regarding the accusation that the nominalization of salary components ordered in Law No. 9635 negatively affects the right to negotiation contained in provisions on the payment of percentage incentives or compensations, approached in that way, this alleged reason for unconstitutionality revolves around the issue of the prevalence or not of a supervening law (the Law for Strengthening Public Finances) over existing collective bargaining agreements. And in this regard, we must reiterate that the institutional position of this advisory body on said topic was expressed in our opinion C-060-2019, of last March 5. In said pronouncement, the conclusion was reached that collective bargaining agreements are subject to the law, even when the latter is supervening, especially when that law is expressly directed at repealing (with effect for the future, therefore respecting acquired rights and consolidated legal situations) the conventional norms that have a specific content.

For the reasons stated, the alleged violations are not admissible”.

Report of the Ministry of Finance The Minister requests that the objections raised be declared without merit and states the following:

“[T]he treatment given to annuities, the nominalizing of pluses are not compensatory or arbitrary measures, nor do they violate acquired rights, but rather their orientation is to standardize the public employment regime”.

Resolution of the Constitutional Chamber Regarding these objections, it is appropriate to insist on what was resolved in the previous items. In the first place, the plaintiffs lack standing to question the alleged injury to the autonomies of the municipalities or decentralized entities.

Secondly, regarding labor rights, it is appropriate to insist that the legislator provided that this type of general rules take effect prospectively, safeguarding in any case the salary status of public employees. On this matter, it is appropriate to insist on what was established in Article 56 of the LSAP in the sense that “the incentives, compensations, ceilings, or annuities remunerated as of the date of entry into force of the law shall be applied in the future and may not be applied retroactively to the detriment of the official or their patrimonial rights”. So that the will of the legislator in any case was to safeguard the salary and the acquired rights of public employees. However, as has been developed throughout this resolution, the fiscal background prompted the legislator to adopt measures with the purpose of curbing the imbalance in public finances through provisions for containment in public spending and standardization in the payment of public employees' salaries. All of which is legitimate within the framework of the Right of the Constitution, as there is no fundamental right to the immutability of the legal system and that the rules on the recognition of salary pluses and incentives do not vary over time. Therefore, this Chamber warned that this type of provisions is legitimate as long as the possibility is preserved for those public employees who do not participate in public management to negotiate salary improvements within the margins of reasonableness, proportionality, and correct disposition of public funds in times of economic contraction. In which case, the future nominalization of salary incentives – and with the arguments raised by the plaintiffs – does not appear as an emptying of the fundamental rights of public officials.

Now, regarding the claim that an emptying of the salary occurs, generated by the loss of purchasing power, salary progressivity, and supposed confiscatory and unreasonable conditions, the objections must be dismissed due to insufficient reasoning and demonstration of the grievances. It has been insisted upon in this resolution – based on the LJC itself and constitutional jurisprudence – that anyone alleging injury to the Right of the Constitution or adducing the unreasonableness of a norm must provide solid arguments and demonstrate the supposed pernicious effects of the provision. In the specific case, identical defects and deficiencies are verified, as the plaintiffs limit themselves to predicting negative salary aspects, without providing greater elements of judgment to this Chamber to conduct an appropriate analysis of a true impact on the generality of public employees.

Finally, regarding eventual antinomies or the prevalence of other special norms, it is reiterated that this must be evaluated and resolved in the ordinary instances of legality.

XXXIII.- ON THE REFORMS TO ARTICLE 57 OF THE LAW ON SALARIES OF THE PUBLIC ADMINISTRATION Challenged Norms The plaintiff challenges several subsections of Article 57 of the LSAP. The challenged provisions regulate the following:

Article 57- Reforms. The following laws are modified, in the manner described below:

(…)

• f)The first paragraph of Article 47 of Law No. 1581, Civil Service Statute, of May 30, 1953, is reformed. The text is the following:

Article 47- Notwithstanding the provisions of Article 43, the minister may terminate the employment contracts of the employees, upon payment of the benefits that may correspond to them, provided that the Civil Service Tribunal (Tribunal de Servicio Civil), when resolving the consultation that will be made to it in advance, deems that the case is included in any of the following very qualified exceptions.

• g)Article 15 of Law No. 8422, Law against Corruption and Illicit Enrichment in Public Function, of October 6, 2004, is reformed. The text is the following:

Article 15- Economic remuneration for the prohibition on practicing liberal professions. The economic compensation for the application of the previous article shall be equivalent to a payment of fifteen percent (15%) for bachelor's degree holders and thirty percent (30%) for licentiate degree holders or postgraduates on the base salary set for the category of the respective position.

• h)Subsection b) of Article 1 of Law No. 5867, Law on Compensation for Prohibition Payment, of December 15, 1975, is reformed. The text is the following:

Article 1- [.]

• b)Fifteen percent (15%) for those who hold university bachelor's degrees. i) Article 5 of Law No. 5867, Law on Compensation for Prohibition Payment, of December 15, 1975, is reformed. The text is the following:

Article 5- Unless a special remuneration regime exists for the public official, the benefits provided for in subsections a) and b) of Article 1 of this law apply to the employees of the Executive Branch (Poder Ejecutivo), Judicial Branch (Poder Judicial), Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), Civil Registry (Registro Civil), Office of the Comptroller General of the Republic (Contraloría General de la República), Office of the Attorney General of the Republic (Procuraduría General de la República), and municipalities, referred to in Article 244 of Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937. Such compensation shall be calculated on the lowest salary indicated in the salary scale of the Public Administration issued by the General Directorate of the Civil Service (Dirección General del Servicio Civil).

(…)

• m)The penultimate paragraph of Article 9 of Law No. 7319, Law of the Office of the Ombudsperson (Ley de la Defensoría de los Habitantes de la República), of December 10, 1992, is reformed. The text is the following:

[.]

The prohibition of subsection 4) of this article extends only to the professional employees who occupy professional positions in the Office of the Ombudsperson (Defensoría de los Habitantes). These officials shall be economically compensated as a percentage of their base salary. The percentages to be paid to compensate the prohibition are: thirty percent (30%) for those holding the degree of licentiate or higher and fifteen percent (15%) for those holding university bachelor's degrees.

[.].

• n)Articles 1 and 2 of Law No. 6451, Authorizes the Judicial Branch to Recognize Benefits, of August 1, 1980, are reformed. The texts are the following:

Article 1- The Supreme Court of Justice is authorized to recognize the benefit for prohibition to professional personnel whom it considers that, due to the functions pertaining to the position held, are prevented from exercising the liberal profession or professions privately, or from holding positions in private enterprise, the Public Administration, and autonomous or semi-autonomous institutions.

Article 2- The official who is granted the benefit established in the previous article shall receive economic compensation as a percentage of the base salary. Fifteen percent (15%) for those holding the academic degree of university bachelor, and thirty percent (30%) for those holding the degree of licentiate or higher.

(…) o) Article 23 of Law No. 6934, Reform of the National Registry Law, of November 28, 1983, is reformed. The text is the following:

Article 23- As economic compensation for the concept of prohibition, professional personnel paid from the budget of the Administrative Board shall be recognized fifteen percent (15%) on their base salary for those holding the academic degree of university bachelor, and thirty percent (30%) for those holding the degree of licentiate or higher.

• p)An Article 48 bis is added to Law No. 7428, Organic Law of the Office of the Comptroller General of the Republic, of November 7, 1994. The text is the following:

Article 48 bis- Economic compensation. As economic compensation for the prohibition contained in Article 48, subsection a), the officials to whom it applies shall receive, on a percentage basis on their base salary, fifteen percent (15%) for those holding the academic degree of university bachelor, and thirty percent (30%) for those holding the degree of licentiate or higher”.

Allegations of the Plaintiff The plaintiff challenges subsection f) for violating Article 192 of the Constitution regarding the suitability and unremovability of public officials, as well as their job stability. They state that the legislator's intention is to repeal the State obligation to indemnify the worker included in the Civil Service Statute. To this is added the repeal of subsection f) of Article 37 of Law No. 1581, Civil Service Statute, of May 30, 1953, which provided the following:

“f) If they cease their functions due to abolition of the position (supresión del empleo), they shall be entitled to severance pay of one month for each year or fraction of six or more months of service rendered. It is understood that if, by reason of the preferential right granted by Article 47, in its penultimate paragraph, the laid-off employee once again occupies a position in the administration, before having received the totality of the monthly payments to which they are entitled for dismissal compensation, the payment thereof shall cease immediately. In the event of a new dismissal due to abolition of the position (supresión de empleo), to determine the severance pay to which they are entitled, the time served in the new position shall be added to the amount of the unpaid monthly payments originating from the first dismissal due to abolition of the position (supresión de empleo) that they may have been subject to.

For the payment of the monthly payments referred to in this subsection, the funds from the Ordinary Budget corresponding to the abolished position shall be used, and for this purpose, the budget line item shall be maintained until the obligation is fully settled.

(Thus reformed the previous subsection by Article 1 of Law No. 4906 of November 29, 1971, a reform that in turn was AUTHENTICALLY INTERPRETED by Law No. 5173 of May 10, 1992, Article 1, in the sense that \"workers who avail themselves – even voluntarily – of retirement, old-age pension, death or withdrawal pensions, granted by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) or by the various pension systems of the Branches of Government, the Supreme Electoral Tribunal, the Autonomous, Semi-autonomous, and Municipal Institutions, have the right for the employer to pay them the severance assistance (auxilio de cesantía).\") (Text modified by Resolution of the Constitutional Chamber No.

8232-00 of 15:04 hours on September 19, 2000).” The claimant argues that these repealed norms had a reason for being. The constituent legislator considered it necessary to include the public employment regime within our highest normative body to guarantee suitability and stability, and based on the latter, the compensation contained in art. 37 was provided, which guaranteed in some way that the ruler or administrative heads could not apply the cases of exception (such as reorganization) indiscriminately in order to dismiss officials. An equivalence is made with the private worker, with only minimum rights assisting them.

The others, for violation of the principles of equality, wage equality, and subsection i) for violation of the principles of reasonableness, proportionality, and legal certainty. Regarding subsections g), h), i), m), n), o), and p), it was indicated that there is evident inequality promoted by the legislator without any justification, by determining that some officials will receive a prohibition payment percentage of 65% of the base salary, while others, under equal conditions regarding academic level and functions, will be compensated with only 30%.

Subsection i) is an ambiguous provision, contrary to the principle of legal certainty, as it reforms art. 5 of Law No. 5867, Ley de Compensación por Pago de Prohibición of December 15, 1975. The reformed norm indicates that the compensation shall be calculated on the lowest salary indicated in the Public Administration salary scale issued by the DGSC. The original norm provided that such compensation would be calculated on the base salary corresponding to each institution. The objective of paying prohibition percentages to professionals, using the lowest salary on the scale, violates the principles of reasonableness and proportionality, to the extent that the professional is compensated for the limitation on practicing their profession with an amount that does not correspond to what said professional could obtain if not legally limited.

PGR Report The PGR requests that the grievances raised be dismissed, based on the following considerations:

“Let us begin by clarifying that, recently, through opinion C-281-2019, of October 1, 2019, in the event of any contradiction between the general rule for the payment of economic compensation for prohibition provided in article 36 of the Ley de Salarios de la Administración Pública (which contemplates a payment of 30% for a licentiate degree or higher), and the provisions set forth, for example, in subsection a) of article 1° of Law No. 5867 (which establishes, for that same scenario, a payment of 65% compensation), or any other prior law on the same matter, the claim of generality and uniformity that inspired the reform to the Ley de Salarios de la Administración Pública, operated through the Ley de Fortalecimiento de las Finanzas Públicas, must prevail.

Hence, the antinomy existing between article 36 of the Ley de Salarios de la Administración Pública, which establishes the base salary of each servant as the parameter for calculating the economic compensation for prohibition, and article 5 of the “Ley de Compensación por el pago de Prohibición,” which provides that the payment of the compensation for the prohibition referred to in article 244 of the Ley Orgánica del Poder Judicial must be calculated on the lowest salary indicated in the Public Administration salary scale, always following the claim of generality and uniformity that inspired the reform to the Ley de Salarios de la Administración Pública, must be resolved in favor of the general and uniform rule established as a unifying parameter; that is, the parameter for calculating the aforementioned economic compensation must be the base salary of each servant.

Below, the PGR transcribes its own opinion C-281-2019, of October 1, 2019, which to the extent relevant clarifies the normative situation following the reform and clarifies how the antinomy and the situation of the servants of the State Tax Administration should be interpreted:

In the eagerness to apply the general rule referred to in the recently transcribed norm, article 57 of the Ley de Salarios de la Administración Pública ordered a series of reforms to pre-existing laws that regulated the payment of economic compensation for prohibition. Among the provisions expressly reformed through that norm is article 1° of Law No. 5867 of December 15, 1975, called “Ley de Compensación Económica por el pago de Prohibición.” That article established, before the entry into force of the Ley de Fortalecimiento de las Finanzas Públicas, that officials subject to any prohibition on the liberal practice of their profession would receive economic compensation of 65% in the case of professionals with a licentiate degree level or higher (subsection a), of 45% in the case of graduates of licentiate or master's degree programs (subsection b), and of 30% in the case of university baccalaureate holders (subsection c).

(…)

With the mentioned changes, subsection a) of article 1° of Law No. 5867 remained in force, a subsection that establishes ─as we already indicated─ that in the case of professionals with a licentiate degree level or higher, the economic compensation would be 65% of the base salary, which contradicts the general rule established in article 36 of the Ley de Salarios de la Administración Pública in the sense that the economic compensation for that type of official must be 30% of the base salary.

The current text of article 1° of Law No. 5867, including the reforms and derogations alluded to, is as follows:

“Article 1.- For the personnel of the Tax Administration who, by reason of their positions, are subject to the prohibition contained in article 118 of the Código de Normas y Procedimientos Tributarios, except for the members of the Tribunal Fiscal Administrativo, the following economic compensation is established on the base salary of the salary scale of the Ley de Salarios de la Administración Pública:

• a)Sixty-five percent (65%) for professionals at the licentiate degree level or another higher academic degree.
• b)Fifteen percent (15%) for those who are university baccalaureate holders.
• c)…” .

From the foregoing, it is evident that a contradiction exists between the general rule for the payment of economic compensation for prohibition provided in article 36 of the Ley de Salarios de la Administración Pública (which contemplates a payment of 30% for a licentiate degree or higher), and the provisions set forth in subsection a) of article 1° of Law No. 5867 (which establishes, for that same scenario, a payment of 65% compensation). Such a contradiction is nothing other than an antinomy, which implies the tacit repeal of one of the two precepts. In view of this, this Attorney General's Office considers that what is provided in article 36 of the Ley de Salarios de la Administración Pública must prevail, not only because it is the most recent norm, but also because it reflects the claim of generality and uniformity that inspired the reform in public employment matters operated through the Ley de Fortalecimiento de las Finanzas Públicas.

(…)

While it could be affirmed that the Ley de Compensación por Pago de Prohibición is a special law in relation to the Ley de Salarios de la Administración Pública, as it regulates a specific aspect of service relationships applicable to a specific group of servants (those subject to a prohibition on the liberal practice of their profession), the truth is that, in these cases, the claim of generality and uniformity of the Ley de Salarios de la Administración Pública must prevail over the prior law regulating the payment of economic compensation for prohibition.

Following another criterion, in this case, would imply deviating from the purpose of the reform to the Ley de Salarios de la Administración Pública, consisting of establishing general guidelines on the manner in which incentives and economic compensations derived from employment relationships must be recognized throughout the public sector.

Furthermore, this Attorney General's Office finds no particularity that justifies paying the officials to whom article 1°, subsection a), of Law No. 5867 applies an economic compensation of 65% of their base salary for the concept of prohibition, while the rest of the public officials are paid, for that same restriction, 30%. That is, there is no verifiable distinctive feature that supports that differentiated treatment, so the appropriate course, under the protection of the constitutional principles of equality and reasonableness, is to apply the general rule contained in article 36 of the Ley de Salarios de la Administración Pública.

Apart from the above, the disproportion between the economic compensation that would be recognized to an official with the academic degree of licentiate (65% on the salary) and that which would be recognized to one with the academic degree of university baccalaureate (15%) would be unreasonable, which ratifies the validity of the thesis set forth.

Additionally, the PGR recognizes that there is certainly a contradiction regarding the calculation from which the payment of compensation for the prohibition on the liberal practice of the profession is made, and that, in such a case, it considers that the regulation with a vocation for uniformity must prevail:

“In this case, following the claim of generality and uniformity that inspired the reform to the Ley de Salarios de la Administración Pública, we estimate that the method of calculating the economic compensation that must be applied is that provided in article 36 of the Ley de Salarios de la Administración Pública (on the base salary of each official) and not that provided in article 5 of Law No. 5867 (on the lowest salary indicated in the Public Administration salary scale).

Such an interpretation, apart from maintaining the uniformity intended by the Ley de Salarios de la Administración Pública, is consistent with the constitutional principles of equality and reasonableness, since there is no objective and reasonable justification for the economic compensation for the prohibition referred to in article 244 of the Ley Orgánica del Poder Judicial to be different (lower) than that applicable to other professionals for similar restrictions on professional practice.” Finally, regarding the claim that the special severance payments for position suppression were illegitimately repealed, the PGR indicated the following:

“Nor is it true the assertion that, with the reform introduced by Law 9635 to paragraph 1 of article 47 and subsection f) of ordinal 37 of the Estatuto de Servicio Civil, the guarantee of stability in employment (art. 192 constitutional) has been violated, and that the principle of free dismissal without compensation in public employment is authorized outright, as is groundlessly accused.

As explained in our opinion C-086-2019, of April 3, 2019, in use of its power to configure public employment (art. 191 constitutional), in use of the inexhaustible legislative power (arts. 105 and 121.1 Ibid.), reforms were introduced to the Estatuto de Servicio Civil regarding unemployment assistance and compensations of a similar nature in cases of reorganizations or restructurings.

And specifically, taking into consideration the express repeal of subsection f) of article 37 of the Estatuto de Servicio Civil, and the modification introduced to article 47 of that same legal body, by articles 58 subsection b) and 57 subsection f), respectively, introduced to the Ley de Salarios de la Administración Pública by Law No. 9635 –de Fortalecimiento de las Finanzas Públicas-, as well as the application of its transitional regime (Transitorio XXVII and art. 13 subsection a) and in fine of Decreto Ejecutivo No. 41564-MIDEPLAN-H), and especially due to the non-existence of identity between the compensations normatively provided for that purpose, according to ordinal 111 subsection d) of the Reglamento del Estatuto de Servicio Civil, we conclude:

• a)If the reorganization carried out implies the need to dispense with the services of some employees covered by collective bargaining instruments, either because they are not required within the new organic structure, or because they do not accept the subsequent reduction of their salaries, after December 4, 2018, the applicable compensation for those covered by Collective Agreements would be that corresponding to the payment of labor benefits, specifically for the concept of unemployment assistance, but in no case may said compensation be greater than twelve years while such collective instruments remain in force (Opinion C-060-2018, of March 5, 2019).
• b)For those other employees excluded from the application of those collective instruments, who could also be dismissed due to reorganization, the normative precept contained in article 39 of the cited Law No. 9635 would be directly applicable; that is, a maximum limit of 8 years of unemployment assistance; a norm that for these cases has immediate efficacy —from its publication date— and which, due to its normative rank, prevails over ordinal 27 subsection c) of the Reglamento del Estatuto de Servicio Civil.
• c)Meanwhile, in the scenario of the aforementioned salary reduction or decrease, the special compensation regulatorily provided, as a general rule, by the cited ordinal 111 subsection d) of the Reglamento del Estatuto de Servicio Civil must continue to be applied, until such time as the power of regulatory repeal or reform held by the Executive Branch (art. 140.3 of the Constitución Política) is exercised with respect to it.

That is, the guarantee of stability in the public position or office continues to exist at the legal level, and as a consequence of this, any unjustified termination entails the recognition of legal benefits. There is not, therefore, an artificial or forced equivalence to the private labor regime, as is groundlessly accused.

The defects alleged are unaddressable, being unfounded.” Resolution of the Constitutional Chamber Regarding art. 57 subsection f) In relation to this specific numeral, it is questioned as harming the immovability of public servants and reproached for having repealed the State's obligation to compensate the worker included in the Estatuto de Servicio Civil. To better clarify what the claimants denounce, it is necessary to compare the different versions of the norm under analysis, i.e., art. 47 of the Estatuto de Servicio Civil:

Original version Current version Article 47.- Notwithstanding the provisions of article 43, the Minister may terminate the employment contracts of the servants, upon prior payment of the benefits that may correspond to them in accordance with article 37, subsection f) of this law, provided that the Tribunal de Servicio Civil, upon resolving the consultation that will be made to it in advance, deems that the case is included in some of the following highly qualified exceptions:

• a)Forced reduction of services or work due to an absolute lack of funds; and b) Forced reduction of services to achieve a more efficient and economical reorganization thereof, provided that said reorganization affects at least sixty percent of the employees of the respective unit.

The aforementioned authority shall dispense with the employees or officials in question, taking into account efficiency, seniority, character, conduct, skills, and other conditions resulting from the evaluation of their services, and shall subsequently communicate to the Dirección General the list of those dismissed for their preferential registration among the candidates for employment.

If any of the cases contemplated in this article is equivalent to a temporary suspension of labor relations, the corresponding authority may also act in accordance with articles 74, 75, and 77 of the Código de Trabajo.

*The text highlighted in bold corresponds to the deleted phrase.

Article 47.- Notwithstanding the provisions of article 43, the minister may terminate the employment contracts of the servants, upon prior payment of the benefits that may correspond to them, provided that the Tribunal de Servicio Civil, upon resolving the consultation that will be made to it in advance, deems that the case is included in some of the following highly qualified exceptions.

(Thus reformed the previous paragraph by article 3° of title III of the Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 of December 3, 2018, which added numeral 57 section f) to the Ley de Salarios de la Administración Publica, No. 2166 of October 9, 1957) a) Forced reduction of services or work due to an absolute lack of funds; and b) Forced reduction of services to achieve a more efficient and economical reorganization thereof, provided that said reorganization affects at least sixty percent of the employees of the respective unit.

The aforementioned authority shall dispense with the employees or officials in question, taking into account efficiency, seniority, character, conduct, skills, and other conditions resulting from the evaluation of their services, and shall subsequently communicate to the Dirección General the list of those dismissed for their preferential registration among the candidates for employment.

If any of the cases contemplated in this article is equivalent to a temporary suspension of labor relations, the corresponding authority may also act in accordance with articles 74, 75, and 77 of the Código de Trabajo.

The questioning of said norm is linked to the derogations carried out by virtue of art. 58 of the LSAP added by the LFFP. In subsection b) of said numeral, the repeal of subsection f) of art. 37 of Law No. 1581, Estatuto del Servicio Civil, of May 30, 1953, was ordered, which provided the following:

“Article 37.- The servants of the Executive Branch protected by this law shall enjoy the following rights:

(…)

• f)If they cease in their functions due to suppression of employment, they shall have the right to compensation of one month for each year or fraction of six or more months of services rendered. It is understood that if, by reason of the preferential right granted by article 47, in its penultimate paragraph, the dismissed employee returns to occupy a position in the administration, before having received the totality of the monthly payments to which they are entitled for dismissal compensation, the payment of the same shall cease immediately. In the event of a new dismissal due to suppression of employment, to determine the compensation to which they are entitled, the amount of the monthly payments not paid and caused by the first dismissal due to suppression of employment to which they were subject shall be added to the time served in the new position.

For the payment of the monthly payments referred to in this subsection, the funds from the Ordinary Budget that correspond to the suppressed position shall be used, and for that purpose, the budget line shall be maintained until the obligation is fully discharged.” In accordance with such a panorama, it is apparent that the claimant's allegation is not correct, because they argue that this set of provisions harms the guarantee of immovability of public servants. According to the claimant, from these norms arose the obligation for the heads not to apply exceptional dismissals indiscriminately ‒for example, due to reorganization of services‒, with the result that public servants are now equated to any private worker.

In the first place, it should be recalled that art. 192 of the Constitución Política categorically establishes that “public servants shall be appointed on the basis of proven suitability and may only be removed for the causes of justified dismissal expressed in labor legislation, or in the case of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof.” Furthermore, from a careful review of the normative situation, it is deduced that the stability regime for public servants remains intact and that the exceptional dismissal regime also remains in force with identical requirements. This is easily observed from the mere comparison of the norms in the inserted table. What happened is that the legislator eliminated a specific norm for the regulation and payment of legal benefits in the event of a “forced reduction of services,” but if the norm is looked at in detail, it continues to order that the termination of the contract will occur “upon prior payment of the benefits that may correspond to them,” that is, the payment of the corresponding benefits remains in force and its illegitimate suppression could indeed contravene the Law of the Constitution. Thus, this Chamber agrees with the explanations made by the reporting authorities in the sense that the guarantee of stability in the public position continues to exist at the legal level as a derivation of the Constitución Política, with the result that, as a consequence, any termination due to forced reduction of services entails the recognition of legal benefits and there is no equivalence with the private labor regime, as the claimant artificially alleges. This Chamber has recognized the payment of legal benefits in the event of forced reduction of services because it is equated to a dismissal with employer liability. As an example, see Judgment No. 2020-021330 where the following considerations were made:

“The numeral under analysis states that ‘If the Municipality terminates the Employment Contracts with its employees, in accordance with the previous article (article 19), or when the worker accepts it.’ In the opinion of this Tribunal, the recognition of the payment of unemployment assistance in the first scenario is not unconstitutional because its payment is due to the employer's will to terminate the employment contract due to a restructuring process, a scenario which this Chamber has assimilated to a dismissal with employer liability. This Chamber has so resolved when hearing claims similar to the one raised in the sub lite. For example, in Judgment No. 2019-008679 in which it was considered, to the extent relevant, the following:

‘The general rule, in the Constitución Política, is to recognize the stability of the public official, but this can be altered in very special situations by authorizing removal in cases of forced reduction of services caused by a lack of funds or due to reorganization. The cited precedent is clear on the need to establish a limit of years for the payment of unemployment assistance, for these cases, as well as recognizing that in the suppression of positions, neither the will nor any fault of the worker mediates, which is what would precipitate the termination of the official's service relationship. Quite the contrary, the suppression of the position is nothing other than human resource restructuring processes, which normally require diagnoses and studies that later materialize in duly motivated and reasoned administrative acts, and which, if it is concluded that there is a need to suppress positions, the workers must receive similar treatment, as a natural consequence, to the same order and category as causes for dismissal with employer liability. In this sense, the payment of unemployment assistance is legitimate with the payment of the legal minimum established by the corresponding labor legislation, or when this is displaced by collective bargaining, under the mentioned parameters for the appropriateness of the payment, provided that the constitutional reasons that validate this type of cause prevail.

Regarding the suppression of the position, the payment to be made, in accordance with the Chamber's new jurisprudential criterion, must not exceed the twelve years already cited. As the scenario of position suppression in the Collective Agreement is a constitutionally valid cause (art. 192), the appropriate course is to dismiss the action in this aspect, provided that the compensation granted does not exceed twelve years.’ Therefore, in such a scenario, the reason for compensation due to restructuring under the exclusive will of the employer to terminate the employment contract is not in itself unconstitutional.” (The highlighting does not correspond to the original).

Thus, in accordance with the precedent, it is held that the suppression of the position resulting from a human resource restructuring process normally requires diagnoses and studies that later materialize in duly motivated and reasoned administrative acts, and that, if it is concluded that there is a need to suppress positions, the workers must receive treatment similar to a dismissal with employer liability and, therefore, may claim the benefits that correspond to them.

What is under discussion following the derogations in question is not related to the constitutional guarantees of suitability or stability, but rather to the determination of what is the amount that would eventually correspond to recognize to public servants whose position is suppressed. Evidently, the decision on the matter requires a task of integration and interpretation by the different legal operators, taking into account the specific qualities of the institution in question and whether the servants are or are not covered by other special provisions such as, for example, the respective collective agreements. Such interpretative work ‒in order to determine in each specific case what is the amount of compensation‒ is a matter of legality and not of constitutionality and, as is evident, says nothing about the supposed unconstitutionality of the questioned provisions. Therefore, these reproaches must be dismissed.

Regarding art. 57 subsections g), h), m), n), o), and p) In relation to this numeral, the claimant raises discussions typical of ordinary legality and not of constitutionality regarding which norms must prevail for the purpose of the recognition of prohibition payment. The foregoing is ratified by the explanation given by the PGR in its report regarding which norms should or should not prevail in each specific case. Such objections are not to be resolved by this Chamber, but before the ordinary instances. In this regard, it is appropriate to recall and reiterate what was resolved by this Chamber in Judgment No. 2023-010798 in which the following was stated:

“With a brief argument, the claimant refers to the decrease that occurred in the prohibition payment percentages paid by the Public Administration to its officials, which was reformed in the Ley de Fortalecimiento de las Finanzas Públicas. It points out the change from 65% to 30%, and from 45% to 30%, and the repeal of the other subsections of the collective agreement norm. The Union maintains that the percentages safeguard the municipal interests, to have a prohibition payment for the personnel in charge of municipal taxes, and not to enter into conflicts with hours outside their working day. They maintain that due to the constitutional autonomy of the municipality, the Ley de Fortalecimiento de las Finanzas Públicas does not apply to the personnel, and if that were the case, it would be for those who entered after December 2018.

As the Procuraduría General de la República explains, it is clear that the discussion presented in this numeral is of ordinary legality, since it involves a conflict of norms applicable over time; that is, of legal antinomies. It is under discussion whether some of the provisions that support the percentages regulated by collective agreement, established by law, have been repealed, thereby discussing whether a presumed tacit repeal of several provisions of the Ley de Salarios de la Administración Pública, Ley de Compensación Económica por el pago de Prohibición, is produced by the reforms introduced in the Ley de Fortalecimiento de las Finanzas Públicas. As is evident, it must be defined whether subsection a), of article 1°, of the Ley de Compensación Económica por el pago de Prohibición, survives the legal reforms, and in this type of circumstances, integration and interpretation of infra-constitutional norms is required, which is not the competence of the Constitutional Chamber, but of the administrative and judicial authorities, as appropriate.

Consequently, on this point, the action must be dismissed.” In the same way, it is not appropriate for the Chamber to evaluate the entire legal framework in the specific case with the purpose of defining which special provisions apply to each servant considering the legal situation in which they find themselves, or what parameter must be adopted to perform the corresponding calculation.

Finally, this Tribunal observes that the alleged infringement of the principles of equality, reasonableness, proportionality, and legal certainty was barely enunciated without the arguments raised by the claimant allowing for an appropriate analysis of the question. That is, these allegations are barely expressed and are not duly substantiated. Therefore, it is appropriate to reject these grievances.

XXXIV.- GENERAL CONCLUSIONS Based on the analysis conducted—in light of the arguments raised by the plaintiffs—this action must be partially granted, based on the following arguments:

Aspects that must be dismissed by virtue of the plaintiffs' standing: arts. 3, 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Title IX of the LFFP, and matters concerning the destination of free surpluses.

Judge Cruz Castro dissents and additionally admits the plaintiffs' standing regarding the defense of institutional autonomies, fiscal responsibility, and the destination of free surpluses.

Regarding service increments (anualidades): the action must be partially granted solely due to the unreasonableness of recognizing the service increment incentive in the month of June of each year and for breaking employment continuity. This is according to what is regulated in art. 12 of the LSAP in its version amended by the LFFP and during the period it was in force. In all other respects, the grievances are declared without merit.

Regarding alleged injuries to acquired rights (derechos adquiridos): as no retroactive effect on the property rights of public servants was proven, the allegations related to the alleged violation of the principle of non-retroactivity and art. 34 of the Political Constitution must be declared without merit.

Regarding the fundamental right to collective bargaining: art. 55—and, therefore, all provisions related to the questioned bonuses, namely arts. 39, 50, 54 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP—must be deemed constitutional under the understanding that the restriction on negotiating does not apply to Public Sector employees who can validly conclude collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law. All of the foregoing, without prejudice to the legality and constitutionality controls over the outcome of the negotiation, in consideration of the constitutional principles of reasonableness, proportionality, and the proper use and management of public funds. Finally, the unconstitutionality of the provision in Transitory Provision XXXVI, paragraph 1 of the LFFP—a transitory provision to Title III of the Amendment to Law No. 2166, LSAP—is declared, as said numeral disregards the free and voluntary nature of collective bargaining and, quite to the contrary, establishes the obligation for all heads of public entities to denounce collective bargaining agreements once their expiration date arrives. Regarding the second paragraph of said transitory provision, the action must be declared without merit.

Regarding exclusive dedication contracts (contratos de dedicación exclusiva): in the opinion of this Chamber, there is no injury to the principle of legal certainty, given that aspects concerning the renewal process or the term of the contracts are not matters of constitutional relevance, but rather fall within the aspects of timeliness and convenience that the legislature can define. In this regard, no injury to the Constitution's Law was proven.

Regarding the imposition of the "prohibition" (prohibición) regime without the corresponding compensation: the Chamber considers that the unconstitutionality of the following phrases must be declared: "Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to be entitled to compensation for this concept" (art. 32 para. 2 in fine) and "For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold" (art. 33 in fine). The foregoing, by virtue of the fact that they attempt to impose a restriction or limitation on professional practice, even though there is no remuneration whatsoever, violating the principles of reasonableness, proportionality, and non-discrimination.

Regarding the new percentages defined by the legislature for the payment of exclusive dedication or prohibition contracts: the allegations must be dismissed due to insufficient substantiation proving their unreasonableness, salary impact, discrimination, or impact on the public service.

Regarding the prohibition of additional incentives: the arguments must be rejected due to insufficient substantiation by the plaintiff and because the points raised refer to the resolution of legal antinomies that must be resolved through ordinary legality channels.

Regarding MIDEPLAN's stewardship (rectoría) and its impact on the rights of public servants: the plaintiff's argument relates to potential regulatory conflicts in the application of infra-constitutional provisions, which says nothing about the constitutionality itself of the questioned numerals or about a certain injury to the fundamental rights of public servants.

Regarding performance evaluation goals: it is concluded that the plaintiff's allegations refer to potential practical difficulties that do not prove an injury to the Constitution's Law.

Regarding the criteria for performance evaluation: the criteria of this Chamber are reiterated in the sense that the questioning of the subjectivity in the grading to which the servant could eventually be subjected is no more than an abstract, imprecise, and generic opinion that does not necessarily involve the eventual violation of fundamental rights. And, in any case, any disagreements that officials may have with the result of the carried-out examination is a matter of legality that this Court is not to assess and that, therefore, must be discussed before the Administration or in the competent jurisdictional venue.

Regarding the exclusion of top-level officials (jerarcas) from participating in collective bargaining: this Chamber considers that it does not seek to discourage collective bargaining, but rather that these negotiations be conducted by persons who, due to their hierarchical situation, do not benefit themselves and, therefore, avoid a conflict of interest. In this sense, the legislature could legitimately assess and list the positions that, due to their high managerial level, may be excluded from the benefits of collective bargaining, without this in itself being illegitimate or unconstitutional.

Regarding the change in the payment method: no particular injury was proven to the detriment of the fundamental rights of public servants.

Regarding the grievances related to the method of recognition and payment of professional career points: no injury to the invoked constitutional rights and principles was proven—in the terms formulated by the plaintiffs.

Regarding the nominalization of salary bonuses: this Chamber ruled out that—with the arguments presented—any unconstitutionality is verified.

Regarding art. 57 of the LSAP: this Court ruled out that there is an authorization to carry out reorganizations disconnected from the respective payment of labor benefits, and that matters relating to the proper interpretation of which rule should prevail for the payment corresponding to the prohibition amount is a discussion of legality and not of constitutionality.

Judge Cruz Castro records a general note.

Judge Rueda Leal issues a dissenting vote (voto particular), in the following terms:

• 1)declares the action granted regarding the phrase "The service increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged article 12 of the Public Administration Salary Law as amended by Law No. 9635 "Strengthening of Public Finances" during its period of validity; 2) declares the action granted in relation to the paragraphs: "Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to be entitled to compensation for this concept" (art. 32 paragraph 2 in fine) and "For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold" (art. 33 in fine), both of the Public Administration Salary Law, added by article 3 of Title III of the law on "Strengthening of Public Finances", No. 9635 of December 3, 2018; 3) in all other respects, declares the actions without merit.

Judge Lara Gamboa declares the action granted solely regarding the phrase "The service increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged article 12 of the Public Administration Salary Law as amended by Law No. 9635 "Strengthening of Public Finances" during its period of validity. In all other respects, he declares the actions without merit.

XXXV.- DOCUMENTATION SUBMITTED TO THE CASE FILE.

The parties are warned that if any paper document has been submitted, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic, or new technology-produced device, 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, as provided in the "Regulation on the Electronic Case File before the Judicial Branch", approved by the Full Court 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 in the agreement approved by the Superior Council of the Judicial Branch, in Session No. 43-12 held on May 3, 2012, article LXXXI.

THEREFORE:

The accumulated unconstitutionality actions are partially granted, following this order of considerations:

First: By majority, the plaintiffs' standing is partially admitted.

Judge Cruz Castro dissents and additionally admits the plaintiffs' standing regarding the defense of institutional autonomies, fiscal responsibility, and the destination of free surpluses.

Second: The active joinder (coadyuvancia activa) of [Name 002] is admitted.

Third: The joinders of [Name 003] and [Name 004] are rejected for being untimely.

Fourth: The majority of the grievances are dismissed under the understanding that the questioned norms must only be applied to officials of institutions that are not excluded from the application of the Law for the Strengthening of Public Finances in salary matters, in accordance with the provisions of Advisory Opinion No. 2018-19511 of 9:45 p.m. on November 23, 2018.

Fifth: The unconstitutionality action is partially granted with respect to article 12 of the Public Administration Salary Law in its version amended by the Law for the Strengthening of Public Finances and during the period it was in force. The foregoing, due to the unreasonableness of recognizing the service increment incentive in the month of June of each year and for breaking employment continuity.

Judge Cruz Castro dissents and declares the action granted regarding service increments, particularly with respect to article 50 and Transitory Provision XXXI.

Sixth: By majority, it is declared that article 55—and, therefore, all provisions related to the questioned bonuses, namely articles 39, 50, 54 of the Public Administration Salary Law and Transitory Provisions XXVII and XXXI of the Law for the Strengthening of Public Finances—must be interpreted as constitutional under the understanding that the restriction on negotiating does not apply to Public Sector employees who can validly conclude collective bargaining agreements in accordance with the Constitution and the law. All of the foregoing, without prejudice to the legality and constitutionality controls over the outcome of the negotiation, in consideration of the constitutional principles of reasonableness, proportionality, and the proper use of public funds.

Judge Cruz Castro partially dissents and declares articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.

Seventh: By majority, the unconstitutionality of the provision in Transitory Provision XXXVI, first paragraph, of the Law for the Strengthening of Public Finances is declared.

Judge Cruz Castro records additional reasons.

Eighth: The unconstitutionality of the following paragraphs is declared: "Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to be entitled to compensation for this concept" (art. 32 paragraph 2 in fine) and "For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold" (art. 33 in fine), both of the Public Administration Salary Law, added by article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018.

Ninth: In all other respects, by majority, the accumulated actions are declared without merit.

Judge Cruz Castro records a note regarding the exclusive dedication contract (article 28 of the Public Administration Salary Law).

Judge Cruz Castro dissents and declares articles 35 and 36 of the Public Administration Salary Law unconstitutional.

Judge Cruz Castro dissents and declares article 53 of the Public Administration Salary Law, article 15 of Regulation No. 41564-MIDEPLAN, as well as Resolution No. DG-139-2019 of the General Directorate of Civil Service, unconstitutional.

Judge Cruz Castro records a general note.

Judge Rueda Leal issues a dissenting vote, in the following terms:

• 1)declares the action granted regarding the phrase "The service increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged article 12 of the Public Administration Salary Law as amended by Law No. 9635 "Strengthening of Public Finances" during its period of validity; 2) declares the action granted in relation to the paragraphs: "Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to be entitled to compensation for this concept" (art. 32 paragraph 2 in fine) and "For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold" (art. 33 in fine), both of the Public Administration Salary Law, added by article 3 of Title III of the law on "Strengthening of Public Finances", No. 9635 of December 3, 2018; 3) in all other respects, declares the actions without merit.

Judge Lara Gamboa declares the action granted solely regarding the phrase "The service increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged article 12 of the Public Administration Salary Law as amended by Law No. 9635 "Strengthening of Public Finances" during its period of validity. In all other respects, declares the actions without merit.

This judgment has declaratory and retroactive effects to the effective date of the annulled norms, without prejudice to rights acquired in good faith.

Let this ruling be notified to the appearing parties and to the Office of the Attorney General of the Republic, the Ministry of Finance, the Ministry of Planning and Economic Policy, and the General Directorate of Civil Service.

Let this ruling be summarized in the Official Gazette La Gaceta and published in full in the Judicial Bulletin. Notify.

Fernando Castillo V.

Fernando Cruz C. Paul Rueda L.

Aracelly Pacheco S. Alejandro Delgado F.

Jorge Isaac Solano A. Fernando Lara G.

Res. No. 2025-008201 Dissenting Vote of Judge Lara Gamboa. Judge Lara Gamboa declares the action granted solely regarding the phrase "The service increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged article 12 of the Public Administration Salary Law as amended by Law No. 9635 'Strengthening of Public Finances' during its period of validity. In all other respects, he declares the actions without merit.

Respectfully, I take the liberty of providing a brief and concise justification for my reasons for separating from the majority vote regarding what was granted, and on some other specific aspects.

• A)With respect to article 12 of the Public Administration Salary Law in its version amended by the Law for the Strengthening of Public Finances, I deem it unconstitutional, not only because the recognition of the service increment incentive until the month of June of each year is irrational, as was decided by the majority; but also because recognizing the service increment incentive until the month of June of each year, instead of recognizing it equally for everyone in the month in which each official completed their employment year, is discriminatory.
• B)Regarding art. 55 (legal reserve in the creation of incentives and salary compensations), it is the opinion of the undersigned that the legal reserve for the creation of incentives and compensations is not only constitutional, because the legislature can establish general regulations for the public sector, but also that having express legal authorization is essential, in accordance with the Political Constitution and the demands of the principle of legality. Only in this way could public funds be disposed of and negotiated in a collective bargaining agreement, converting them into private funds in the form of bonuses, vacations, years of severance aid, service increment incentive, paid leave, scholarships, or any other type of incentive or compensation. If such express legal authorization does not exist, the top-level officials would not be acting in accordance with the law, and therefore said norms would become unconstitutional. Our Political Constitution establishes in its article 11 the Principle of Legality applied to public officials: "Public officials are simple depositaries of authority. They are obliged to fulfill the duties that the law imposes on them and cannot arrogate powers not granted to them therein…" (the emphasis is not from the original), which must be applied to collective bargaining agreements in the public sector. (see in this regard the dissenting vote of the undersigned in Resolution No. 16981-2022, Case File: 16-013968-0007-CO, Constitutional Chamber) C) Regarding Transitory Provision XXXVI, paragraph 1 of the LFFP, the undersigned believes that the legislature can establish, by law, the obligation to denounce collective bargaining agreements for all heads of public entities once their expiration date arrives; since collective bargaining agreements are a meeting of minds and the Legislative Assembly has the legitimacy so that, by law, it can express the will of the State in this type of scenario. Likewise, the Legislative Branch may pass a law changing said provision at the moment it deems appropriate.
• D)Finally, the undersigned believes that there is freedom for anyone who wishes to accept a position in the Public Administration, if they deem it well remunerated, which may or may not have conditions or restrictions regarding exclusive dedication, which do not necessarily have to be remunerated. The State can also offer work, with exclusive dedication restrictions, without it being mandatory to provide consideration in exchange for said limitation. It is for this reason that, as long as they are general rules applied equally to all those under the same conditions, they are considered constitutional, this being the case for the second paragraph of article 32, and article 33 of the Public Administration Salary Law, added by article 3 of Title III of the law on 'Strengthening of Public Finances', No. 9635 of December 3, 2018.

Fernando Lara G.

Res. 2025008201 Dissenting Vote of Judge Rueda Leal.

For the purposes of the sub examine, I must mention that, regarding the joinders, admissibility, and standing of the plaintiff parties, I share what is recorded in the majority vote.

Regarding the context of the approval of the challenged regulations and the reasoning developed in the sections from which I do not separate from the judgment, I clarify that the country's fiscal situation must be understood within the framework of the year in which the challenged regulations were approved. Consequently, with respect to my position, I adhere solely to what was developed in Resolution No. 2018019511 of 9:45 p.m. on November 23, 2018, given that this action was filed in February 2019; that is, less than three months later.

Furthermore, I note that with respect to considerandos VII, VIII, IX, X, XI, and XII, I do not issue any pronouncement, given that these are arguments developed in the abstract and general jurisprudence which, in my judgment, are not essential for the resolution of this matter. Precisely, in each section of grievances, I will record the cases in which I share the cited jurisprudence, or else, I will set forth the thesis I consider correct.

Regarding considerando XIII "Change in regulation concerning service increments (anualidades)." In this regard, I share that article 50 of the Public Administration Salary Law and Transitory Provision XXXI of the law on 'Strengthening of Public Finances' are not unconstitutional for the reasons indicated by the majority, given that they are covered by the principle of the legislature's free configuration (dentro de los límites permitidos por el Derecho de la Constitución) and there is no right to the immutability of the legal system. It should be clarified that, in my judgment, such legislative decisions are fully susceptible to constitutional review, but for this there must be adequate substantiation by the plaintiffs that allows the Chamber to carry out the respective balancing of legal assets. Now, I observe that both norms provide for the future regulation of the service increment incentive, which prima facie rules out any impact on the salary of public servants susceptible to being declared by the Chamber. However, I clarify that acquired rights and consolidated legal situations (situaciones jurídicas consolidadas) should not be recognized per se in all cases. Regarding these last two categories, the Chamber, in Judgment No. 1997002765 of 3:03 p.m. on May 20, 1997, stated:

"The concepts of 'acquired rights' and 'consolidated legal situations' appear closely related in constitutional doctrine. It is feasible to affirm that, in general terms, the first denotes that consummated circumstance in which a thing—material or immaterial, whether a previously foreign good or a previously non-existent right—has entered (or impacted) the person's patrimonial sphere, such that the latter experiences an advantage or verifiable benefit. For its part, a 'consolidated legal situation' represents not so much a patrimonial plus, but a state of affairs fully defined in terms of its legal characteristics and effects, even when these have not yet been extinguished. What is relevant regarding a consolidated legal situation, precisely, is not whether those effects still persist or not, but that—by virtue of a legal mandate or a judgment that has so declared it—a clear and defined rule has already arisen into legal life that connects a factual presupposition (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if…, then…', that is to say: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that the conditioned effect must also necessarily occur. In both cases (acquired rights or consolidated legal situations), the legal system protects—making it intangible—the situation of the person who obtained the right or enjoys the situation, for reasons of equity and legal certainty." However, both acquired rights and consolidated legal situations are conditioned on not deriving from grotesque, aberrant, and blatant inequities. That is, that prior state of affairs that is intended to be safeguarded stems from a minimum of constitutional sanity. Precisely, I have held that when norms injure the constitutional order to such an overwhelming magnitude that they are impossible to justify, what I call "a non-existent legal norm" is configured from its very genesis for reasons of unconstitutionality, in mutatis mutandis application of the doctrine of the inexistent legal act due to legality issues, a position upheld by a relevant sector of legal science. Inexistence designates a profoundly gross unconstitutionality of the challenged norm (even, in another proceeding, it could refer to an act), an extreme degree of nullity due to unconstitutionality, based on which the absence of an essential element is noticed at the very moment of the emergence of the norm that is the object of the action. Due to this extreme defect in the very genesis of the norm, it is inappropriate to preserve the effects derived from legal provisions that are manifestly unconstitutional, unreasonable, and lacking any justification. These are provisions that are blatantly unconstitutional at their base, by virtue of which they cannot recognize acquired rights "in good faith".

In this case, I do not consider that we are facing any scenario of such nature, and therefore it is constitutionally valid for the challenged norms to regulate this incentive in the future and to respect the amounts received in good faith previously by the servants.

Now, on this point, the majority cites Judgment 8254-2020 of 5:15 p.m. on April 30, 2020; however, on that occasion, regarding the recognition of the service increment incentive and the performance evaluation process, I stated:

"Dissenting Vote of Judge Rueda Leal, with respect to Transitory Provision I, which establishes a service increment by seniority. In the case at hand, I state that the norm does not require any type of performance evaluation mechanism. I emphasize that from the word 'efficient service' it cannot be inferred that such an evaluation mechanism exists. Furthermore, the concept of 'efficient service' does not establish a threshold for granting that incentive, such that even the fulfillment of minimum service could lead to its application. In that regard, I consider applicable—mutatis mutandis—the arguments I set forth in Judgment No. 2014-001227 of 4:21 p.m. on January 29, 2014:

'The undersigned Judge records this dissenting vote for the reasons set forth below. I consider that the unconstitutionality action should have been partially granted against articles 156 of the RECOPE Collective Bargaining Agreement 2011-2012 (but for reasons different from those of the majority) and 13 of the Performance Evaluation Norms of that same institution. I.- On the constitutional relevance of performance evaluation during the exercise of public function. Performance evaluation consists of those procedures, methods, or strategies commonly used to evaluate or measure the human resources of a workplace. According to the Dictionary of the Royal Spanish Academy, the term 'evaluate' means: 'to determine the value or importance of a thing or of the aptitudes, conduct, etc., of a person'. That is, evaluating a person's performance means estimating the value a person has in productive terms as well as assessing the individual's development in their position or functions. These procedures tend to measure and grade an employee's performance based on previously defined parameters. This examination of an individual's labor quality involves respect for one of the most important constitutional principles for the exercise of public function: proven suitability (idoneidad comprobada). This requirement—of constitutional rank—for the performance of public positions has been enhanced by the Chamber's jurisprudence over the years. For instance, recently, in Judgment Number 2013-013202 of 9:05 a.m. on October 4, 2013, this Court indicated that article 192 of the Political Constitution guarantees the access and appointment of public servants based on proven suitability.' In accordance with article 191 of the Constitution, every public employment regime has the purpose or goal of guaranteeing the efficiency of the Administration, which can be achieved, among other ways, through a performance evaluation procedure carried out periodically for each public servant. This principle of proven suitability (idoneidad comprobada) was also developed in judgment number 1696-92 at 15:30 on August 23, 1992, which stated: "(…) In those times, many public servants were removed from their positions to make way for supporters of the new government, harming the functioning of public administration. Precisely to combat this evil, a group of constituents advocated for the creation of that legal instrument in order to endow the Public Administration with greater administrative and functional efficiency." Similarly, in judgment number 0140-93 at 16:05 on January 12, 1993, the previous concepts were expanded: "(…) From a historical-legal perspective, the two articles transcribed above are the product of an intense debate within the 1949 Constituent Assembly, which had as its purpose: -Eliminating the practice of the 'spoils' (botín)—as it was called—alluding to the behavior that politicians had traditionally had, consisting of dismissing public servants with each new Government or Administration to replace them with followers of the winning political party; and, -Forming a Public Administration with human resources of the best quality and condition (morally, technically, and scientifically speaking), in order to make it efficient for the fulfillment of its objectives." Proven suitability means that a necessary condition for the appointment and maintenance of public servants is having or meeting the characteristics and conditions that enable them to perform optimally in the job, position, or public office; that is, meeting the merits that the function demands. Judgment number 1696-92 stated that: "(…) the suitability of public servants must not only be understood in a specific sense, 'academic' or 'physical' for example, but should rather be assumed as a conjunction of elements or factors of diverse nature which, assessed as a whole, result in a person being the most suitable for the position." The State must implement policies in state institutions to establish the adequate requirements to perform a position, which must also be based on parameters of reasonableness and proportionality. Precisely, the importance of evaluating the performance of public officials lies in constantly re-examining whether the requirements and merits that allowed a person to enter the public employment regime are maintained over time, in order to guarantee efficiency in the provision of public services inherent to the State.

These constitutional principles have, in turn, been incorporated into the Ibero-American Charter for the Public Service (Carta Iberoamericana de la Función Pública), adopted at the V Ibero-American Conference of Ministers of Public Administration and State Reform, held in Santa Cruz de la Sierra, Bolivia, from June 26 to 27, 2003. That instrument established, among other guiding principles of the entire public service system, that merit, performance, and capacity are guiding criteria for access, career, and other human resources policies, which evidently includes the management of public employment (Article 8). As the precedents of this Chamber have indicated, compliance with these basic elements of the public service can only be achieved if the Public Administration itself establishes adequate means that enable the hiring of duly trained personnel with an appropriate ethical framework, since the public employee is the one who ultimately executes the public service and, consequently, the one who defines, through their daily actions, the course and manner in which the State fulfills its tasks (see judgment number 2010-021051).

Further elaborating, doctrine has stated that performance evaluation systems must conform to the criteria of transparency, objectivity, impartiality, and non-discrimination. Each Administration will determine the frequency of evaluations, the bodies responsible for carrying them out, as well as the applicable procedures that must respect the cited principles. Thus, the success of the system depends on the capacity to combine valuation methods that guarantee objectivity and respect for the principles of merit and capacity. Among the factors that can be evaluated are professional conduct as well as performance or achievement of results. Not only are the aspects to be assessed relevant (that is, what to assess), but also, to an equal extent, the valuation methods (how to assess). The embodiment of the principles of merit, capacity, and suitability in the Constitutional Text does not determine their application exclusively in the procedure for entering the public service (which is the area where the Chamber has had the most opportunity to promote them), but rather extends their validity throughout the working life of the public official, such that they are equally enforceable during membership and permanence in the public employment regime. The ratio iuris of performance evaluation in the public service precisely seeks to examine the validity of merits, capacities, aptitudes, and suitability during a person's permanence in the state apparatus. Performance evaluation not only brings benefits to the employer (e.g., taking measures to improve worker behavior, achieving better communication, planning and organizing work more adequately, identifying individuals who require improvement in a specific area, etc.), but also provides them for the workers themselves, by allowing them to know the aspects of behavior and performance that their employer values most in its collaborators, revealing the expectations of their superior, and, additionally, providing the opportunity for self-evaluation and self-criticism in their work development. The mechanisms to control the performance of a public servant in their daily functions also allow the Administration to verify if those persons who have improved themselves and obtained new knowledge and skills in their field are applying them during the exercise of their position and, with this, evaluate if the public service provided is being benefited by this type of qualified personnel. This ensures that those persons whose contribution in the labor field is highly positive remain in the public service. It is impossible to aspire to the proper functioning of public services if the Administration's human resources lack the command of the required scientific field and the level of reasoning necessary for the optimal performance of their functions, and if these requirements are not constantly re-evaluated.

As stated in judgment number 2012-07163 at 16:00 on May 29, 2012, for which I served as Ponente Magistrate, a fundamental pillar of the democratic system is the citizenry's trust in its institutions, which demands, among other requirements, that the administered person trusts in the correct functioning of the Administration; this implies unavoidably, in addition to ethical and personality matters, that the official masters the subject matter in which they work and has an appropriate level of reasoning, on which the management of public employment must rest. These qualities and aptitudes must not only be evaluated by the Administration at the time of entering the public employment regime, but must also be constantly re-examined in order to maintain the citizenry's trust in the quality of its institutions. Likewise, it must be highlighted that the performance evaluation of public officials is of such high value that through the reform of the year 2000, the Derived Constituent wished to grant it constitutional roots. Specifically, it is Article 11, paragraph 2, of the Political Charter that recognizes the importance of evaluating the results of the Public Administration, by stating the following: "(…) The Public Administration, in a broad sense, shall be subject to a procedure of evaluation of results and accountability, with the consequent personal responsibility for officials in the fulfillment of their duties. The law shall indicate the means for this control of results and accountability to operate as a system covering all public institutions." Consequently, in this state of affairs, the performance evaluation of public officials is no longer just a legal or regulatory requirement (as will be seen below), but a constitutional one, with which it is intended to achieve good and efficient public management. In conclusion, the importance of using diverse instruments aimed at evaluating performance in the public service finds its rationale in high constitutional principles repeatedly promoted by the jurisprudence of this Chamber, mainly the proven suitability of Article 192 of the Constitution and the text of Article 11 also of the Constitution.

II.- Regarding the unconstitutionality of Article 156 of the RECOPE 2011-2012 Collective Labor Agreement (Convención Colectiva de Trabajo de RECOPE). First, it is necessary to rule on the issue of the double payment for the concept of annual increments (anualidades) received by RECOPE workers, by virtue of the benefits obtained through their collective agreement and those also recognized by the Public Administration Salary Law (Ley de Salarios de la Administración Pública, Law Nº 2166 and its amendments). As the petitioner states, the generality of servants comprising the public sector are recognized a single economic incentive based on their years of service with the Public Administration. Such benefit or salary bonus is commonly referred to as annual increments, which were designed as recognition by the Administration to reward, apparently, the experience acquired by officials who have continuously provided their services, although, as will be seen below, it is in reality conditioned on the servant's performance. This figure finds its normative basis precisely in the Public Administration Salary Law, which recognizes this incentive in favor of all officials providing their services to the Public Administration, among whom are the servants of RECOPE.

Now, Article 155 of the RECOPE Collective Agreement refers to the salary scale of the Public Administration Salary Law, in the following terms: "Article 155.- The salary scale established in the Public Administration Salary Law shall be applied to the workers referred to in this Agreement. Each of the subsequent steps of said scale shall continue to be recognized, as workers acquire their right to the enjoyment of vacations." However, in Article 156 of the Agreement, another payment for the same concept of annual increments is again recognized in favor of RECOPE workers: "Article 156. Workers shall maintain and receive an increase in the percentage of the annual increment from four percent to five percent of the base salary for each year worked, which they have been receiving by virtue of previous negotiations." Faced with this scenario, we have two norms of the collective agreement that recognize two different amounts for a single concept in favor of RECOPE workers: annual increments or years of service. This, in my consideration, is openly unconstitutional. I do not share the thesis that this double payment for the category of annual increments is adequately founded on the objective of reducing the salary gap between a certain group of RECOPE workers and other Public Administration officials. Such an end must be achieved through natural and direct mechanisms, such as an increase in base salary, and not through means that imply disproportionate benefits, as occurs in this case, where RECOPE workers receive double pay for the same concept: the annual increment. Faced with such a situation, I opt to preserve the constitutionality of Article 155 of the cited Agreement, not only because it has not been the object of the action, but also because said norm is limited to assigning the benefit of the annual increment previously recognized in Law Nº 2166 and which extends to RECOPE workers.

Now, as the annual increment that I consider constitutional is the one recognized in the Public Administration Salary Law, it is necessary to make some observations regarding this incentive. First, Article 5 of this Salary Law requires a merit evaluation to proceed with the payment of annual increments in the public sector. Thus reads the legal text: "(…) The annual increases shall be granted based on merits to those servants who have received a rating of at least 'good' in the previous year, granting them an additional step, within the same category, until reaching the maximum salary" (the underlining does not correspond to the original). In practice, this payment has been granted automatically, that is, without previously verifying if the rating of the benefiting servant was 'good'. Pursuant to this mentioned Article 5, as well as in accordance with the constitutional principles of proven suitability (Article 192 of the Political Constitution) and evaluation of results (Article 11 of the Political Constitution), the payment of the annual increment must not be automatic, as it has operated to date, but rather must be attributed only to those servants who excel in the performance of their public functions. That is, in truth, the annual increment is not a salary bonus set as recognition for the servant's experience in an institution, but rather a reward for the "good experience" that has been had with such an official, or better said, for their "good performance." As seen previously, Article 11, paragraph 2, of the Constitution establishes the imperative need to evaluate the results of public management. It is true that to date there is no regulatory law in the country that seeks to standardize the effective application of performance evaluations in the public service sphere; however, this does not diminish the relevance of evaluation as a constitutional principle that must guide Public Administration management. In my opinion, the text of Article 11, paragraph 2, of the Constitution establishes a clear and unequivocal mandate: results in public management must be evaluated. Thus, in this context where, on one hand, the cited constitutional norm imposes the evaluation of public management results, and, on the other, Article 5 of the Salary Law requires a prior merit evaluation for the payment of annual increments, the need for a regulatory law for performance evaluation in the Administration makes greater sense, because this would facilitate the payment of annual increments based on merits.

As a corollary of the foregoing, I consider it pertinent to declare the unconstitutionality of Article 156 of the RECOPE 2011-2012 Collective Labor Agreement, as it becomes an intolerable privilege and, in addition, I take the opportunity to point out that the payment of annual increments established in the Public Administration Salary Law (Nº 2166), specifically in its Article 5, requires that a performance evaluation be carried out prior to its recognition, since such payment only proceeds when the servant is rated at least a "good." Ergo, the annual increments established in Law Nº 2166 are, in no way, automatic, by virtue of which those granted according to Article 155 of the cited Collective Agreement are also not automatic.

III.- Regarding the unconstitutionality of Article 13 of the RECOPE Performance Evaluation Standards (Normas para la Evaluación del Desempeño de RECOPE) and the reward for minimum effort. On another note, I consider that Article 13 of the RECOPE Performance Evaluation Standards recognizes the payment of a salary incentive to officials who do not precisely stand out for their excellence. This provision prohibits crediting said salary incentive to those RECOPE servants who obtain a rating lower than 70 in the corresponding performance evaluation; a contrario sensu, employees who exceed 70 (even if it is a minimal rating) are indeed paid said incentive. This means, neither more nor less, that an official who obtains a rating of 70 in their performance evaluation will receive the same salary incentive as one whose efficiency and quality in the exercise of the public function is outstanding and, therefore, has received a score of 90 or higher. Upon reviewing the RECOPE Performance Evaluation Standards, it was not verified that there existed any provision aimed at recognizing a scale that would allow for grading the amount of the payment of such benefit based on the rating obtained, when it exceeded 70. This inexorably means that Article 13 of the RECOPE Performance Evaluation Standards rewards the minimum effort of some and, consequently, devalues the quality of others, by treating workers in evidently different situations equally. I emphasize that the performance evaluation of officials must be the key point for the granting or not of this salary incentive. Properly applied, this is extremely beneficial for the sake of an efficient public service, as it allows maintaining in the exercise of public function those persons who not only demonstrated ab initio that they were suitable to occupy the position, but who also, over time, continue demonstrating those qualities of suitability and efficiency in the performance of their functions.

Now, to evaluate the adequate exercise of a servant's public functions, it is obvious to think that the expectations, goals, and objectives intended to be met in the corresponding work group must have previously been defined. To the extent that these purposes of public management are duly pre-established and known by all, it will be more transparent to specify which were achieved and who played a fundamental role in achieving them. In this case, Article 13 of the RECOPE Performance Evaluation Standards rewards those officials who, after the corresponding performance evaluation, pass it without greater merits. As the norm is drafted, the regulated salary incentive is not only directed at those officials who excel due to their achievements, but also at those who exert minimum effort. Hence, such a complacent provision contravenes the spirit of performance evaluation in the public service that was intended to be safeguarded in Article 11 of the Political Constitution, as well as the principle of proven suitability developed in constitutional Article 192, for which reason I declare such norm frankly unconstitutional.

Independent of the foregoing, Article 13 of the RECOPE Performance Evaluation Standards is also unconstitutional, because if we start from the assumption that the annual increment benefit of Article 155 of the RECOPE 2011-2012 Collective Agreement refers to the annual increment as regulated in Article 5 of the Public Administration Salary Law (which requires that it only be recognized for the official whose performance has been rated at least as "good"), then we easily arrive at the conclusion that in both cases, the salary benefit depends on the official's performance level, so that once again there would be a double payment of a salary bonus arising from the same cause." In addition, I share the dismissal of the action concerning arguments that were not sufficiently substantiated. Indeed, it is not enough to superficially allege violations of constitutional provisions or principles. Now, I clarify that I did not hear the merits of the issues dismissed in judgment no. 2024007057 at 10:10 on March 14, 2024 (since I granted the action due to violation of the fundamental right to citizen participation); however, I agree that, in principle, generic statements raised in an unconstitutionality action without substantiation or proof must be rejected.

Regarding the challenge to the contested Article 12 of the Public Administration Salary Law, I partially concur with the unconstitutionality referred to by the majority, but only insofar as the payment computed in June of each year (regardless of the date of entry) creates an unreasonable situation. There is no justification whatsoever to make serving persons who acquired the right to payment of annual increments and fulfilled the corresponding legal requirements wait. This is a situation evidently contrary to the Law of the Constitution.

However, I do not consider unconstitutional the elimination of the recognition or counting of annual increments in other public sector agencies, since, as indicated by the Office of the Attorney General of the Republic (Procuraduría General de la República), their creation had a legal origin, so the legislator, in principle, has the power to vary it to ensure sound management of public finances. Note that this provision was even amended by the 'Public Employment Framework Law' (Ley Marco de Empleo Público), which recognizes time served in other public sector entities for the purpose of computing annual increments.

On the other hand, I agree with the considerations regarding the discussions of interpretation and normative integration of the contested Article 12 concerning the recognition of annual increments in promotions being matters of legality that do not present, in the terms raised, any situation of constitutional relevance.

With respect to the alleged violation of the principle of reasonableness due to the establishment of annual increment percentages in transitory norms, I concur with the vote and with the position of the Office of the Attorney General of the Republic that this constitutes a problem of legislative technique, but not of constitutionality.

Likewise, possible antinomies between the provisions of the Public Administration Salary Law and personnel statutes constitute matters of legality appropriate to be argued in ordinary channels.

On considerando XIV "ON THE ALLEGED VIOLATION OF THE PRINCIPLE OF NON-RETROACTIVITY OF THE LAW AND DISRESPECT FOR CONSOLIDATED LEGAL SITUATIONS." First, I concur with the majority vote regarding the fact that all arguments referring to municipal autonomy or that of decentralized entities must be dismissed, since the petitioners lack standing for such purposes.

In addition, I agree with the dismissal of arguments for lack of substantiation, as violations of the Law of the Constitution were not justified or demonstrated.

Regarding the assertion that the amounts of annual increments and other bonuses (Articles 50, 54, and Transitory XXXI) disregard what is established in other legal instruments, I must point out that, as I indicated, acquired rights and consolidated legal situations start from a minimum of constitutional reasonableness that does not imply their recognition in all cases (for example, when aberrant and grossly unconstitutional situations exist); however, both annual increments and bonuses can be validly regulated prospectively, so prima facie I dismiss any violation of Article 34 of the Political Constitution. Consequently, I share the reasoning set forth once this clarification is made.

Similarly, I agree that, in principle, it is not for this Chamber to resolve problems of application or interpretation of infra-constitutional norms to determine the prevalence of one over another for resolving labor conflicts.

I reiterate that the recognition of annual increments is covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. Likewise, in my opinion, these types of legislative decisions are fully subject to constitutional review, but for this, there must be adequate substantiation by the petitioners that allows the Chamber to carry out the respective weighing of legal interests. Consequently, the Legislative Assembly can, in principle, regulate prospectively the requirements, amounts, and terms of salary incentives.

As for Transitory XXVII, I agree that, according to the precedents cited in this section, it is constitutionally legitimate to impose a maximum limit of 12 years for the concept of severance pay (cesantía). Thus, I agree with the terms of the dismissal of these claims.

On considerando XV "VIOLATION OF THE PRINCIPLE OF FREE COLLECTIVE BARGAINING." In this regard, the claims referring to municipal autonomy or that of decentralized entities, as well as those related to minor entities, must be dismissed, since the petitioners lack standing for such purposes.

In the same vein, I reiterate that the arguments related to potential antinomies between the contested norms, collective agreements, and internal labor statutes must be dismissed, as they do not involve, in the terms raised, any claim of constitutional relevance, but rather a matter of mere legality.

Likewise, the claims regarding the severance pay cap and acquired rights are dismissed for the same reasons set forth supra in this dissenting opinion.

Now, regarding Article 55 of the Public Administration Salary Law (added by the 'Strengthening of Public Finances' law) and collective bargaining, I did not share what was ordered by the majority in advisory opinion no. 2018019511 at 21:45 on November 23, 2018. On that occasion, I stated:

"VIII.- Different reasons of Magistrate Rueda Leal, regarding number 3 of Title III 'Amendment to the Public Administration Salary Law' of the bill, which adds Article 55 of Chapter VII 'General Provisions.' The consulting parties question the constitutionality of number 3 of Title III 'Amendment to the Public Administration Salary Law' of the bill, which adds Article 55 of Chapter VII 'General Provisions' of the legislative bill 20.580. This norm statures:

'Article 55- Legal Reserve in the creation of salary incentives and compensations The creation of incentives or compensations, or salary bonuses may only be carried out through law.' They base their claim on Article 4 of the Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, 1949 (No. 98) of the International Labour Organization (ILO), which states:

'Article 4 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.' They consider that the State has the commitment to respect, promote, and realize, in good faith and in accordance with the Constitution, the principles pertaining to freedom of association and trade union freedom, as well as the effective recognition of the right to collective bargaining.

After analyzing the claims, I consider that the starting point for the constitutionality analysis must be, precisely, our Political Constitution. In matters of collective bargaining, its Article 62 states:

'ARTICLE 62.- Collective labor agreements that, in accordance with the law, are concluded between employers or unions of employers and legally organized unions of workers, shall have the force of law.' Taking the claims expressed and the transcribed norms as a basis, I note that the task of the constitutional judge is to examine whether the three transcribed texts are reconcilable. Only in the event that a constitutional reading of Article 55 is unfeasible would its declaration of unconstitutionality proceed.

The first thing I observe is that Article 4 of the Convention imposes the obligation to adopt '…measures appropriate to national conditions, where necessary, to encourage and promote…' (the underlining is added) collective bargaining.

Two points stand out from its literal text. On one hand, these are measures to encourage and promote collective bargaining. That is, the regulation does not delegate the definition of all elements of the labor contract to collective bargaining; nor is it observed that it limits the legislative power of configuration in the matter, already guaranteed in itself by constitutional Article 62, as will be seen next.

Even more important is the second point. The mentioned Article 4 refers to 'national conditions,' in order to determine the measures to be taken by the State. A basic element of such requirements is the domestic legal system and, unavoidably, the Political Constitution. This reference obliges reviewing the text of Article 62 of our Magna Carta, transcribed supra." Among its regulations, the force of law granted to collective bargaining agreements (convenciones colectivas) and the definition of the parties to collective bargaining are notable. For the purposes of the sub examine, it must be emphasized that our Constitution expressly rests the regulation of collective bargaining on a legal norm, since the force of law of the collective bargaining agreement is conditioned upon it being concluded "...in accordance with the law...". This precept not only establishes the obligation to abide by the law when negotiating a collective bargaining agreement, but also establishes the duty to legislate on the matter, in order to provide a legal framework that regulates collective bargaining.

This first approach to our Constitution allows us to infer the compatibility of the challenged precept with its text, since the aforementioned Article 55 demands that the regulation of incentives, compensations, or salary bonuses in the public sector be carried out through a law. In other words, both the Constitution and the questioned norm impose a legal regulation of the matter. In the case of the latter, its text is specifically devoted to the subject of incentives, compensations, or salary bonuses. Thus, if the Constitution demands legal regulation on the matter, an article that advocates the same requirement cannot be challenged as unconstitutional.

If one continues examining the "...national conditions..." established by our Magna Carta, the previous result is reinforced. A first point, specifically applicable to public officials, is the principle of legality (principio de legalidad), crucial for any Rule of Law. Said principle subjects the actions of such public servants to the guidelines of the law. As Article 11 of the Constitution literally states, public officials "...may not arrogate powers not granted..." in law, a norm that is developed by numeral 11 of the General Law of Public Administration (Ley General de la Administración Pública), by stating that "...The Public Administration shall act subject to the legal system and may only carry out those acts or provide those public services that said system authorizes, according to the hierarchical scale of its sources..." In this vein, it cannot be considered unconstitutional for the consulted numeral to require an enabling norm in order to regulate the powers of the authorities who act as employers in a collective bargaining process, especially when it involves the handling of public funds, as is the matter of incentives, compensations, or salary bonuses. Quite the contrary, such a requirement is a clear manifestation of the principle of legality.

The notion that public officials are subject to the law, a basic tenet in the Rule of Law, has been embraced in the jurisprudence of this Chamber (Sala) regarding collective bargaining. Thus, in judgment No. 2000-004453 of 14:56 hours on May 24, 2000, this Court held:

"Sixth: Notwithstanding the above, it is important to clarify that even in the public sector where the application of the institution of collective bargaining agreements is constitutionally possible, that is to say, in the so-called State enterprises or economic services and in those personnel units of public institutions and entities whose nature of the services provided do not participate in public management, under the terms of subsection 2 of Article 112 of the General Law of Public Administration, this Chamber reiterates and confirms its jurisprudence in the sense that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, because through that route, current laws, regulations, or governmental directives cannot be dispensed with or excepted, nor can laws that grant or regulate the competencies of public entities, attributed by reason of normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion inferred from Article 112, subsection 3) of the General Law of Public Administration and from Considerando XI of judgment No. 1696-92 of this Chamber." (The emphasis does not correspond to the original; see in the same sense judgments Nos. 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 and 2006-17436).

Finally, emphasis must be placed on the fact that the questioned provision is closely related to the use of public funds allocated to "incentives or compensations, or salary bonuses". Precisely, insofar as these are public funds, the State is under the obligation to ensure their sound management. Likewise, the criteria for allocating these must be subject to the principle of reasonableness (principio de razonabilidad), on the understanding that public officials must seek to satisfy "...primarily the public interest..." (numeral 113 of the General Law of Public Administration). One way to ensure their correct administration is to prevent the casuistic, arbitrary, or disproportionate creation of such incentives, endeavoring to provide a regulatory framework through a law. Concerning the view presented, when studying the constitutionality of collective bargaining agreements, this Chamber has stated:

"After all, as doctrine recognizes, the Public Administration is not a private estate and therefore the money that is committed, as it is not its own, must be administered within the framework of the law, which necessarily includes the aforementioned test of reasonableness and proportionality. It is clear that financial activity presupposes compliance with criteria of economy and efficiency, that is, rationalization of financial activity that legally and morally prevents waste and gives the community the right to demand not only effectiveness but also to prevent that waste, after all, it is the monies of that community that are being administered. These duties are imposed on the Administration in general, which undoubtedly includes the public enterprise, and perhaps with even greater rigor, especially if they are public funds used in favor of employees subject to a private regime. That is why this Chamber's jurisprudence has concluded that although arbitration awards (laudos) and collective bargaining agreements are permitted in State enterprises, the possibility of negotiation cannot be unrestricted, and must respect, among others, the limitations required to harmonize public spending with budgetary availability, as well as the fact that current laws, regulations, or governmental directives cannot be dispensed with or excepted as a consequence of the negotiation process." (Judgment No. 2006-7261 of 14:45 hours on May 23, 2006. The emphasis does not correspond to the original).

It should be noted that the obligation of the Public Administration's servants to ensure the sound management of public funds derives not only from the obligation to render accounts and act in accordance with the law, as regulated in constitutional ordinal 11, but also from other norms of the Fundamental Law that explicitly impose such a duty:

"Article 24.- (...)

The law shall establish the cases in which the competent officials of the Ministry of Finance and the Office of the Comptroller General of the Republic may review the accounting books and their attachments for tax purposes and to audit the correct use of public funds.

Article 184.- The duties and powers of the Office of the Comptroller General are:

To audit the execution and settlement of the ordinary and extraordinary budgets of the Republic. No payment order shall be issued against State funds unless the respective expenditure has been approved by the Office of the Comptroller General; nor shall any obligation be binding on the State if it has not been countersigned by it.

To examine, approve, or disapprove the budgets of Municipalities and autonomous institutions, and audit their execution and settlement.

To send annually to the Legislative Assembly, in its first ordinary session, a report on the activities corresponding to the previous fiscal year, with details of the Comptroller's work and a statement of the opinions and suggestions that the Comptroller deems necessary for the better management of public funds.

To examine, approve or disapprove (glosar y fenecer) the accounts of State institutions and public officials.

Other duties assigned by this Constitution or the laws.

Article 193.- The President of the Republic, the Government Ministers, and the public officials who handle public funds are obligated to declare their assets, which must be valued, all in accordance with the law." (The emphasis does not correspond to the original).

As can be inferred from the logical structure of this type of classic legal relationship, the correlative right of the inhabitants to the correct administration of public funds stands opposite the aforementioned obligation of the public servant.

The analysis carried out infra allows the conclusion that the Constituent Power delegated to the ordinary legislator the duty to regulate collective bargaining by means of law. Now, because public workers are involved (that is, the public servants who can validly sign a collective bargaining agreement) and the sound use of public funds is at stake, it is not unconstitutional to require that the creation of incentives, compensations, or salary bonuses be carried out through a law. Such a normative body would not only correspond to the legal development of Article 62 of the Magna Carta, but also of constitutional ordinals 11, 24, 184 subsection 3), and 193, by subjecting public servants who hold employer positions to the principle of legality and the sound management of public funds.

Evidently, the development of that legal framework will be subject to the limits imposed by the Constitution and the instruments of International Human Rights Law, which include the conventions of the International Labour Organization. Therefore, through a law that regulates the creation of incentives, compensations, or salary bonuses, no precept could be established that would empty the labor and union rights contemplated in said conventions and the Fundamental Law of content. Stated differently, the healthy purpose of ensuring the correct administration of public funds could not be the excuse to unreasonably limit the right to collective bargaining. However, the mere general provision for such a matter to be regulated by law (without having its specific content in view) does not constitute per se a current and immediate violation of union freedom, since the right of citizens to the sound management of public funds and respect for the principle of legality undoubtedly justify it.

Now, I also consider that the approval of numeral 55 entails the duty of the Legislative Assembly to issue, within a reasonable period, the legal framework that would serve as the basis for the collective bargaining of the indicated items. In other words, if an unreasonable period were to elapse without such a norm being issued, the situation would materially become an emptying of collective bargaining regarding such items, a situation that would indeed contravene Article 62 of the Political Constitution.

Thus, I consider that ordinal 62 (by referring to the law), numeral 11 (which imposes the principle of legality), and this last precept together with Articles 24, 184 subsection 3), and 193 (which support the right of citizens to the sound management of public funds), all of the Political Constitution, empower the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that the right to collective bargaining is not emptied of content through this route." Consequently, according to what has been transcribed, Article 62 of the Constitution empowers the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that the right to collective bargaining is not emptied of content through this route. Precisely, the scope of application of the latter includes a variety of topics that go beyond those limits, the negotiation of which would remain unchanged, for example, those related to job configuration, the disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining not only agrees with the Constitution, but is prescribed by it.

In addition, regarding this section and collective bargaining, the majority of this Chamber cites resolution No. 2021017098 of 23:15 hours on July 31, 2021; however, on that occasion I gave the following different reasons:

"a) Different reasons of Justice Rueda Leal regarding ordinal 43 and Transitional Provision XV of the bill.

Concerning numeral 43 and taking as a starting point that this involves the public sector that can validly carry out collective bargaining, I consider that there are no conflicts of constitutionality, since it only establishes partial limits to collective bargaining, which are intimately linked to the principle of budgetary balance. In my opinion, the scope of application of collective bargaining includes a variety of topics that go beyond the limits of that article, the negotiation of which would remain unchanged with the eventual entry into force of this bill, for example, those related to job configuration, the disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining is not only in accordance with the Constitution, but prescribed by it, as I explained in my different reasons set forth in judgment No. 2018-019511:

"After analyzing the claims, I consider that the starting point for the constitutionality analysis must be, precisely, our Political Constitution. In matters of collective bargaining, its ordinal 62 reads:

"ARTICLE 62.- Collective bargaining agreements that, in accordance with the law, are concluded between employers or employer unions and legally organized workers' unions shall have the force of law." Taking as a basis the claims expressed and the norms transcribed, I note that the task of the constitutional judge is to examine whether the three transcribed texts are reconcilable. Only if a constitutional reading of ordinal 55 is unfeasible would its declaration of unconstitutionality be appropriate.

The first thing I observe is that Article 4 of the Convention imposes the obligation to adopt "...measures appropriate to national conditions, where necessary, to stimulate and promote..." (emphasis added) collective bargaining.

Two points stand out from its literal wording. On the one hand, these are measures to stimulate and promote collective bargaining. That is, the regulation does not delegate the definition of all elements of the employment contract to collective bargaining; nor is it observed that it limits the configurative power of the legislator on the matter, already guaranteed per se by constitutional Article 62, as will be seen below.

More importantly is the second point. The aforementioned ordinal 4 refers to "national conditions" in order to determine the measures to be taken by the State. A basic element of such requirements is the domestic legal system and, unavoidably, the Political Constitution. This remittal obliges a review of the text of numeral 62 of our Magna Carta, transcribed supra. Among its regulations, the force of law granted to collective bargaining agreements and the definition of the parties to collective bargaining are notable. For the purposes of the sub examine, it must be emphasized that our Constitution expressly rests the regulation of collective bargaining on a legal norm, since the force of law of the collective bargaining agreement is conditioned upon it being concluded "...in accordance with the law...". This precept not only establishes the obligation to abide by the law when negotiating a collective bargaining agreement, but also establishes the duty to legislate on the matter, in order to provide a legal framework that regulates collective bargaining." Regarding Transitional Provision XV, given its wording, the considerations I expressed in the cited vote No. 2018-019511 apply when analyzing an identical transitional provision:

"The plaintiffs question the constitutionality of Transitional Provision L of bill 20.580, which states:

"TRANSITIONAL PROVISION L - As of the entry into force of this law, the heads of public entities are obligated to denounce collective bargaining agreements upon their expiration.

In the event that it is decided to renegotiate the agreement, it must be adapted in all its aspects to the provisions of this Law and other regulations issued by the Executive Branch." They consider that such an obligation limits the right to renegotiation or to automatic extension under the conditions stipulated in subsection e) of Article 58 of the Labor Code.

After analyzing the petition, I observe that the legal arguments provided by the party refer solely to the apparent opposition of the questioned provision to the cited numeral of the Labor Code. Such a normative conflict is a matter of mere legality, outside the jurisdiction of this Chamber.

On the other hand, I rule out that the mere mention of an alleged violation of constitutional Article 62 is sufficient to satisfy the requirements of a legislative consultation. As required by numeral 99 of the Law of Constitutional Jurisdiction, the facultative consultation must be made in a "reasoned memorial," a situation that differentiates it from the mandatory consultation. Thus, the petitioners have the duty to clearly state the reasons for the alleged constitutional violation, as this Chamber has indicated on other occasions:

"In this regard, the Constitutional Chamber, in developing the scope of that norm, through judgment No. 5544-95 of 15:00 hrs. of October 11, 1995, stated:

"Regarding the consultation referring to Article 28 of the Bill, for not being formulated in a reasoned manner, 'with an expression of the questioned aspects of the bill, as well as the reasons for which doubts or objections are held regarding its constitutionality' (Art. 99 of the Law of Constitutional Jurisdiction), since the plaintiffs simply point out the topic consulted, omitting any type of constitutionality argument, it is not appropriate to process the consultation. This has been repeatedly decided by constitutional jurisprudence and for this reason, as far as this aspect is concerned, there are no grounds to process the consultation filed (See Advisory Opinion No. 5399-95, related to Consultation No. 4773-95 and subsequent interlocutory resolution, No. 501-I-95)." Regardless of the above, a prima facie analysis of the norm – a limit imposed given the lack of legal arguments in the petition – does not permit its unconstitutionality to be visualized. I emphasize that this involves a transitional regulation of limited application to collective bargaining agreements where the State is the employer party. I underscore this fact because I consider that the obligation imposed by said provision has the purpose of adjusting the collective bargaining agreements to the legal framework that would enter into force with the challenged bill. Hence, the possible renegotiation of the agreement entails its adaptation "...in all its aspects to the provisions of this Law and other regulations issued by the Executive Branch." Likewise, I clarify and emphasize that such an article does not mean the suspension, repeal, or annulment of collective bargaining agreements or their provisions, nor does it impose a restriction on their effects that differs from the temporal validity that had been previously agreed upon by the parties.

Now, it must be remembered that the Political Constitution establishes a basic requirement for collective bargaining agreements, which is that they be concluded "...in accordance with the law...". Thus, it is clear that the content and form of a collective bargaining agreement are subject to the law, by constitutional mandate. Ergo, it is not unconstitutional for a norm – like the challenged one – to seek that collective bargaining agreements respect the law. Note also that it does not repeal or empty the content of Article 58, subsection e) of the Labor Code, leaving intact the possibility of renegotiating the collective bargaining agreement." Based on the foregoing, in a given context of severe fiscal deficit, the legislative measures taken aimed at the sound management of public finances and the principle of budgetary balance can only be overturned by more serious transgressions of other fundamental rights, which is not observed in the sub examine.

On the other hand, in advisory opinion No. 2018019511 of 21:45 hours on November 23, 2018, I set forth the following particular reasons regarding Transitional Provision L:

"IX.- Particular reasons of Justice Rueda Leal regarding Transitional Provision L of Title V "Transitional Provisions." The plaintiffs question the constitutionality of Transitional Provision L of bill 20.580, which states:

"TRANSITIONAL PROVISION L - As of the entry into force of this law, the heads of public entities are obligated to denounce collective bargaining agreements upon their expiration.

In the event that it is decided to renegotiate the agreement, it must be adapted in all its aspects to the provisions of this Law and other regulations issued by the Executive Branch." They consider that such an obligation limits the right to renegotiation or to automatic extension under the conditions stipulated in subsection e) of Article 58 of the Labor Code.

After analyzing the petition, I observe that the legal arguments provided by the party refer solely to the apparent opposition of the questioned provision to the cited numeral of the Labor Code. Such a normative conflict is a matter of mere legality, outside the jurisdiction of this Chamber.

On the other hand, I rule out that the mere mention of an alleged violation of constitutional Article 62 is sufficient to satisfy the requirements of a legislative consultation. As required by numeral 99 of the Law of Constitutional Jurisdiction, the facultative consultation must be made in a "reasoned memorial," a situation that differentiates it from the mandatory consultation. Thus, the petitioners have the duty to clearly state the reasons for the alleged constitutional violation, as this Chamber has indicated on other occasions:

"In this regard, the Constitutional Chamber, in developing the scope of that norm, through judgment No. 5544-95 of 15:00 hrs. of October 11, 1995, stated:

"Regarding the consultation referring to Article 28 of the Bill, for not being formulated in a reasoned manner, 'with an expression of the questioned aspects of the bill, as well as the reasons for which doubts or objections are held regarding its constitutionality' (Art. 99 of the Law of Constitutional Jurisdiction), since the plaintiffs simply point out the topic consulted, omitting any type of constitutionality argument, it is not appropriate to process the consultation. This has been repeatedly decided by constitutional jurisprudence and for this reason, as far as this aspect is concerned, there are no grounds to process the consultation filed (See Advisory Opinion No. 5399-95, related to Consultation No. 4773-95 and subsequent interlocutory resolution, No. 501-I-95)." Regardless of the above, a prima facie analysis of the norm – a limit imposed given the lack of legal arguments in the petition – does not permit its unconstitutionality to be visualized. I emphasize that this involves a transitional regulation of limited application to collective bargaining agreements where the State is the employer party. I underscore this fact because I consider that the obligation imposed by said provision has the purpose of adjusting the collective bargaining agreements to the legal framework that would enter into force with the challenged bill. Hence, the possible renegotiation of the agreement entails its adaptation "...in all its aspects to the provisions of this Law and other regulations issued by the Executive Branch." Likewise, I clarify and emphasize that such an article does not mean the suspension, repeal, or annulment of collective bargaining agreements or their provisions, nor does it impose a restriction on their effects that differs from the temporal validity that had been previously agreed upon by the parties.

Now, it must be remembered that the Political Constitution establishes a basic requirement for collective bargaining agreements, which is that they be concluded "...in accordance with the law...". Thus, it is clear that the content and form of a collective bargaining agreement are subject to the law, by constitutional mandate. Ergo, it is not unconstitutional for a norm – like the challenged one – to seek that collective bargaining agreements respect the law. Note also that it does not repeal or empty the content of Article 58, subsection e) of the Labor Code, leaving intact the possibility of renegotiating the collective bargaining agreement." By virtue of the considerations set forth, I rule out any unconstitutionality under the terms raised in the sub lite, since collective bargaining agreements are subject to the law by constitutional mandate.

Regarding the alleged injury to the principle of equality in relation to solidarist associations, I share the arguments set forth in the majority vote and the cited jurisprudence.

Regarding the alleged unconstitutionality of Transitional Provision XXXVI, what was noted ut supra regarding collective bargaining applies. Likewise, the general subjection of collective bargaining agreements to provisions of the Executive Branch is not unconstitutional per se, because, for example, the Labor Code itself provides for the consideration of regulatory provisions in this matter, which are subject to constitutionality control. However, no arguments were developed that demonstrated any transgression susceptible of being declared.

Based on the foregoing, I consider that the challenged Article 55 (and the other provisions related to the questioned salary bonuses, namely, numerals 39, 50, 54 of the Law of Public Administration Salaries and Transitional Provisions XXVII and XXXI of the law for 'Strengthening public finances') are not unconstitutional. Likewise, I consider that Transitional Provision XXXVI is not contrary to the Constitution by establishing the obligation of the heads of entities to denounce collective bargaining agreements upon their expiration deadline, nor by contemplating the general subjection to regulatory provisions.

Regarding Considerando XVI "Art. 3 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 concerning Public Employment." Although I did not vote on resolution No. 2019010635 of 9:20 hours on June 12, 2019, I share the dismissal of these points for lack of legal arguments and because the plaintiff's standing regarding the alleged violation of the principle of autonomy was rejected.

Regarding Considerando XVII "Arts. 4, 9 and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 concerning Public Employment." I reiterate that I did not vote on resolution No. 2019010635 of 9:20 hours on June 12, 2019; however, I agree with the dismissal regarding these norms as they were not expressly challenged.

Regarding Considerandos XVIII "FISCAL RESPONSIBILITY RULES. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC" and XIX "FISCAL RESPONSIBILITY. DESTINATIONS OF FREE SURPLUSES." In relation to these points, I concur with the legal reasoning provided by the majority regarding the lack of standing of the plaintiff.

Regarding Considerando XX "EXCLUSIVE DEDICATION CONTRACTS." Although I did not vote on resolution No. 2019010635 of 9:20 hours on June 12, 2019, I agree that the plaintiff lacks standing to bring an action in defense of the autonomy of municipal or autonomous entities. Likewise, I share the dismissal of the remaining allegations for lack of legal arguments.

Regarding Considerando XXI "EXTENSION OF EXCLUSIVE DEDICATION CONTRACTS." In this regard, I clarify that the norms challenged here are not unconstitutional, since the legislator is, in principle, free to regulate the renewal conditions and the terms of exclusive dedication contracts without observing, under the terms raised, any situation of constitutional relevance.

Regarding the alleged injury to constitutional Article 34 and the other arguments, I concur with the dismissal developed in the majority vote.

Regarding Considerando XXII "SERVANTS TO WHOM EXCLUSIVE DEDICATION OR THE PROHIBITION CAN BE RECOGNIZED." In relation to this section, I concur with the legal reasoning for the dismissal provided by the majority.

Regarding Considerando XXIII "OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION CONTRACT AND THE PROHIBITION." With respect to this point, I agree both with the legal reasoning provided by the majority and with the finding in favor declared. Ergo, I grant the action in relation to the paragraphs: "Public officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to be entitled to the compensation for this concept" (art.

(Art. 32, second paragraph, in fine) and "For the officials indicated in the law as potential beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold" (Art. 33, in fine), both from the Public Administration Salary Law, added by Article 3 of Title III of the Law on "Strengthening of Public Finances," No. 9635 of December 3, 2018; Regarding Considerando XXIV "NEW PERCENTAGES OF EXCLUSIVE DEDICATION AND PROHIBITION." In relation to this considerando, I agree with the reasoning provided by the majority, with the exception of the reference to Considerando VII. Likewise, I did not address the merits of the claims dismissed in judgment No. 2024007057 of 10:10 a.m. on March 14, 2024 (as I granted the action due to a violation of the fundamental right to citizen participation); however, I agree that, as a matter of principle, the generic statements raised in an unconstitutionality action without reasoning or proof must be rejected.

Regarding Considerando XXV "PROHIBITION OF ADDITIONAL INCENTIVES." In relation to this point, I concur with both the reasoning provided by the majority and the dismissal ordered.

Regarding Considerando XXVI "STEWARDSHIP OF MIDEPLAN." In relation to this considerando, I agree with the reasoning provided by the majority, with the following caveats.

Even though I did not rule on the merits of the claims dismissed in judgment No. 2024007057 of 10:10 a.m. on March 14, 2024 (as I granted the action due to a violation of the fundamental right to citizen participation), I did vote on Advisory Opinion No. 2018-19511 of 9:45 p.m. on November 23, 2018. Now, in this latter vote, the general scope of the stewardship of MIDEPLAN was explained, so, in principle, it falls to the ordinary legal operator to analyze the norms they must apply in accordance with the constitutionality criteria established therein. It is worth noting that this Tribunal considered that there were caveats and exclusions provided for in special legal norms that had not been repealed by the Law on 'Strengthening of Public Finances'; however, I consider that, for the purposes of this constitutional review process, what was stated in Resolution No. 2018-19511 of 9:45 p.m. on November 23, 2018, is sufficient (that is, I refrain from ruling on what was decided in judgment No. 2024007057 of 10:10 a.m. on March 14, 2024). Precisely, in Advisory Opinion No. 2018-19511 of 9:45 p.m. on November 23, 2018, it was stated:

"a) Regarding the stewardship of MIDEPLAN in the matter of public employment and the compliance with the guidelines of the Dirección General de Servicio Civil.

The first two objections mentioned are:

"2.) In accordance with the prior report, it is determined that the project does affect the organization and functioning of the Judicial Branch, and that there is opposition to it, as long as the following is not eliminated:

a.- The provisions established in the reform of Articles 46 and 47 of the Public Administration Salary Law, No. 2166 of October 9, 1957, regarding the stewardship of MIDEPLAN on public employment matters over the Judicial Branch.

b.- The provisions established in the reform adding Article 49, in fine, to the Public Administration Salary Law, No. 2166 of October 9, 1957, regarding the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil for the Judicial Branch." In order to clearly understand these points, the corresponding norms are transcribed:

"Article 46- Stewardship of Public Employment All matters of Public Sector employment shall be under the stewardship of the Minister (a) of National Planning and Economic Policy, who must establish, direct, and coordinate general policies, coordination, advice, and support to all public institutions, and define the administrative guidelines and regulations aimed at the unification, simplification, and coherence of employment in the public sector; ensuring that public sector institutions respond adequately to the defined objectives, goals, and actions.

Furthermore, they must evaluate the public employment system and all its components, in terms of efficiency, efficacy, economy, and quality; and propose and promote the necessary adjustments for the better performance of officials and public institutions.

Article 47- Methodological Basis for Performance Evaluation (evaluación del desempeño) The performance evaluation (evaluación del desempeño) of officials shall be based on quantitative indicators of compliance with individual goals for products and services provided, linked to the processes and projects carried out by the unit to which they belong; and that of the managerial body at all levels for compliance with institutional goals and objectives.

It shall be the responsibility of each superior to define the processes and projects of the unit, as well as the products and services provided; in accordance with current regulations and governmental and institutional strategic plans.

The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy, with the objective of homogenizing and standardizing, with the respective caveats, the evaluation methods and the respective information systems.

(...)

Article 49.- Effects of the Annual Evaluation The result of the annual evaluation shall be the sole parameter for granting the annual bonus incentive to each official.

The annual ratings shall constitute a precedent for granting the incentives established by law and suggest recommendations related to the improvement and development of human resources. It shall be considered for promotions, advancements, recognitions, training, and instruction, and shall be determined by the official's performance evaluation history. Likewise, the evaluation process must be considered to implement actions for improvement and strengthening human potential.

Annually, the Dirección General de Servicio Civil shall issue the technical and methodological guidelines for the application of performance evaluation instruments, which shall be mandatory." As can be inferred from the literal text of the agreement, the first two precepts are objected to because they provide for a "...stewardship of MIDEPLAN over public employment matters...", while the third speaks of "...the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil for the Judicial Branch." To specify the concrete implications of this regulation concerning the Judicial Branch, one must conduct both an internal examination of its articles and verify its interaction with the rest of the legal system. In other words, the literal text of the project's norms must be evaluated, as well as their hypothetical systematic interpretation should they become part of our legislation.

Regarding the first level of analysis, numerals 46 and 47 grant and detail the topic of public employment stewardship under the charge of the Minister of National Planning and Economic Policy.

On this topic, the consulting deputies indicate that "... article 46 and 47 (sic) do not interfere with the organization or functioning of the Judicial Branch in view that an interpretation consistent with constitutional limits necessarily limits its application to those entities over which there is effective inter-subjective direction, respecting the principle of Separation of Powers and judicial independence. Provided that the aforementioned norm is interpreted in this way, as it indeed must be according to the spirit of the legislator, it will be consistent with Constitutional Law, without disrupting in any way the jurisdictional function of the Judicial Branch nor those administrative tasks essential for its fulfillment." The Chamber also notes that the Minister of Finance explained to the Supreme Court of Justice the following: "...regarding MIDEPLAN's stewardship in the matter of public employment evaluation (evaluación del empleo público), the project is clear in stating that this stewardship is exercised with the respective exceptions. In that sense, I know there is a will on the part of the deputies to present an authentic interpretation that guarantees the absolute independence of the Judicial Branch in matters of performance evaluation (evaluación de desempeño)..." (Official Letter No. DM-2362-2018 of October 16, 2018. Emphasis added).

It is extracted from the above that the stewardship of the Minister of National Planning and Economic Policy in public employment matters has exceptions in the bill. The Chamber verifies the truthfulness of this argument, as the questioned Article 47 establishes in fine:

"The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy, with the objective of homogenizing and standardizing, with the respective caveats, the evaluation methods and the respective information systems." (Emphasis added).

The Chamber observes that the mentioned Articles 46, 47, and 49 are found in Chapter VI, called "STEWARDSHIP AND PERFORMANCE EVALUATION OF PUBLIC SERVANTS." The application of this chapter to the Judicial Branch is assumed in the proposed reform to the Public Administration Salary Law, which introduces a numeral 26 with the following wording:

"Article 26- Application The provisions of this chapter and the following ones shall apply to:

1. The Central Administration, understood as the Executive Branch and its dependencies, as well as all deconcentrated bodies attached to the various ministries, the Legislative Branch, the Judicial Branch, the Supreme Electoral Tribunal, as well as the dependencies and auxiliary bodies thereof. (...)" The Chamber draws attention to the fact that almost all the chapters of the amendment to the Public Administration Salary Law refer, at least in one of their articles, to the cited Article 26. Thus, Chapter III is precisely the one containing numeral 26, while Chapter IV cites it in its precepts 39 and 40:

"Article 39- Severance Pay (Auxilio de cesantía) The compensation for severance pay (auxilio de cesantía) for all officials of the institutions contemplated in Article 26 of this law shall be governed by the provisions of the Labor Code, and may not exceed 8 years.

Article 40- Inadmissible Additional Incentives The creation, increase, or payment of remuneration for 'discretion and confidentiality,' nor the payment or recognition for biennia, quinquennia, or any other remuneration for the accumulation of years of service other than annual bonuses, is inadmissible in any of the institutions contemplated in Article 26 of this law." (Emphasis added).

For its part, Chapter V refers to this norm in its Article 42:

"Article 42- Limit on Total Remuneration in Public Service The total remuneration of those servants appointed by popular election, as well as the heads, subordinate titleholders, and any other official within the institutional scope of application contemplated in Article 26 of this law, may not exceed per month the equivalent of twenty monthly base salaries of the lowest category on the Public Administration salary scale, except as indicated in Article 41 regarding the President's remuneration. (...)" (Emphasis added).

While Chapter VII does so in its numeral 52:

"Article 52- Payment Method for Public Servants The institutions contemplated in Article 26 of this law shall adjust the payment frequency of their officials' salaries to the monthly payment method with a biweekly advance." (Emphasis added).

Thus, it is verified that the only chapters that do not refer to the cited numeral 26 are VIII –related to the reform and repeal of other regulations– and the questioned VI, which is, certainly, the one that speaks of 'caveats.' The relevance of this fact lies in the interpretation derived from the conjunction of both assumptions. If, on the one hand, the general norm contemplated in Article 26 is not mentioned or brought up in Chapter VI and, on the other hand, said chapter is the one that speaks of 'caveats,' then the unavoidable need to carry out a systematic interpretation is revealed, in order to clearly establish such caveats. It is evident that, if the legislator literally refers to exceptions, the task of the legal operator is, precisely, to determine such exceptions.

Following this line, the extent of these 'caveats' to the Judicial Branch is verified and better understood when the second level of analysis is performed, which implies a systematic reading of the legal system.

The principles governing systematic interpretation allow for resolving problems of (apparent) collisions of norms. For the purposes of the sub lite, it must be recognized that the Constitution has a direct influence on the exegesis of the entire legal system. The Constitution is a living text, whose provisions imbue the rest of the infra-constitutional regulations with meaning.

In addition to the above, resolving a collision of norms presupposes the application of other interpretive principles, such as the prevalence of special norms over general ones.

These basic elements of legal hermeneutics guide the study of the questioned norms.

The reading of the constitutional framework begins with the recognition of the independence of the Judicial Branch, one of the cardinal foundations of our Rule of Law:

"ARTICLE 9.- The Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and independent Powers. The Legislative, the Executive, and the Judicial.

None of the Powers may delegate the exercise of functions that are proper to them. (...)" "ARTICLE 154.- The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities than those expressly indicated by legislative precepts." "ARTICLE 156.- The Supreme Court of Justice is the superior court of the Judicial Branch, and the courts, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding civil service." These constitutional provisions have given rise to the development of a profuse regulatory framework, specifically designed to regulate the Judicial Branch. Among the norms of this framework are the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Agency, the Salary Law of the Judicial Branch, the Judicial Service Statute (including its reform by the Judicial Career Law), etc.

Clearly, the norms stated above are intended to concretely regulate the Judicial Branch, ensuring that its independence from the other Branches of the Republic is guaranteed.

The fact that the Judicial Branch enjoys particular regulation brings the second point of analysis of systematic interpretation into the spotlight. In this sense, it must be studied whether there are particular norms for the Judicial Branch and verify their relationship with the questioned articles.

Regardless of whether Article 47 of the bill speaks of 'caveats,' it is observed that performance evaluation (evaluación del desempeño) and decision-making competence in labor matters, whether general or specific, are already regulated by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external entity to assume the 'stewardship' or impose criteria on that Branch. Moreover, said regulatory framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated in Article 1 of the Judicial Service Statute:

"Article 1.- This Statute and its regulations shall govern the relations between the Judicial Branch and its servants, in order to guarantee the efficiency of the judicial function and to protect those servants." Note that the norm determines that the employment relations between the Judicial Branch and its servants are governed by the Statute and its regulations. The systematic interpretation required by that numeral prevents an indirect regulation of the judicial service through directives or guidelines from other entities. This is verified because the issuance of the regulation referred to in the norm is, in turn, the exclusive competence of the Court, as the same Statute indicates:

"Article 5.- Before issuing an internal work regulation, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective draft known to those servants, by the most appropriate means, so that they may submit their observations in writing, within a term of fifteen days.

The Court shall take these observations into account to decide what is appropriate, and the regulation it issues shall be mandatory without further procedure, eight days after its publication in the 'Judicial Bulletin'." A further guarantee of the independence of the Judicial Branch in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external entities:

"Article 6.- The Personnel Department of the Judicial Branch shall operate under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court." Subsequently, the detailed regulations of the Judicial Service Statute distinguish the different competencies in matters of performance evaluation (evaluación del desempeño), which corroborates the existence of special regulations for that Branch. Thus, for example, numerals 8 and 10 of the Judicial Service Statute read:

"Article 8.- The Head of the Personnel Department is responsible for:

• c)Establishing the technical procedures and instruments necessary for greater personnel efficiency, among them the periodic service rating, the file and record of each servant, and the forms that are technically useful; (...)

Article 10.- The periodic service rating shall be carried out annually by the Head of each judicial office with respect to the subordinates working therein, using special forms that the Head of the Personnel Department will send to the different offices in the months determined by them. (...)" That is, the periodic ratings of judicial personnel, such as the annual evaluation (evaluación anual), are carried out through the procedures established by the Head of the Personnel Department of the Judicial Branch. These are special norms, pertaining exclusively to the Judicial Branch, that would prevail over the general norms of the bill, should they enter into force.

The Chamber highlights that the bill does not repeal or modify in any way the provisions transcribed above, nor any other of the Judicial Service Statute. This Statute governs employment matters in the Judicial Branch and represents a guarantee for judicial servants, in accordance with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor result from a mere inference, as that would denote a disregard of hermeneutical rules.

On the other hand, regarding the questioning that Article 49 of the bill orders the Judicial Branch to mandatorily comply with the guidelines of the Dirección General de Servicio Civil, the truth is that the relationship between said Directorate and the Judicial Branch is governed by a specific norm, as derived from the cited Article 8:

"(...) The Head of the Personnel Department may make the necessary inquiries to the Dirección General de Servicio Civil and request the appropriate advice from this Directorate, for the better performance of its functions. (...)"

That is, the legal framework of the Judicial Branch provides for the power of the Head of its Personnel Department (now called Gestión Humana) to consult the Dirección General de Servicio Civil and request its advice for the performance of its functions. Those functions include, as seen, the obligation to determine the technical procedures and instruments for the periodic rating of personnel (numeral 8 cited above). Such a provision of a special law renders the questioned norms of bill No. 20.580 inapplicable to the Judicial Branch.

Again, it is recalled that this is a special norm that takes precedence over the general provision. Furthermore, it is highlighted that the norms of the Judicial Service Statute would remain intact after the reform proposed through bill No. 20.580, as it does not modify or repeal it.

In conclusion, given that Chapter VI of the intended amendment to the Public Administration Salary Law contemplates an exception for the Judicial Branch, coupled with the fact that the latter has special legal-rank regulations related to the performance evaluation (evaluación del desempeño) of its officials, it is not observed that the consulted bill really affects the organization or the functioning of the Judicial Branch." Regarding the other arguments, I share the dismissal developed by the majority of the Chamber.

Regarding Considerando XXVII "MEASUREMENT OF PERFORMANCE EVALUATION." In relation to this point, I concur with both the reasoning provided by the majority and the dismissal ordered.

Regarding Considerando XXVIII "CRITERIA FOR PERFORMANCE EVALUATION." In relation to this considerando, I agree with the reasoning provided by the majority, with the following caveats.

Even though I did not rule on the merits of the claims dismissed in judgment No. 2024007057 of 10:10 a.m. on March 14, 2024 (as I granted the action due to a violation of the fundamental right to citizen participation), I did vote on Advisory Opinion No. 2018-19511 of 9:45 p.m. on November 23, 2018. Now, in this latter vote, the general scope of the Law on 'Strengthening of Public Finances' in salary matters and performance evaluation (evaluación del desempeño) was explained, so, in principle, it falls to the ordinary legal operator to analyze the norms they must apply in accordance with the constitutionality criteria established therein. It is worth noting that this Tribunal considered that there were caveats and exclusions provided for in special legal norms that had not been repealed by the Law on 'Strengthening of Public Finances'; however, I consider that, for the purposes of this constitutional review process, what was stated in Resolution No. 2018-19511 of 9:45 p.m. on November 23, 2018, is sufficient (that is, I refrain from ruling on what was decided in judgment No. 2024007057 of 10:10 a.m. on March 14, 2024). Precisely, in Advisory Opinion No. 2018-19511 of 9:45 p.m. on November 23, 2018, in addition to what was cited ut supra regarding performance evaluation (evaluación del desempeño), it also stated:

"c.- Regarding salary matters.

Concerning this point, the aforementioned agreement proposes:

" 2.) In accordance with the prior report, it is determined that the project does affect the organization and functioning of the Judicial Branch, and that there is opposition to it, as long as the following is not eliminated:

(...)

d.- The restrictions established in the bill on salary matters and their respective components for officials of the Judicial Branch." After analyzing the articles of bill No. 20.580, regarding the modifications to the Public Administration Salary Law, the Chamber recalls that an impact on the salary of judicial officials can affect judicial independence. As was briefly expressed in the cited vote No. 2018-5758 of 3:40 p.m. on April 12, 2018:

"(...) What is part of judicial independence is that judges have sufficient and dignified economic means, both active and inactive, (...)"

Now, it must be highlighted that the questioned regulation is not particular to judicial officials, but rather broadly encompasses the Public Administration. The importance of this point lies in the fact that the Chamber has supported a solid criterion regarding the inadmissibility of mandatory institutional consultations (such as those provided for in numerals 167 and 190 of the Political Constitution), when a project is of a national or general nature:

"(...) Now, specifically regarding the consultation with the Caja Costarricense de Seguro Social, as derived from Constitutional Article 190 ('For the discussion and approval of projects relating to an autonomous institution, the Legislative Assembly shall first hear the opinion thereof.') and the reiterated jurisprudence of this Chamber (see Resolutions Judgment 2012-02675 and 2008-004569), before the legislative approval of a bill relating to an autonomous institution, the Legislative Assembly must hear the opinion of that institution. The foregoing, of course, does not mean that every bill or any modification related to an autonomous institution through a bill must be consulted with it, but only those aspects referring to its constitution or organic structure, or those related to the essential scope of the competences of the institutions involved. In this case, the bill that gave rise to the challenged law has no relation either to the organic structure of the Caja Costarricense de Seguro Social, nor to its competences; rather, it refers to the establishment of a salary scale for all public and private institutions that hire doctors, not just for the Caja. While it is true it could have a relationship with its finances, the ordinary legislator is competent and sovereign to establish salary criteria for a specific professional sector. Therefore, in this case, the mandatory consultation with the Caja Costarricense de Seguro Social, as part of the parliamentary procedure, did not apply. In the same sense in which this Chamber considered that a mandatory consultation with the public universities was not appropriate, through vote 1602-98 it was said:

"II. OF THE NON-COMPLIANCE WITH THE LEGISLATIVE PROCEDURE (MANDATORY CONSULTATION WITH THE UNIVERSITY OF COSTA RICA). However, previously, this Chamber, in Judgment No. 3530-97, of three fifty-seven p.m. on June twenty-fourth, nineteen ninety-seven, heard the constitutionality of the challenged regulations and for the same reasons stated in this action, concluding, in a determinative manner, their conformity with the constitutional order, under the following considerations:

"I.- Unconstitutionality due to omissions in the legislative procedure: In the first instance, the petitioner considers that the entirety of Law 6836 and Article 61 of Law 7064 are unconstitutional due to defects in the approval procedure, because due to their content, in accordance with the provisions of Article 88 of the Constitution and 126 and 157 of the Regulations of the Legislative Assembly, they are laws subject to mandatory consultation with the Universities, as they directly affect matters placed under their competence. Regarding the cited Article 88, it was established in Judgment No. 1313-93 of one fifty-four p.m. on March twenty-sixth, nineteen ninety-three, that the specific functional competence of the Universities, the so-called 'organic specialty,' refers to 'imparting higher education in various university careers, and other related activities' and this is what the constitutional consultation tends to guarantee." The rules challenged in this action refer to the setting of salaries and incentives for medical science professionals and have no direct relationship with the University's functional competence, and therefore, on this point, the action must be rejected on the merits.

By virtue of the foregoing, the challenge to the Ley de Incentivos a los Profesionales en Ciencias Médicas, number 6836, of December twenty-second, nineteen eighty-two, regarding the failure to comply with substantial legislative procedures, must be dismissed." (Judgment No. 2013-014736 of 3:45 p.m. on November 6, 2013) In a similar vein, the Chamber stated:

"V.- Rejection of the action regarding the tax on real estate (impuesto sobre bienes inmuebles) and the tax on the transfer of real estate (impuesto al traspaso de bienes inmuebles).- As explained above, the petitioner appears in his capacity as Mayor of the Municipality of Belén and instructed by the Municipal Council of said canton in order to defend the interests of his community against legislative rules they claim affect them in the specific terms indicated above, that is, insofar as it involves imposing extensions on exemptions from municipal taxes without complying with the consultation procedure of Article 190 of the Constitution.- Now, the standing provided by the second paragraph of Article 75 of the Ley de la Jurisdicción Constitucional on which the petitioner relies does not extend to questioning all the taxes exempted by law number 7210 of Zonas Francas, but only to defending his interests regarding taxes of a municipal nature, that is, those that have come into legal existence through municipal initiative under the terms of Article 121, subsection 13) of the Constitución Política. Thus, the objection due to lack of consultation must first be rejected insofar as it is directed against the tax on real estate established in law number 7509 of May 9, 1995, and its amendments, which—as the Procuraduría indicates—has a national character because it was issued through an ordinary law, even though the taxing competence for its administration and the definition of the destination of the funds corresponds to the municipal corporations.- This point was clearly specified by this Chamber in judgment number 2011-003075 which stated:

A.- On the jurisprudence related to the tax on real estate. One of the aspects that this Chamber must resolve is settled in the Chamber's jurisprudence, having determined the nature of the tax, that is, whether it is a municipal or national levy. The foregoing has consequences for the approach to the claims raised by the Municipality of Escazú. The precedents of this Chamber have reiterated that it is a national tax with a municipal destination, and that, while the taxing initiative is recognized for the municipalities, it is not possible to understand exclusivity in this matter that limits the freedom of configuration when the legislator exercises the initiative. In this sense, the State may, through national taxes, provide extraordinary resources to the Municipalities of the country with the important objective of financing them. (...)

It is concluded that the petitioner could not come to claim the defense of municipal competences of participation in the configuration of taxes, regarding a tax of unquestionable national character such as the cited tax on real estate.- The same reasoning must be made in relation to what the petitioner identifies as the tax on the transfer of real estate and which, as the advisory body also specifies, seems to refer rather to the municipal stamp (timbre municipal) that must be paid as part of the tax burden for certain operations registrable in the Public Registry and which is regulated in Article 84 of the Código Municipal, so it also possesses an undeniable national character.- In summary, regarding these two taxes just cited, the action filed must be rejected outright." (Judgment No. 2015-7688 of 9:00 a.m. on May 27, 2015).

In the case at hand, the rules of the bill related to salary matters have general application, without this Court having elements to consider that these will affect the financial support of the officials dedicated to the administration of justice to such a degree that at least "a dignified economic sufficiency" is not ensured.

The Chamber does not omit to underline that the rules of the Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial, and the Estatuto de Servicio Judicial are not affected by the proposed reform. Said rules enable the autonomy of the Poder Judicial regarding changing its salary scale or varying base salaries. In this sense, note what was stated by the Minister of Hacienda to Corte Plena:

"Regarding the possibility that the bill affects the independence of the Poder Judicial by regulating the application of certain bonuses (pluses), I would like to respectfully point out that the bill does not affect or eliminate the power of the Poder Judicial to modify its salary scale or modify base salaries. Thus, if the Poder Judicial considered it necessary to increase the salary of any official, it has full power and autonomy to do so. Particularly, if the Poder Judicial considers that, given the regulation of exclusive dedication (dedicación exclusiva) or the annual increments (anualidades), it is necessary to increase the salary of any official, it can do so under the protection of its independence in salary matters." This observation is not only shared by the Chamber but determines with indisputable clarity that the consulted bill does not affect the organization or functioning of the Poder Judicial in salary matters.

Based on the above-explained, the Chamber determines that the questioned norms of legislative bill 20.580 do not affect, in the stated sense, the organization or functioning of the Poder Judicial.

• d)Finally, the Chamber observes that the consulted bill is processed through the special procedure established in Article 208 bis of the Reglamento de la Asamblea Legislativa. Said numeral reads:

"Article 208 bis.- Special Procedures By means of a motion of order, approved by two-thirds of its votes, the Asamblea Legislativa may establish special procedures to process amendments to its Reglamento and bills of law whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and agreements regardless of the vote required for their approval. Every special procedure must respect the democratic principle, and safeguard the right of amendment." (Emphasis added).

The transcribed rule provides that the special procedure of 208 bis must be used only for bills whose approval requires an absolute majority. Furthermore, to establish such a procedure, the deputies must reach an agreement of two-thirds of the votes. In other words, to apply a procedure under subsection 208 bis, there must be the consensus of a qualified majority of the deputies that the bill intended to be processed through that route is one that can be approved by an absolute majority.

On the other hand, this Court also notes that the Asamblea Legislativa based the consultation made to the Corte Plena on Article 157 of the Reglamento de la Asamblea Legislativa, a rule that lists institutional consultations of constitutional order. Said subsection is complemented by Article 126 of the same Reglamento, since both differ only by the procedural stage at which the consultation is made. Thus, consultations under numeral 126 are carried out in committee, while those of Article 157 correspond to the plenary:

"ARTICULO 126.- Mandatory constitutional consultations When a bill is discussed or a motion is approved within a committee that, in accordance with Articles 88, 97, 167 and 190 of the Constitución Política, must be consulted, the respective consultation shall be made by the President. Consultations by committees shall be considered as made by the Asamblea itself and, as pertinent, the provisions of Article 157 of this Reglamento shall apply.

(...)

ARTICULO 157.- Institutional consultations When in the discussion of a bill the Asamblea determines that the Tribunal Supremo de Elecciones, the Universidad de Costa Rica, the Poder Judicial, or an autonomous institution must be consulted, and the Committee had not done so, the consideration of the bill shall be suspended, proceeding to make the corresponding consultation. If after eight business days no response is received to the consultation referred to in this article, it shall be understood that the consulted body has no objection to the bill. In the event that the consulted body, within the stated term, makes observations on the bill, it shall automatically be referred to the respective committee, if the Asamblea accepts said observations. If it rejects them, respecting what the Constitución Política determines, the matter shall continue its ordinary process." Returning to the specific case, it is observed that, effectively, the Asamblea Legislativa resorted to the application of Article 157 when directing the institutional consultation to the Poder Judicial:

"Subject: Institutional consultation pursuant to Article 157 of the Reglamento de la Asamblea Legislativa, of the updated text of Legislative File No. 20580, LEY DE FORTALECIMIENTO DE LAS FINANZAS PÚBLICAS.

Dear Sirs:

With superior instructions and in accordance with the provisions of Article 157 of the Reglamento de la Asamblea Legislativa, the updated text of Legislative File No. 20.580, LEY DE FORTALECIMIENTO DE LAS FINANZAS PÚBLICAS, is consulted, which is attached with this communication.

In accordance with Article 157 of the Reglamento de la Asamblea Legislativa, the stipulated term to address the bill is eight business days counted from the date of receipt of this official communication; if no response is received from the consulted person or entity, it will be assumed that there is no objection on the matter. (...)" (Official Communication No. AL-DSDI-OFI-0329-2018 of October 5, 2018, visible on page No. 19390 of the legislative file).

The Chamber does not ignore that the law approval process requires a certain flexibility – indeed, one speaks of the principle of parliamentary flexibility –; however, such ductility of forms should not be confused with a lack of congruence or inconsistency in parliamentary action.

Returning to the case at hand, if the Asamblea Legislativa opted for a procedure based on Article 208 bis, due to the existence of consensus regarding the approval of the bill by an absolute majority, then it becomes incongruent to initiate, within that process, a constitutional consultation process in order to determine if the bill requires a qualified majority, as occurred in this case.

It is not, understand this well, that the Asamblea Legislativa cannot consult the instances it deems pertinent. Such a conclusion would be erroneous, because the parliamentary procedure must be enriched with inputs from diverse sectors, which is characteristic of the democratic system. What is improper is to dedicate public resources of all kinds to a procedure processed under the uncertainty of whether its voting corresponds to an absolute majority, when the rule (208 bis) expressly requires certainty in this respect. If there was doubt regarding the type of vote required for the approval of the bill, then ab initio a procedure based on Article 208 bis should not have been chosen. Such action opposes the efficiency and reasonableness that must prevail in the actions of the Administration.

In the specific case of file No. 20.580 and according to what was expressed previously, the Chamber verified that it bears no relation to the organization or functioning of the Poder Judicial, so the pointed-out uncertainty disappears. However, this Court does determine that the consultation made was improper due to incongruence, based on the reasoning made above.

As a corollary of the foregoing, points c) and d) are addressed in the sense that the consultation made by the Asamblea Legislativa to the Corte Suprema de Justicia is improper, since, in light of Article 167 of the Constitución Política, said bill does not affect the organization or functioning of the Poder Judicial, given that it maintains its own constitutional competences specifically in relation to the extremes consulted. Consequently, the approval of the bill in question does not require the qualified vote stipulated in numeral 167 of the Constitución Política”.

Regarding the other arguments, I share the criterion of the majority of the Chamber and the cited jurisprudential precedents.

Regarding considerando XXIX "EXCLUSION OF BENEFITS FOR HIERARCHS AND OTHER SERVANTS".

In relation to this considerando, I agree with both the reasoning made by the majority and the ordered dismissal.

Regarding considerando XXX "METHOD OF PAYMENT FOR PUBLIC SERVANTS".

With respect to this section, I concur with both the reasoning made by the majority and the declared dismissal.

Regarding considerando XXXI " INCENTIVE FOR PROFESSIONAL CAREER ".

In relation to this considerando, I agree with the reasoning made by the majority and the ordered dismissal, with the following exceptions.

I clarify that I have not issued any pronouncement regarding the principles of reasonableness and non-discrimination, since no claim linked to these was developed in a substantiated manner.

With respect to collective bargaining (negociación colectiva), I maintain that, in application of numeral 62 of the Constitución Política, collective agreements (convenciones colectivas) may be validly subject to legal provisions. For further detail, I refer to the arguments recorded above regarding collective bargaining; however, specifically, I consider that the mentioned constitutional article empowers the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that the right to collective bargaining is not emptied of its content through this means. Indeed, the scope of application of the latter includes a variety of topics that go beyond the limits, the negotiation of which remains invariable, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining not only agrees with the Constitution but is prescribed by it. Based on the foregoing, in a given context of severe fiscal deficit, the legislative measures taken aimed at the sound management of public finances and the principle of budgetary equilibrium can only be overturned by more serious transgressions of other fundamental rights, which is not verified in the sub examine.

Furthermore, regarding salary incentives, I must point out that, as I indicated, acquired rights and consolidated legal situations (situaciones jurídicas consolidadas) stem from a minimum of constitutional sanity that does not imply their recognition in all cases (for example, when there are aberrant and grossly unconstitutional situations); however, in principle, they can be validly regulated into the future, so I prima facie dismiss any injury to numeral 34 of the Constitución Política. Consequently, I share the exposed reasoning once this clarification is made. I reiterate that this aspect is covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. Likewise, in my opinion, this type of legislative decision is fully subject to constitutionality control, but for this there must be adequate substantiation by the petitioners that allows the Chamber to carry out the respective balancing of legal interests. Consequently, the Asamblea Legislativa may regulate into the future the requirements, amounts, and terms of salary incentives. Ergo, I also do not observe any injury to constitutional subsection 74.

Finally, I issue no pronouncement regarding the scenarios raised by the majority concerning staff retention and their training, nor on the arguments related to such topics, since I consider that, at this moment, it is not for the Court to take a position on the matter, as the challenged provisions fall within the free configuration of the legislator and no unconstitutionality susceptible of being declared at this moment was developed.

Regarding considerando XXXII "CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS".

In relation to this considerando, I agree with the reasoning made by the majority and the ordered dismissal, with the following exceptions.

In the first place, with respect to collective bargaining, I maintain that, in application of numeral 62 of the Constitución Política, collective agreements may be validly subject to legal provisions. For further detail, I refer to the arguments recorded above regarding collective bargaining; however, specifically, I consider that the mentioned constitutional article empowers the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that the right to collective bargaining is not emptied of its content through this means. Indeed, the scope of application of the latter includes a variety of topics that go beyond the limits, the negotiation of which remains invariable, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining not only agrees with the Constitution but is prescribed by it. Based on the foregoing, in a given context of severe fiscal deficit, the legislative measures taken aimed at the sound management of public finances and the principle of budgetary equilibrium can only be overturned by more serious transgressions of other fundamental rights, which is not verified in the sub examine.

Additionally, regarding salary incentives, I must point out that, as I indicated, they are covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. Likewise, in my opinion, this type of legislative decision is fully subject to constitutionality control, but for this there must be adequate substantiation by the petitioners that allows the Chamber to carry out the respective weighing of legal interests. Consequently, the Asamblea Legislativa may regulate into the future the requirements, amounts, and terms of salary incentives.

For its part, I share the dismissals for insufficient motivation and demonstration of grievances, as well as the aforementioned legality problems susceptible of being assessed in ordinary instances.

Regarding considerando XXXIII "AMENDMENTS TO ART. 57 OF THE LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA".

In relation to this considerando, I agree with both the reasoning made by the majority and the ordered dismissal.

Paul Rueda L.

File: 19-002620-0007-CO Res. No. 2025-008201 1. Dissenting vote of Magistrate Cruz Castro regarding the petitioner's standing for the defense of institutional autonomies, fiscal responsibility, and destination of free surplus (superávits libres).- In addition to what was indicated by the majority, I consider that the petitioners also possess sufficient standing for the defense of institutional autonomies, fiscal responsibility, and destination of free surplus, as all of these are—in my opinion—categories included within diffuse interests (intereses difusos). As I have indicated in previous votes (judgment number 2015-19623 of eleven hours fifty minutes on December sixteenth, two thousand fifteen, and judgment number 2016-01669 of nine hours and thirty minutes on February third, two thousand sixteen), I apply a broader criterion in admitting the action in defense of the autonomy of decentralized institutions. In this case, I apply the same criterion, as these interests are of such relevance that their defense cannot be limited to the legal representatives or officers of a specific institution.

I believe that in the defense of institutional interests and/or the autonomy of decentralized institutions, there is an interest of social and political relevance that should not fall under the exclusive control of the institution's representatives. I cannot ignore that the political conditioning factors that determine the actions of the hierarchs and representatives of the institutions require, as a counterbalance, that the citizenry itself can point out the defects or acts that harm institutional interests. Thus, from a political and constitutional point of view, it is not admissible that only the institution's legal officers defend its interests. They often cannot do so because their appointment has a powerful political link to the Poder Ejecutivo. The values and principles that underpin the autonomy of autonomous entities hold greater relevance than the commitment of the legal officers who temporarily represent the institution. In that defense, there is an interest that affects the balance of powers, citizen participation, and transparency. Institutional autonomy has special relevance based on the principle of the balance of powers and the strengthening of democracy. The defense of the institution and its autonomy are values of greater relevance than the institution itself; for this reason, I disagree with the majority's criterion that only institutional representatives can defend interests of constitutional relevance before this instance. Transparency, the balance of powers, and citizen participation require broader criteria in the admissibility of the action, which is why I depart from the majority's criterion and incline towards saving the vote on this aspect. Citizens who are not institutional representatives in the strict sense must have greater protagonism, because the autonomy and interests of autonomous entities do not interest only their hierarchs. Democracy is strengthened through the discussion of these constitutional issues. It is a matter relevant for the balance of powers and transparency. By virtue of the foregoing, I also consider that the petitioners have standing for the defense of diffuse interests related to fiscal responsibility and the destination of free surplus. The petitioners, as citizens, are legitimized to raise their constitutional objection in these terms. This openness fosters control and citizen participation in matters as relevant to democracy as fiscal matters.

2. Dissenting vote of Magistrate Cruz Castro regarding annual increments (art. 50 and transitory provision XXXI) The majority criterion indicates that "given that granting or recognizing annual increments responds to criteria of opportunity and convenience that the legislator must establish, the established regulatory mechanism is not considered openly unreasonable or disproportionate." Concluding that the bonuses and their growth are matters available to the legislator. Now, in the dissenting vote to vote No. 2024-07057 of 10:10 a.m. on March 14, 2024, I have indicated the following: Although it is true that there is no right to the immutability of rules, and this allows the method of calculating FUTURE annual increments to be changed. It is true that the annual increments already accounted for had a calculation method that must continue to be respected in the future, under penalty of being considered a violation of acquired rights and consolidated legal situations. I also considered that, in application of constitutional norms and principles, it must be recognized that there is a consolidated legal situation in favor of public workers, which consists of the right to continue receiving—in the future—the effective payment of annual increments earned before the law's entry into force, but also, that said payment be calculated according to the method (percentage calculation) that applied at the time and that must be maintained, not only because the law so ordered, but because Article 34 of the Constitution itself so establishes. Only the payment in nominative form should remain for annual increments earned in the future. This protects the legal effects of a consolidated legal situation, which has a direct relationship with the right to salary (derecho al salario). The amount of the annual increments has already been defined, they cannot be varied retroactively; it is an acquired right, and if one wishes to vary what was defined before the law's validity, a specific amount of compensation must be recognized.

Moreover, while annual increments are considered a salary bonus, it is true that their protection falls within the right to salary. In general, regarding the right to salary, constitutional jurisprudence has indicated that: "Salary as remuneration owed to the servant by virtue of a statutory relationship, for the services rendered, is not only an obligation of the employer, but a constitutionally protected right." (see vote No. 2015-009504). A fundamental right which, furthermore, is inalienable (art. 74 of the Constitution). This link between the right to salary and human dignity is found not only in the Constitución Política, but also in instruments of International Law. Thus, Article 23.3 of the Universal Declaration of Human Rights establishes: "3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection". Human dignity is the guiding criterion in developing the essential content of the right to salary and its limits, as what is sought is that the worker has an adequate standard of living, according to their basic needs. Minimum wages seek to promote that public servants and their families lead a dignified life; however, this salary base does not guarantee, by itself, that the established levels truly meet that condition. Given this situation, the Law provides for salary increases. In this sense, it would be unconstitutional to freeze salaries, but also, to decrease salaries by varying the calculation method of annual increments, as is the case here. This is a retroactive variation. If work is conceived as a right of the individual whose exercise benefits society, and the State as an employer in a statutory relationship has the obligation to periodically pay the salary, which is a constitutionally protected right (see judgment No. 2009-008062 of 9:35 p.m. on May 13, 2009), a rule whose effect is its reduction is not constitutionally acceptable. In this sense, economic crises should never justify the decrease or regression in the protection of social rights, as is the case here, the right to salary. This is not just any right, it is one of the nuclear elements of the right to salary.

By virtue of the foregoing, I have considered, under these same reasonings, to save the vote, deeming that Articles 50 and transitory provision XXXI of the challenged law, by establishing a different way of calculating annual increments already accounted for, do so in violation of acquired rights, consolidated legal situations, and the right to salary and human dignity of the public worker.

3. Partially dissenting vote of Magistrate Cruz Castro regarding the unconstitutionality of Articles 54, 55 and transitory provisions XXVII and XXXI.- In this section, I have considered Articles 54, 55 and transitory provisions XXVII and XXXI unconstitutional, as I indicate below.

- The challenged art. 54 refers to the "conversion of incentives to fixed nominal amounts", without considering the existence of collective agreements with other types of provisions.

- Art. 55 refers to the creation of salary incentives and compensations only by law, disregarding other regulatory provisions such as collective agreements. In this sense, I share and bring to bear in this case what this Chamber indicated in advisory opinion No. 2018-019511, where it concluded that it is contrary to the Law of the Constitution—specifically to union freedom and the right to collective bargaining—that the legislator prevents the elements related to salary components from being agreed upon within a collective bargaining process and are only reserved to formal law. On that occasion, the Chamber determined that art.

55 should not have been perceived as unconstitutional, under the understanding that it does not apply to those public sector workers who can enter into collective bargaining agreements. However, my position goes even further, as I consider that the entire content of Art. 55 is unconstitutional, because it disregards the right to collective bargaining enshrined in Article 62 of the Constitution.

-Transitory Provision XXVII refers to the application of the severance pay (auxilio de cesantía), limiting its payment in cases exceeding twelve years.

-Transitory Provision XXXI, as stated, establishes a different method for calculating already accrued annual salary increments (anualidades).

All of these norms are violative of our Constitutional Law, for several reasons. In the first place, they imply a derogation of collective bargaining agreements and regulations or statutes that already contain provisions on the payment of incentives or compensation in a percentage form; or that have created salary incentives and compensations through that means. This therefore constitutes a violation of the right to collective bargaining. All of this, moreover, is in violation of acquired rights, consolidated legal situations, and the right to a salary and the human dignity of the public worker.

Likewise, regarding the cap on the severance pay (auxilio de cesantía), I reiterate what I have indicated in previous dissenting opinions:

“Severance pay (cesantía), an expression of the social solidarity right and unemployment insurance. In the same sense as I have expressed in previous opinions, I do not consider that the norms of Collective Bargaining Agreements that establish the payment of the severance pay (auxilio de cesantía) in cases of a worker's resignation are unconstitutional, but rather the opposite. Under a thesis similar to that expressed by this Chamber in opinion number 2000-00643, I consider that Article 63 of the Constitution does not prohibit the granting of the so-called severance pay (auxilio de cesantía) even in the hypothesis where there is no dismissal "without just cause". What it does mandate, with supreme character, one might say, is that whenever the dismissal is without cause, the indemnity applies. But it does not prohibit the legal granting and recognition of a type of severance pay (auxilio de cesantía) in any other case. Furthermore, Article 74 of the Political Constitution is clear in pointing out that the rights and benefits contained in its Title on Social Rights and Guarantees do not exclude others that derive from the Christian principle of social justice and that are indicated by law. Moreover, as I indicated in the dissenting opinion to opinion number 2008-001739, in relation to Article 72 of the Constitution and unemployment insurance, the public authorities have incurred an omission regarding the mandate established by Article 72 of the Political Constitution in the sense that: “while there is no unemployment insurance”, which is even reinforced by another tacit mandate that has the same content (i.e., Article 63 idem), which establishes: “Article 63.- Workers dismissed without just cause shall have the right to an indemnity when they are not covered by an unemployment insurance.” None of the public authorities with normative power have taken the necessary measures to provide full enforceability to the implicit mandates established by Articles 63 and 72 of the Constitution regarding unemployment insurance (despite the fact that this has been required since the moment the Constitution was promulgated, that is, on November 8, 1949), all of which undoubtedly constitutes an unjustified omission that flagrantly violates Constitutional Law. It is clear that the configuration of the severance pay (auxilio de cesantía) in the terms in which it has been designed by the Worker Protection Law, unlike what the Advisory Body and the President of the Legislative Assembly maintain, in no way exempts the State from its obligation to ensure that unemployed workers fully enjoy their fundamental rights, among them their right to unemployment insurance, due to the lack of sub-constitutional development that permits the full enforceability of this constitutional clause of deferred execution, all of which undoubtedly affects the notion of the Constitution as a Normative Law endowed with coerciveness. Article 63 of the constitution is an essentially transitory provision, in which it is assumed that a progressive development of the legal system and state policies must occur in order to establish unemployment insurance, since workers dismissed with just cause do not find a solidarity-based response that allows them to survive with dignity while they manage to find another job; on the other hand, in many cases, the severance indemnity only temporarily covers the expenses required by the worker and their family, without ignoring, moreover, that the litigiousness of this economic compensation prevents the salaried worker dismissed with just cause from receiving, in a timely manner, the indemnity to which they are entitled. The timeframe for the progressive development of a normative framework and a policy that ensures the dignified existence of unemployed citizens has exceeded parameters of reasonableness, as it is a mandate that remains unfulfilled fifty-nine years after being promulgated. This omission is deepened in a political environment in which a restriction of the rights of all citizens who depend on a salary is promoted, even if that salary is very high. The omission of the authorities responsible for defining solidarity and social development policies, according to the provisions of Articles 50 and 74 of the fundamental norm, has not developed a comprehensive and solidarity-based policy that translates into a system providing a specific response to the involuntarily unemployed, a concept that includes, from the perspective of the development of personal dignity, underemployment or informal employment. The complexity of the unemployment phenomenon demands a normative framework and state policy that makes visible, in all its extension, a phenomenon that affects the dignity of the unemployed and which is a fundamental component of the solidarity foreseen in Article seventy-four of the constitution. Work, the right to life, and liberty are an essential part of dignity; their absence directly injures the dignity of the person. As well established by the social doctrine of the Church, which is an ideological reference that Article 74 of the constitution addresses: “…He who is unemployed or underemployed suffers, in effect, the profoundly negative consequences that this condition produces on the personality and runs the risk of being marginalized from society and becoming a victim of social exclusion. Besides young people, this drama generally affects women, less specialized workers, the disabled, immigrants, ex-convicts, the illiterate, all people who find greater difficulties in searching for a placement in the world of work…” (See "Compendio de la Doctrina Social de la Iglesia" Celam. 2005- p. 208). The constitutional norm on unemployment insurance was presented by the Social Democratic group; one of its representatives, Lic. Rodrigo Facio, expressed some comments that remain current and explain the need to turn this norm into living law. Constituent member Facio stated that “… the general formula that has been submitted to the knowledge of the Chamber does not make reference to the type of assistance that the State will provide to the unemployed, a matter that will be resolved according to the circumstances and economic conditions of the Treasury, and especially according to the nature of the unemployment phenomenon that arises. The assistance can be minimal or become sufficiently broad so that the unemployed person and their family do not suffer from the lack of the former's salary. He added that the principle must be established, since it is one of the few social guarantees whose nature is not classist. All the social guarantees of our Constitution are provisions related to worker-employer conflicts. In contrast, the principle being proposed is situated outside these classist conflicts, and contemplates the worker precisely when they most need the State's help, when they lose their job, upon becoming unemployed. The most tragic moment for the worker is when they are left without occupation. The Constitution must necessarily pay attention to this problem. It is true that in cases of economic crisis it will be very difficult, both the assistance and the reintegration of the worker to their work, but the difficulty is not an obstacle to not leaving in the Constitution a general formula that records the State's interest in the problem of unemployment. He referred to the methods employed by the late President Roosevelt to solve the serious unemployment problem that the United States faced during the global economic crisis that began in 1929. Roosevelt solved the serious problem by making use of a series of resources that raised many criticisms, but that served to begin to attack the problem: he initiated public works and a broad policy of subsidies, financed with budget deficits….” Subsequently, in response to objections from some constituent members, Facio argued that “... everyone agreed that the phenomenon of unemployment is one of the most serious and difficult in the contemporary world. Not because our country is free of this problem as a normal problem in the industrial world, should we be unconcerned about it. He added that he agreed with Mr. Arias that the adequate and reasonable formula to solve the problem of severance (cesantía) was unemployment insurance. For this reason, his faction presented in one of the previous sessions the formula—which was approved—that the worker unjustly dismissed from their work shall receive an indemnity, provided that unemployment insurance was not established. However, I understand that unemployment insurance is difficult to establish, especially in a context like ours, and cannot be created all at once. Therefore, until its establishment is achieved, the State, by the most appropriate means, must confront the problem of unemployment. Even in the most organized and economically powerful countries like the United States, where insurances have reached great extension and great efficiency, in the budget when unemployment grows, there exists a significant line item of many millions of dollars to confront unemployment. Why? Because Insurance cannot cope on its own. In Costa Rica, a country poorly organized and economically weak, the establishment of unemployment insurance would be difficult to achieve. The Social Insurance Fund itself encounters a series of difficulties with the insurances established to date. He added that the problem of the severance pay (auxilio de cesantía) is very difficult. Practically only two solutions exist for it—as has been demonstrated in several articles recently published by Licenciado Hernán Bejarano—which are: the severance pay (auxilio de cesantía) in the form established and unemployment insurance. The ideal would be to achieve unemployment insurance. However, until that desideratum is achieved, an institution must be established to take charge of these protection and reintegration services for the unemployed to work…” These words from Rodrigo Facio acquire greater relevance despite the time elapsed; they are visions that acquire permanence in the imaginary of justice that should guide society in its human and equitable development. After so many decades, it is reasonable that unemployment insurance should become a tangible aspiration, the ideal situation to which Rodrigo Facio referred. It is logical to admit that unemployment insurance might have seemed a distant goal in 1949, but such distance and postponement is not justifiable given the country's current economic and social development. Involuntary unemployment is a topic that affects the development of personal dignity and demands a specific response, in accordance with the aspirations and characteristics that define the solidarity or welfare state. It is clear that by reason of the normative force of the Constitution, all of it is enforceable upon the actions of public powers, “in its entirety, in all its parts, in all its contents, also in its implicits.” So then, given the fact that the Political Constitution is a constitution of minimums, and that there has been an omission by the Public Authorities in establishing unemployment insurance, it is reasonable that, through other figures available to the worker, such as Collective Bargaining Agreements, scenarios can be established that favor the worker who becomes unemployed, for whatever reasons. This is also in line with considering the severance pay (auxilio de cesantía) as an institute that has evolved, to become a true real right, as is established, for example, in the Solidarist Associations Law. On the other hand, I also do not consider unconstitutional those clauses of collective bargaining agreements that break the new cap established by this Chamber of twelve years. Although I had previously agreed with the establishment of the twenty-year cap, I do not believe that there are reasons to reduce it on this occasion to twelve years, and to consider it unconstitutional when the twelve years are exceeded. This constitutional instance cannot be the path to relatively easily reduce guarantees and benefits for workers. The jurisprudence of this Chamber has been reiterated, where the existence of higher caps set by collective bargaining agreements than those established in the Labor Code has been accepted, inasmuch as it has been understood that said code establishes minimum rules that can be exceeded, clearly, as long as it is done within parameters of reasonableness and proportionality. I do not consider that exceeding a maximum of twelve years, compared to the eight years established by the Labor Code, is unconstitutional.

Note also, the following variations of criterion that this Chamber has had regarding these matters:

• a)SEVERANCE PAY (CESANTÍA) CAN BE PAID IN ANY CASE, INCLUDING IN THE EVENT OF RESIGNATION, PARTICULARLY FOR SOLIDARIST MEMBERS IN THE PUBLIC OR PRIVATE SECTOR, BUT NOT IF THIS IS ESTABLISHED THROUGH A COLLECTIVE BARGAINING AGREEMENT IN NEGOTIATION WITH UNIONS.- When the reform to the severance pay (cesantía) of the Worker Protection Law was consulted to the Constitutional Chamber, it was said that the Political Constitution does not prevent the severance pay (auxilio de cesantía) from being paid in cases other than unjustified dismissal. Thus, in opinion 2000-643, it was pointed out that it is possible to pay severance pay (cesantía) in the case of resignation from employment or justified dismissal, but that what the Constitution requires is that in the case of unjustified dismissal it must always be paid:

“In contrast to the criterion that has been prevailing in the discussion of the consulted bill, for this tribunal Article 63 of the Constitution does not prohibit granting the so-called severance pay (auxilio de cesantía) even in hypotheses where there is no dismissal "without just cause". What it does mandate, with supreme character, one might say, is that whenever the dismissal is without cause, the indemnity applies.” (Constitutional Chamber, opinion no. 2000-00643, Considerando III).

In this way, the Chamber established that the severance pay (cesantía) can be transformed into an acquired right, which can even be paid in the event of dismissal without just cause. Following this idea, the Solidarist Associations Law had established since 1984 that the severance pay (cesantía) accumulated in the severance fund would be received by the worker in any case. Collective bargaining agreements had done likewise. However, in a recent ruling (7690-2018, reiterated by others) on the collective bargaining agreement of the National Radio and Television System (Sistema Nacional de Radio y Televisión, SINART), the payment of severance pay (cesantía) in the event of resignation was declared unconstitutional. So, we can synthesize the jurisprudence of the Constitutional Chamber as follows: the severance pay (cesantía) can be paid in any case, including resignation, in the public and private sector, especially if one is a solidarist member, but not if one is a union member, that is, if it is negotiated through a collective bargaining agreement. It is paradoxical that it is admitted in one scenario and eliminated if it involves a collective bargaining agreement.

b. SEVERANCE PAY (CESANTÍA) CAN BE PAID WITHOUT A LIMIT OF YEARS, IN THE PUBLIC SECTOR AND IN THE PRIVATE SECTOR, IF ONE IS A SOLIDARIST MEMBER OR IF IT IS ESTABLISHED BY LAW, BUT NEVER IF DONE THROUGH A COLLECTIVE BARGAINING AGREEMENT. SEVERANCE PAY (CESANTÍA) THAT COMPLETELY IGNORES THE CRITERIA OF SENIORITY AND SALARY EARNED BY WORKERS CAN ALSO BE PAID, IF THE SEVERANCE PAY (CESANTÍA) IS ESTABLISHED TO PRIVATIZE A PUBLIC INSTITUTION.- The 8-year severance pay (cesantía) cap was modified in Costa Rica through various mechanisms, achieving higher caps that range from 9 years to unlimited payment. This has been done through various mechanisms. Let us see some:

• The solidarist associations law (Art. 18 subsection B) establishes the payment of the severance pay (auxilio de cesantía) without a limit of years, that is, if a person works 40 years for a public institution or for a private employer, they are entitled to 40 years of severance pay (auxilio de cesantía). • The Civil Service Statute (Art. 37 subsection f and 47) establishes that if a worker is dismissed due to institutional restructuring, they are entitled to severance pay (cesantía) for all the years worked, that is, without a limit of years. • The Worker Protection Law itself transformed a part of the severance pay (auxilio de cesantía) into the Labor Capitalization Fund that the employer deposits month by month, without a limit of years, into an account in the name of the worker. • The Labor Procedural Reform (Labor Code reformed by the LPR, Art. 576) establishes that if a worker protected by special immunity obtains a ruling that annuls the dismissal and orders their reinstatement in employment, the worker may substitute their reinstatement with the payment of the severance pay (auxilio de cesantía) without a limit of years. • Through collective bargaining agreements, the severance pay (cesantía) cap has been broken, establishing caps greater than 8 years, even establishing the severance pay (cesantía) without a limit of years, that is, for all the time actually worked.

In all these cases, the severance pay (auxilio de cesantía) is calculated based on the criteria defined by the Labor Code: seniority and salary earned by the worker. However, at the beginning of the 2000s, the collective bargaining agreement of INCOP established a very special norm, as it not only broke the severance pay (cesantía) cap by setting it at 12 years, but also established that, if the employment relationship ended due to the privatization of INCOP (which ultimately happened), the workers would receive an ADDITIONAL severance pay (auxilio de cesantía) on top of the 12 years established in a table that ranged from US$6,000 for one year of seniority, up to an ADDITIONAL severance pay (cesantía) of US$50,000 for thirty years of seniority. In this regard, the Constitutional Chamber resolved the consultation as follows:

“V.- COLLECTIVE BARGAINING AGREEMENT AND BASIS OF THE TRANSFER. In the opinion of the consultants, the conclusion of an agreement between the various sectors involved in the strengthening and modernization of INCOP and the subsequent addition to the collective bargaining agreement to add the indemnity consulted for the workers terminated from that entity are not sufficient to give support to such an extraordinary benefit or gratuity. With respect to this point, in Considerando IV, the reasons were already explained why this Tribunal does not understand the indemnity added to the collective bargaining agreement to be a sort of singular privilege or liberality and, therefore, unconstitutional. The consulted budget norm is not atypical since the indemnity is found added to the institution's collective bargaining agreement for the benefit of the workers, given that this has, according to the provisions of numeral 62 of the Political Constitution, the force of law.” That is, the Constitutional Chamber on that occasion indicated that it was sufficient for such additional severance pay (cesantía) to be included in a collective bargaining agreement for it to be constitutional. Shortly thereafter, the Constitutional Chamber declared unconstitutional a norm of the Collective Bargaining Agreement of the Social Protection Board (Junta de Protección Social, JPS), which copied almost literally the norm of the Civil Service Statute, that is, it indicated that if the institution was restructured, workers would receive the severance pay (auxilio de cesantía) without a limit of years, meaning it would be paid recognizing all the years effectively worked by the workers. In this case, the Constitutional Chamber declared the norm of the collective bargaining agreement unconstitutional for being unreasonable and disproportionate (06727-2006). Finally, for many years, the Constitutional Chamber established a new severance pay (cesantía) cap at 20 years, maintaining that this was a reasonable cap. In the current situation, where the political winds blow against the public sector and particularly against public servants, the Constitutional Chamber says that it finds the severance pay (cesantía) cap at 12 years and no longer at 20. Political visions have changed, orienting towards a restrictive vision, in contradiction with what was the original vision that inspired the spirit of the social guarantees introduced with great optimism in 1943. In short, according to the current jurisprudence of the Constitutional Chamber: • It does not matter to grant exorbitant severance pay (cesantías) with no relation whatsoever to any type of criterion if it is to allow the privatization of a public institution; • It is constitutional to pay the severance pay (cesantía) in the event of resignation in the public sector through solidarist associations, but never through collective bargaining agreements negotiated with unions; • It is constitutional to pay the severance pay (cesantía) without a limit of years in the public sector through solidarist associations, but never through collective bargaining agreements negotiated with unions.

Thus, I consider the disproportionality beyond twenty years, but I do not consider the recognition of severance pay (cesantía) for periods greater than twelve and less than twenty years to be disproportionate. The improvement of workers' conditions, through mechanisms that exceed the minimums established in the Labor Code, does not seem unconstitutional to me, provided they are not disproportionate and irrational. The Chamber has become an arbiter of reasonableness and proportionality regarding the benefits granted to workers, but that evaluation, for various reasons, is not applied to other social and economic sectors. The worker depends on salary and social benefits; that does not occur with other sectors of the labor economy. There is a structural vulnerability of the majority of public and private workers. That condition must not be lost sight of in a society guided by the principle of solidarity. For this reason, exceeding the payment of severance pay (cesantía), for these types of state companies, beyond twelve years, as long as it is not more than twenty years, is not unreasonable, but is justified, for example, as an incentive for the institution to try to retain its most experienced employees and thereby benefit the exercise of the public function and public services. It is justified, furthermore, because the worker has no other source of income than the benefits they receive for their work; in this situation, they have no alternative.” Finally, regarding the different method for calculating already accrued annual salary increments (anualidades), I reiterate what was indicated in the dissenting opinion to opinion No. 2024-07057:

“Dissenting Opinion of Judge Cruz Castro.- The change in the payment of annual salary increments (anualidades) and salary bonuses earned prior to the law (so that they are now paid on a nominal basis and not a percentage basis) is unconstitutional because it is a reduction of the right to a salary and a retroactive application of the law.

(...)

-While it is true that there is no right to the immutability of norms, and this allows the method for calculating FUTURE annual salary increments (anualidades) to be changed, it is the case that the already accrued annual salary increments (anualidades) had a form of calculation that must continue to be respected in the future, under penalty of being considered a violation of acquired rights and consolidated legal situations.

-Violation of the principle of non-retroactivity: It is clearly inferred from Art. 34 of the Constitution that laws cannot have retroactive effect, to the detriment of acquired property rights. In this case, it involves a regulatory norm with retroactive effect, to the detriment of the right to a salary. Furthermore, there is clearly an excess of regulatory power, by going beyond what is indicated in the law, when it is observed that the cited law is clear in providing, in its Transitory Provision XXV, that "The total salary of the servants who are active in the institutions contemplated in Article 26 upon the entry into force of this law may not be diminished, and the acquired rights they hold shall be respected," while Article 3 of the aforementioned regulation provides that: "Incentives, additional payments, bonuses, additional remuneration, or any other of an equivalent nature, which prior to the entry into force of Law No. 9635 comprised the total salary of the public servant, whether permanent or interim, correspond to acquired rights." The Chamber, in application of constitutional norms and principles, must recognize that there exists a consolidated legal situation in favor of public workers, which consists of the right to continue receiving—in the future—the effective payment of annual salary increments (anualidades) earned before the entry into force of the law, and furthermore, that said payment be calculated according to the method (percentage calculation) that applied at that time and which must be maintained, not only because the law so ordered, but also because Article 34 of the Constitution itself so establishes. It being appropriate only to leave the payment in a nominal form solely for the annual salary increments (anualidades) that are earned in the future. This protects the legal effects of a consolidated legal situation, which has a direct relationship with the right to a salary.

-Violation of the principle of legal reserve: according to reiterated jurisprudence of this Chamber, the restriction of fundamental rights is reserved to the law. The right to a salary is a fundamental right, and any restriction established through regulations, to change the form of calculation for the payment of previous annual salary increments (anualidades) (a consolidated legal situation), constitutes a violation of the principle of legal reserve. As was stated in the opinion cited by the majority, "(…) The principle of legal reserve implies, in what concerns us here, that executive regulations can develop legal precepts but cannot increase the established restrictions nor create those that were not foreseen by the legislator, and must rigorously respect their 'essential content'." (Judgment No. 2001-05916 of 3:28 p.m. on July 3, 2001). In this case, restrictions are being EXPANDED because the questioned regulation is changing the form of calculation of prior annual salary increments (anualidades).

-On the violation of the right to a salary and the dignity of the worker.- In general, regarding the right to a salary, constitutional jurisprudence has indicated that: “The salary as remuneration due to the servant by virtue of a statutory relationship, for the services that they have rendered, is not only an obligation of the employer but a constitutionally protected right.” (see opinion No. 2015-009504). A fundamental right that, moreover, is non-waivable (Art. 74 of the Constitution). This link between the right to a salary and human dignity is found not only in the Political Constitution, but also in instruments of International Law. Thus, Article 23.3 of the Universal Declaration of Human Rights establishes: “3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Human dignity is the guiding criterion in the development of the essential content of the right to a salary and its limits, because what is sought is for the worker to have an adequate standard of living, in accordance with their basic needs. Minimum wages seek to enable public servants and their families to lead a dignified life; however, this salary base does not guarantee, by itself, that the established levels truly meet that condition. Given this situation, the Law provides for salary increases. In this sense, it would be unconstitutional to freeze salaries, but also to decrease salaries by varying the form of calculation of the annual salary increments (anualidades), as is the case here. Therefore, if work is conceived as a right of the individual, the exercise of which benefits society, and the State as an employer in a statutory relationship has the obligation to periodically pay the salary, which is a constitutionally protected right (see Judgment No. 2009-008062 of 9:35 p.m. on May 13, 2009), a regulatory norm that has the effect of reducing salaries is not constitutionally acceptable. In this sense, economic crises should never justify the reduction or regression in the protection of social rights, as is the case here, the right to a salary.” Additional reasons of Magistrate Cruz Castro regarding the unconstitutionality of Transitory Provision XXXVI.-

Transitory Provision XXXVI states the following:

"TRANSITORY PROVISION XXXVI. As of the entry into force of this law, the heads of public entities are obligated to denounce collective bargaining agreements upon their expiration.

In the event that a decision is made to renegotiate the agreement, it must be adapted in all its aspects to the provisions of this law and other regulations issued by the Executive Branch." Among the allegations of the petitioners, it is indicated that forcing the heads to denounce collective bargaining agreements upon their expiration, together with other provisions, implies emptying the right to collective bargaining of its content. It is also indicated that this transitory provision is an intrusion by the Public Power into the right to collective bargaining, insofar as it obligates the heads of public entities to denounce collective bargaining agreements upon their expiration, thereby suppressing the content of Article 62 of the Political Constitution and Conventions 87 and 98 of the ILO, in conjunction with Articles 26 of the ACHR and 8(a) of the Protocol of San Salvador, for which reason it is considered contrary to the Law of the Constitution; this regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements are negotiated, they must be adapted to the provisions of Law No. 9635, meaning that working conditions that worsen the previous ones will have to be inserted, without respect for consolidated legal situations. Furthermore, the norm allows the Executive Branch to establish any content for these agreements, all of which is also introduced in a norm of a transitory nature, causing permanent and definitive effects.

In this judgment, the Court declares the unconstitutionality of the provisions in the first paragraph of Transitory Provision XXXVI of the Law for Strengthening Public Finances, on the grounds that the mandatory nature of the denunciation is contrary to the principle of free and voluntary negotiation. To this end, this Tribunal reiterates what was indicated in opinions No. 2018-019511 and No. 2021-17098, where it relied on criteria from the ILO stating that "For collective bargaining to be effective, it must be voluntary in nature and not involve recourse to coercive measures that would alter the voluntary nature of said negotiation." Due to the foregoing, the Court concluded that "a legal provision that forced a party to conclude a collective agreement with another would be contrary to the principle of free and voluntary negotiation." Thus, said numeral is unconstitutional by disregarding the free and voluntary nature of collective bargaining, since, quite to the contrary, it establishes the obligation for all heads of public entities to denounce collective bargaining agreements once the expiration date arrives. Therefore, it declares the unconstitutionality of the provision contained therein in the sense of subjecting the heads to the obligation to denounce collective bargaining agreements to the detriment of the fundamental rights examined herein.

In this respect, in addition to sharing the reasons indicated for this declaration of unconstitutionality, I indicate the following additional reasons:

-The first paragraph is unconstitutional, not only for disregarding the free and voluntary nature of collective bargaining, but for emptying it of all content and thereby fostering an absolute regression in the right to collective bargaining. Clearly, the legislator committed an unconstitutional excess by forcing all heads of public entities to denounce all collective bargaining agreements, simply because a transitory provision so orders, disregarding the entire negotiation process that preceded the collective bargaining agreement. As I have indicated in other dissenting votes, I consider that collective bargaining agreements are part of that social vision that makes the Constitution more than just individual rights. The incorporation of this chapter into our Magna Carta occurred in 1943, which came to reform the 1871 Constitution and was in turn included in our current constitution. One of these rights, relevant to the subject under study, is free unionization, regardless of the labor sector to which the worker belongs (whether public or private), which is enshrined in Article 60. On the other hand, Article 61 establishes the right to strike as an exercise of union freedom, which, although limited by certain regulations in the public sector (according to the same constitutional article), is indeed admissible for that sector, and this Tribunal so established in Judgment No. 1998-1317, indicating:

"The right to unionize therefore has constitutional rank in Costa Rica and is regulated internally by means of legal norms, specifically the Labor Code, which regulates in its Article 332 et seq. - located in Title Five 'Of Social Organizations' - matters concerning the operation and dissolution of unions and defines the rules for the protection of union rights. Article 332 of the Labor Code also declares the legal constitution of unions to be of public interest, which are distinguished '(...) as one of the most effective means of contributing to the support and development of popular culture and Costa Rican democracy.' The foregoing reference allows concluding at this stage that the fundamental right to unionization is recognized without distinction of the public or private nature of the labor sectors; that is, to an equal degree. In relation to the content of union action, specifically regarding the right to strike, Article 61 of the Political Constitution establishes that the regulation of said right to collective action is a matter of legal reserve, with any restriction of said right to be given via law and in no way may favor acts of coercion or violence. It is also the result of the power conferred by the cited constitutional numeral 61 that the legislator is responsible for defining in which cases of public activity the exercise of the right to strike is restricted or excluded; a mandate that is satisfied through Article 375 (formerly, 368) of the Labor Code, which must adhere to the criteria of reasonableness and proportionality to be consistent with the democratic principle upon which the national legal system rests, embodied in Article 1 of the Political Constitution and which is a supreme value of the Constitutional State of Law..." Collective bargaining represents a basic element in the content of union freedom, precisely because through Unions a negotiation can be promoted that leads to resolving the labor situations of workers. Union freedom itself implies negotiating collectively to obtain the economic, social, and professional benefits enshrined in our Fundamental Charter. Negotiation also emerges as a pacifying instrument in the face of collective conflicts, such as the right to strike, which is recognized in the public sector and can be reflected in the agreements of a collective bargaining agreement. Our Political Constitution so specified in Article 62 within the chapter regulating social rights and guarantees, recognizing that collective labor agreements that, in accordance with the law, are concluded between employers or unions of employers and legally organized unions of workers, shall have the force of law, without distinguishing between public or private workers. The correct dimension that this constitutional right to collective bargaining, consecrated in the chapter on social guarantees, must acquire in the case of the public sector, is not that of a complete curtailment for the server, but an understanding that its exercise is subject to certain limitations in consideration of the observance of the legal system, the limits of public spending, and the corresponding regulations that exist in this matter.

-The second paragraph, where it is established that in the event a decision is made to renegotiate a collective bargaining agreement, this must be adapted in all its aspects to the provisions of the law and "other regulations issued by the Executive Branch." Thus, I consider that the petitioners are correct and that said norm "leaves the door open" for the Executive Branch to establish any content within those regulations. Then, collective bargaining agreements must not only be subject to legal provisions, but also to any other regulation of the Executive Branch, which I consider overtly unconstitutional. While I certainly share the thesis that the capacity for collective bargaining cannot be unrestricted, as I have indicated in a previous dissenting vote, I do not consider the interference of the Executive Branch in the exercise of a fundamental right, such as collective bargaining, to be admissible. Clearly, this is also contrary to the principle of legal reserve, according to which the regulation of fundamental rights (as is the case here with the right to collective bargaining) is a matter of legal reserve. Legal reserve also protects social rights; there cannot be a restrictive vision of a guarantee as important as the reserve of law. This guarantee also protects social rights.

I consider that the mere fact of allowing the Executive Branch to issue guidelines on the exercise of a fundamental right is, per se, unconstitutional. It is like a kind of control and supervision over the rights of workers, who require no tutelage whatsoever. The right to unionization, to collective bargaining, and to the effective resolution of collective conflicts, are a trilogy of fundamental rights that give effectiveness and response to the need of workers to group together, compensating for their real inferiority vis-à-vis employers. Mechanisms are required that compensate for the asymmetry characterizing the worker-employer relationship. The Fundamental Charter itself recognizes the right to collective bargaining, along with various international instruments (International Labour Organization Conventions numbers 87, 98, 135, and 151). Certainly, in the public sector, the employer entity is not entirely free, as the State is subject to the principle of legality or legality. However, assuming that limitation is very different from subjecting the collective bargaining agreement to guidelines issued by the Executive Branch, ignoring that they must be defined through legislative action. It is beyond doubt that the right to collective bargaining is a fundamental right that can be limited, but only through legal means, not by regulatory norms, as this provision allows. The dreams of the 1940s with the social reform remain unfulfilled. It was thought that the Collective Bargaining Agreement would be the horizon of social progress for workers, but that has not been possible. There is a constant attempt to legislatively limit unions and Collective Bargaining Agreements. Those aspirations remain on the paper of the Constitution, because these negotiations are an exception for the vast majority of workers, and therefore they are seen as a privilege. The aspirations of the Constitution have been truncated; the political reality imposes a rigid restriction on union rights and collective bargaining. There are several pending matters regarding the full application of the Constitution, especially in social matters. I believe there is an aspiration to have paper union rights and collective bargaining agreements, to have them there, to speak of them, to maintain our good international image, but in reality, those rights are exercised, in part, by a union minority; the rest of the workers understand that it is better not to unionize, nor even to attempt a negotiation of their working conditions. These would be unrealistic pretensions, because in the current landscape, it is enough to have a job; the economic and political reality does not allow for more. Sad reality, the social Constitution has a long wait for a more just, more equitable, more decent society. It is an issue that transcends my function as a Constitutional judge.

5. Note from Magistrate Cruz Castro regarding the exclusive dedication contract (Artículo 28 of the Public Administration Salaries Law).

While it is true that regarding the challenges to the provisions of the exclusive dedication contract, I have endorsed the majority opinion, I do consider it necessary to record this note to indicate the following:

While the exclusive dedication regime is a matter of legal regulation, the verification of compliance with the principle of progressiveness and non-regression is indeed a constitutional matter, particularly in this case, when it concerns labor rights and conditions. In this case, the Court indicates that "the petitioner accuses that the principles of progressiveness of labor rights and the protective principle are violated. However, in the judgment of this Court, that mere statement, without an adequate analysis of the norms and the impact that these may have on workers' labor rights, prevents an appropriate constitutional analysis from being conducted. Such statements must be dismissed due to improper and insufficient substantiation by the petitioner." For this reason, the insufficient substantiation prevented this Court from carrying out the constitutionality examination and examining whether or not the principles of progressiveness and non-regression were respected. But said examination remains a pending task; this Court in Judgment No. 2011-016153 of 9:30 a.m. on November 25, 2011, stated: "(...) Social or programmatic rights must be, according to the imperatives of International Public Law of Human Rights, subject to progressive development, so that national authorities or public powers must adopt all necessary measures, to the maximum extent permitted by their resources, possibilities, and capacities, to guarantee their effective enjoyment and exercise." In this sense, I consider that the examination of the progressive development of fundamental rights is also applicable with respect to labor rights. Thus, the social Constitution ceases to be a mere statement on paper in order to assess its realization.

Work, the right to life, and liberty are an essential part of dignity; their absence directly harms the dignity of the person. As well established by the social doctrine of the Church, which is an ideological reference per Article 74 of the constitution, "...He who is unemployed or underemployed experiences, in effect, the deeply negative consequences that this condition produces in the personality and runs the risk of being marginalized from society and of becoming a victim of social exclusion. As well as young people, this drama generally affects women, less specialized workers, the disabled, immigrants, ex-convicts, the illiterate—all people who find greater difficulties in seeking a placement in the world of work..." (See "Compendium of the Social Doctrine of the Church" Celam. 2005- p. 208). It is clear that by reason of the normative force of the Constitution, all of it is enforceable against the actions of public powers, "in its entirety, in all its parts, in all its contents, also in its implicitudes." Thus then, in light of the fact that the Political Constitution is a constitution of minimums, the progressiveness of fundamental rights must change from being an ideal to a constitutional requirement. This constitutional instance cannot be the means by which guarantees and benefits for workers are reduced with relative ease; even if those benefits were established by law, that does not mean they can be regressive at any moment. In this sense, it remains pending in this constitutional venue to examine, when soundly raised, whether the changes in the regulations governing exclusive dedication contracts in the public sector are progressive, or, on the contrary, are regressive, without any grounds.

6. Dissenting vote of Magistrate Cruz Castro regarding the unconstitutionality of Artículos 35 and 36 of the Public Administration Salaries Law.

I have considered dissenting on these issues and considering that the changes made to Artículos 35 and 36 of the Public Administration Salaries Law are unconstitutional. Such norms, after the reform made by the Law for Strengthening Public Finances, No. 9635, establish the following:

"Article 35- Percentages of compensation for exclusive dedication.

The following economic compensations are established over the base salary of the position held by professional officials who sign contracts of exclusive dedication with the Administration:

1. Twenty-five percent (25%) for servers with a licentiate degree level or another higher academic degree.

2. Ten percent (10%) for professionals with a university bachelor's degree level.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018) Article 36- Prohibition and compensation percentages.

Public officials who have been imposed the restriction for the liberal exercise of their profession by legal means, called prohibition, and who meet the requirements established in Artículo 31 of this law, will receive an economic compensation calculated over the base salary of the position they hold, in accordance with the following rules:

1. Thirty percent (30%) for servers at the licentiate degree level or another higher academic degree.

2. Fifteen percent (15%) for professionals at the university bachelor's degree level.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)" It is questioned whether the new recognition percentages for the additional salaries of exclusive dedication and prohibition, under less beneficial conditions, violate the principle of progressiveness of rights. Furthermore, there is a lack of a technical study to support this impairment of working conditions, without certainty that it is the cause of the country's fiscal problem, when it has been pointed out that the causes of the fiscal deficit stem from more complex issues such as tax evasion and avoidance. Likewise, it is questioned that the reduction of percentages, both in exclusive dedication and prohibition contracts, generates a clear inequality of conditions among the same officials, both those who were hired by the Administration before the entry into force of Law 9635, compared to new hires.

In this regard, the majority of the Court considered that compliance with the principle of financial or budgetary equilibrium is an objective and reasonable justification for regulating salary aspects and that "in the face of a critical condition in public finances (duly supported by technical studies), which puts the effective or adequate execution of benefits of constitutional relevance at risk, the decision of the competent authorities to define and apply measures suitable to alleviate or solve the problem is not only reasonable, but is, even more, unavoidable" (advisory opinion No. 2018-18505).

Regarding this argument, I have considered dissenting, as I believe the petitioners are correct. The variations set forth in Title III of the LFFP regarding the percentages of Exclusive Dedication and Prohibition conflict with the provisions contained in the Political Constitution. Not only are the principles of progressiveness and non-regression of fundamental rights being threatened, but also legal certainty, the principle of technical reasonableness, and the principle of equality. Note the clear worsening of the established percentages, which represent a complete regression from previous working conditions; note further the creation of a differentiation between officials hired before and after the entry into force of such norms. All of this without mentioning the lack of technical support, which cannot be supplied by a generic justification of the critical situation of the public finances, because if we were to scrutinize throughout all times, problems with public finances are alleged at every moment. So this argument cannot be used as generic support for any regression of labor rights. Even legal certainty is affected because, although there is no right to the immutability of the legal system, what does exist is a right to progressiveness. It is not admissible for the Constitution to endorse changes and more changes that steer labor rights toward regression. Instead of increasing salaries, the political will to reduce them is observed, a decision that demonstrates, without the slightest doubt, the regression in the well-being of a sector of workers.

7. Dissenting vote of Magistrate Cruz Castro regarding the unconstitutionality of Artículo 53 of the Public Administration Salaries Law, Artículo 15 of Regulation No. 41564-MIDEPLAN, as well as Resolution No. DG-139-2019 of the Dirección General de Servicio Civil.

Artículo 53 of LSAP, added by LFFP No. 9635, and Artículo 15 of Regulation No. 41564-MIDEPLAN are questioned:

"Art. 53- Professional career incentive. The professional career incentive will not be recognized for those titles or academic degrees that are a requirement for the position.

Training activities will be recognized for public servants provided that these have not been funded by public institutions.

New professional career points will only be recognized salary-wise for a maximum period of five years.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018) Art. 15.- Professional career. The professional career incentive will be granted under the following conditions:

It will be recognized for those titles or academic degrees that are not requirements for the position.

• E)The recognition of professional career will proceed when the training activities are funded by the interested server, whether during working hours or outside them, provided they are relevant to the position held. For those training activities that are not funded by public institutions, leave with pay may be granted on a reasoned basis to receive the training.

New professional career points will be recognized salary-wise for a period of 5 years.

• d)Professional career points may be recognized, according to the parameters existing prior to the entry into force of Law No. 9635, only and exclusively in the cases of those applications submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that have not been processed by the Administration." In addition, Resolution DG-139-2019 of 3:00 p.m. on July 24, 2019, from the DGSC, which states the following:

"Article 1. Modify Artículos 1, 2, 4, 5, 6, 9, and 18 of Resolution DG-064-2008 of February 28, 2008, so that they read respectively as follows:

(...)

"Artículo 9: Each point considered under any Professional Career factor will have a single, independent validity, and salary remuneration, for a period of five (5) years starting from the date on which the respective recognition takes effect. The Institutional Human Resources Management Offices must establish the corresponding controls so that, upon completion of said period, the respective scores are expired and the inherent payments cease.

Said Offices must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates presented by each server are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." "Article 4. Modify Artículos 1, 2, 3, 7, 8, 9, 10, 18, 20, and 21 of Resolution DG-333-2005 of November 30, 2005, so that they read respectively as follows:

(...)

"Artículo 10.- Each point considered under any Teaching Professional Career factor will have a single, independent validity, and salary remuneration, for a period of five (5) years starting from the date on which the respective recognition takes effect. The Institutional Human Resources Management Office of the Ministry of Public Education must establish the corresponding controls so that, upon completion of said period, the respective scores are expired and the inherent payments cease.

Said office must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates presented by each server are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." Such norms were challenged on the grounds that they represent a setback in relation to the purpose of hiring the most suitable officials, as a time limitation is introduced for the recognition of professional career points, given that at the end of the five years, the incentive ceases to be paid, violating subjective rights and the non-waivability of the right. Furthermore, it is indicated that the wording of the norm creates legal uncertainty, as it is ambiguous and does not allow for certain determination of the legislator's intent: whether to recognize up to five years of training or to pay only for five years.

In this regard, the majority of this Court considered dismissing this aspect of the action, without prejudice to the debate being reopened or restated in other terms if it can be determined that the provisions cause an impoverishment of the salaries of professionals or if it is verified that this aspirational measure for retaining the most suitable public servants is being harmed by the flight of trained personnel.

However, I believe that indeed the challenged regulations are unconstitutional, because, as the petitioners indicate, the fundamental right to a salary is infringed (enshrined in Article 57 of the Constitution and Clauses 23 of the Universal Declaration of Human Rights, 7 of the International Covenant on Economic, Social and Cultural Rights, and 7 of the Protocol of San Salvador), insofar as the subjective right of the official to continue earning the professional career remuneration is annulled, once the referred five years have elapsed after its respective recognition. The corresponding recognition is also arbitrarily eliminated and produces a cessation of remuneration without a legitimate reason justifying the interdiction of that right. The challenged regulations remove from the worker's assets, after five years, an economic benefit, of a salary nature, that was recognized to them because they met the established requirements. A component that forms part of the salary is suppressed, without greater justification. The recognition of professional career has the ultimate objective of ensuring that the Administration has the highly trained personnel it needs for an adequate performance of the public function. This remuneration has also been intended to contribute to the recruitment and retention of the best-qualified professionals in each area of activity, for an adequate performance of the public function, as well as to increase the productivity of professionals. Now then, a regression in the regulation of this matter constitutes an unreasonable disincentive for personnel who seek to be increasingly trained, and with this, a disincentive to the professionalization of the public sector is configured.

I must highlight that while it is true it is indicated that there is no injury to Artículo 34 of the Political Constitution because the reform safeguards the acquired rights of public servants who enjoyed that incentive. The truth is that regarding the recognition period for new professional career points, the legislator committed an excess that resulted, not only in the violation of the block of fundamental labor rights - for being regressive - but also, of the block of principles that operate in the public sphere - for eliminating the incentive that stimulates the self-improvement of public officials -.

While there is no right to the immutability of the legal system, as the majority vote states, the truth is that the legal system must be progressive and not regressive. The legal system can change, but not to worsen the conditions of fundamental rights associated with labor rights. The fiscal situation cannot serve as a generic excuse for the legislator to limit the recognition of labor incentives to a minimum.

Legislative discretion is also subject to limits, and with the challenged norms, I consider that such limits have been transgressed because they are violative of the constitutionality block.

It is not that there is no subjective right of the public servant to continue earning the remuneration for professional career, once the five years following its respective recognition have elapsed. Rather, the regulations that recognize certain labor rights and incentives cannot be degraded, as this would be contrary to the constitutional principle of progressivity of fundamental rights. Especially in this case, since said incentives are associated with promoting the continuous training of public servants and, thereby, the provision of public services. There is no reason to devalue or denature a worker's salary, considering that there are incentives that can be eliminated after a certain period. The challenged legislative act ignores the constitutional significance of the salary and the limits that exist for its modification or suppression.

8. General Note of Magistrate Cruz Castro.

I have considered it necessary to record this general note to refer to several aspects, particularly those recorded by the majority of the Chamber in the preceding recitals, with arguments I do not share.

It has been said that the Public Finance Strengthening Law (LFFP) was given as a response to the critical Costa Rican fiscal situation and in pursuit of uniformity and spending containment regarding the payroll of public servants. However, this argument becomes a fallacy if it is not accompanied by technical support. There is no study indicating what percentage of the fiscal crisis is a direct cause of remuneration in the public sector, whether that percentage is determinant with respect to the fiscal deficit. Nor is there a study that reliably concludes that the cause of the fiscal crisis is said remuneration in the public sector; rather, experts in the matter cite multiple causes, most of them being based on problems of tax evasion, inefficiency in collection, the growing payment of interest on the debt, and, in general, on the deficient legal and institutional framework of the tax burden. The considerations indicated in the majority vote, made by the Comptroller General of the Republic, refer to the need to contain salary spending, but no concrete data is presented that would allow one to affirm either that salary spending is the main cause of the fiscal deficit, much less how much of said deficit would be solved with all the cuts and regressions that the regulations intended. All of which constitutes insufficient argumentation and a mirage, which led people to believe that the solution to the fiscal deficit was to weaken the labor rights of public servants. I transcribe below what an expert economist tells us:

"The fiscal crisis in simple terms August 14, 2024 editor1850 Luis Paulino Vargas Solís.

(…)

Where is the problem?

Not, not in salaries. That discourse is unsustainable today, when it should rather be recognized that salaries have been brutally compressed. This not only entails a serious deterioration in people's living conditions, but also is making it difficult to retain highly qualified personnel.

A part of the problem is the strong growth in interest payments, which makes it obligatory to recognize that the policies that sought to reduce them have failed. Do not misunderstand me: I am not saying, nor even insinuating, that they should stop being paid. But I am warning that a rethinking is necessary and to seek new options to reduce the hemorrhage that this means.

But the main problem is in revenues. They are clearly insufficient, which demonstrates that the fiscal plan of Carlos Alvarado, followed and applied to the letter by Chaves, is also a failure. The problem should be obvious to anyone who wishes to see it: expenses have been compressed drastically, public salaries thrown into a hole, and, meanwhile, fiscal revenues stall and we must continue taking on debt.

The situation is worrying, and threatens to become unsustainable. And that could happen sooner than we would like.

We have very serious problems of tax fraud, but, in addition, it is undeniable that the very rich of Costa Rica only pay a small fraction of what they should contribute." The majority vote indicates that "it was unavoidable for the Costa Rican State to adopt measures to guarantee the qualities and principles of our Social State under the Rule of Law. The foregoing, under a harmonious interpretation of the principle of budget balance and the Social State under the Rule of Law." However, I have held the view that the Social State under the Rule of Law can never be subordinated to economic or financial reasons. Worse still, when it is assumed that economic science is a supposedly exact science, insensitive to moral issues and fundamental rights. Furthermore, the principle of budget balance, in its true constitutional scope, cannot be interpreted as that principle which supports the degradation in the fulfillment and effectiveness of fundamental rights. Economy, finances, refer to people, subjects of rights, and to whom the fulfillment of conditions must be ensured so that they achieve their dignity. The so-called balance between salary policies and the rights of public servants cannot be an equation that is always resolved to the detriment of the rights of the latter. Thus, I have maintained a dissenting position regarding the limit on the right to severance pay assistance, so that, contrary to what the majority indicates, I consider that the financial and fiscal situation of the Costa Rican State should not be the justification for the elimination of labor rights and improvements. I certainly do not deny the existence of a public interest in reducing public spending, but said reduction in spending cannot weigh on the backs of workers, those who depend on a salary. I underline what the Chamber itself indicates: "the hollowing out of the fundamental rights of public sector workers is not valid in an effort to solve the problem of public finances." Also, when it indicates that: "these regulations should not remain frozen in time to the detriment of public servants, to the point that salaries are not attractive—which could impact the efficiency of the Public Administration—or do not guarantee minimum conditions of dignity and well-being for workers." As I have indicated in the note to Vote n°2016-12803, social rights are not second-order aspirations:

"VII.- Note of Magistrate Cruz Castro. Economic and social rights are not second-order aspirations. In this action, questions arise about the condition of social and economic rights. They are not mere aspirations; they are subjective rights that are not left to the discretion of the legislator; they are authentic rights, they are integrated into the requirements of a constitutional state under the rule of law. There cannot be a full exercise of individual and political rights if the effective validity of social welfare rights is not guaranteed.

The existence of a fundamental right presupposes its validity without intermediations or conditions. The dignity of the human being as the central axis of a constitutional democracy requires the effective validity of social welfare rights. There is no human progress, there is no social equity if education is an aspiration without budgetary support and without effective validity in the lives of citizens. The constitutional minimum requires that the guarantee of education and of rights that, by being social, are no less than individual ones. A dignified and just existence requires the recognition of economic and social rights. It is the challenge of an authentic constitutional state under the rule of law.

Rights of social vocation must define the horizon of human progress required by a society that gives effective validity to the dignity of the person. As has been well said, the essential content of the Social State under the Rule of Law and of democratic constitutionalism must ensure just and dignified human development.

In the Latin American community, it is recognized that Article 26 of the American Convention on Human Rights enables the presentation of individual petitions in relation to economic, social, and cultural rights, an issue on which the Inter-American Court of Human Rights has ruled in the case "Five Pensioners v. Peru" in its judgment of February 28, 2003. Other precedents may be cited.

Economic, social, and cultural rights are rights taken seriously, as defined by the International Covenant on Economic, Social and Cultural Rights of the United Nations, as well as the Protocol on Economic, Social and Cultural Rights to the American Convention on Human Rights approved in San Salvador and in force in America. The fact that they are social welfare rights does not weaken their enforceability and their validity.

All rights, both individual and social, generate positive and negative obligations for the State; it is not possible to define a first-order line for individual rights and leave social welfare rights in second place, weakened. There are unavoidable obligations for the state and society, such as the environment, access to education, the right to strike, the formation of unions, the unjustified irreversibility of social welfare rights.

I consider that the legislator does not have total discretion to have drafted a law like the LFFP; rather, it had to adjust to the constitutional framework, particularly to our entire Social Political Constitution. In this sense, the remunerations and other labor conditions of workers, which are elevated to the category of fundamental rights, should have been the insurmountable limits for the legislator. In another era, José Figueres spoke very clearly of increasing salaries. That was forgotten; now decreasing salaries prevail for everyone, because the globalized economy does not allow the recognition of a just and dignified salary for workers. Although it is said and reiterated in the majority vote that no one has a "right to the immutability of the legal system" (right that the rules never change), the truth is that the principle of progressivity and the principle of non-regression require that said legal system be reformed to improve, to advance, to progress, and not to regress in the recognition of labor rights for workers. Thus, the mutability of the legal system in this matter must be directed at satisfying the interest of the community and the progression in the protection of fundamental rights, particularly social ones, which have diminished in the last twenty years. It would seem that for those of the South, those of dependent economies, it is not very realistic to speak of a welfare state. Thus we go on capitulating in the dreams of an economic, social, and political democracy.

It seems to me that I hold a broader vision of the principle of progressivity and non-regression than is done in the majority vote. I begin by citing recital 11 of judgment 275/2016 of the Italian Constitutional Court:

"The guarantee of irreducible human rights commits the Budget, and the balance of this cannot condition its complete satisfaction." Furthermore, the discussion around the Colombian case (judgment SU-140/19) where it must be clear that no public authority may invoke fiscal sustainability to undermine fundamental rights, restrict their scope, or deny their effective protection. An important priority is defined in that criterion. The principle of progressivity of human rights must be given sufficient normative force so that any regressivity is presumed unconstitutional.

Unlike what the Chamber indicates in the majority vote, I consider that the financial sustainability and availability of economic resources of the State should not be the sieve to measure compliance with those principles. On the contrary, in the same sense as indicated in the minority vote of the Mexico judgment of the year 2008 (see Silva y Rosales, 2009) it is said:

"even in situations of scarce resources, or poor functioning of social security institutions, the State must make efforts, including through international cooperation, to advance—and not repeal or diminish as occurs in this case—the enjoyment of rights such as retirement and old-age pensions, (…)

(…) once a certain level of constitutional and legal protection has been achieved … the legislator's freedom of configuration in matters of social rights is restricted." I also cite what was indicated by the Constitutional Court of Colombia (judgment C 272 of 2009), when it has indicated that, in a social state under the rule of law, it implies that "the authorities are obliged to correct visible social inequalities, to facilitate the inclusion and participation of the most marginalized and vulnerable sectors of the population in the economic and social life of the nation, and to stimulate a progressive improvement of the material conditions of existence of the most depressed sectors of society." Likewise, judgment C-1064 of the year 2002 and C-931 of the year 2004 (see also judgment T-025 of the year 2004), where the justification that the State must give to apply a regressive measure is specified:

"As this Court has already explained, when a regressive measure is subjected to constitutional scrutiny, it will be for the State to demonstrate, with sufficient and pertinent data, (1) that the measure seeks to satisfy an imperative constitutional purpose; (2) that, after a judicious evaluation, it is demonstrated that the measure is effectively conducive to achieving the pursued purpose; (3) that after an analysis of the different alternatives, the measure appears necessary to achieve the proposed end; (4) that it does not affect the non-derogable minimum content of the social right compromised; (5) that the benefit it achieves is clearly superior to the cost it entails." So that, it is not a matter of simply, with insensitive superficiality, the legislator proceeding to dictate regressive norms, as it has done in this case of the LFFP, and the various provisions that are challenged here and that I have considered unconstitutional. This law defines the orientation that weakens the essence of the social state, sacrificing the social rights of the majority in favor of an economism that ignores, in fact, the social rights of the citizens who depend on a salary. Sad to hear that the collapse of State finances originates from an excessive and unjustified salary assignment. With few exceptions, the parliament reached an overwhelming consensus to weaken the welfare state, affecting one of its most sensitive components: salaries. I cannot fail to mention that without good salaries, the Public Administration cannot be efficient in the provision of its services. Globalization imposes decreasing salaries, which also means that the services provided by public servants have little significance. What remains of a welfare state that has always had so many adversaries, despite the aspirations contained in the Constitution. In this very powerful globalization, there is no space for the progress and social mobility fostered by the social state. That I perceive very clearly in this economism that inspires this Public Finance Strengthening Law. The political priority is the accounting of public finances; the welfare state is weakened, cornered, postponed. That is the reality of economic development in the era of globality, of free trade.

Fernando Cruz C.

1 Res. n.° 2025-008201 50 of the LSAP and Transitory Provision XXXI (reasonableness) On the recognition of seniority bonuses (anualidades) in the month of June, employment continuity, and revaluation On the alleged violation of the principle of reasonableness because the percentages for seniority bonuses (anualidades) are established in transitory norms On possible normative antinomies

Conclusions

XIV.- ON THE ALLEGED VIOLATION OF the principle of non-retroactivity of the law and disregard for consolidated legal situations Preliminary clarification Challenged norms Grievances of the claimant (action no. 19-002620-007-CO) Grievances of the claimant (action no. 19-004931-0007-CO) Grievances of the claimant (action no. 19-022051-0007-CO) Report of the PGR (action no. 19-002620-0007-CO) Report of the PGR (action no. 19-004931-0007-CO).

Arguments of the coadjuvants Resolution of the Constitutional Chamber Preliminarily Amounts of seniority bonuses (anualidades) and other bonuses that disregard provisions established in other legal instruments On Transitory Provision XXVII, which refers to the application of the unemployment benefit (auxilio de cesantía)

Conclusion

XV.- Violation of the principle of free collective bargaining Preliminary clarification Challenged norms Grievances of the claimant (case file action no. 19-2620-0007-CO) Grievances of the claimant (action no. 19-004931-0007-CO) Grievances of the claimant (case file action no. 19-022051-0007-CO) Report of the PGR (action no. 19-2620-0007-CO) Report of the PGR (action no. 19-004931-0007-CO) Report of the Ministry of Finance Arguments of the coadjuvants Resolution of the Constitutional Chamber Preliminarily The findings of this Court in advisory opinions no. 2018-019511 and no. 2021-017098 On the alleged violation of the principle of equality by distinguishing with respect to solidarity associations (asociaciones solidaristas) On the constitutionality of Transitory Provision XXXVI, second paragraph

Conclusions

Grievances of action no. 19-004931-0007-CO GRIEVANCES THAT PRIMA FACIE MUST BE DISMISSED XVI.- Art. 3 of Executive Decree No. 41564-MIDEPLAN-H, Regulations for Title III of the LFFP, Law No. 9635 regarding Public Employment XVII.- Arts. 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulations for Title III of the LFFP, Law No. 9635 regarding Public Employment XVIII.- ON THE RULES OF FISCAL RESPONSIBILITY. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC Challenged norms Arguments of the claimant Resolution of the Constitutional Chamber XIX.- FISCAL RESPONSIBILITY.

ALLOCATION OF FREE SURPLUSES</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445443" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provision</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445444" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievance of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445445" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445446" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445447" style="text-decoration:none"><span style="font-size:12pt; color:#000000">ANALYSIS OF PROVISIONS REGARDING PUBLIC EMPLOYMENT REVIEWED BY THE FUND</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445448" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XX.- CONTRACTS FOR EXCLUSIVE DEDICATION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445449" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445450" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445451" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445452" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445453" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445454" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXI.- THE EXTENSION OF EXCLUSIVE DEDICATION CONTRACTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445455" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445456" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445457" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445458" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445459" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXII.- SERVANTS TO WHOM EXCLUSIVE DEDICATION OR PROHIBITION MAY BE GRANTED</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445460" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445461" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445462" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445463" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445464" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445465" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXIII.- OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION AND PROHIBITION CONTRACT</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445466" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445467" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445468" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445469" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445470" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445471" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXIV.- THE NEW PERCENTAGES FOR EXCLUSIVE DEDICATION AND PROHIBITION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445472" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445473" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445474" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445475" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445476" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445477" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXV.- THE PROHIBITION OF ADDITIONAL INCENTIVES</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445478" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445479" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445480" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445481" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445482" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXVI.- THE STEERING ROLE OF MIDEPLAN</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445483" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445484" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445485" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445486" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445487" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXVII.- MEASUREMENT OF PERFORMANCE EVALUATION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445488" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445489" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445490" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445491" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445492" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXVIII.- CRITERIA FOR PERFORMANCE EVALUATION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445493" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445494" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445495" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445496" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445497" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXIX.- EXCLUSION OF BENEFITS FOR SENIOR OFFICIALS AND OTHER SERVANTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445498" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provision</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445499" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445500" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445501" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445502" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXX.- PAYMENT METHOD FOR PUBLIC SERVANTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445503" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445504" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445505" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445506" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445507" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXI.- THE PROFESSIONAL CAREER INCENTIVE</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445508" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Preliminary clarification</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445509" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445510" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff (action no. 19-004931-0007-CO)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445511" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff (action no. 19-023575-0007-CO)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445512" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445513" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Second PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445514" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Mideplan Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445515" style="text-decoration:none"><span style="font-size:12pt; color:#000000">DGSC Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445516" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445517" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445518" style="text-decoration:none"><span style="font-size:12pt; color:#000000">General aspects of professional career points</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445519" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding an alleged disincentive and regression in matters of proven suitability</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445520" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the reasonableness of granting the incentive to servants who paid for their own training</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445521" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the alleged violation of the principle of equality</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445522" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding collective bargaining</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445523" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the correct interpretation of the regulations</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445524" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the alleged violation of vested rights and the inalienability of rights</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445525" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Conclusions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445526" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXII.- CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445527" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445528" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445529" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Arguments of the active coadjuvant (SINAME)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445530" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445531" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445532" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445533" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXIII.- REFORMS TO ART. 57 OF THE PUBLIC ADMINISTRATION SALARY LAW</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445534" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445535" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Arguments of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445536" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445537" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445538" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding art. 57 subsection f)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445539" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding art. 57 subsections g), h), m), n), o) and p)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445540" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXIV.- GENERAL CONCLUSIONS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:12pt"></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Exp: 19-002620-0007-CO</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Res. No. 2025-008201</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">San José</span><span style="font-weight:bold">, at thirteen hours on the seventeenth of March, two thousand twenty-five. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Action of unconstitutionality brought by </span><span style="font-weight:bold; text-transform:uppercase"></span>[Name 001]<span>, ID number [Value 001]<span data-mce-type="bookmark" id="mce_1_start" data-mce-style="overflow:hidden;line-height:0px" style="overflow: hidden; line-height: 0px;"></span>, in his capacity as </span><span style="font-weight:bold; text-transform:uppercase">General Secretary of the Union of Employees of the Banco Nacional de Costa Rica</span><span style="font-weight:bold"> (SEBANA)</span><span>, to have declared unconstitutional </span><span style="font-weight:bold">arts.</span><span> </span><span style="font-weight:bold">39, 50, 54, 55, 56, 57 subsection I) of the Public Administration Salary Law No. 2166</span><span>, as well as</span><span> transitory provisions</span><span style="font-weight:bold"> XXVII, XXXI and XXXVI of the Public Finance Strengthening Law No. 9635</span><span>. Subsequently, this action</span><span> was expanded (file no. 19-0</span><span>04931-0007-CO) to examine the constitutionality of </span><a name="_Hlk190327011" class=""><span>arts. </span><span style="font-weight:bold">28, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o) and p) of Law No. 2166, arts. 15, 17, 23, 24, 25, of Title IV of Law No. 9635 and arts.</span></a> 1, subsection a), 3, 6, 7, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H. Likewise, actions numbers 19-022051-0007-CO and 19-023575-0007-CO were consolidated. The representatives of the Attorney General's Office (Procuraduría General de la República), Ministry of Finance (Ministerio de Hacienda), Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica) and the Civil Service Directorate General (Dirección General de Servicio Civil) participated in the proceedings.

**Resultando:** **1.-** By a filing received in the Secretariat of the Chamber at 10:16 hrs. on February 15, 2019, the petitioner **[Name 001]**, in his capacity as **general secretary of the Union of Employees of the Banco Nacional de Costa Rica (SEBANA)**, requests, in summary, that the unconstitutionality of Articles 39, 50, 54, 55, 56, 57 subsection I) of the Law on Public Administration Salaries (hereinafter, LSAP) No. 2166 of October 9, 1957, as well as Transitory Provisions XXVII, XXXI and XXXVI of the Law for Strengthening Public Finances (hereinafter, LFFP) No. 9635 of December 3, 2018, be declared. The foregoing is based on considering them contrary to the principles of reasonableness, non-retroactivity of the law and free collective bargaining, to Articles 11, 33, 34, 39, 41, 50, 60, 62, 74, 191 and 192 of the Political Constitution, to Conventions numbers 87, 98 and 135 of the International Labour Organization (ILO), as well as to Article 26 of the American Convention on Human Rights (ACHR) and Article 8, subsection a) of the Protocol of San Salvador.

The petitioner raises three main grounds of unconstitutionality:

**a)** violation of substantive due process; **b)** violation of the principle of non-retroactivity of the law and disrespect for consolidated legal situations; **c)** violation of the principle of free collective bargaining.

**First ground of unconstitutionality. Violation of substantive due process** Regarding this point, it is said that a violation of substantive due process exists in relation to Articles 50, 57 subsection l) insofar as it reforms Article 12, all of the LSAP, and Transitory Provision XXXI of Law No. 9635. Provisions which, in turn, must be related to other rules of the LSAP that were also modified by Law No. 9635, such as, for example, Article 58 subsection c) which repeals Article 5 and provisions 48 and 49 referring to performance evaluation and which have in common the correlation between the payment of service increments (anualidades) and the existence of a merit system. Article 5 referred to the principle of efficiency of the Administration by stating that annual increases would be granted based on merit; whereas now with the new regulations, it is indicated that the result of the annual evaluation will be the only parameter for granting the service increment incentive (incentivo por anualidad) for each official, by which, in both cases, they start from the same programmatic axis or teleological sense, which is to comply with the merit regime and the principle of efficiency contained in the Political Constitution.

The reform to Article 50 and the provisions of Transitory Provision XXXI must be subjected to a reasonableness test to assess their necessity, suitability, and proportionality, as constitutional parameters in consideration of what is established by the principle of due process.

Regarding the necessity of the new regulations on the payment of service increments, the legislator's intention in converting the percentage of the service increment into a fixed and permanent amount is not clear, nor is the reason why the percentage of the service increment contemplated in Transitory Provision XXXI is specifically fixed, making the separation between professional classes and non-professional classes clear.

What the rules establish is a percentage anchored to the salaries earned in January 2018, from which a nominal amount is derived, which does not vary over time, regardless of the years a public servant works in the public sector. By the time the law was approved, this reference salary used by the legislator had already been modified by the statutory salary adjustments.

With this mechanism introduced into the law, a future increase in the payment of service increments is avoided, which would lead—hypothetically—to a reduction in public spending on salaries; however, that argument lacks internal logic because if the necessity of reducing the payment of service increments and salaries in the public sector obeys an economic criterion, it cannot be intended to regulate the salary reduction once and for all, as if the country's economic conditions were to last *sine die*.

The challenged regulations are also not suitable, because if the amount of the service increments is anchored to the salaries that corresponded to each salary scale for the month of January 2018, such amounts will not only not grow over time, but will come to have a value very close to zero due to the effect of monetary devaluation and inflation, without there being a logical or reasonable relationship between the objective of the service increment—as an economic incentive that allows improving the efficiency of public sector employees—or between the service increment as a formula to reward those who are evaluated annually with the aim of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning.

Article 50 and Transitory Provision XXXI are also not proportionate to the end they propose, since the payment of service increments is eliminated for the future and that is the true implicit purpose. The sacrifice that these rules impose on employees who earn a composite salary is totally radical and confiscatory given that, in the future, earning a composite salary with service increment payments will have no real meaning for such employees because those are eliminated for the future, rendering them insubsistent, without any real economic content and converted into a symbolic payment, such that as the working life time passes, the servant will earn less for the concept of service increment, which implies an involutive condition of their salary. If what the legislator wanted was to maintain a performance evaluation system linked to the payment of service increments, the approval of the payment of these stopped in time and calculated based on a fixed amount is not suitable and affects the entire merit system of Articles 191 and 192 of the Political Constitution. That implicit purpose—eliminating service increments—was never openly raised in the statement of legislative intent or in the legislative discussion.

**Unconstitutionality of Article 57 subsection 1) insofar as it reforms Article 12 of the LSAP** Regarding what refers to Article 12 reformed by the challenged Article 57 subsection l), the payment of the service increment previously had to be made on the first day of the month closest to the date of the official's entry or re-entry into the position, but, with the reform, the service increment payments will be made in the first fortnight of June of each year, which is considered openly unconstitutional, since in addition to creating a disproportionate and unjustified sacrifice against persons who have a right to seniority when their date of entry or re-entry is before the month of June, this contradicts the very nature of the service increment, whose purpose is to remunerate an annual period of work and not just any period constructed arbitrarily or artificially by the legislator, so the rule is not suitable, is not logical nor reasonable, but rather is an arbitrary provision that rides roughshod over the nature of the service increment and turns it into something else.

Article 12 subsection c) of the LSAP established that if the previous position occupied by a promoted person had entitled them to one or more annual increases, upon moving to a higher position they would have the right to have the service increments previously received revalued, according to the new category to which they were promoted; a rule that was now modified to state that *"under no circumstances shall the incentives already recognized be revalued"*. The previous rule made sense and complied with the principle of proportionality, since it intended that a promotion would positively affect the person opting for a superior position, encouraging public sector employees to opt for higher positions, but the reform discourages people from occupying positions of greater responsibility, by freezing their previous service increments and not allowing them to opt for a revaluation of these.

Furthermore, Article 12 subsection d)—which allowed for the consideration of time accumulated in other public sector entities for purposes of service increment payments—was eliminated, which is unreasonable and discriminatory, as well as detrimental to the principle of proportionality because people who have worked in other public sector entities would be forced to start the count from zero in each entity where they work, injuring the doctrine of the State as a single employer which, as a legal concept, has been taking shape in the jurisprudence of the Second Chamber and the Constitutional Chamber. The rule is also not suitable because it discourages the transfer or re-entry of public employees and officials to different State entities, contributing to hindering the constitutional system of access to public function through merit. Finally, it is discriminatory because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely over those who aspire to improve their condition or provide better public service elsewhere in the public sector and, secondly, because it creates discrimination among all persons who, prior to Law No. 9635, managed to count years worked in other public sector entities for service increment purposes, with respect to those who wished to transfer or re-enter it after the approval of Law No. 9635.

It summarizes that Articles 50, 57 subsection l) and Transitory Provision XXXI, by lacking reasonableness, suitability, and proportionality, violate substantive due process and with this the provisions contained in Articles 9, 11 and 121 of the Political Constitution, but also an indirect violation of constitutional Articles 191 and 192 by creating a service increment payment system that violates the merit system and the principle of efficiency.

It argues injury to the principle of reasonableness because a Transitory Provision was the one that established the percentage of the service increment with which the calculation of what will later be the nominal and unmodifiable amount of the service increment must start, as well as the date from which that calculation will begin, which, in its opinion, should have been included in a substantive rule to be part of the permanent legal body.

**Second ground of unconstitutionality: Violation of the principle of non-retroactivity of the law and disrespect for consolidated legal situations** The articles challenged in this section are added or reformed, emptying them of their original content, without consideration for acquired rights or consolidated legal situations as provided by Article 34 of the Political Constitution.

It is argued that these rules violate the principle of non-retroactivity of the law as well as respect for consolidated legal situations, affirming that, in any case, when it comes to topics related to supplementary salaries (sobresueldos), it is a general defect of Law No. 9635 not to respect the consolidated legal situations of workers who acquired rights under the previous regulations that governed them.

Article 50 of the LSAP and Transitory Provision XXXI impose a service increment at a fixed nominal amount that overrides what has been established in some institutions through collective bargaining agreements (convenciones colectivas) or other normative instruments that usually grant a higher and different service increment amount through a percentage payment calculated on the employee's base salary, whereby those rules impose techniques for calculating service increments that directly clash with the collective bargaining agreements and the regulations that exist in the public sector on this matter. The legislator exceeded their powers and with this, consolidated legal situations are violated by not establishing, as they did with the exclusive dedication salary component—in Transitory Provision XXVI of Law No. 9635—or defectively in the matter of severance pay, provisions to mitigate the effect on consolidated legal situations; cases in which the impact of the new regulations on the subjective legal situations of each employee was indeed considered.

A collective bargaining agreement is an agreement in the form of a contract that constitutes subjective legal situations that are integrated into the patrimony of rights of each worker covered by the agreement and, while it is in force, the workers to whom it applies have a right and not a mere expectation of a right that the terms thereof be respected. Therefore, Law No. 9635 could not ignore the subjective legal situations born of a collective bargaining agreement as if they did not exist. It is contradictory that, according to Transitory Provision XXXVI of Law No. 9635, the legislator did take into account the existence of collective bargaining agreements in the public sector, but that, at the same time, did not consider them when imposing a total and absolute change not only in the amounts, but also in the nature of the service increments.

The normative provision must be interpreted and applied in the way most favorable to the human being or under the principle *pro homine* or pro citizen, and therefore, it considers that the questioned rule must be interpreted in clear safeguarding and protection of the consolidated legal situations of the affiliates of his represented party, in such a way that from the moment the workers began to work in a particular public entity where said regulations apply, subjective situations were created in their favor that form part of their salary, so the State cannot expropriate or confiscate those rights without compensation, such that if the service increments were predefined in a regulation or statute, this is equivalent to a declaratory act of rights in their favor, by which the employees have a consolidated subjective legal situation that that payment system be respected, unless they are compensated in accordance with Article 155 of the General Law of Public Administration (LGAP).

The challenged Article 54, which refers to the *"conversion of incentives to fixed nominal amounts"*, implies a direct and heteronomous intrusion into existing collective bargaining agreements and future ones that may be negotiated, which seriously injures the principle of non-retroactivity of legal norms, for two reasons: first, because the salary corresponding to the month of January 2018 that the law uses as a reference to determine the nominal amount to be paid for service increment concept had already been modified by the time the law was approved as a consequence of the salary adjustment that is applied semi-annually, so the legislator disregarded the principle of non-retroactivity in drafting the rule by using a parameter delimiting the article's content that was by then outdated in time; the second reason is that the rule's provision ignores that there are collective bargaining agreements and regulations or statutes that already contain provisions on the payment of incentives or compensations in percentage form, such as the collective bargaining agreement of the Banco Nacional, signed by his represented party, where percentages have been fixed for productivity incentive payments in Article 63, called since several bargaining agreements ago as an incentive for results, so for the persons to whom this collective bargaining agreement applies, there exists a right and not a mere expectation of a right, that during all the time the collective bargaining agreement is in force, that subjective right be respected since, otherwise, there is a violation of Article 34 of the Political Constitution.

Regarding the challenged Article 56 relating to the *"application of incentives, caps and compensations"*, it is a rule that has an intelligibility problem, which is confusing despite regulating a topic of great interest such as acquired rights and consolidated legal situations. If the legislator intended to refer to a future regulation, they could not state that what applies in the future are the previous incentives, compensations, caps or service increments, and interprets that perhaps what the legislator intended to say was that the new regulations on incentives, compensations, caps or service increments govern for the future and not retroactively. The rule is contrary to the principle of reasonableness and, therefore, to substantive due process, as well as violative of Article 34 of the Political Constitution, since the patrimonial rights acquired before the effectiveness of the new law are not respected, insofar as it omitted to recognize the consolidated legal situations that arise from collective bargaining agreements, regulations or statutes that have declared rights in favor of workers before the promulgation of the law.

Regarding Article 57 subsection l) that reformed provision 12 of the LSAP, it affirms that the provisions contained in collective bargaining agreements or other legal instruments creating subjective rights on topics such as when the payment of each service increment proceeds, the way it is calculated when there are promotions, the recognition of those rights to those who come from other public sector institutions or when they return to it, were also not respected, so there is no certainty about what happens with persons who were transferring from one company or institution within the public sector prior to the publication of Law No. 9635 but whose years worked in other public sector dependencies have not yet been counted, nor whether the consolidated legal situation that the time previously worked be registered should be disregarded. On this point, it is alleged that the law was silent in resolving conflicts of laws over time and that silence is visible throughout all its provisions, except in relation to exclusive dedication where the exclusive dedication contracts signed before the law's entry into force are indeed respected, and also, less rigorously, in the matter of severance pay, since in this case the law imposes a cap in years that did not respect the accounting of time served that had been incorporated into the patrimony of rights of public sector employees based on rules from collective bargaining agreements that were in force when the legal reform came into effect, so the legislator disrespected the content of the subjective legal situations of the affiliates of his represented party.

Regarding Transitory Provision XXVII, which refers to the application of severance pay assistance, it is a rule containing two defects of unconstitutionality: the first is the violation of the right to collective bargaining and the second is the disrespect for the principle of non-retroactivity of the law and disregard for consolidated legal situations. The rule limits the payment for severance pay concept with caps greater than twelve years, without considering that many collective bargaining agreements in force—when Law No. 9635 came into effect—established rules with higher caps, such as the one signed between his represented party and the Banco Nacional that established that it was a real right in favor of the institution's employees that is paid with a cap of twenty years and that was not considered unconstitutional when it was analyzed in an action that challenged it. The limitation introduced by this Transitory Provision extends to other legal instruments different from collective bargaining agreements in which the payment of severance pay is regulated under more beneficial conditions than those stipulated in the Article.

of the Labor Code, in which case the twelve-year limit is also imposed. The defect of unconstitutionality of the Transitory Provision lies in the omission of dimensioning the scope of its effects, so that the consolidated legal situations in favor of public employees who, under the protection of current collective bargaining agreements or other legal instruments, and at the time the legal reform entered into force, had already accumulated a length of service that granted them the right to earn a severance pay (auxilio de cesantía) benefit greater than eight or twelve years, would have been duly safeguarded and not affected.

It concludes that the legal technique used by the legislator in articles 50, 54, 56, and 57(l) in relation to article 12 of the reformed LSAP and Transitory Provisions XXVII and XXXI of Law No. 9635, is unconstitutional as it ignores that, in accordance with article 34 of the Political Constitution, there are consolidated legal situations born from instruments such as collective bargaining agreements, regulations, and personnel statutes, which should have been respected.

**Third ground of unconstitutionality. Violation of the principle of free collective bargaining** It challenges articles 39, 50, 54, 55, 57(l) in so far as it reforms article 12, all of the LSAP, and Transitory Provisions XXVII, XXXI, and XXXVI of Law No. 9635 related to the indicated Salary Law, as, in the opinion of the plaintiff, they are harmful to the principle of free collective bargaining.

It is reproached that the regulation established by Law No. 9635 leaves no space for these matters to be regulated through collective bargaining and thereby exceed the minimums contemplated by ordinary legislation. The foregoing, despite the fact that these are essential labor matters and that the Labor Procedural Reform, approved by Law No. 9343, in its article 690(i), established the possibility for unions and employer representatives to negotiate clauses of salary content.

The articles of the LSAP—introduced or reformed by the challenged Law No. 9635—absolutely exclude all negotiation of salary components or bonuses, as well as prohibit negotiation on the right to severance pay, all of which is observed in the insurmountable cap of eight years on the dismissal payment of the severance pay (article 39), or with the establishment of a single annual bonus payment (anualidad) that has a single method of calculation through an inelastic division between professional and non-professional classes and an invariable amount that remains anchored in time based on the salaries earned in January 2018 (articles 50 and 57(l)), or imposing a prohibition on establishing incentives or compensations in percentage terms (article 54), or establishing a legal reserve (reserva de ley) for the creation of all types of incentives, economic compensations, or salary bonuses (article 55), and, in addition, obligating senior officials to denounce collective bargaining agreements upon their expiration (Transitory Provision XXXVI). The right to collective bargaining of incentives and components of a salary nature contemplated in subsections h) and i) of article 690 of the Labor Code, whose legal framework derives from ILO Convention No. 98 and article 62 of the Political Constitution, has been emptied of all economic content. The intention of the legislator who enacted Law No. 9635 was to create a kind of legal reserve in matters of supplementary salaries (sobresueldos) and annual bonuses, supplanting the constitutional legislator in clear violation of articles 60 and 62 of the Political Constitution, but articles 26 of the ACHR and 8(a) of the Protocol of San Salvador are also transgressed.

The Labor Procedural Reform opened space for the right to collective bargaining in the public sector of Costa Rica, but Law No. 9635 is a counter-reform that attempts against the principle of progressivity of the social and economic rights of the inhabitants of this country. Based on ILO Convention No. 135 and Convention No. 98, approved by Costa Rica by Law No. 2561 of May 11, 1960, the full development and use of voluntary negotiation procedures must be promoted with the objective of issuing collective contracts to regulate employment conditions; freedom of collective bargaining which, in Costa Rica, in the case of collective bargaining agreements, was elevated to the rank of a constitutional right in article 62 of the Political Constitution. In this regard, the Constitutional Chamber ruled in Judgment No. 2018-019511, when it referred to the introduction of article 55 within the LSAP, in the legislative project of what is now Law No. 9635. Thus, when ruling on legislative file No. 20.580, the Constitutional Chamber was clear that it was not possible to establish a total interdiction on the creation of supplementary salaries via collective bargaining agreement; notwithstanding the foregoing, the rules challenged here establish that type of interdiction, despite the warning made by the Chamber, so that Law No. 9635 was approved according to the text decreed in the first debate that the Chamber reviewed, and this confirms the unconstitutionality requested.

For that reason, the challenged rules violate the principle of free collective bargaining, which implies the violation of ILO Convention No. 98, article 8(a) of the Protocol of San Salvador, and article 62 of the Political Constitution.

Article 39 of Law No. 2166, reformed by Law No. 9635, by imposing an eight-year cap for the payment of severance pay, imposes very serious limitations that impact the constitutional order of collective bargaining, since even the Constitutional Chamber—on repeated occasions, albeit with restrictive criteria—has endorsed clauses of collective bargaining agreements signed in the public sector in which severance pay caps higher than eight years are established, understanding that breaking the legal cap is constitutionally valid and conforms to parameters of reasonableness and proportionality.

The defect of unconstitutionality alleged is magnified by the existence of Transitory Provisions XXVII and XXXVI of Law No. 9635, from which it follows that the purpose of the legislator has been none other than to establish an absolute prohibition so that, via collective bargaining agreement, rules on severance pay benefits different from those established in articles 39 of the LSAP under study, reformed by Law No. 9635, and 29 of the Labor Code can be negotiated, without considering that in Costa Rica, the payment of severance pay with caps higher than those established by the Labor Code has been accepted for more than thirty years when the Solidarist Associations Law No. 6970 of November 7, 1980 was approved, which establishes the payment of severance pay at the expense of the employer—public or private—without any type of year cap and as a real right, that is, its recognition proceeds under any circumstance regardless of the cause that extinguishes the employment relationship. From the above, an unequal and unjustified treatment is also created to the detriment of the union organization compared to the solidarist organization, given that the latter can do so by special law, while the union cannot, which generates a disparity of conditions in the legal treatment that the legal system offers to one and the other organization. It adds that the ILO Direct Contacts Mission that visited the country verified the differentiation of rules for the payment of severance pay that exists as a result of the Solidarist Associations Law, which constitutes discriminatory treatment between the workers associated with these and those affiliated with a union.

Transitory Provision XXVII supposes a clear intrusion and imposition by the legislator on the content of the collective labor agreements that were in force when the reform contained in Law No. 9635 came into effect, since that transitory rule limits the payment for severance pay to a maximum of twelve years, despite the existence of conventional rules that provided for higher limits.

Those articles are unconstitutional because they ignore the legal nature that the Political Constitution grants to collective bargaining agreements, but also because they violate the right to free collective bargaining, by supplanting the negotiating will of the signing parties of those normative instruments.

Article 50 of the LSAP, together with Transitory Provision XXXI contained in Law No. 9635, by imposing an annual bonus at a fixed nominal amount, entails an unreasonable and disproportionate limit on free collective bargaining, but also a total prohibition on negotiating the payment of annual bonuses in collective labor agreements as had been negotiated before the entry into force of Law No. 9635, thus constituting an arbitrary retroactivity of the rule and an emptying of the content of the right to collective bargaining.

Article 54 of the LSAP is unconstitutional because it denies any possibility of negotiating a different amount for incentives or compensations, which have now been transformed into a fixed percentage, anchored in the month of January 2018, without any possibility of future improvement, in contrast to the provisions of article 690(h) of the Labor Code, which contemplates the possibility of negotiating salary incentives; a provision that is now left without legal effect, thus presenting a true labor counter-reform whose true aims were never explained to the citizenry. This article 54 harms the principle of non-retroactivity, the principle of free collective bargaining, and the principle of reasonableness, as it freezes, without term or date, the payment of supplementary salaries and thereby forces their disappearance in the future, given that it sets a permanent salary condition over time without considering that the labor market, salary policies, and the fiscal condition of governments modify over time, so that although the appearance of respect for the payment of supplementary salaries is intended, at heart it is not so, and they are condemned to disappear with the passage of time because a moment will come when their economic value will be negligible.

With the reform made in Law No. 9635 to article 55 of the LSAP, the legislator intended to create a legal reserve so that any incentive, compensation, or salary bonus had to be created by law; however, this is unconstitutional because article 62 of the Political Constitution and ILO Convention No. 98, duly approved by Costa Rica, prevent establishing a limitation of such nature, but also because this provision injures the principle of free collective bargaining, as it claims an exclusivity in the generation of a normative source of working conditions that supposes emptying the constitutional right to collective bargaining of its content.

Transitory Provision XXXVI is one of the most accused intrusions of the Public Power into the right to collective bargaining, since it obliges the senior officials of public entities to denounce the collective bargaining agreements upon their expiration, thereby suppressing the content of article 62 of the Political Constitution and of ILO Conventions 87 and 98, jointly with articles 26 of the ACHR and 8(a) of the Protocol of San Salvador, for which reason it considers it contrary to the Law of the Constitution.

The progressive development of social rights contemplated in article 26 of the ACHR is completely curtailed by this Transitory Provision, which rather enshrines regression and a step backward in the development of collective labor law in Costa Rica, which had been achieved with the so-called Labor Procedural Reform. This regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements are negotiated, they must be adapted to the provisions of Law No. 9635, which means that working conditions that worsen the previous ones will have to be inserted, without respect for consolidated legal situations. The freedom of union association and the right to collective bargaining, in the terms envisioned by the Inter-American Court of Human Rights (IACHR) in the case of Lagos del Campo v. Peru of August 31, 2017, cannot fully develop if the State predefines, as occurs in Transitory Provision XXXVI of Law No. 9635, the content that a collective bargaining agreement must have, which is furthermore intended to be done with norms of legal rank but also with secondary norms, because this Transitory Provision does not indicate which norms it refers to when it says "the other regulations issued by the Executive Branch", with which it could be any according to what the Government in power determines, which, in this way, would have the door open to interfere in an unlimited manner, contrary to the limits that, by its nature, public power must have in a Social State of Law. The Constitutional Chamber, in advisory opinion No. 2018-019511, upon reviewing the project of what is now Law No. 9635, made the observation that each senior official of the public entities has the power to decide whether or not to denounce the collective bargaining agreements; an observation that was not heeded when Law No. 9635 was approved.

In relation to Transitory Provision XXXVI, regardless of the moment in which the denouncement of a collective bargaining agreement is made, the truth is that future agreements are being forced to maintain a regulated content that will depend not only on what a law that worsens the working conditions already obtained in collective bargaining instruments, previous statutes and regulations says, but also, it leaves the door open for the Executive Branch to establish any content for those agreements, all of which is also introduced in a transitory rule but which causes permanent and definitive effects.

It concludes by requesting that the unconstitutionality of the rules challenged herein be declared.

**2.-** In order to substantiate the standing it holds to promote this action of unconstitutionality, the plaintiff points out that it comes from article 75, second paragraph, of the Law of Constitutional Jurisdiction (LJC), since it appears in defense of collective interests held by its represented party. The union representatives claim that the questioned rules contravene not only free collective bargaining and with it the collective bargaining agreement of the Banco Nacional, but also lead to a harmful regression of fundamental rights (salary, working conditions, and free collective bargaining) and contradict the principle of collective labor law that establishes the possibility of negotiating in collective bargaining agreements more favorable conditions for calculation and payment of severance pay and bonuses for the workers.

**3.-** By resolution of the Presidency of the Constitutional Chamber at 9:46 a.m. on February 22, 2019, the action was given course, granting a hearing to the Office of the Attorney General of the Republic (Procuraduría General de la República, PGR).

Regarding standing, the following was resolved:

*“The petitioner's standing derives from Article 75, second paragraph, of the Law of Constitutional Jurisdiction, since he exercises the direct action, without prior trial to that effect, in order to protect and preserve the coinciding interests of SEBANA's members, based on its articles of incorporation, which enables the defense of collective interests.”* **4.-** In a brief filed with the Secretariat of the Chamber on March 7, 2019, **Juan Carlos Chaves Araya, in his capacity as General Secretary of the Union of Workers of the Banco Popular y de Desarrollo Comunal (SIBANPO)**, appeared to request that his represented party be considered an active coadjuvant given that it shares the legal theses expressed by the petitioner and because the challenged rules may affect the workers of the Banco Popular y de Desarrollo Comunal (BPDC).

**5.-** The **Office of the Attorney General of the Republic** submitted its report through **Julio Alberto Jurado Fernández** by means of a document delivered to the Secretariat of the Chamber on March 18, 2019.

The petitioner raises three grounds of unconstitutionality against the reform to the LSAP No. 2166 carried out through the LFFP No. 9635, and in each one, it indicates the rules that, in its opinion, should be annulled.

**The first ground of unconstitutionality** raised by the petitioner refers to a possible violation of substantive due process in relation to Articles 50, 57 subsection l) of the LSAP as amended by the LFFP and Transitory Provision XXXI of this Law No. 9635.

The legislature is the entity called upon to establish the incentives and the amount of the economic benefits granted to its public servants; therefore, it must be understood that the economic amount granted as service bonuses (anualidades) is a function of the intensity with which the legislature wishes to incentivize the permanence in the position of public officials and the economic capacity to pay the sums derived from that incentive. The legislature could even eliminate the payment of service bonuses (anualidades) and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, since the obligation to recognize service bonuses (anualidades) is not stipulated in constitutional-level rules, but rather in legal ones.

The permanent nature implicit in granting the service bonus (anualidad) a nominal value that is stable over time is justified by the need to achieve a situation of balance in public finances, which goes beyond overcoming a temporary economic crisis, as it constitutes an economic objective that it is desirable to maintain over time. If it is established that, after a certain period, the changes made to the legal rules regulating public sector remuneration must be reversed, it is possible that states of economic instability, which are undesirable in the short, medium, and long term, may be reached again. The State has the obligation to promote efficiency in the provision of public services and must therefore promote the efficiency of public employment, which does not mean that this objective can only be achieved through the payment of service bonuses (anualidades). It adds that part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenditures generated by the State's payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation and resource availability.

Its represented party does agree with the petitioner in that there is no logical reason for the payment of the service bonus (anualidad) to be made, in all cases, as of the first half of June each year, and there is no justification for persons who complete their service bonus (anualidad) immediately after that date having to wait periods that could be nearly a year to receive the respective compensation; a situation that is unreasonable and discriminatory, since those who complete the service bonus (anualidad) in May or June, for example, would receive their compensation under temporally more favorable conditions than those who complete it in July or August of each year. Therefore, the Office of the Attorney General considers that the system should allow that, once the performance evaluation has been completed and the level of efficiency required by the current regulations has been demonstrated, the economic incentive can be recognized no later than the month following the date on which the official completes his or her service bonus (anualidad).

On the other hand, regarding the claim that service bonuses (anualidades) should not be revalued according to the higher-category position that employees may come to hold, it insists that it is the legislature that has the power to decide which aspects of the service relationship should be incentivized through the payment of service bonuses (anualidades), or through the revaluation of that benefit, all in accordance with the prevailing economic possibilities. It considers it evident that revaluing the economic incentives already acquired in the event that the official is promoted to a higher position could be an important incentive to promote the administrative career; however, it argues that this implies an expenditure of resources that might not be consistent with the intention of balancing public finances and, faced with that situation, it is up to the legislature to decide—as it has already done—whether to incentivize the administrative career or to promote the balance of public finances, without opting for one decision or the other implying any violation of constitutional rules or principles.

In another vein, it points out that the suppression of the phrase in Article 12 of the LSAP that stated that public sector servants would be credited with time served in other public sector entities for purposes of annual increases is contrary to the doctrine of the State as Sole Employer, which emerged as a way to ensure workers who move from one State institution to another the continuity in the enjoyment of rights recognized throughout the public sector. However, it argues that despite this, it is not possible to affirm that said doctrine is untouchable for the legislature, since its creation occurred through legal-rank and not constitutional rules, which validly leads to the affirmation that just as the legislature authorized the recognition of time served in different State institutions for the purposes of paying service bonuses (anualidades), it is the same legislature that is empowered to modify that authorization when it deems it necessary to achieve the balance of public finances.

Regarding a transitory provision establishing permanent effects, it argues that such an objection could be useful to show that the duty to follow good legislative technique has been infringed; however, it considers that such an infringement could not render the rule unconstitutional, since it is not a substantial defect that justifies annulling the express will of the law.

**The second ground of unconstitutionality** alleged by the petitioner is for violation of the principle of non-retroactivity of the law and disregard for consolidated legal situations in relation to the reform made to Articles 50, 54, 56, 57 subsection l) of the LSAP and Transitory Provisions XXVII and XXXI, all of the LFFP No. 9635.

The objections raised here revolve around the issue of the prevalence or not of a supervening law (the LFFP) over current collective bargaining agreements and, in this regard, it recalls that in opinion C-060-2019, the Office of the Attorney General expressed its criterion in the sense that there are no constitutional reasons justifying giving prevalence to the mandates of a collective bargaining agreement or any other normative instrument over the law. It points out that the foregoing does not mean disregarding the vested rights (derechos adquiridos) or consolidated legal situations of the recipients of the collective bargaining agreements, because the application of the legal mandates that conflict with what was agreed in said agreements governs for the future, which implies that the labor benefits incorporated into the patrimony of each person by the application of the collective agreement clauses repealed by the law will remain in the patrimony of each of the persons who received them.

Regarding the current employees of Banco Nacional who, according to the petitioner, maintain a vested right (derecho adquirido) for the calculation of the severance pay (cesantía) benefit to be made on a maximum of twenty years of service (which was the limit admitted in the collective bargaining agreement) and not on a maximum of twelve years, as established by Transitory Provision XXVII of Law No. 9635, it recalls that the right to severance pay (cesantía) is acquired only when the termination of the service relationship occurs, and provided that said termination is due to one of the causes that justify the payment of that indemnity. Thus, before that occurs, the interested party has only a mere expectation of a right that could not prevail over legal-rank provisions such as those introduced into the LSAP by means of the LFFP. For the reasons stated, the Office of the Attorney General does not consider that Articles 50, 54, 56, 57 subsection l) and Transitory Provisions XXVII and XXXI of the LSAP infringe Article 34 of the Constitution by disregarding vested rights (derechos adquiridos) or consolidated legal situations of public sector officials.

**The third ground of unconstitutionality** is raised for violation of the principle of free collective bargaining regarding Articles 39, 50, 54, 55, 57 subsection l) of the LSAP amended by Law No. 9635 and its Transitory Provisions XXVII, XXXI, and XXXVI.

The right to collective bargaining for public servants is a right subject to legislative configuration, so its scope of application, as well as its reach, can be defined by legal-rank rules, without this necessarily implying a violation of constitutional rules. While it is true that some of the principles derived from Article 62 of the Political Constitution could apply to collective bargaining in the public sector, it is also true that this rule was not intended to be applied to public employment relations. To demonstrate this situation, it should be noted that ILO Convention No. 98 on the Right to Organise and Collective Bargaining, adopted in 1949, excluded public officials of the State Administration from its scope of application (Article 6), which shows that, for that year (which coincides with the promulgation of the current Political Constitution), the possibility was not envisaged for public employment relations to be governed by conventional rules, but rather by statutory rules, unilaterally issued by the State. The foregoing is consistent with the provisions of Article 191 of the Political Constitution to the effect that *“A civil service statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration”*; a rule that reflects a unifying vision of the rules that should prevail in employment relations between the State and its servants, which is compatible with the regulations on collective bargaining established in the LFFP. The absolute freedom of bargaining that the petitioner derives from Article 62 of the Political Constitution applies in relation to the labor conditions of the private sector, not for those of the public sector, since the latter is governed by rules and principles that, in some cases, are diametrically different from those of private employment.

The same treatment cannot be given to the use and disposition of public funds (which are what finance public employment relations) as is given to the use of private funds, because the former must be oriented toward the pursuit of the public interest and are therefore not absolutely available to the parties negotiating a collective bargaining agreement in the public sphere.

For many years, the Constitutional Chamber has maintained the thesis that collective bargaining in the public sector is not comparable to that of the private sector and that the former must respect the laws, regulations, and current guidelines in force, for example, in judgment No. 4453-2000, where it indicated that even in the public sector in which the application of collective bargaining agreements is constitutionally possible, in the companies or economic services of the State and in the personnel units of public institutions and entities in which the services they provide do not participate in public management, the Chamber reiterates and confirms its jurisprudence to the effect that the authorization to bargain cannot be unrestricted nor comparable to the situation of a private employer, because through this route, current laws, regulations, or governmental guidelines cannot be dispensed with or excepted, nor can laws that grant or regulate the competencies of public entities be modified or repealed.

In addition to the above, it recalls that no right, fundamental or not, is unrestricted; rather, all of them are subject to the limitations and restrictions inherent to their nature, provided that the latter are reasonable and are contained in legal-rank rules, as occurs with those imposed on collective bargaining in the public sector by the LFFP.

The principles of efficiency in the management of public funds, rationality of expenditure, sound management of public finances, etc., which are of constitutional rank, must be harmonized with the possibility of collective bargaining in the public sector, which cannot be unrestricted but must, on the contrary, adapt to the country's economic possibilities.

The Chamber, when analyzing the constitutionality of the bill that contained Article 55 of the LSAP and Transitory Provision XXXVI of what is now the LFFP, indicated that public sector employees who can validly enter into collective bargaining agreements cannot be limited in the possibility of creating incentives, compensations, or salary bonuses, and that the head of each public entity cannot be denied the power to denounce or not the respective collective bargaining agreement (Advisory Opinion No. 2018-019511).

The legislature can indeed establish restrictions on the exercise of the right to collective bargaining in the public sector, such as those regulated in Article 55 of the LSAP and Transitory Provision XXXVI of the LFFP. Imposing certain restrictions on collective bargaining in the public sector regarding severance pay (cesantía), the valuation of service bonuses (anualidades) and incentives, and the creation of new supplementary salaries does not empty the right to bargaining of its content, nor does it affect its essential core. It adds that, likewise, the obligation to denounce collective bargaining agreements upon expiration of the agreed term is aimed at adapting those instruments to the rules in force on the matter, but does not inhibit the possibility of entering into new agreements, provided that those instruments adapt—as has always been required—to the prevailing legal framework.

Establishing certain restrictions on collective bargaining in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been of public knowledge and whose attention has required sacrifices, not only from persons linked to the State by a public employment relationship, but from all economic and social sectors.

On the other hand, it points out that it is not possible to compare unions with solidarity associations (asociaciones solidaristas), since they are distinct figures, with their own characteristics that are very different from each other, and, in that sense, it recalls that solidarity associations (asociaciones solidaristas) have not been granted the right to collective bargaining, nor the right to strike, without them therefore being in a situation of unconstitutional disadvantage or discrimination with respect to unions.

Finally, regarding the objection relating to the permanent and non-temporary nature of what is regulated in Transitory Provision XXXVI of the LFFP (related to the obligation to denounce collective bargaining agreements upon expiration of the agreed term), it can be considered as a possible infringement of proper legislative technique, but it does not render the affected rules unconstitutional, as it is not a serious defect that justifies annulling those provisions.

It concludes with the suggestion that the Constitutional Chamber declare this action without merit, with the exception of the provision in the first paragraph of Article 12 of the LSAP, specifically, the phrase indicating that *“The service bonus incentive shall be recognized in the first half of the month of June of each year.”* **6.-** The edicts referred to in the second paragraph of Article 81 of the LJC were published in numbers 57, 58, and 59 of the Judicial Bulletin, of the days 21, 22, and 25 of March 2019.

**7.-** In a brief filed with the Secretariat of the Chamber on April 4, 2019, **Enrique Egloff Gerli**, in his capacity as **President of the Costa Rican Chamber of Industries (Asociación Cámara de Industrias de Costa Rica)**, appeared to request passive coadjuvancy in this matter.

He says that SEBANA's arguments start from a legally mistaken premise: that the payment of service bonuses (anualidades) is a fundamental labor right recognized at the constitutional level. This is not true because service bonuses (anualidades) are an exclusive creation of the legislature, so the first argument of the action refers to a typical case of legislative discretion, and the petitioner's criterion is not admissible because increasing, decreasing, or eliminating service bonuses (anualidades) can be varied over time as the country's economic and fiscal conditions change.

The challenged rules establish the percentage by which service bonuses (anualidades) may grow henceforth because previously the contradiction occurred that they grew more than inflation, which is contrary to the constitutional principle of reasonableness, without there being a fundamental right to service bonuses (anualidades) as the petitioner claims.

The system of annual salary increases should be the same as occurs with minimum wages in the private sector, which occurs only due to increases in the cost of living, since there is no justification whatsoever, neither legal nor economic, much less fiscal, for public employees to enjoy privileges in this matter over private ones, which harms the principle of equality, with the aggravating factor that the average salary level of the Public Administration is much higher than that prevailing in the sphere of private enterprise where, for equal work, less is paid despite the fact that it has been shown that employees are more efficient.

It is not true that service bonuses (anualidades) are linked to the efficiency of the public sector, since they have been paid and increased without support in technical criteria, decoupled from the increase in the cost of living, and therefore it is not harmful to Articles 191 and 192 of the Political Constitution. In the past, the State—under other fiscal conditions—could guarantee a very generous system regarding service bonuses (anualidades), but today the situation has changed radically, and therefore the situation must be adjusted to the fiscal reality of the country, which is being done through the challenged regulations that respect the vested rights (derechos adquiridos) of public servants up to the moment of its entry into force, and what has been done is constitutionally valid. The payment of service bonuses (anualidades) is condemned to disappear, since it only serves to increase the salary without reasonable justification, because the payment is made automatically merely by accumulating years of service. It recalls that the rights and obligations of public servants are those exhaustively established by the legal system, and therefore the legislature has discretion to regulate salary bonuses as it deems most opportune in view of the country's fiscal health. Access to public positions is based on equality of opportunity, and the selection of personnel for public positions is measured by a criterion of proven suitability that has no relation to the payment of seniority; therefore, it is not true that varying the payment of service bonuses (anualidades) will disincentivize or hinder access to public positions by merit.

Certainly, the matter regulated by Transitional Provision XXXIII should have been included in a substantive provision of the law because the legal nature of transitional provisions is to enable the transition from the previous regulations to the new ones; although this is a matter of poor legislative technique that may be reproachable, it is not unconstitutional.

There are no reasons justifying the first claim of unconstitutionality raised by the plaintiff, and therefore it requests that it be declared without merit.

Regarding the second ground of unconstitutionality alleged, it considers that there is also no defect of unconstitutionality. All provisions can be modified for the future by another of equal or higher rank without this implying a violation of the principle of non-retroactivity of the law; a principle that is only violated when acquired rights and consolidated legal situations have arisen as a direct consequence of subjective legal situations created under the protection of prior legislation, and it warns that legal situations consolidated or rights acquired are not considered to be those derived from collective bargaining agreements, regulations, or statutes, because these are provisions that regulate objective situations.

Consequently, it considers that none of the provisions being challenged implies a violation of the principle of non-retroactivity of the law, since what the legislator has done is to modify, with future effects, objective situations created by prior legislation.

In Costa Rica, the relationship between public servants and the State is statutory in nature, and therefore the conclusion of collective bargaining agreements is prohibited in the state sphere, with the exception of public enterprises and economic services of the State governed by private law, so it is logical to conclude that public servants cannot obtain any right under their protection.

A distinction must be made between the source producing the act and the legal nature of the act itself, such that a collective bargaining agreement, although it has legal value, does not come from the Legislative Assembly and therefore does not have the same force, meaning that these are provisions that can indeed be modified for the future, because what would be unconstitutional is if the challenged provisions had retroactively modified the system of service-based pay increments (anualidades) contained in the prior legislation. In this case, there is a constitutional authorization to modify the content of those provisions for the future—as of the entry into force of the new regulations—since it is a discretionary power of the legislator to modify the rights and obligations of public servants prospectively in order to protect the public interest. The legal system is not immutable, and the legislator has the discretionary power to modify it with the sole limit of not retroactively affecting acquired rights and consolidated legal situations prior to its entry into force. It adds that the legislator also has full freedom to choose the parameter it deems appropriate to determine future service-based pay increments (anualidades), without this implying an injury to the principle of non-retroactivity of the law.

The challenged Article 56 is poorly drafted, but it is not unconstitutional for that reason, because respect for acquired rights is a matter of principle and it is not necessary to indicate it expressly, so that collective bargaining agreements can be modified for the future by the legislator, and the only thing the latter must respect are the rights incorporated into the patrimony of individuals, meaning it can freely change the existing rules of the game as long as the servants do not have an acquired right, even when they have an expectation of a right.

As for the third ground of unconstitutionality, it reiterates that collective bargaining agreements are only applicable to public enterprises and economic services of the State governed by private law; therefore, the challenged regulations are applicable to all public servants, since the signing of collective bargaining agreements in the state sphere is prohibited, and as a result, the legislator can modify the maximum amount of the severance pay (auxilio de cesantía) for public servants without incurring a violation of the freedom to conclude collective bargaining agreements.

The challenged Article 39 and Transitional Provisions XXVII and XXXVI are not discriminatory regarding solidarist associations (asociaciones solidaristas), since Law No. 9635, being subsequent to Law No. 6970, amended it in the pertinent parts, although due to an error in legislative technique, this amendment was not expressly recorded in its text; however, it is evident that it was amended insofar as it authorizes the payment of severance pay (auxilio de cesantía) without being subject to any limit of years worked, given that there is a supervening incompatibility between the content of both laws regarding servants covered by the solidarist regime. It argues that, on the other hand, if the freedom of collective bargaining is prohibited in the public sector—with the two existing exceptions—it is not legally possible for that freedom to be violated by the challenged regulations, and, therefore, it is valid to regulate the payment of service-based pay increments (anualidades) in the state sector because the rights and obligations of public servants are solely and exclusively those established by law, by virtue of the principle of inalienability of the relationship, according to which the parties cannot negotiate the content of the service relationship existing between them.

The principle of progressivity applies to the freedom of collective bargaining, but since this right does not exist in the state sphere, it cannot be invoked as a parameter of constitutional validity for the challenged regulations. It concludes by requesting that the action be declared without merit.

**8.-** Through a document filed on April 9, 2019, **Miguel Ernesto Carranza Díaz** appears in his capacity as a public official, Internal Control and Central Archive Facilitator of the Hospital Monseñor Sanabria, to request that he be recognized as an active coadjuvant in this unconstitutionality action, as he considers himself affected by the challenged regulatory provisions, and he points out that, due to his condition as a public official and in the face of potential promotions, his economic income will be harmed.

**9.-** **Marvin Atencio Delgado** appears in his capacity as **general secretary of the Sindicato de Profesionales en Ciencias Médicas de la Caja Costarricense de Seguro Social e Instituciones Afines (SIPROCIMECA)**, through a document filed with the Secretariat of the Chamber on April 9, 2019, and requests that his represented party be considered an active coadjuvant in this unconstitutionality action. The union organization he represents fully adheres to the arguments put forth by the plaintiff and believes that the challenged provisions contravene the principles of due process, freedom of collective bargaining, non-retroactivity of the law, and respect for consolidated legal situations. It requests that the unconstitutionality action be declared with merit in all its aspects.

**10.-** **Álvaro Adrián Madrigal Mora**, in his capacity as **Secretary General of the Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN)**, appears through a document delivered to the Secretariat of the Chamber on April 10, 2019, to request that his represented party be considered an active coadjuvant in this unconstitutionality action.

Regarding the payment of severance pay (auxilio de cesantía), he states that the reform contained in Law No. 9635 did not consider the latest reform to the Worker Protection Law, which stipulated the right to severance pay (auxilio de cesantía) as an effective right for workers without being subject to a limit of years, as provided by Article 8 of Law No. 7983. Therefore, in his opinion, the provision contained in Article 3 of Law No. 9635, which added Article 39 of Law No. 2166, and Transitional Provision XXVII challenged herein, would also be contrary to Article 7 of the Political Constitution. This is because the ILO Conventions are a higher authority over the ordinary laws of Costa Rica, in which it has been established that collective bargaining, labor relations in the public administration, and the right to unionize are acquired rights; he recalls that Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. In the same terms are Conventions 151 and 154 of the ILO. Neither the Legislative Assembly nor the Constitutional Chamber can disregard such conventions because they are clear in stating that collective bargaining is permitted for public sector workers and that it will enjoy independence from the authorities (Articles 7 and 48 of the Political Constitution). Through the different laws enacted in the country, the legislative will can be inferred that the right to severance pay (auxilio de cesantía) applies not only in cases of dismissal with employer liability, but also in relation to retirement, old-age pension, death, or withdrawal granted by the CCSS or the various pension systems of the Branches of Government, the TSE, the autonomous institutions, semi-autonomous institutions, and the municipalities. In labor law, one starts from a right of minimums, so higher ceilings can be established, adjusted to the principles of reasonableness and proportionality. He indicates that the arguments raised in the unconstitutionality action regarding severance pay (auxilio de cesantía) are fully applicable to the workers of the Universidad Nacional, where, by way of a collective bargaining agreement, the ceiling for severance pay (auxilio de cesantía) has been fifteen years, and this remains in force in the recently extended IV Collective Labor Agreement UNA-SITUN, with a progressive and staggered increase up to twenty years as the maximum ceiling, with its full application as of the year 2017. He indicates that with the regressive reform introduced to the Labor Code through the Worker Protection Law No. 7983 of February 2000, workers in both the public and private sectors saw the proportion to be paid for severance pay (auxilio de cesantía) reduced, as a calculation table was established that worsens the benefit, according to the provisions of Article 29 of the Labor Code.

On the other hand, regarding the incentive of service-based pay increments (anualidades), he states that this is closely linked to the recognition of time served in the public sector, which, in the case of the UNA, is a salary supplement called service-based pay increment (anualidad) that, at that date, constitutes 4% of the base salary for each year worked for the institution and is dissociated from any type of annual evaluation, having been included through salary negotiation in the various collective bargaining agreements. He argues that the importance of the permanence and experience of workers has also been recognized in other public higher education institutions, and therefore the collective bargaining agreement recognizes it for all its academic and administrative workers. But it is also included in the Convenio de Coordinación de la Educación Superior Universitaria Estatal de Costa Rica, signed by the four rectors of the state universities. The objective that originates and sustains this recognition is the permanence and experience in the public sector, as opposed to the private sector, because the ends or objectives of both are not the same: private activity promotes profit and utilities for a reduced group of business owners, while the public sector seeks the development of state institutions with the objective of public service. Therefore, permanence and experience in the latter seek to provide the service in the most optimal way possible and the recruitment of better-trained and qualified human resources. It is irrational and disproportionate that the same fixed nominal, invariable amount has been set for the entire salary scale, as this is a set of differentiated categories, since each job or position has a profile and other elements that assign it a specific, diverse salary according to the volume and responsibilities of the position. The provision of the challenged Article 50 affects the acquired rights of public sector workers because no differentiation is established between those who are already incorporated and acquired their right to a service-based pay increment (anualidad) in percentage form, and now, suddenly, it is intended to transform this into an invariable fixed nominal sum, which is a direct impact on the salary that undermines the principle of salary protection as a fundamental component of the employment relationship with the State as employer. Transitional Provision XXXI permanently complements what is provided in the challenged Article 50 by establishing the percentages that will later define the fixed nominal amounts of the service-based pay increment (anualidad), which, by being frozen over time, will lose their real value, implying discrimination in relation to the differences in the percentages that existed (1.94% and 2.54%) and which are now intended to be calculated on a base salary from a date prior to the effective date of Law No. 9635. The reform made in Article 57, subsection l) is discriminatory in relation to the fixed application that will be made in the first half of June, since for people whose service-based pay increment (anualidad) is due from January to May, it will be delayed, while for those due from July to December, it will instead be advanced, which will generate a payment for them that does not yet correspond, and if this second group ceases their work, it creates a problem for the public treasury; a situation that will also affect interim workers, so some will be more benefited than others. This also intends to discourage people from seeking to improve their training and achieve temporary or permanent promotions, since it prevents the revaluation of already recognized incentives, disregarding the fact that the service-based pay increment (anualidad) is a salary concept that applies to the worker and not to the job or position, but it also generates legal uncertainty in the entire salary administration system of the public sector, evidencing a setback in salary policy and the system of economic incentives for public sector workers. The challenged Articles 54, 55, and 56 violate the right to collective bargaining and collective bargaining agreements in the public sector. Article 54 is ambiguous and indeterminate because it refers to "any other," which implies it refers to incentives or compensations, making it an *apertus* clause, harmful to legal certainty and the principle of legality. Article 56, for its part, is ambiguous because it refers to incentives "remunerated" on the date of entry into force of the law, applied in the future, which is strange because if they were remunerated, they cannot be applied in the future, so it seems that instead of "remunerated," it should have said "approved," since each public sector worker has in their individual file an approval document for all these incentives, compensations, and service-based pay increments (anualidades), so their modification must be made individually and with notification of the resolution so declaring it.

Transitional Provision XXXVI is ambiguous and indeterminate because it is not clear whether the alleged transitional obligation to denounce collective bargaining agreements is for the first opportunity or whether it must be applied indefinitely into the future each time the validity period of a collective bargaining agreement expires, with which the provision would no longer be transitional but would become substantive and permanent, thereby limiting the right to collective bargaining by conditioning one of the parties to denounce. This right is also limited as a fundamental right and is subjected to what the law establishes, but it does not say which law it refers to, whether it is Law No. 9635 or Law No. 2166, since it is in a law that amends another law. He recalls that in the event that a collective bargaining agreement is denounced and cannot be renegotiated, the rights and benefits contained in that and previous agreements are incorporated into the subjective and individual rights of each worker of the institution through their employment contract. To subject all collective bargaining to regulations issued by the Executive Branch is very dangerous for union freedom and the freedom of collective bargaining, because arbitrary abuses could occur by the rulers of the day to intend to limit the right to collective bargaining in the public sector through decrees, directives, or any lower-ranking provision that, in a dictatorial manner, is intended to be imposed on the union conglomerate of the public sector, losing the legal certainty that exists in the legal system. He points out as an example of this the Executive Decree No. 41654-MIDEPLAN-H, called Reglamento del Título III de la Ley de Fortalecimiento de las Finanzas Públicas referente al Empleo Público, with which, in his opinion, a series of abuses by the Executive Branch begins to be experienced by including a series of "definitions" based on the current interest of the Executive Branch and not on reality.

The second paragraph of Transitional Provision XXXVI contravenes, in addition to what was stated by the plaintiff, Articles 7 of the Political Constitution, 7, 23, and 25 of the Universal Declaration of Human Rights (UDHR), 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and 22 of the International Covenant on Civil and Political Rights (ICCPR). The correct dimension that the right to collective bargaining, which is of constitutional rank, must acquire in the case of the public sector is not that of a total curtailment for the servant as intended by the challenged regulations, but rather that its exercise is subject to certain limitations in consideration of the observance of the legal system, the limits of public spending, and the regulations that exist on the matter. If transitional provisions are part of temporary law because their objective is to resolve conflicts in the laws on a transitional basis, with the purpose of providing different and exceptional legal treatment, the legislator cannot pretend that such a provision be applied indefinitely in the transitional provisions challenged in this unconstitutionality action, since severance pay (auxilio de cesantía), the service-based pay increment (anualidad), and the denunciation of the collective bargaining agreement are not temporary issues, because the matters sought to be regulated are of an indeterminate nature. Therefore, although it is not appropriate, these transitional provisions will continue to be applied throughout the entire validity of the law, which distorts their objective. With the second paragraph of the challenged Transitional Provision XXXVI, the principle of non-delegability of state functions is also violated because the Legislative Assembly has sought to delegate certain of its own functions to the Executive Branch, and the latter, in turn, with the cited Executive Decree No. 41654-MIDEPLAN-H, to substitute the Constituent Assembly and the Legislative Assembly by interpreting and expanding the application of the contents of Title III of Law No. 9635 to public universities and the CCSS. It requests that, by connection, the constitutionality of Executive Decree No. 41654-MIDEPLAN-H, published on February 18, 2019, and particularly Article 3, be reviewed. It concludes by requesting that its represented party be recognized as an active coadjuvant and that the unconstitutionality action be declared with merit in all its aspects.

**11.-** Through a document filed with the Secretariat of the Chamber on April 10, 2019, **Róger Muñoz Mata** appears in his capacity as **Secretary General of the Unión de Empleados del Banco de Costa Rica (UNEBANCO)** to request that his represented party be admitted as an active coadjuvant, as it has a legitimate interest given that the amendment to the Salary Law of the Public Administration (LSAP) No. 2166 included, within its scope of regulation, the decentralized administration, i.e., autonomous institutions, semi-autonomous institutions, public enterprises of the State, and municipalities, with which the state banks became incorporated, which originally were not included within the coverage of that Salary Law, but which now, at the mercy of Law No. 9635, are subject to the provisions of Chapter III and following contained in Title III of that law. Therefore, his represented party has a legitimate interest in this process in protection of the collective interest of its members and the workers of the Banco de Costa Rica (BCR), since the provisions challenged in this action regarding severance pay (auxilio de cesantía), service-based pay increments (anualidades), incentives, salary compensations, and others, are relevant for the workers he represents because they are rights recognized to his members, regulated in the provisions of the collective agreement or in regulatory provisions, which are being affected by those legal provisions that harm their acquired rights and consolidated legal situations, whose protection is the responsibility of his represented party under Article 60 of the Constitution.

The challenged provisions directly impair the right of collective bargaining, not only regarding the specific regulation of the indicated salary items, but also the substantive nature of the right of collective bargaining as well as its essential content in the entire public sector, and the right of the union it represents in view of the upcoming negotiation of the current collective agreement, since the principle of collective autonomy is being undermined.

Art. 39 and Transitory XXVII are unconstitutional because the cut to the severance pay (auxilio de cesantía) to a maximum amount of eight years is incompatible with the evolution that the development of that right has had in Costa Rica and violates the principle of progressiveness of fundamental rights, substantive due process, collective bargaining, and is openly discriminatory against unions. Art. 26 of the ACHR provides that the States Parties undertake to adopt measures to progressively achieve the full effectiveness of the rights derived from the economic, social, and educational, scientific, and cultural norms contained in the Charter of the Organization of American States (OAS), which has a positive dimension implying that States are committed to progressively developing economic, social, and cultural rights aimed at their full effectiveness and universal satisfaction, but also a negative dimension that implies the irreversibility of the agreed protection, that is, the prohibition of any legislative measure that impairs or worsens a favorable legal situation recognized for individuals. In the specific case, the questioned norms, instead of developing and strengthening severance pay (auxilio de cesantía) as appropriate, impair that right and, instead of promoting the maximum effectiveness of that right, impose regressive regulation, incompatible with the principle of progressiveness.

They violate reasonableness and proportionality because the regression of eight years lacks any basis and that *ex lege* cap bears no equivalence or proportional relationship to the average career length or employment seniority of public servants.

The abrupt reduction of the cap on severance pay (auxilio de cesantía) could have unfavorable effects on the management of public services because it discourages the permanence of the public servant in the Public Administration, even though it facilitates the accumulation of experience that will ultimately translate into better management of public services. It also fosters discrimination and inequality between unions and solidarity associations because the latter have more benefits in this matter. The principle of collective autonomy contained in constitutional art. 62, which authorizes the negotiation of collective labor agreements in the public sector, is violated; a numeral that fulfills the function of the principle of constitutional legality by virtue of which collective labor agreements are recognized at the highest hierarchical level of the legal system, including agreements in the public sector. The recent reform to the Labor Code via Law No. 9343 recognizes the right of collective bargaining in the public sector, but the challenged regulations restrict or prohibit it, meaning there is an absolute prohibition against negotiating rules for severance pay (auxilio de cesantía) different from those stipulated in challenged art. 39. Transitory XXVII, together with the cited Art. 39, violate the principle of non-retroactivity of the law because they undermine the right of individuals to have recognized the severance pay (auxilio de cesantía) corresponding to the years they had accumulated on the date the law took effect, regardless of whether the right is recognized in a collective agreement, law, or any other source of the legal system, which violates a consolidated legal situation that cannot be ignored by a new law. In relation to Transitory XXXI, it states that it could never be argued that the seniority bonuses (anualidades) that public servants had accumulated on the date the new law took effect could be subjected to it, because that would be incompatible with the principle of non-retroactivity of the law. Similarly, it is contrary to this principle that the new form of calculation and payment of those seniority bonuses (anualidades) be applied with that new legal regime to the detriment of consolidated legal situations, and therefore it considers that they must continue to be paid on a percentage basis, as was done. That Transitory XXXI could be reasonable if the legislator had configured a framework of determined duration in time for it and had issued it as an extraordinary and temporary measure, but not indefinitely as it was enacted. The modification of the calculation parameter for the seniority bonus (anualidad) to an absolute amount is neither reasonable nor proportional, and furthermore, it lacks technical reasonableness by starting from differentiated percentages, depending on whether they are professional or non-professional classes, in the order of 1.94% or 2.54% respectively, without technical basis and violating free collective bargaining by not allowing another calculation modality to be proposed. Since the regulation of art. 50 did not stipulate any transitory provision, the conversion in the way of calculating incentives should not apply to public servants who were providing their services when the law was enacted, so that any other interpretation would be manifestly contrary not only to the text of the legal provision itself, but openly irreconcilable with the principle of non-retroactivity of the law, which could not have constitutional support.

Art. 57 subsection l) denaturalizes the seniority bonus (anualidad), which is intended to remunerate an annual period of work, meaning that the recognition of the seniority bonus (anualidad) in June of each year lacks all logic and proportionality, in addition to eliminating the recognition of time worked in the public sector, contrary to the principle of the single public employer (principio de patrono público único).

It concludes that the second paragraph of Transitory XXXI injures the principle of collective bargaining because it imposes the obligation that agreements be subject not only to provisions of this law, but also to any other regulation of the Executive Branch.

It requests that the unconstitutionality action be declared with merit in all its respects.

**12.-** Through a brief filed on April 12, 2019, **José Luis Soto Rodríguez, general secretary of the Unión del Personal del Instituto Nacional de Seguros (UPINS)**, filed a petition for active joinder (coadyuvancia activa) and considers that the claimants are correct, such that the challenged norms are openly unconstitutional.

His represented party has initiated ordinary labor proceedings in the Labor Court of the II Judicial Circuit of San José, processed under case files No. 19-000479-0166-LA and No. 19-000580-0166-LA, which aim at the recognition of the norms contained in the collective agreement of the Instituto Nacional de Seguros (INS) and UPINS and the consolidated legal situations of the workers of INS and the Bomberos de Costa Rica.

In advisory opinion No. 2018-019511, which addressed the constitutionality consultation on the draft of what is now Law No. 9635, the Constitutional Chamber stated that both the Political Constitution and the ILO conventions protect the right to free collective bargaining; therefore, limiting collective agreements by means of a law, forcing the parties to reform what was stipulated therein or imposing the regulations of Law No. 9635, is unconstitutional because it renders the fundamental right to free collective bargaining devoid of content. With the entry into force of the challenged norms, not only is the possibility of negotiating rights through collective agreements being limited, but, as indicated by the PGR in its pronouncement No. C-060-2019, the Government is forcing administrations to apply what is stipulated in Law No. 9635 as well as what it modified in the LSAP, which nullifies the norms contained in collective agreements, without them being expressly repealed. It recalls that collective agreements have the force of law, which allows both the institution and the unions to have the legal certainty that what was agreed upon will be fulfilled, and therefore, the challenged norms cannot limit or tacitly repeal the rights contained in a norm of a collective agreement without distorting its nature. The challenged norms are unconstitutional because they also contravene the provisions of arts. 188 and 189 of the Constitution, according to which autonomous institutions ‒such as the INS‒ have administrative independence and are only subject to the law in matters of governance, so it is unconstitutional for Law No. 9635 to attempt to regulate and limit their administrative independence, which violates their autonomy. It requests that the action be declared with merit with its consequences.

**13.-** Through a brief filed by **Gonzalo Francisco de Jesús Delgado Ramírez, in his capacity as president with powers of unlimited general agent (apoderado generalísimo sin límite de suma) of the Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado (UCCAEP) and Álvaro Sáenz Saborío in his capacity as special agent (apoderado especial) of that Union**, delivered to the Secretariat of the Chamber on April 12, 2019, it is requested that this guild be considered a passive joinder (coadyuvante pasivo) and asks that this unconstitutionality action be declared without merit.

Seniority bonuses (anualidades) are not a fundamental labor right, but rather a mere legislative creation subject to changes that the legislator itself can make, whether eliminating them, regulating them, and reforming them in accordance with the country's economic realities.

In the specific case, seniority bonuses (anualidades) have been growing more than inflation, which was unreasonable, disproportionate, and fiscally inconvenient. The system of annual salary increases must be similar to that of salaries in the private sector, where the increase occurs in accordance with the inflation index because, otherwise, public employees will continue to enjoy a privileged situation compared to the rest of the workers, which contradicts the principle of equality and violates the ideal of a social welfare State; a situation that has generated a disproportion in the sense that the average salary of the Public Administration is much higher than that of the rest of the country's workers. The minimum salaries of public workers must be uniform and their increase must be determined by the inflation index as an objective parameter, given that there is no supposed "constitutional right to seniority bonuses (anualidades)", as the claimants allege, and, if it existed, it should then also be given to the private worker.

They point out that the existence of seniority bonuses (anualidades) is not conditioned on the efficiency of the public employee, but rather it is a salary bonus that was paid and grew automatically for public officials, which became an annual salary increase without any criteria and without relation to inflation; therefore, its regulation, elimination, or reduction does not violate any fundamental or constitutional norm. The legislator is not obliged to grant benefits *ad perpetuam* or *sine die*, because society's needs are changeable, so that legislation that was beneficial for the community at one time may need to be changed or even abolished, if the situation so demands. The salary scale, based on hierarchy and responsibility, is justified by objective parameters, which is why it is reasonable that the system for recognizing seniority bonuses (anualidades) varies in accordance with the official's hierarchy, the complexity of their technical capabilities, so that there is equity in the remuneration, which does not violate the principle of proportionality because, unlike the private employee, the only way to establish scales and differences in the prerogatives and obligations of public servants is through law. The challenged norms do not imply any obstacle to access to public positions by merit, as the claimants allege, establishing inequalities between old and new workers, as there are other objective technical criteria, parameters, and measurements of suitability for the exercise of public positions, such as evaluations under the different regimes, credentials, qualifications, experience, or academic degrees, which has nothing to do with the seniority regime. The challenged legislation does not contravene substantive due process because what it intends is to impose a relationship of greater equity and justice with private workers, since, as is known, seniority bonuses (anualidades) are a perk or a privilege that is circumscribed to the public sector, which introduces a hateful situation in the entirety of the labor regime and the Social State, which is why well-known situations occur, such as the fact that a worker in a private company sometimes receives a tenth of what a public sector worker receives for doing the same job. The challenged norms do not attack the principle of public efficiency, since seniority bonuses (anualidades) have no relation whatsoever to an objective system of qualification and merit that would suggest that seniority bonuses (anualidades) affect the efficiency of the public service system. Norms can be varied as long as parameters such as the hierarchy of norms, competence, the body producing the norm and its competence, and respect for the non-retroactivity of rights acquired by law are respected, all of which they consider has not been violated in the challenged regulations, because those that arise or are born from collective agreements, regulations, or simple statutory regulations cannot be considered consolidated legal situations or acquired rights, insofar as they are objective situations, so in this case, what the legislator did was simply modify, for the future, objective situations created by previous laws. The Chamber has been reiterative in its jurisprudence stating that the relationship between public servants and the State is of a statutory nature, so it is not possible to obtain benefits from collective agreements signed in the state sphere since that prerogative is limited only to public enterprises and economic services of the State, governed by private law in accordance with Public Administration legislation, so acquired rights derived from benefits obtained from collective agreements for State servants cannot be claimed. If the negotiation of collective agreements between State servants is prohibited, then it cannot be invoked that the challenged norms violate the freedom of collective bargaining; therefore, the amounts of the severance pay (auxilio de cesantía) payment can even be modified without transgressing the freedom to negotiate collective agreements. SEBANA makes the mistake of considering that any norm that grants some benefit is by itself immutable and cannot be reformed, but forgets that only subjective situations are protected by the non-retroactivity of the norm. In the present case, acquired rights essentially refer to those that already belong to one's personal patrimony, so the legislator can indeed vary the regulations regarding potential future rights, because those are not acquired rights, but rather one more expectation. The challenged regulations do not injure any right of the solidarity associations, since they are subsequent to the Ley de Asociaciones Solidaristas, thus fulfilling the same principle in the sense that the legislator can approve subsequent laws that modify the regulatory reality. The international conventions of the ILO have a lower rank than the Constitution, so they cannot contradict constitutional numerals 191 and 192. Finally, the challenged regulations are not unconstitutional and therefore they ask that this unconstitutionality action be declared without merit.

**14.-** Through a brief filed on April 12, 2019, **Luis Gerardo Chavarría Vega, in his capacity as general secretary of the Unión Nacional de Empleados de la Caja y la Seguridad Social (UNDECA)**, appears and requests that his represented party be considered an active joinder (coadyuvante activo) in this unconstitutionality action.

The challenged art. 39 and Transitory XXVII are unconstitutional for several reasons; first, due to the cap imposed on the severance pay (auxilio de cesantía) to a maximum of eight years, which is totally incompatible with the evolution that the development of that right has had in Costa Rica and which implies a violation of the principle of progressiveness of fundamental rights, of substantive due process, of the right to collective bargaining, and because it is discriminatory against unions. The purpose of constitutional numeral 63 is to protect workers who lose their employment as a result of a dismissal without just cause, but that numeral does not prohibit that the worker be recognized the severance pay (auxilio de cesantía) in other circumstances. It points out that due to the historical evolution of the institute of severance pay (auxilio de cesantía) in Costa Rica, it does not have an exclusively compensatory nature because it was also recognized when the worker retires or receives a pension, thus configuring itself as an expectation of right without being of a reparatory nature; a situation that, hand in hand with the enactment of the Ley de Asociaciones Solidaristas, broke the minimum cap established in art. 29 of the Labor Code, with the challenged art. 39 and the corresponding Transitory violating this historical evolution of severance pay (auxilio de cesantía), consolidated as a personal, indisputable right of the worker, which is not subject to arbitrary caps, in addition to being considered disproportionate, because a public official, to consolidate the retirement right, needs to be at least 62 years old ‒men‒ and 60 years old ‒women‒, with a number of contributions equivalent to no less than thirty-eight years of service. A cap of eight years like the one imposed by the challenged regulations is left totally mismatched and devoid of all reasonableness and proportionality. The abrupt reduction of the cap on severance pay (auxilio de cesantía) could have unfavorable effects on the management of public services, because it discourages the permanence of the public servant in the Public Administration, whose continuity facilitates the accumulation of experience, with this new cap leaving unions in a situation of discrimination compared to solidarity associations because, while a cap of eight years is imposed on collective agreements, the employer contributions corresponding to workers affiliated with solidarity associations have no limit or cap; and in turn, they violate the principle of autonomy and collective bargaining as well as the principle of non-retroactivity of the law.

Regarding challenged art. 50 and Transitory XXXI, the new rule established for the payment of the seniority bonus (anualidad) incentive should not apply to public servants who were working on the effective date of Law No. 9635 and, therefore, it could not be argued that the seniority bonuses (anualidades) that public servants had recognized and accumulated on the date the law took effect can be subjected to the new rules, meaning that an interpretation of this type would be unconstitutional as it violates the principle of non-retroactivity of the law to the detriment of the acquired rights and consolidated legal situations of those public servants, to the detriment of the seniority bonuses (anualidades) accumulated as of the effective date.

Transitory XXXI violates the principle of necessity, proportionality, and reasonableness, as it comes to transform the calculation parameter of the seniority bonus (anualidad) from a percentage factor to a nominal or absolute amount, which would remain invariable, that is, the amount of the seniority bonus (anualidad) is frozen *ad perpetuam*, which will mean that its real value will progressively deteriorate at the expense of inflation, deteriorating the country's economic situation.

Regarding challenged art. 54, no transitory provision was stipulated, so this differentiated treatment allows one to argue that the conversion in the norm for calculating incentives does not apply to public servants who were providing their services when said law was enacted, so seeking to interpret it otherwise would be totally unconstitutional because it would violate the consolidated legal situations of individuals who have already acquired rights under the regulations that governed those salary incentives or supplements, whether those regulations correspond to a law, collective agreement, or any other normative source of the legal system. This norm would have a devastating effect on the salary levels of public servants whose salary incentives or compensations would remain frozen.

In relation to art.

55 challenged, argues that it was determined that it was not unconstitutional as long as it is understood as the Constitutional Chamber interpreted it, and the challenged art. 56 is not in itself unconstitutional because it can be interpreted as constituting a kind of general safeguard clause for the acquired rights and consolidated legal situations of public servants, whose scope permeates all the provisions contained in Title Three and the corresponding transitory provisions of Law No. 9635.

Art. 57, subsection l) distorts the annual bonus (anualidad) whose purpose is to remunerate an annual period of work, so that its recognition in June of each year lacks all logic and proportionality, and eliminates the recognition of time worked in the public sector, contrary to the principle of the single public employer.

It concludes that in relation to Transitory Provision XXXI, its second paragraph violates the principle of collective bargaining because it imposes the obligation that collective bargaining agreements be subject not only to the provisions of this law, but also to any other regulation of the Executive Branch. It ends by requesting that the action filed be declared with merit.

**15.-** By resolution at 09:54 hrs. on **April 25, 2019**, the Presidency of the Constitutional Chamber made two warnings:

“Prior to resolving the requests for joinder, the petitioner Marvin Atencio Delgado, identity card number 6-0178-0481, in his capacity as General Secretary of the Union of Professionals in Medical Sciences of the Costa Rican Social Security Fund and Related Institutions (SIPROCIMECA), is warned that he must provide the current legal status (personería jurídica) of the union he represents, accrediting the capacity he claims to hold with respect to that entity. Likewise, Álvaro Adrián Madrigal Mora, identity card number 1-0675-0987, in his capacity as General Secretary of the Union of Workers of the National University (SITUN), is warned that he must resubmit the document filing his joinder, since the digital document contained in the file is incomplete (folio 58 is missing).” **16.-** By resolution at 13:10 hrs. on **May 2, 2019**, the Presidency of the Chamber made the following warning:

“Prior to resolving the request for joinder, the petitioner Juan Carlos Chaves Araya, identity card No. 107210335, in his capacity as General Secretary of the Union of Workers of the Banco Popular y de Desarrollo Comunal (SIBANPO), is warned that he must provide the current legal status (personería jurídica) of the union he represents, accrediting the capacity he claims to hold with respect to that entity.” **17.-** By resolution at 09:29 hrs. on **May 8, 2019**, the Presidency of the Chamber resolved the following:

i. The following are admitted as passive coadjuvants: Messrs. Enrique Egloff Gerli in his capacity as president of the Costa Rican Chamber of Industries Association and Álvaro Sáenz Saborío in his capacity as special attorney-in-fact of the Costa Rican Union of Chambers and Associations of the Private Business Sector, because their interest is that this unconstitutionality action be declared without merit; ii. Messrs. Juan Carlos Chaves Araya in his capacity as general secretary of SIBANPO, Miguel Ernesto Carranza Díaz as a public official, Marvin Atencio Delgado in his capacity as general secretary of SIPROCIMECA, Álvaro Adrián Madrigal Mora as general secretary of SITUN, Róger Muñoz Mata in his capacity as general secretary of UNEBANCO, José Luis Soto Rodríguez in his capacity as general secretary of UPINS, and Luis Gerardo Chavarría Vega as general secretary of UNDECA, are admitted as active coadjuvants, since their interest is that this action be declared with merit; iii. The hearing granted to the PGR was deemed responded to; and iv. The action is assigned to the reporting magistrate who, by rotation, corresponds to its substantive study.

**18.-** On **March 22, 2019**, unconstitutionality action **No. 19-004931-0007-CO** was filed by Mr. **ALBINO VARGAS BARRANTES**, in his capacity as **GENERAL SECRETARY and JUDICIAL AND EXTRAJUDICIAL REPRESENTATIVE of the NATIONAL ASSOCIATION OF PUBLIC AND PRIVATE EMPLOYEES (ANEP).** The arguments were as follows:

“1.- **\underline{Article 26 added to Law No. 2166.}** It harms the principle of municipal autonomy and constitutional articles 11, 169, 170, and 188. This rule was created with the idea of cushioning public spending, sustained by the Government's crisis, and despite dealing with a Central Government situation, including decentralized institutions and autonomous entities in general within its application, as is the case with municipalities within the scope of this Law, violates articles 11, 169, 170, and 188 of the Political Constitution regarding their autonomy. The challenged rule violates normative, administrative, and tax autonomy. Additionally, with challenged article 26, the Executive Branch is being granted powers of direction and administration over decentralized and autonomous institutions, which are limited by constitutional provisions.

2. **\underline{Article 28, paragraphs 2 and 4, as well as Article 6 of Regulation No. 41564-MIDEPLAN-H,}** indicates that it harms the principles of autonomy, legal certainty (seguridad jurídica), reasonableness and proportionality, progressivity of rights, and autonomy of will, as well as the content of constitutional article 28. The challenged rule is unconstitutional insofar as it imposes on public institutions in general, and mainly on autonomous and decentralized ones, an obligation to sign contracts for exclusive dedication (dedicación exclusiva) for a specific time period set in this Law, violating the institutions' autonomy to decide under what terms, according to their interests and particular conditions, and for how long (duration of the contract), they may sign this type of contract with their collaborators. Establishing in this article the obligation to sign exclusive dedication contracts within the stated time range (from one to five years maximum) also makes it impossible, through specific rules such as collective bargaining agreements or internal work regulations, to establish more beneficial rules for the worker or rules more in line with institutional needs, which harms the principles of progressivity of labor rights and the protective principle of labor law. In relation to the principle of progressivity, it points out that it is an interpretive principle according to which rights cannot diminish; therefore, by only being able to increase, they progress gradually. Regarding paragraph 4 of the rule, it has defects of unconstitutionality insofar as it violates the principle of legal certainty (seguridad jurídica), by establishing in an ambiguous manner the express prohibition for officials who, without having an exclusive dedication contract or receiving financial compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over public interest.

3.- **\underline{Article 30 and Article 7 of Regulation No. 41564- MIDEPLAN-H,}** argues that it violates the principles of legal certainty (seguridad jurídica), reasonableness, the protective principle, and non-regressivity of labor rights, as well as constitutional article 34. Both rules contain defects of unconstitutionality insofar as they represent a regression of rights and guarantees for the most vulnerable party in the employment relationship, which is the worker. The fact that through these regulatory provisions a situation of juridical uncertainty is generated for officials whose contracts have not been renewed, including those contracts signed before the entry into force of Law 9635, and by prohibiting the automatic renewal (prórroga tácita), a situation of disadvantage and uncertainty is created, violating the protective principle.

4.- **\underline{Article 31, subsection 1)}**, argues that it harms the principles of legal certainty (seguridad jurídica) and equality, and constitutional article 33. The rule does not include, within the positions that could be subject to the payment of the salary supplement (sobresueldo) for exclusive dedication and prohibition, all possible forms of contracting within the Public Administration. The provision, to the extent that it establishes a numerus clausus of persons who may be subject to the payment for exclusive dedication and prohibition within the Public Administration, generates a clear inequality and a situation of juridical insecurity in relation to other officials, whose categories are not contemplated.

5.- **\underline{Articles 32 and 33 added to Law No. 2166}**, violates the principles of legal certainty (seguridad jurídica), equality, reasonableness and proportionality, and the prohibition of arbitrariness, and constitutional article 33. Establishing limitations such as those indicated in articles 32 and 33 creates a clear situation of inequality between officials who have an exclusive dedication or prohibition contract and therefore receive the corresponding payment, versus officials who do not have this salary incentive, and yet the State prohibits them from practicing their profession, according to the cited rules, which is clearly unconstitutional.

6.- **\underline{Articles 35 and 36 added to Law 2166, violate the principles of progressivity of rights, equality, efficiency and effectiveness, reasonableness, proportionality, and constitutional articles 7, 33, 50, 56, and 57.** The new recognition percentages for salary supplements (sobresueldos) for exclusive dedication and prohibition under less beneficial conditions harm the principle of progressivity of rights, pointed out previously. The approved regulation worsens working conditions within the public sector, justified by the country's poor fiscal situation, which cannot be permanent. However, the approved reforms do not foresee that the workers' situation will change if the country's economic situation recovers, so that becomes a permanent sanction. The new compensation rules for public officials harm the principles of progressivity of rights and of efficiency and effectiveness in the Public Administration. This will generate, in the short term, an exodus of experienced professionals, as there are no attractive salary conditions to keep them within the system. This, compounded by the freezing of other salary supplements (sobresueldos) such as annual bonuses (anualidades) and other incentives, will have a direct impact on the efficiency and effectiveness of the function performed by the Administration. The reduction applied to the salary supplements for exclusive dedication and prohibition is irrational and lacks a technical study that could support that impairment of working conditions, without there being certainty that it is the cause of the country's fiscal problem, when it has been pointed out that the causes of the fiscal deficit derive from more complex problems such as tax evasion and avoidance. In the near future, there will be officials performing the same or similar functions, but receiving a totally different income. The set of rules challenged in this section makes it clear that the law's purpose of "standardizing and unifying" public employment regimes is false, and that the State is creating gross and unjustified differences between officials of the same category, promoting the violation of the constitutional principle of equality.

7.- **\underline{Article 39 added to Law No. 2166, indicates that it harms the principles of collective bargaining, rationality, proportionality, progressivity of rights, and most beneficial condition, as well as constitutional articles 33 and 62.** This provision closes the possibility for the public sector to sign collective bargaining agreements, which have the force of law between the parties, which harms constitutional article 62. The challenged rule harms not only the right to collective bargaining, but also the acquired rights and consolidated legal situations of officials who, at the time the rule entered into force (December 3, 2018), had already acquired working conditions that cannot be affected. Furthermore, this provision ignores the fact that there are collective bargaining agreements and regulations or statutes that already contain provisions regarding the payment of incentives or compensations on a percentage basis.

Collective bargaining (negociación colectiva) is a fundamental right contained in Article 62 of the Political Constitution, such that the possibility of negotiating better working conditions between the parties signing a collective bargaining agreement (convención colectiva) is a fundamental right that must be protected. Expressly prohibiting the possibility of negotiating a higher cap on severance pay (auxilio de cesantía) through a mutual agreement limits not only the right to collective bargaining, but also the possibility of obtaining better working conditions for public employees, thereby emptying it of content. Article 7 of the Political Constitution establishes that international treaties and conventions have authority superior to laws. In turn, union freedom (libertad sindical) is a right contained in Article 16 of the American Convention, in Article 8 of the Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador; also in Article 23 of the Universal Declaration of Human Rights, and Article 22 of the American Declaration of the Rights and Duties of Man and, therefore, must be observed in Costa Rica. Convention 87 of the International Labour Organization, called “Convention concerning Freedom of Association and Protection of the Right to Organise”, duly ratified by Costa Rica, establishes the obligation of the Costa Rican State to put into practice the provisions of said convention. The challenged Article 39 injures Article 4 of that convention, which orders that the State must procure and promote collective bargaining and not limit or hinder it, and recognizes that the collective bargaining agreement is the quintessential mechanism for improving employment conditions through social organizations. The fact that the country's economic situation is difficult does not make collective bargaining unconstitutional.

**8.- Article 40 and Article 16 of Executive Decree No. 41564-MIDEPLAN-H, it is estimated that it injures municipal autonomy (autonomía municipal), as well as the principles of efficiency and effectiveness, legal certainty (seguridad jurídica), the constitutional right to collective bargaining, the progressiveness (progresividad) of labor rights, and the protective principle of labor law.** The norm constitutes unconstitutional interference by the State, by affecting the possibilities of self-government possessed by the Municipal regime. It is a prohibitive norm that eliminates the possibility for local governments to determine their own needs and possibilities in salary matters and establish incentives for work personnel to remain in their jobs. It violates the principle of progressiveness of labor rights, as it causes regression in some institutions that already pay the quinquennium (quinquenio) incentive, whether by legal means (Article 90, subsection c) of the General Police Law, Article 27 of the Legislative Assembly Personnel Law) or regulatory means (Articles 99 and 100 of the Autonomous Regulation of the Costa Rican Tourism Institute) or through collective bargaining (Junta de Protección Social de San José).

9.- **Article 46 added to Law No. 2166 and Article 22 of Executive Decree No. 41564-MIDEPLAN-H, injure municipal autonomy and that of decentralized entities in general, as well as the constitutional principles of efficiency, effectiveness, and legal certainty.** The unconstitutionality of the norm is evident, insofar as, in relation to Article 26 of Title III of Law No. 9635, it grants powers to the Central Administration, through the Ministry of Planning, to “define the guidelines, and the administrative regulations that tend towards the unification, simplification and coherence of public sector employment, ensuring that public sector institutions respond adequately to the defined objectives, goals and actions.” This constitutes a very clear intrusion into the administrative, policy, and organizational powers of the decentralized entities, in direct violation of the three degrees of autonomy that the Constitution and the laws of creation have granted to each of those administrations, stripping them of their power of self-administration. Each of the decentralized entities is a distinct legal entity, with a specific legal purpose and which attends to concrete needs established by law. For this, they are assigned a budget, which in many cases is their own because it comes from taxes created for their benefit or from a commercial activity. On the other hand, the Ministry of Planning is alien to the reality of each institution and the community or public interest it serves, despite which it is granted the power to decide on multiple aspects of the public employment regime. There is also a violation of the principle of legal certainty, as the duality in regulation (decentralized regime and regulatory powers of the Executive Branch) causes a state of insecurity for the entities and their workers.

10.- **Article 47 added to Law No. 2166, injures the autonomy of municipalities and decentralized entities, as well as the principles of efficiency, effectiveness, legal certainty, equality, and prohibition of arbitrariness (interdicción de la arbitrariedad).** The norm has the same constitutional defects indicated for Article 46, as it orders the decentralized entities to apply certain evaluation methodologies, with the Central Administration interfering in the administrative powers constitutionally granted to each of the institutions, in clear violation of their administrative autonomy. The term “respective exceptions” (salvedades respectivas) is ambiguous; neither the law nor the regulation mentions what they are. The ambiguity of the norm is not coincidental but rather serves the purpose of the Executive Branch to singularly derogate a norm in favor of whomever it wishes or whichever institution it desires, acquiring power over the decentralized institutions. There is also a violation of the principle of equality and that of the Prohibition of Arbitrariness, as the Administration can disapply its own evaluation methods whenever it wishes, without objective criteria established in the law. The violation of the principle of equality derives from paragraph 1 of the norm which establishes “quantitative indicators of fulfillment of individual goals for products and services provided.” The services provided by the Public Administration are never equated with the type of services provided in the private sector, so as to establish evaluation methods of a quantitative nature.

**11.- Article 48 added to Law No. 2166, it is indicated that it also violates the constitutional principles of municipal autonomy and that of decentralized entities, as well as those of legal certainty, equality, reasonableness, proportionality, and prohibition of arbitrariness.** As with Articles 46, 37 and 48, this article constitutes an intrusion by the Central Administration into the administrative competencies of the decentralized entities. The norm, viewed in light of the referenced articles, contains arbitrary provisions. It creates a new obligation for public employees, at any level, regarding keeping the updating and day-to-day maintenance of information for their performance evaluation (evaluación de desempeño), in a computer system, under penalty of being charged with committing a serious offense. This is a new obligation that translates into more work and less time to attend to daily obligations; it also does not clarify which workers it refers to. On the other hand, it establishes that 80% of the evaluation will be measurement of goals and 20% “responsibility of the leadership”. Thus, one-fifth of the total percentage of the worker's evaluation is granted to the subjective considerations of each leadership, understanding that this 20% is the difference between the public employee obtaining or not obtaining their annuity (anualidad), granting power to the leaderships to leave their subordinates, without any visible objective criterion, without the increases for time served for as many periods as they wish.

12.- **Article 50 added to Law No. 2166 and Article 1, subsection a) of its Regulation**, injure the constitutional principles of municipal autonomy and that of decentralized entities and, with it, the principle of legality. Likewise, the principles of progressiveness of labor rights, non-retroactivity of the law, reasonableness and proportionality, prohibition of arbitrariness, and the tax principles of non-confiscation, economic capacity, and progressiveness. The State intends to render useless over time the amount paid for the concept of annuity and to empty it of content, eliminating the right to this remuneration that helps workers keep their salaries maintaining their purchasing power against the cost of living. The norm does not indicate what the designated “nominal amount” (monto nominal) is and leaves that task for the Executive to define via regulation. This violates the principle of prohibition of arbitrariness, by eliminating from the laws the percentage amounts included in the Public Administration Salary Law and providing that it changes to an undetermined nominal amount, thereby granting abusive and undue discretion to the Central Administration. This will also define the same amount for the Municipalities and decentralized entities, due to its relationship with Article 26 of Title III, which injures the constitutional autonomy established in favor of such entities. Additionally, the legislator provided for increasing the set of goods and services taxed with the value-added tax (IVA), while the increases for time served, which prevented the loss of purchasing power, are set at an indeterminate nominal amount that will only lose value over time. This translates in practice into a loss of purchasing power on the part of workers that will prevent them from consuming many of the goods taxed with IVA and maintaining their lifestyle. The consolidated legal situations of public employees who entered service before the entry into force of Law No. 9635 are being violated by the norms that reformed Article 12 of the Public Administration Salary Law and Transitional Provisions XXVII and XXXI), insofar as they establish new forms of payment, fixed amounts of annuities for all public employees, even for those who, by special norms (collective agreements, internal labor regulations, autonomous service labor regulations, agreements of Councils), etc., have another modality of payment of bonuses, incentives, annuities, quinquenniums. Although Transitional Provision 56 of the Law provides that the promulgated norms may not be applied retroactively to the detriment of workers, an inadequate analysis has been made of what should be understood by acquired right and consolidated legal situations.

13.- **Article 51 added to Law No. 2166**, for violation of the constitutional principles of reasonableness and proportionality and the rights to collective bargaining, union freedom, and the singular inderogability of regulations. It states that the purpose of the norm is to disincentivize collective bargaining, prohibiting public employees who negotiate collective agreements from benefiting from them. This constitutes a violation of Article 4 of Convention 98 of the International Labour Organization.

**14.- Articles 52 added to Law No. 2166 and 21 of Executive Decree No. 41564-MIDEPLAN-H.** It states that they injure municipal autonomy and that of decentralized entities, and the principles of legality, reasonableness, proportionality, progressiveness of labor rights, as well as the constitutional right of collective bargaining. It points out that the norm injures the administrative autonomy of the decentralized entities insofar as they are ordered how to regulate their remuneration system. Although the law foresees that the salary is not varied, it orders institutions how to administer salaries, thereby committing an abusive ius variandi. There are workers who have their obligations planned according to a biweekly periodicity, as they have received their salary this way for years. The mere change of the payment modality can entail harm to these employees. The fact that the State, through the legislator, orders these institutions to conform to this article and its transitional provision, directly violates constitutional and conventional law, by disregarding these rights of a rank superior to the legal one, causing a setback in labor rights and, therefore, equally violating the principle of progressiveness thereof. The norm is neither reasonable nor proportionate, since according to Transitional Provision XXIX there should be no decrease or increase; in this sense, there is no reason whatsoever to affect the autonomy of the entities. As there is no palpable end, the norm entirely lacks reason and proportion.

15.- **Articles 53 added to Law No. 2166 and 15 of Executive Decree No.** 41564-MIDEPLAN-H, for violation of the constitutional principles of autonomy of decentralized entities, the right to collective bargaining (negociación colectiva), the principle of equality, equal pay (igualdad salarial), legal certainty (seguridad jurídica), and suitability (idoneidad) of the public official. Article 192 of the Political Constitution provides that public servants shall be appointed based on proven suitability (idoneidad comprobada). The challenged rule represents a step backward regarding the purpose of hiring suitable officials, by providing that professional career points will only be recognized when they cover the training they receive. This constitutes a serious disincentive for State professionals to improve their academic and training conditions. Additionally, the rule causes the emergence of two types of officials: those who can invest in their own training and those who depend on the Administration investing in it. Both would perform the same functions, but the training scenario would cause them to receive different incomes, which harms the principle of equality. The training incentive could be provided in a collective bargaining agreement (convención colectiva), in which case, the rule would also harm the right to collective bargaining (negociación colectiva). Finally, the wording of the rule causes legal uncertainty (inseguridad jurídica) because its wording is ambiguous and does not allow for determining with certainty what the legislator's spirit was: whether to recognize up to five years of training or to pay only for five years.

16.- Articles 54 added to Law No. 2166 and 17 of Executive Decree No. 41564-MIDEPLAN-H for violation of the constitutional principles of municipal autonomy and that of decentralized entities, the principle of legality, progressivity of labor rights, the right to collective bargaining (negociación colectiva), reasonableness and proportionality, prohibition of arbitrariness, and tax principles of non-confiscation, economic capacity, and progressivity. Like the challenged Article 50, this rule empties of future content any existing incentive provided by legal, conventional, or regulatory norm, by freezing it nominally, subjecting it to the loss of the currency's purchasing value. This is a terrible legislative technique that harms the progressivity of rights and the autonomy of decentralized entities and that directly impacts the purchasing power of public officials, whose salary would be confiscated. The unreasonable and disproportionate relationship of what the legislator seeks is clear: higher consumption taxes and a decrease in labor rights. The harm is not only to the professional class, but also to municipal laborers, administrative police officers, etc. The legislator intends to refinance the State at the cost of Costa Ricans' rights, especially those of public officials, regardless of their salary level.

17.- Article 55 added to Law No. 2166 for violation of the constitutional principles of legal reserve, municipal autonomy and that of decentralized entities, the principle of legality, progressivity of labor rights, and the right to collective bargaining (negociación colectiva). The legislator's intention is clear, seeking that no other avenue exists for the creation of incentives other than the legislative one. This harms the right to collective bargaining (negociación colectiva) and violates municipal autonomy and that of decentralized entities, whose powers derive from the Political Constitution and the respective laws. The regulatory power in matters of administration enjoyed by lesser entities is undermined by a legal norm that intends to legislate in an extraneous field. For this reason, the principle of legality is harmed.

18.- Article 57, subsections f), g), h), i), m), n), o), and p) of Title III of Law No. 9635. Subsection f), for violation of Article 192 of the Constitution regarding the suitability (idoneidad) and tenure (inamovilidad) of public officials, as well as their job stability. The others, for violation of the principles of equality, equal pay (igualdad salarial), and subsection i) for violation of the principles of reasonableness, proportionality, and legal certainty (seguridad jurídica). Regarding subsections g), h), i), m), n), o), and p), it has already been indicated that there is evident inequality promoted by the legislator without any justification, by determining that some officials will receive a prohibition on private practice (prohibición) payment percentage of 65% of the base salary, while others, under equal conditions regarding academic level and functions, will be compensated with only 30%. Subsection i) is an ambiguous provision, contrary to the principle of legal certainty (seguridad jurídica) because it reforms Article 5 of Law No. 5867, Law on Compensation for Prohibition on Private Practice Payment (Ley de Compensación por Pago de Prohibición) of December 15, 1975. The reformed norm indicates that the compensation will be calculated on the lowest salary indicated in the Public Administration salary scale issued by the General Directorate of Civil Service. The original norm provided that such compensation would be calculated on the base salary corresponding to each institution. The objective of paying the prohibition on private practice (prohibición) percentages to professionals, using the lowest salary on the scale, violates the principles of reasonableness and proportionality, insofar as the professional is compensated for the limitation on practicing their profession with an amount that does not correspond to what said professional could obtain if they were not legally limited. As for subsection f), it reforms paragraph 1 of Article 47 of Law No. 1581, Civil Service Statute (Estatuto de Servicio Civil) of May 30, 1953. Through the reform, the legislator repealed the state obligation to indemnify the worker included in the Civil Service Statute (Estatuto del Servicio Civil). It also repealed Article 37 of that Statute to which it referred via Article 58, subsection b) of the present law. The repealed norms have a raison d'être insofar as the constituent considered it necessary to include the public employment regime within the major normative body to guarantee suitability (idoneidad) and stability. Based on the latter, the indemnity provided in Article 37 guaranteed that the administrative head could not apply the exception cases (such as reorganization), indiscriminately, to dismiss officials. The norms accused of being unconstitutional break with that purpose, and equate the public official subject to the civil service regime with any private worker. This is contrary to what the constituent intended.

19.- Regarding Articles 5 and 11 of Law No. 9635. Indicates that they harm the principle of autonomy, as they allow the Executive Branch to impose budgetary policies on all institutions without determining the degree of independence of each one. In relation to Article 11, by providing that institutions in general must determine their current expenditures, directly relating it to the central Government's debt and limiting the current expenditure of the entire public sector, without taking into consideration the reality of each autonomous institution. For its part, Article 13, subsection c) restricts the way those institutions regulate salary increases, which is a power constitutionally established in their favor.

20.- Article 15 of Law No. 9635. It harms Articles 7, 11, 50, and 74 of the Political Constitution and the principle of progressivity of fundamental rights. The Constitutional Chamber has recognized the State's obligation to respect the amounts of specific allocations (destinos específicos) established by legal norm, especially when they are aimed at financing social welfare programs, serving vulnerable populations, or fulfilling fundamental rights in general. Giving the Executive Branch the power to vary those amounts or allocations is a clear deviation of power and a serious violation of fundamental rights that the State must guarantee. The Ministry of Finance's omission of transferring special funds in such an open manner, without the norm making any exception, is irrational and violates the Law of the Constitution. It is not possible that, due to the fiscal crisis, the State ceases to meet its obligations.

21.- Articles 17 of Law No. 9635 harms the principles of autonomy and reasonableness, as well as Articles 11, 169, 179, and 188 of the Constitution. This norm violates the independence of autonomous institutions in fulfilling their purposes; it is not valid that they are ordered to pay the Central Government's debt with resources that are their own and that are destined to fulfill specific purposes.

22.- Articles 23, 24, and 25 of Law No. 9635 violate the principle of autonomy and the progressivity of human rights, according to which "...as the level of development of a State improves, the level of commitment to guarantee rights improves...". Article 23, the source of unconstitutionality invoked for the three norms, contains a list of criteria for the budgetary allocation of the Costa Rican State. The budgetary allocation places the protection of rights and their progressivity in the ninth position, behind, even, the availability of financial resources, the fulfillment of institutional goals, and the priorities of the current government. It is necessary to analyze the danger that the hierarchy of criteria poses for the population holding those human rights that, according to the list, would be financed after other commitments. The order of state priorities embodied in this law will allow any public law institution to invoke the lack of budget in order not to finance the human rights that the State is obliged to protect, or for the State to establish budgets neglecting or minimizing the fulfillment of human rights. Articles 24 and 25 are intimately related to 23, in the understanding that the National Budget Directorate must use those criteria to budget transfers to State institutions. (...) - For standing (legitimación) purposes, it indicates that it derives from Article 75, paragraph 2 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional). The law they challenge affects the interests of the community as a whole, both in its individual and collective sphere, as it contains norms of general application. It also has norms applicable to a group with a social and common interest; specifically, Title III of the Law affects the public officials of this country and their families, thereby affecting their diffuse interests. Since public officials are a more or less determined group, but who are not linked by a common legal bond to the petitioner, it is considered that this involves the defense of diffuse interests and not necessarily collective ones. Furthermore, this action is also directed against certain norms of Title I and Title IV of the same body of norms, which affect an even larger community, such as, in their case, the constitutional rights of taxpayers, those administered under the municipal regime, and the local governments themselves from their autonomy (autonomía) granted in the Political Constitution, as well as the group of public officials who work in various public institutions who are entitled to a certain level of autonomy (autonomía), as well as the exercise of fundamental and constitutional rights that, as will be stated below, are threatened by the approval of a series of norms of the Law on Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas). It states that its represented entity has among its objectives, to participate in all those decisions that affect the interests of workers in public services and private enterprise. Likewise, to intervene and show solidarity with all those problems that affect, nationally or internationally, workers in their condition as a class. The National Association of Public and Private Employees (Asociación Nacional de Empleados Públicos y Privados) commits itself, across the entire spectrum of national reality, to generating discussions and struggles for a more just, egalitarian, participatory, and supportive society, and by reason thereof, they consider themselves to have standing (legitimados) to invoke the pertinent constitutional and legal norms to achieve said objectives. The norms accused of being unconstitutional are of a general nature and affect, not only the persons affiliated with its represented entity, but every public official, affiliated or not, who is subjected to a law that violates constitutional norms and principles and their rights in the abstract. Some of these norms harm the Social State of Law, which affects an even larger community. They consider that they are within their right and their duty to take the respective actions to defend those diffuse interests that the Constitutional Jurisdiction (Jurisdicción Constitucional) must protect. Another aspect they challenge through this action is the violation of the two degrees of autonomy (autonomía) that the Political Constitution grants to local governments.

All inhabitants of the country, including its members, live in one of the 82 cantons that form the country, are subject to its regulations and the decisions of their Councils. Its organization has approximately 3,645 affiliated municipal officials, who are being affected by the provisions on public employment and the impact on the municipal regime in general, in conjunction with the expansion of the sales tax to the value-added tax, all of this contained in the articles of Law No. 9635. Moreover, the organization it represents is a signatory to several collective bargaining agreements (convenciones colectivas) in the public sector. Many of these are in decentralized entities and autonomous institutions. The application of the specific articles of Law No. 9635 renders them void of content, in violation of the constitutional, conventional, and legal regulations that protect the right to collective bargaining. The national and international regulations indicated grant unions the standing to engage in collective bargaining on behalf of workers. That legitimacy must transcend the defense of the interests of workers who are in real or potential situations of collective bargaining, who may be affected by irrationally restrictive regulations to the detriment of that right. For this reason, from the point of view of defending diffuse interests, they consider that the union it represents possesses sufficient standing to bring an action before this jurisdiction, meaning that no prior matter is necessary to allow its filing." **19.-** By a ruling issued at 10:36 a.m. on **May 24, 2019**, the Presidency of the Chamber resolved and accepted a recusal request filed by Magistrate Fernando Cruz Castro in the unconstitutionality action **no. 19-004931-0007-CO.** **20.-** In the interlocutory ruling of the Full Chamber of the Constitutional Chamber **no. 2019-010635** (*Chamber composed of Magistrates Castillo V., Hernández L., Salazar A., Araya G., Esquivel R., Salas T., Fernández A.*) issued at 9:20 a.m. on **June 12, 2019**, it was ordered that the unconstitutionality action **no. 19-004931-0007-CO** promoted by **ALBINO VARGAS BARRANTES**, in his capacity as **SECRETARY GENERAL and JUDICIAL AND EXTRAJUDICIAL REPRESENTATIVE of the ASOCIACIÓN NACIONAL DE EMPLEADOS PÚBLICOS Y PRIVADOS (ANEP)** be consolidated with no. 19-002620-0007-CO, which remained as the principal case file and is to be considered an amplification thereof. This is due to the evident connection that exists between the challenges raised in both processes and in order to avoid contradictory rulings that could affect the rights and interests of the parties involved. In said ruling, some grievances were dismissed, and the admission of the unconstitutionality action against several articles of the Law for Strengthening Public Finances was ordered. The operative part (por tanto) of the ruling reads as follows:

*"This action is flatly rejected with regard to Article 26 of Law No. 2166 and Articles 5, 11 and Transitory Provisions XXVII, XXXI and XXXVI of Law No. 9635.- Additionally, the alleged violation of the principle of autonomy is flatly rejected in relation to Articles 28, 40, 46, 47, 48, 50, 52, 53, 54, 55 of Law No. 2166, 17, 23, 24 and 25 of Law No. 9635 and Articles 1, subsection 1), 6, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H. Likewise, the violation of Articles 169, 170, 188 and 189 of the Political Constitution by way of Articles 26 and 55 of Law No. 2166, and Articles 5, 11 and 17 of Law No. 9635 is flatly rejected.* *Regarding the remaining provisions, consolidate this action with the one being processed before this Chamber under case file No. 19-002620-0007-CO and consider it as an amplification of the same."* Consequently, it is understood that through said ruling, the course of the action was expanded against the following provisions, according to the express text of the ruling *supra* mentioned:

*"The norms subject to challenge that are admissible for such purposes are **Articles 28, paragraphs 2 and 4, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o) and p), added to Law No. 2166, Title IV of the Law for Strengthening Public Finances No. 9635 of December 5, 2018, Articles 23, 24, 25 and Articles 1, subsection a), 3, 4, 7, 9, 14, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H, the latter by reason of their connection.**"* **21.-** By a ruling issued at **3:14 p.m. on September 27, 2019**, this unconstitutionality action no. 19-002620-0007 was considered amplified, under the terms set forth in action 19-004931-0007-CO consolidated with it, in the sense that articles 28, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o) and p) of Law no. 2166, articles 15, 17, 23, 24, 25, of Title IV of Law no. 9635 of December 5, 2018, and articles 1, subsection a), 3, 6, 7, 15, 16, 17, 21 and 22 of Executive Decree no. 41564-MIDEPLAN-H are also challenged, as they are considered contrary to the principles of equality, legal certainty, reasonableness and proportionality, progressivity of rights, and party autonomy.

**22.-** In a brief filed with the Secretariat of the Chamber on October 15, 2019, **Enrique Egloff Gerli**, in his capacity as **President of the Asociación Cámara de Industrias de Costa Rica**, appeared and stated that he is appearing to be admitted as a passive coadjuvant in the amplification of this unconstitutionality action that was originally processed through case file no. **19-004931-0007-CO** and has been consolidated with this case file (19-002620-0007-CO). The right to enter into collective bargaining agreements belongs exclusively to workers covered by a private employment regime and, in the case of public employees, the execution of such agreements is openly incompatible with the legal principles that inform the public employment regime. There is a possibility of signing collective bargaining agreements and direct arrangements in public entities with a private employment regime, although such negotiations cannot violate the legal limits and those imposed by governmental guidelines. The Constitutional Chamber has indicated that it is valid for workers who do not participate in the public management of the Administration to enter into collective labor agreements, so that those with a labor-nature employment regime (not public), such as State Enterprises, can indeed bargain collectively in accordance with the provisions that inform collective labor law. All norms can be modified for the future by another of equal or higher rank without this implying a violation of the principle of non-retroactivity, and those derived from collective bargaining agreements, regulations, or statutes are not considered consolidated legal situations or acquired rights, since they are norms related to objective situations and not to specific acts that do qualify as subjective legal situations. Consequently, none of the norms challenged for alleged violation of the principle of non-retroactivity of the law is vitiated by unconstitutionality because what the legislator did was to modify, with future effects, objective situations created by prior legislation. If collective bargaining agreements are prohibited in the public sector, it must be concluded that public servants cannot obtain any right under their protection because it would be unlawful and cannot have the protection and recognition of the State. He reiterates that the challenged norms are constitutionally valid, as they find coverage in article 191 of the Political Constitution, which is applicable to all organs and entities of the State. He concludes by requesting that the unconstitutionality action be declared without merit.

**23.-** By means of a brief filed with the Secretariat of the Chamber on October 24, 2019, **Álvaro Madrigal Mora, in his capacity as secretary general of the Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN)**, requested that his represented party be considered an active coadjuvant in the unconstitutionality action **no. 19-004931-0007-CO**, through which the present action, now listed as the principal case file, was amplified. His represented party has standing to bring this action since it groups the collective and diffuse interests of its members. The norms challenged in action no. 19-004931-0007-CO violate the principles of legal certainty, reasonableness, proportionality, progressivity of rights, and party autonomy. Although it is true the country's economy must be reformed, this must be done rationally and with technical justifications to support it, in compliance with the regulations governing the matter and without violating the acquired rights of public officials. The norms have no support even though they are to the detriment of the working class, affecting the standard of living and labor dignity of individuals, also contravening free collective bargaining and the principle of legal reserve in the creation of new salary compensations. He affirms that it is unconstitutional to force public institutions to renegotiate their collective bargaining agreements downwards, which also violates the principle of progressivity of fundamental rights. He deems that what was alleged by the legal representative of ANEP in action no. 19-004931-0007-CO has a legal basis by injuring the indicated principles, and therefore he requests that the unconstitutionality be declared in the terms requested.

**24.-** **JULIO ALBERTO JURADO FERNÁNDEZ**, in his capacity as **Procurador General de la República**, appeared by means of a brief filed with the Secretariat of the Chamber on October 24, 2019, in order to render a report on the amplification made to this unconstitutionality action by ANEP.

Regarding the claim about the exclusive dedication (dedicación exclusiva) regime In Costa Rica, "exclusive dedication" is conventional, that is, the product of a formal agreement between the employer entity (Public Administration) and the professional public servant, in the sense that the latter will dedicate themselves exclusively to the exercise of the functions of the public position they hold, waiving the private practice of their profession, and for which the former will pay them financially as a bonus —not as a permanent salary component— a specific additional percentage calculated on the base salary of that specific position. He adds that at the judicial level, it has been recognized that the signing or not of that exclusive dedication contract by public administrations involves an undeniable discretionary power (potestad facultativa), that is, a liberality in the sense that the basis or not of its granting is openly discretionary. Before the reform introduced by Law no. 9635, that *inter partes* agreement was regulated by provisions issued by the DGSC in the case of persons assigned to that regime and had to be countersigned by the Human Resources Departments of each institution, taking effect during the agreed term, and once expired, such agreement was ineffective without being able to affirm that a subjective right existed in favor of the servant for the extension of the contract, nor a correlative obligation of the Administration to sign a new one, since, as stated, that agreement involves discretionary powers of the Administration, meaning it is not true, as affirmed in the action, that a consolidated situation exists for the extension of that contractual link, much less that this derives from the Constitution. Under this context, many of the alleged vices would lack constitutional relevance, since the exclusive dedication regime is a matter of legal regulation. The regulation of the "exclusive dedication" regime established with Law no. 9635, and especially with the reforms it made to the LSAP, forms part of the remuneration regime inherent to the civil service "statute" (estatuto) over which there is an express constitutional authorization for the legislator, in exercise of its inexhaustible power, to configure and regulate the employment conditions that must prevail throughout the public sector, especially referring to its professional stratum. With the new legal regulation, a series of postulates and norms in remunerative matters were established that tend towards the unification, simplification, and transverse coherence of the different pre-existing employment subsystems in the public sector —including central and decentralized administration— regardless of the degree of autonomy of each institution, or the type of services provided to the State. The Procuraduría General, in exercise of its binding consultative function, in legal opinion no. C-281-2019 of October 1, 2019, determined that given the general scope of application of this new regulation and its undeniable vocation for uniformity and homogeneity as a constitutionally valid option to regulate the remunerative conditions of employment in the entire public sector —including salary calculation, its components, and exclusive dedication, among others—, it prevails over any other pre-existing provision of legal or lower rank, at the sectoral level, by way of total or partial tacit derogation, due to normative incompatibility of its contents, even recognizing its supervening prevalence with respect to pre-existing collective bargaining agreements, especially when this new legislation is expressly directed at derogating, with future validity, conventional norms that have a specific content incompatible with it (legal opinion no. C-060-2019 of March 5, 2019). The legal regime of the public function in general is characterized by the fact that employment conditions are not established in a contract or by collective agreement, but are determined by objective norms that can be unilaterally modified by the competent body, and for this reason it is affirmed that the official does not have a contractual relationship with the administration, but rather a statutory one, such that the sub-principles derived from the protective principle of labor law invoked by the plaintiff are not applicable in the terms alleged. In this regard, he affirms that what the plaintiff describes as discrimination due to an alleged imposition of exclusive dedication without compensation is, in reality, a regime of functional incompatibility that seeks to enhance the principles of impartiality and independence that must govern the exercise of the public function. The public function is governed by a set of values, principles, and norms of high ethical and moral content, with the purpose of guaranteeing impartiality, objectivity, independence, and even avoiding nepotism in the exercise of the public function, as a typical manifestation of a conflict of interests, with the public interest prevailing over the private interest, and therefore, in the opinion of his represented party, the claims raised in the action regarding the issue of exclusive dedication are not admissible.

In relation to articles 35 and 36 added to Law no. 2166, regarding which the action is amplified: belonging to the exclusive dedication regime does not constitute a fundamental right as the plaintiff understands it, and he recalls that exclusive dedication is an agreement or convention between the public employer and the servant, so that if the latter does not agree with the financial compensation they would receive, they are in a position to not sign the respective contract. The LFFP respected the acquired rights and consolidated legal situations of officials who already had a signed and valid exclusive dedication contract, for which it was ensured that the total salary of active servants as of December 4, 2018, would not be reduced, according to Transitory Provision XXV, and additionally establishing that those with valid exclusive dedication contracts would maintain the percentages granted by the previous regulation. He argues that later, through Decree no. 41564, the Executive Branch issued the "Regulation of Title III of the Law for Strengthening Public Finances, Law no. 9635 regarding Public Employment" which in its articles 4 and 5 also preserved the acquired rights and consolidated legal situations of officials active on the date Law no. 9635 came into effect. For the Procuraduría, the changes introduced by Law no. 9635 in the matter of exclusive dedication do not violate the Constitution, especially considering that these changes did not affect officials who had entered the regime before the entry into force of that law. The plaintiff unions have not demonstrated the claim they raise, according to which the percentages of financial compensation for exclusive dedication applicable to officials who entered public service after the effective date of Law no. 9635 are harmful to the principle of reasonableness, for which they should have provided technical evidence and solid arguments to demonstrate it. His represented party does not consider that the new regulation on exclusive dedication makes the salary of professionals who enter the public sector to work after the effective date of Law no. 9635 ruinous, given that it is a compensation accessory to the salary which is based on a contractual figure and is waivable by the worker, so it is not true that exclusive dedication is a human right, nor that its reduction affects the principle of progressivity.

In addition to the foregoing, it points out that it is also untrue that Law No. 9635 will produce excessive, disproportionate, and unreasonable reductions in the salaries of professionals, since it will not affect those who were active as of December 4, 2018, but it must also be emphasized that the legal regulation of the civil service regime (régimen funcionarial) is an express and discretionary power of the legislature.

Regarding Article 39, added to the LSAP, which prohibits negotiating a different severance pay cap (tope de cesantía): it indicates that the challenged legislation establishes a new maximum cap of eight years with deferred effectiveness according to the Transitory regime that formalizes the maximum admissible cap in this matter and by collective bargaining agreement (convención colectiva) as ordered by the Constitutional Chamber (Sala Constitucional) in ruling No. 2018-008882. The objections raised on this point by the plaintiff revolve around the issue of whether or not a supervening law—Law No. 9635—prevails over existing regulations in current collective bargaining agreements. For the Attorney General's Office (Procuraduría), collective bargaining agreements are subject to the law, even when the law is supervening and expressly aimed at repealing the conventional norms that have specific content, with prospective effect while respecting acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas); consequently, in the opinion of its represented party, there are no constitutional reasons to justify giving prevalence to the mandates of a collective bargaining agreement or any other normative instrument over the law. A similar solution applies to collective bargaining agreements renegotiated and approved after December 4, 2018, as they must now be adapted in all their aspects to what is established in Law No. 9635 and other regulations issued by the Executive Branch (Poder Ejecutivo) pursuant to Transitory Provision XXXVI of that law. It recalls that these types of norms are often called peremptory law (derecho imperativo)—absolute necessary law—as they exhibit the legislature's will to not admit any other regulation of a specific matter than that contained in the applicable law; norms that imply an unavailability that prevents the subjects from disengaging from the norm, such that, in their actions, they must adjust at all times to the regulated limits dictated by the legal precept because its content is exhausted by law, so that, with respect to them, no supplementation by collective agreements or conventions is possible, nor is it possible for individual or collective autonomy of will (autonomía de la voluntad) to operate. Therefore, in these cases, the Administration must proceed in the manner determined in the norm without any margin, since any conduct contrary to law would be voidable. This does not imply disrespecting the acquired rights or consolidated legal situations of the recipients of collective bargaining agreements because the application of legal mandates that conflict with what was agreed upon in said agreements applies prospectively, so that the labor benefits incorporated into each person's assets through the application of conventional clauses repealed by law will remain in the assets of each person who received them; however, the right to severance pay is acquired only when the termination of the service relationship occurs and it is due to one of the grounds justifying the payment of that indemnity, thus, before that happens, the interested party has only a mere expectation of right that cannot prevail over statutory provisions such as those introduced to the LSAP by means of the LFFP. The Attorney General's Office does not consider that the modification on this matter made to the LSAP violates Article 34 of the Constitution by disrespecting acquired rights or consolidated legal situations of public sector employees.

Regarding the claim concerning Articles 40 of the LSAP and 16 of Decree No. 41564-MIDEPLAN: from the analysis of both numerals, it does not follow that the legislature's intention—in using the broad configuring powers over the Civil Service Statute (Estatuto de la función pública) granted by the Constitution—was to repeal provisions of different ranks that regulated the remuneration of public servants, but rather to adapt that regulation to a general and transversal framework applicable to each of the existing salary components insofar as they are normatively incompatible with it. An example of this is that the incentives or compensations existing upon the law's entry into force that were in percentage terms will prospectively become a fixed nominal amount. The fact that Article 40 of the LSAP, in relation to Article 16 of the regulation to Title III of Law No. 9635, decided to nullify specific salary supplements (sobresueldos) such as those for confidentiality and discretion, biennia (bienios), quinquennia (quinquenios), and any other related to the accumulation of years of service other than the annual increment (anualidad), supports the assertion that the salary supplements existing before the entry into force of that law—and which are not those mentioned in the aforementioned Article 40—remain in force and are applicable to the personnel of the institutions referred to in Article 26 of the LSAP, including personnel appointed in the future, but nominalized. The legal reserve (reserva de ley) for the creation of new salary supplements applies from the entry into force of Law No. 9635 and prospectively.

In relation to Article 46 of the LSAP and Article 22 of Regulation No. 41564-MIDEPLAN: it argues that the challenged reforms did not seek to establish a unitary public employment statute in formal terms or a single normative instrument, but rather to establish a series of postulates and norms in remuneration matters that tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the public sector—centralized and decentralized administration (administración central y descentralizada)—regardless of the degree of autonomy of each institution or the type of services provided to the State. According to these challenged numerals, the stewardship (rectoría) that Law No. 9635 grants to MIDEPLAN is to issue general policies and advise public institutions to achieve unification, simplification, and coherence in public employment matters, based on administrative efficiency and efficacy policies, following planning and result measurement criteria for public management in accordance with Article 140, subsection 8) of the Constitution. It indicates that the legislature's intention was not to repeal the powers granted to other public agencies in their respective enabling laws; an option that is legally viable and does not in any way affect the Constitution's Law (Derecho de la Constitución) in the terms challenged.

Regarding Article 47 of the LSAP: it indicates that, according to the plaintiff, this numeral violates the principles of efficiency and efficacy, legal certainty (seguridad jurídica), equality, and prohibition of arbitrariness (interdicción de la arbitrariedad) because the term "respective exceptions" ("salvedades respectivas") is ambiguous and allows for the specific derogation of undetermined norms on evaluation methods, without objective criteria, and with concepts that establish non-equatable quantitative evaluation methods typical of the private sector. In relation to this claim, it considers that it is an aspect of simple and strict ordinary legality (legalidad ordinaria) interest, through which alleged violations of constitutional norms and principles are not claimed in the terms of Article 73, subsections a) and b) of the LJC, but rather it refers to a clear aspect of normative interpretation and application of the scope of numeral 47 of the LSAP amended by said Law No. 9635. This cannot be the object of an unconstitutionality action (acción de inconstitucionalidad) because through it, the correct application of the Law cannot be controlled, so matters relating to this issue must be heard in the competent ordinary jurisdiction, which in this case could be the Administrative Litigation Court (Contencioso Administrativo).

As for numeral 48 of the LSAP: the plaintiff considers that it violates the principles of legal certainty, equality, reasonableness, proportionality, and prohibition of arbitrariness by creating a new obligation for public officials to maintain updated information for the evaluation of their performance, under penalty of being charged with liability for serious misconduct and also limiting their time to attend to daily obligations. Regarding this point, it recalls that in the specific legal regime of the public function, employment conditions are not established by contract or collective agreement but by objective norms—laws or regulations—that can be modified unilaterally, hence the relationship is statutory, by way of a specific public employment regime or personnel organization, founded and governed by Public Law principles. For this reason, civil service reforms are always connected to a preconceived strategy—public policy—of Administration modernization, all delimited by the brief references to the legal regime of the public function made by the Political Constitution in its Articles 191 and 192, which are postulates that must be taken into account by any bureaucratic model to be developed. It argues that, in this context, directly associated with the annual increment incentive, is the performance evaluation (evaluación de desempeño) which has operated a paradigm shift, as it overcomes that subjective criterion of mere assessment of the servant's individual performance in their work in general, and methodologically transcends to objective criteria based on quantitative indicators of compliance with individual goals for products and services provided, directly linked to processes and projects carried out by the unit to which the servant belongs (Articles 45 to 50 of the LSSAP, introduced by Law No. 9635), and its link to the payment of the annual increment is evident because it now depends on the result of the performance evaluation. Due to this special and novel formation operated in the performance evaluation, the alleged unconstitutionality defects are unfounded, because the legislature—in the exercise of its broad, inexhaustible power to configure the Statute of public officials (Articles 102, 121.1, and 191 of the Constitution)—sought to clearly establish postulates and norms that tend toward the unification, simplification, and coherence of the different existing subsystems of human resources management in the Public Sector. The determination of administrative offenses complies with the postulates of the principle of specificity (principio de tipicidad) in disciplinary matters, and that concerning its concrete application must be analyzed in the competent ordinary channel.

Regarding Article 50 of the LSAP in relation to Article 1, subsection a) of Regulation No. 41564-MIDEPLAN: the legislature is the one called to establish the incentives and the amount of the economic benefits it grants to its servants as part of the so-called "Civil Service Statute" ("Estatuto de funcionarios públicos") (Article 191 of the Constitution) and, therefore, the economic amount granted for annual increments is a function of the intensity with which the legislature wishes to incentivize public officials' permanence in their posts and the economic capacity to pay the sums derived from that incentive. It argues that, in its represented party's opinion, the legislature could even eliminate the payment of annual increments and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, because the obligation to recognize annual increments is not stipulated in constitutional norms but in legal norms, being part of the retributive regime or system proper to the so-called civil service "Statute." The permanent character that is implicit in giving the annual increment a nominal value—which is stable over time—is justified by the need to achieve a situation of balance in public finances, which goes beyond overcoming a temporary economic crisis, as it constitutes an economic objective whose maintenance over time is desirable. It indicates that if it is established that after a certain period, the changes made to the legal norms regulating public sector remunerations must be reversed, it is possible to fall back into undesirable states of economic instability. The State has the obligation to promote efficiency in the provision of public services, and for this, it is necessary to promote the efficiency of public employment; an objective that can be achieved not only through the payment of annual increments. Part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenses generated by the State's payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation and the availability of resources. The provisions on public employment contained in the LSAP related, among other topics, to the way salaries and their components in the Public Sector must be calculated, including annual increments, prevail over any other pre-existing statutory or lower-ranking provision at the sectorial level, so that, as implied repeal (derogación tácita)—total or partial—due to normative incompatibility of their contents, the LFFP will prevail over other special norms, to the extent they are incompatible (PGR opinions No. C-060-2019 of March 5, 2019, and No. C-281-2019 of October 1, 2019).

Regarding Article 51 of the LSAP: it recalls that the right to collective bargaining of public servants is a right of legislative configuration (derecho de configuración legislativa), so its scope of application and its reach can be defined by statutory norms without harming constitutional norms. Article 62 of the Political Constitution did not intend to be applied to public employment relations, and as proof of this, Convention No. 98 of the ILO on the Right to Organise and Collective Bargaining of 1949 excluded public officials of the State Administration from its scope of application. This shows that, for that year (which coincides with the promulgation of the current Political Constitution), the possibility that public employment relations be governed by conventional norms was not foreseen, but rather by statutory norms, issued unilaterally by the State. This also agrees with what is established in Article 191 of the Constitution in the sense that "A civil service statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration"; a norm that reflects a unifying vision of the rules that must prevail in employment relations between the State and its servants, which is compatible with the regulations on collective bargaining established in the LFFP. The bilateral determination of working conditions—between Administration and staff representatives—has a limited scope in Costa Rica and cannot be compared with collective bargaining in private enterprise. Additionally, the degree of autonomy of public officials is more limited than that recognized for private sector workers, and precisely for this reason, the normative provisions of collective bargaining agreements must be strictly adjusted and framed within the current legal system, which, in itself, limits the extent and object of the negotiation. That is, the normative provisions of collective bargaining agreements must conform to existing legal norms and cannot affect, much less repeal, higher-ranking normative provisions that are imperative or prohibitive in nature and of public order (orden público). It recalls that the same treatment cannot be given to the use and disposition of public funds (which finance public employment relations) as that given to the use of private funds, since the former must be oriented toward the pursuit of public interest and are not disposable by the parties negotiating a collective bargaining agreement in the public sphere.

The constitutional principles of efficiency in the management of public funds, rationality of expenditure, sound conduct of public finances, etc., must be harmonized with the possibility of collective bargaining in the public sector, which cannot be unrestricted but must adapt to the country's economic possibilities. This Article 51 establishes a specific type of incompatibility that seeks to avoid an eventual conflict of interest; a functional incompatibility that must be related to Article 48 of the Law against Corruption and Illicit Enrichment in the Public Function (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública). It considers that, for the foregoing reasons, the alleged defects are untenable.

Regarding Articles 52 of the LSAP and 21 of Regulation No. 41564-MIDEPLAN: it reiterates that one cannot lose sight of the vocation and character of generality and uniformity with which the LFFP was issued in the interest of subjecting everything concerning the salary policy of the public administration to uniform criteria. One of the reorganization measures for the containment and reduction of personnel expenses in public administrations is the periodicity of salary payments to officials, such that the salary agreed per monthly time unit will be paid on a biweekly periodicity or frequency, for which the corresponding adjustments must be made within three months following the effective date of Law No. 9635. This includes the adaptation of the available technological payment systems, as well as the performance of the calculations and adjustments necessary to ensure that the legally prescribed change in payment modality does not produce a decrease or increase in the servants' salary. It states that, pursuant to such legal norms, of clear character as necessary, imperative law of absolute content, all public institutions covered by that legal regulation would have to norm the salary payment modality or periodicity for their servants, and no other. It reiterates that this supervening Law No. 9635 prevails over what is established in any other pre-existing statutory or lower-ranking provision at the sectorial level, such as previously concluded collective bargaining agreements, by way of implied repeal—total or partial—due to normative incompatibility of their contents. The claims raised regarding this numeral are not admissible.

Regarding Article 53 of the LSAP and numeral 15 of Regulation No. 41564-MIDEPLAN: it points out that the professional career incentive (incentivo de carrera profesional) has the ultimate objective of ensuring that the administration has the highly trained personnel it needs for an adequate performance of the public function, which will depend on the normative regulation. It reaffirms that the regime of public officials' rights is not static but variable by nature, especially regarding those rights with economic content whose amount can be modified within the limits of the Constitution, since the servant does not have an acquired right against the legislator or the normative power of the employing administration to have a specific regulation of their rights maintained; on the contrary, they must submit to a continuous process of adjustments and reforms for reasons of general interest. The change operated by Law No. 9635 does not attempt to create an odious differentiation or a salary detriment as is unfoundedly claimed, but is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified. This goes beyond overcoming a temporary or circumstantial economic crisis, as it constitutes an economic objective that is desirable to maintain over time, without this implying a violation of the right to equality under the law as claimed by the plaintiff.

Article 54 of the LSAP and Article 17 of Regulation No. 41564-MIDEPLAN: it reiterates that the legislature is the one called to establish the incentives and the amount of the economic benefits it grants to its servants as part of the "Civil Service Statute," and it must be understood that the economic amount granted for incentives or bonuses is a function of the intensity with which the legislature wishes to incentivize public officials' permanence in their posts, and the economic capacity to pay the sums derived from that incentive.

Maintaining pre-existing salary components as percentages entails a greater expenditure of resources that is not consistent with the intention of balancing public finances that currently prevails, and therefore it was for the legislator to decide —as it already did— to nominalize them and thus promote the balance of public finances, without opting for one decision or the other implying any violation of constitutional norms or principles, given that these alternatives are constitutionally valid in light of the basic regulation of the constitutional regime of public employment (Article 191 of the Constitution), which falls to the legislator to configure (Articles 105 and 121.1 *Ibidem*). The permanent nature implicit in granting said salary components a nominal value that is stable over time does not have the purpose of worsening the situation of public employees, but is validly justified by the real need to achieve a situation of balance in public finances. It reiterates that the norm does not repeal them, but rather establishes the way in which they are to be calculated in the future, no longer as a percentage but by a fixed nominal amount, as has been indicated, as well as that one cannot claim that the statutory situation remain frozen in time, so it has been a consolidated criterion that the official lacks a general acquired right to the maintenance of a specific regulation of their working conditions or to prevent its modification. It reiterates the position of the PGR that collective bargaining agreements are subject to the law, even when the latter is supervening, especially when it is expressly aimed at repealing conventional norms that have a specific content (in this case with effectiveness for the future, respecting acquired rights and consolidated legal situations). It concludes that the allegations are also without merit.

Regarding Article 55 of the LSAP: it points out that, based on the advisory opinion of the Constitutional Chamber No. 2018-019511, union action can be limited or prohibited for public officials who participate in public management and who, therefore, do not have the right to enter into collective agreements; consequently, thus understood, that legal norm would not be unconstitutional.

Article 57 subsections f), g), h), i), m), n), o), and p) as well as Title III of the LSAP: through opinion C-281-2019 of October 1, 2019, the PGR indicated that in the face of any contradiction between the general rule for the payment of financial compensation (compensación económica) for prohibition (prohibición) established in Article 36 of the LSAP (which provides for the payment of 30% for a bachelor's degree or higher), and what is provided, for example, in subsection a) of Article 1 of Law No. 5867 (which establishes, for that same assumption, the payment of 65% compensation), or any other previous law on the same matter, the claim of generality and uniformity that inspired the reform to the LSAP operated through the LFFP must prevail; hence, the antinomy existing between numeral 36 of the LSAP, which establishes the base salary of each servant as the parameter for calculating the financial compensation for prohibition, and Article 5 of the "Law of Compensation for the Payment of Prohibition" ("Ley de Compensación por el pago de Prohibición"), which provides that the payment of compensation for the prohibition referred to in Article 244 of the Organic Law of the Judicial Branch (LOPJ) must be calculated on the lowest salary indicated in the Public Administration salary scale, always following the claim of generality and uniformity that inspired the reform to the LSAP, must be resolved in favor of the general and uniform rule established as the unifying parameter; that is, the parameter for calculating the aforementioned financial compensation must be the base salary of each servant. Thus, the financial compensation for prohibition was established at 65% in subsection a) of Article 1 of Law No. 5867 and now Article 36 of the LSAP provides a payment of 30% for the same concept; an antinomy that entails the tacit repeal (derogación tácita) of one of the two precepts, with the PGR considering that what is provided in Article 36 of the LSAP must prevail, not only because it is the most recent norm, but also because it reflects the claim of generality and uniformity that inspired the reform in matters of public employment operated through the LFFP. It argues that following another criterion would imply deviating from the purpose of the LSAP reform, which consists of establishing general guidelines on the manner in which incentives and financial compensations derived from employment relationships throughout the public sector are to be recognized. It indicates that, likewise, in order to maintain the intended uniformity and to ensure consistency with the constitutional principles of equality and reasonableness, regarding the method of calculating the financial compensation for prohibition, what is established in Article 36 of the LSAP (on the base salary of each official) must be applied, and not what is provided in Article 5 of Law No. 5867 (on the lowest salary of the Public Administration salary scale). It adds that, taking into consideration the express repeal of subsection f) of Article 37 of the Civil Service Statute and the modification of Article 47 of that same legal body made by Articles 58 subsection b) and 57 subsection f) introduced to the LSAP by Law No. 9635, as well as the application of its transitional regime (Transitorio XXVII and Article 13 subsection a) and *in fine* of Executive Decree No. 41564-MIDEPLAN-H), and especially due to the lack of identity between the indemnities normatively provided for that purpose, according to ordinal 111 subsection d) of the Regulation of the Civil Service Statute, it must also be concluded that: **a)** if the reorganization carried out requires the dismissal of employees covered by collective bargaining agreements, the applicable indemnity for severance pay (cesantía) may not be greater than twelve years while such collective instruments remain in force (PGR opinion No. C-060-2018 of March 5, 2019); **b)** for employees excluded from the application of those collective instruments who may be dismissed due to reorganization, Article 39 of Law No. 9635 is applicable, which is of immediate effect, which prevails over Article 27 subsection c) of the Regulation of the Civil Service Statute, and which indicates that the maximum limit is eight years of severance pay; **c)** in the event of the salary reduction or decrease alluded to, the special indemnity regulatorily provided, as a general rule, by the cited ordinal 111 subsection d) of the Regulation of the Civil Service Statute must continue to be applied, until the regulatory repeal or reform power held by the Executive Branch (Article 140.3) of the Political Constitution is exercised with respect to it. The guarantee of stability in the public position or post continues to exist at the legal level and, as a consequence, any unjustified dismissal entails the recognition of legal benefits, so there is no artificial or forced equivalence to the private labor regime, as is groundlessly accused in the unconstitutionality action, and consequently, the defects claimed are without merit as they are unfounded.

Regarding the claims concerning Articles 15, 23, 24, and 25 of Title IV on fiscal responsibility of Law No. 9635: in the opinion of the plaintiff, these numerals grant powers to the Executive Branch regarding various specific allocations (destinos específicos) with a deviation of power, affecting institutional goals and fundamental rights; however, in the opinion of the PGR, the defects claimed are entirely unfounded because the establishment of fiscal rules by Western states has become a popular vehicle to impose a certain fiscal discipline in the face of problems of fiscal deficit and increased public debt. The need to maintain a certain balance between public revenues and expenditures, which sums up the principle of budget stability, finds an answer in the first paragraph of Article 176 of the Political Constitution, and from there, the jurisprudence of the Constitutional Chamber has extracted the foundation of the constitutional principle of financial or budgetary balance, reaffirmed in judgment No. 2018-019511. This is a constitutional mandate that binds all public powers and is beyond the availability or competence of the State and other public entities, regardless of their degree of autonomy. The fiscal rule, consisting of a rule on current spending, is only one of the different public finance management options existing in the budget process, and being of infra-constitutional rank —Law No. 9635—, the Legislative Assembly would not be bound in the future, so it could legislate in the opposite direction, even adopting legislation that expands expenditures chargeable to the Budget of the Republic, if necessary. As the Attorney General's Office has interpreted, and has been endorsed by the Chamber as a legitimate manifestation of the constitutional principle of budget balance, the LFFP entails a paradigm shift regarding the regulation of specific allocations and the establishment of a floor for the budgeting of public resources. Contrary to what is accused, for its represented party, Law No. 9635, as a manifestation of the principle of budget balance, allows the Ministry of Finance to budget the allocation of resources provided by the laws that create specific allocations based on the assessment of fiscal conditions and other public policy imperatives and, therefore, allows it to adjust that allocation to the available financial resources, and in the exercise of these new powers, the Executive Branch has as limits the specific allocations created by the Constitution, as well as those created by law to finance a social service exclusively. On the contrary, allocations referring to taxes destined to finance public expenditures in a general manner do not constitute a limit, such as allocations chargeable to taxes like income or now the value-added tax. As ordered by Article 24 of the LFFP, the Ministry of Finance and the Executive Branch are obliged to allocate a sum no less than that allocated in the 2019 budget; therefore, that allocation in the current budget constitutes the minimum amount that must be granted, and the Ministry of Finance may allocate a greater amount of resources than budgeted in 2019, but never reduce it in order to guarantee the non-affectation of associated benefit services.

In relation to Article 17 of Title IV on fiscal responsibility of Law No. 9635: its represented party considers, as it has stated on other occasions, that it is not unconstitutional in the sense that it can only be applied to free surpluses (superávits libres), not to resources with specific allocations determined by the Constitution, which could only give rise to specific non-free or tied surpluses, unavailable to the ordinary or budget legislator.

The Attorney General's Office concludes by suggesting that the action, which has been expanded, be declared without merit in all its aspects.

**25.-** **María del Rocío Aguilar Montoya** submits her report in her capacity as **Minister of Finance**, through a document presented to the Secretariat of the Chamber on October 29, 2019, and states that, in general terms, the claims of the plaintiff are directed towards two questions:

**a)** firstly, regarding the salary affectation suffered by public servants as a consequence of the variants related to exclusive dedication (dedicación exclusiva), prohibition (prohibición), collective bargaining agreements, modification of the calculation method of salary components, among others; claims which, in her opinion, are limited to enunciating subjective or erroneous criteria in which the idea prevails that matters relating to public employment are immutable and static through the passage of time, which is a perspective of invariable permanence that is incorrect in a reality in which said subject matter is subject to changes, as the PGR has pointed out, especially regarding rights of economic content (remuneration system). She recalls that within the limits established by the Constitution, it is undeniable that the Administration holds a *"ius variandi"* over the content and scope of rights in public employment. The enactment of Articles 28, 30, 31 subsection 1), 32, 33, 35, 36 added to the LSAP by Law No. 9635 and its reform, in concordance with numerals 3, 6, and 7 of Executive Decree No. 41564-MIDEPLAN-H and its reforms, all relating to exclusive dedication, does not imply a setback in the normative development of labor rights, and she recalls that it has a contractual nature because it is a consensual regime that allows the State to count on a certain group of officials who do not practice their profession privately but rather provide the totality of their services to the contracting institution in exchange for financial remuneration or a salary bonus; a regime to which the official freely and voluntarily agrees, after assessing whether it is convenient for them to sign the contract or whether they find it more attractive to freely practice their profession and any other activity at the public or private level. For these reasons, the plaintiff's statements are unfounded because, from its granting, exclusive dedication is not a right of the servant but is conferred when the Administration assesses that it requires that the official not work privately. Like any contract, the exclusive dedication contract must have its term established, as well as the procedures or formalities required to extend it; hence, enacting regulations that contemplate these aspects complies with the principles of legal certainty, reasonableness, and proportionality, contrary to what the plaintiff alleges, and does not imply a regression of labor rights. There is no legal uncertainty for those who signed contracts prior to the entry into force of Law No. 9635 and its reforms when, on the contrary, the law itself contemplates provisions that seek to provide certainty and legal security regarding the application of the new variants that arise. The challenged Article 31 subsection 1) includes persons who work in property, interim, in substitution, or in confidence positions, so it is unknown which modality of the service relationship, in the opinion of the plaintiff, would be excluded. For its part, regarding the limitations contained in the challenged Articles 32 and 33, she argues that their reason for being is to prevent officials from compromising their impartiality and even exercising their other professions during the time they are on the workday, recalling the concept of time overlap (superposición horaria) that implies the simultaneous performance of posts and that implies a prohibition or impossibility of simultaneously holding two public posts. The norms challenged in this action do not entail any arbitrary or abusive action and, therefore, are not harmful to the principle of the prohibition of arbitrariness. The legislator is empowered to regulate, in a general manner, employment relationships throughout the public sector, in light of Article 191 of the Political Constitution, which admits the possibility that a single statute —of legal rank— regulates the relations between the State —in a broad sense— and its servants. Based on what the PGR has said, she affirms that it is public and notorious that the legislator's intention with the issuance of the LFFP, and specifically with its Title III related to the issue of public employment, was to establish general parameters applicable to the entirety of the public sector employment relationships, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State. She adds that among the effects of the LSAP is not that of repealing the supplementary salaries (sobresueldos) pre-existing Law No. 9635 but of adapting them to the general rules to which all supplementary salaries paid in the public sector must be subject, establishing the way in which they are to be paid in the future, no longer as a percentage but by a fixed nominal amount, as well as that the parameter for calculating the sum to be paid for each supplementary salary must be the base salary of each servant and not their total salary. To safeguard acquired rights, and because Transitorio XXV of the LFFP provided so, the total salary of servants who were active on December 4, 2018, when that law entered into force, cannot be reduced. In this way, the challenged norms, far from entailing arbitrary, discriminatory, disproportionate, and irrational actions, are directed at establishing a uniform regulatory framework, by legal means, for all employment relationships in the public sector. The percentages of exclusive dedication and prohibition can be reviewed and adjusted as occurred in Law No. 9635 without this implying a violation of the constitutional framework, for which reason she considers that the allegations relating to this topic and to prohibition are not unconstitutional.

The foregoing is also applicable regarding the allegations put forth by the plaintiff concerning the recognition of annual increases and regarding the modifications to the prohibition, because the reforms introduced by Law No. 9635 are in accordance with the Constitution.

Regarding the allegations raised by the plaintiff about Articles 39, 40, 51, 52, 53, 54, 55 added by Law No. 9635, as well as Articles 16, 17, and 21 of Executive Decree No. 41564–MIDEPLAN-H, she considers the statements of the PGR to be very accurate to the effect that the ordinary legislator is the first called upon to regulate the conditions and limitations under which that indemnity is paid, in accordance with the policy on the matter maintained at a given socioeconomic moment, but must always respect the constitutional framework established in Article 63 of the Constitution, as well as the constitutional jurisprudence according to which the payment of severance pay cannot be unlimited and must have a reasonable limit, so that what is negotiated in a collective bargaining agreement (convención colectiva) must be subject to the principle of reasonableness and avoid agreeing to breaches of the severance pay limit that imply improper use of public funds affecting the services that the institution is called upon to provide or that lack any objective reason that would allow the differentiation established in favor of that group of officials. In Article 39 of Law No. 9635, it was provided that now the severance pay limit may not exceed eight years; however, to avoid problems of transition from the new law to pre-existing collective bargaining agreements for situations pending or in progress at the time of the legislative change, and while that numeral fully enters into force, Transitorios XXVII and XXXVI were established, according to which officials covered by collective bargaining agreements that grant more than eight years of severance pay, who may continue to enjoy that right while the current agreements that so contemplate it are in force, were exempted, but in no case may the indemnity exceed twelve years, and in the event that any agreement is renegotiated, it must adapt in all its aspects to what is established in Law No. 9635 and other regulations issued by the Executive Branch. She recalls that, contrary to what the plaintiff states, the right to severance pay is not acquired until the termination of the service relationship occurs, and until that happens, what the interested party has is a mere expectation of a right that does not prevail over legal provisions such as those that were added to the LSAP through the reform made by Law No. 9635, and therefore she considers that the challenged Articles 50, 54, 56, and 57 do not infringe the provisions of constitutional numeral 34 and do not disrespect acquired rights or consolidated legal situations.

Regarding collective bargaining agreements, there is a hierarchical prevalence of the supervening law over them, by express repeal, and in Costa Rica, although the existence of collective bargaining agreements in the Public Sector is recognized, as well as the binding nature of what is agreed in them, this does not imply attributing constitutional or legal rank to the content of any agreement, but rather it must remain within administrative legality, since state laws are competent to set the hierarchy of legal sources, and Article 57 of the Labor Code has provided that the collective agreement is subordinated to the laws.

It is not permissible to allege the immutability or unalterability of the collective bargaining agreement (convenio colectivo) in the face of the law —even when it concerns a supervening state norm— since, by virtue of the principle of normative hierarchy, it is the collective bargaining agreement that must respect and submit to the law and not the contrary, especially when the permanent task of the legislator is at stake to configure, with the character of public order, the legal regime (régimen jurídico) applicable to public officials and employees (funcionarios y empleados públicos). Although collective bargaining agreements in the public sector have binding force between the parties that have signed them and constitute the most direct and specific norm regulating the legal-labor relations existing between them, the truth is that from a formal and material point of view, in the system of sources of Law, it is always subordinated to the law which, as a source of law of higher hierarchical rank, has the permanent capacity to regulate labor conditions and is automatically incorporated into the employment contract, and may even have, unlike the collective convention (convención colectiva), general efficacy, so that in case of conflict, the law imposes its primacy over the collective convention. For this reason, there is no right whatsoever to have what is established in the collective bargaining agreement remain unaltered and be immune to what is provided in a subsequent law until the moment it loses validity, so that the existence of collective conventions cannot make it impossible for the effects provided by laws to take place. With the legal modification (modificación legal) operated by Law No. 9635, the aim is not the denial or suppression of collective bargaining (negociación colectiva), nor its effective exercise as a negotiating faculty of the unions, nor is it being rendered inoperative or without content; rather, what is intended is the future adaptation of working conditions so that they adjust to the new prevailing circumstances which, by provision of the legislator, oblige temporary measures of reorganization (reordenación) and rationalization (racionalización), for the containment and reduction of personnel spending of the Public Administrations, required by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budget balance. It considers, as the PGR does, that establishing certain restrictions on collective bargaining in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been of public knowledge, and whose attention has required sacrifices not only from persons linked to the State by a public employment relationship, but from all economic and social sectors, for which it affirms that what is provided by Law No. 9635 does not limit, nor violate, union freedom (libertad sindical), nor the possibility of carrying out collective bargaining.

• b)a second group of claims by the plaintiff party is aimed at attacking the provisions relating to the allocation of the repealed specific allocations (destinos específicos) contained in Title IV of Law No. 9635. Certainly, with the entry into force of this Title IV as of January 1, 2020, the repeal of a series of specific allocations occurs as provided in Articles 31, 32, 33, 34, 35, 36, 37, and 38 of that law. It recalls that, among the objectives of Law No. 9635, is to allow a better allocation of budget resources to face the fiscal crisis confronting the country, which is why it is provided that budget allocations, even for social programs, will respond to the fiscal conditions in a given year and not to the percentages or sums provided in the norms that created the specific allocation; legislation that establishes:
• 1)a change regarding the regulation of specific allocations: it points out that the budget of the Republic has been affected by the creation of specific allocations by ordinary laws that hinder the programming and allocation of budget resources according to public needs, the priorities of economic and social development, the availability of resources available, and, therefore, it hinders the Executive's ability to allocate resources and decide on their execution. It adds that Law No. 9635 produces a substantial modification to the relationship between ordinary law and budget law from two points of view: first, by repealing certain specific allocations created by law and, second, because it authorizes the Budget Law to affect the spending obligations provided for by ordinary law so that they are adjusted according to the country's fiscal conditions to achieve the objective of budget balance. It states that thus, the Executive Branch when preparing the budget project, and the Legislative Assembly when approving it, can adjust the allocations of resources to which they are obligated by virtue of laws that create specific allocations, according to fiscal conditions, whereby, from strict subjection to the percentages and sums established by the legislator, there is a shift to a possibility of valuation of the financial resources available to give content to the spending obligation established by the law, as well as other imperatives of public policy to budget an amount less than that which would correspond in application of that law creating the obligation. Various provisions of the law determine that, under certain conditions, the Budget Law will not contemplate or, once approved, the Ministry of Finance will not transfer the budget transfers or specific allocations originating from ordinary laws that were in force, which implies that the budget allocation will not be determined by the ordinary law creating the allocation and, therefore, the beneficiary entity will not see the resources provided by the ordinary law assured, which it considers a Fiscal Responsibility provision. It indicates that, for example, in the case of Article 15, the budgeting of specific allocations would depend on the availability of income, the levels of budget execution, and the existence of free surplus (superávit libre). It states that the decisions on resource allocation are made to depend not on the law that established the financing of those bodies, but on "criteria of fiscal sufficiency" ("criterios de suficiencia fiscal"), which means that sufficient financial resources exist, respecting fundamental rights and the priorities of the National Development Plan, which substantially modifies the relationship between ordinary law and budget law, but also expands the powers of the Ministry of Finance regarding resource allocation, making the structural rigidity of public finances more flexible. This does not mean, in any way, that through the allocation of resources, the Executive Branch can leave certain programs or bodies without financing, since Article 22 obliges it to guarantee the financing of institutions and social and economic development programs. State economic solvency must be focused on strengthening and developing a solidary political system that safeguards the rights of the economically weakest strata of society; an objective that should be achieved because among the determining criteria for the allocation of resources (challenged Article 23) are the social purpose of the beneficiary institution, the provision of public services of collective benefit, the effective fulfillment of fundamental rights, the principle of progressivity of human rights, and not only the availability of financial resources. The limit to the new powers of the Executive Branch would refer to specific allocations created by the Constitution, or those created by law to finance a social service exclusively, which excludes, then, the allocations referring to taxes destined to finance —in a general manner— public expenses, such as those allocations charged to taxes like income tax, or now the value-added tax.
• 2)A modification of the financing of FODESAF: it points out that this set of novel provisions allows affirming that, as of the validity of the LFFP, the beneficiary bodies of resources with specific allocation will see their financing modified because now it will be determined by the new criteria established by the legislator, as well as because, in the future, that financing will not be linked to a particular source of income, to the product of certain taxes or other types of resources —unless these have been preserved by Law No. 9635— since budget allocations will now not be referred to a specific one, whereby the scope of the specific allocations created by law undergoes a substantial modification.
• 3)The establishment of a "floor" ("piso") regarding the budgeting of resources: it indicates that the Constitutional Chamber (Sala Constitucional), when hearing the consultation on the draft of what is now Law No. 9635 (consultative opinion No. 2018-019511), stated that the repeal of specific allocations does not inexorably equate to the undermining of entitlements (derechos prestacionales) and the non-fulfillment of the duties of the Social State of Law (Estado Social de Derecho), and also that the laws that support those are not immutable nor are they excluded from the free configuration of the legislator; quite the contrary, it is the responsibility of Parliament to define the most suitable means to satisfy such entitlements without legislative production emptying or unreasonably diminishing the budget content of state programs to such a degree that the principle of the Social State of Law is considered violated. It argues that in the terms indicated by the Chamber in the referenced ruling, numerals 23, 24, and 25 of Law No. 9635 constitute "protection clauses" ("cláusulas de protección") that allow mitigating or counteracting the eventual budget decreases that could occur.

The plaintiff's statements regarding the new powers of the Ministry of Finance and the content of Articles 23, 24, and 25 of Law No. 9635 are subjective affirmations, lacking substantiation, since, on the contrary, the constitutionality of those norms derives from the fact that they constitute the legal measures or mechanisms that the legislator established as a guarantee against the repeal of several legal allocations (destinos legales) that the same normative body contemplates, which was also endorsed by the Constitutional Chamber. Regarding the challenged Article 17, it states that it is a norm that refers to resources that could not be executed, and therefore they constitute a free surplus, and in the terms of that numeral, what is intended is to give them effective, efficient, and effective use, and, therefore, it is not considered unconstitutional. The continuous search to strengthen the development of a solidary political system —which is one of the main objectives of a State like Costa Rica's— is not inadequate; what is incorrect is when, in that eagerness, an aspect of reality is neglected that has to do with the existence of economic solvency to meet the demands of the citizenry, especially when it concerns the most vulnerable strata, so that without healthy finances, the aspirations of the Social State of Law will be nothing more than that, a desire. It concludes by requesting that the unconstitutionality of Articles 28, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o), and p) of Law No. 2166 modified and added by Title III of Law No. 9635 of December 5, 2018, its reform, and Articles 1, subsection a), 3, 6, 7, 15, 16, 17, 21, and 22 of Executive Decree No. 41564-MIDEPLAN-H and its reforms, be rejected, considering that they do not violate Articles 7, 28, 33, 34, 50, 56, 57, 73, 129, and 167 of the Political Constitution.

26.- On the action of unconstitutionality (acción de inconstitucionalidad) No. 19-022051-0007-CO.- By means of a written brief filed in the Secretariat of the Chamber at 10:40 hrs. on November 19, 2019, Carlos Stradi Granados, of legal age, married, engineer, resident of San José, with identity card 1-0663-0636, in his capacity as president of the Union of Engineers of ICE and Affiliates (SIICE), and Mario Ching Rosales, of legal age, married, with identity card 1-0585-0325, in his capacity as president of the Trade Union Association of Industrial Employees of Communications and Energy (ASDEICE), appear to file an action of unconstitutionality against Articles 39, 50, 54, 56, 57 subsection l), the latter insofar as it reforms Article 12, and against Transitional Provisions XXVII and XXXI of Law No. 2166, which is the LSAP reformed and added by Article 3 of Law No. 9635 of December 5, 2018. They argue that the standing (legitimación) to file this action comes from Article 75, second paragraph, of the LJC because the action of their represented parties is ascribed to the protection and preservation of diffuse and collective interests.

• a)first ground of unconstitutionality for violation of substantive due process (debido proceso sustantivo): they challenge Articles 50, 57 subsection l) insofar as it reforms Article 12, and Transitional Provision XXXI of the LSAP reformed by Law No. 9635. These norms must also be related to Article 58 subsection c) which repeals Article 5, and with Articles 48 and 49 referring to performance evaluation (evaluación del desempeño). To determine if the legal reforms introduced on this point comply with the so-called substantive due process, they must be subjected to a reasonableness test (test de razonabilidad) in order to ascertain their necessity, their suitability, and their proportionality, as constitutional parameters.

They assert that said regulation, lacking reasonableness, suitability, and proportionality, violates substantive due process and, thereby, the provisions contained in Articles 9, 11, 121, 191, and 192 of the Political Constitution, by creating a system of payment of annuities (anualidades) that undermines the merit system and the principle of efficiency that these numerals contemplate. Furthermore, they claim that it was in a transitional norm, characterized by its momentary nature —with a beginning and an end in time— where the annuity percentage with which the calculation of what will later be the nominal and unmodifiable amount of annuity must begin, as well as the date from which that calculation must begin, was established; a regulation that should have been included in a substantive norm and not in one of a transitional nature.

• b)second ground of unconstitutionality for violation of the principle of non-retroactivity of the law (irretroactividad de la ley) and disrespect for consolidated legal situations (situaciones jurídicas consolidadas): they indicate that the norms challenged on this ground are Articles 39, 50, 54, 56, and 57 subsection l) of the LSAP and Transitional Provisions XXVII and XXXI of the LFFP. They argue that on this point, it is not about the adaptation over time of rights derived from exclusive dedication contracts (contratos de dedicación exclusiva) or the rules for the payment of severance pay (auxilio de cesantía) —when this is regulated in special instruments such as a collective bargaining agreement (convención colectiva) or a special statute, as is the case of ICE— and the ceiling is higher than established in Article 39 of the LSAP added by Law No. 9635; but rather, on the contrary, the provisions of Transitional Provisions XXVI and XXVII do is reform and empty that right of its original content, without considering acquired rights (derechos adquiridos) or consolidated legal situations as prescribed by Article 34 of the Political Constitution. It argues that, with the indicated exceptions of Transitional Provisions XXVI and XXVII, it is a general defect of Law No. 9635 that, when dealing with issues relating to additional salaries (sobresueldos), the consolidated legal situations of workers who already acquired rights under the previous regulations governing them are not respected, whether that regulation comes from a law, a special statute, or another valid source.

The law was remiss in resolving conflicts of laws over time, and this is visible throughout all its provisions, except regarding exclusive dedication where exclusive dedication contracts signed before the entry into force of the law are respected, and, in a less rigorous manner, also in matters of severance pay, since in this case the law imposes a ceiling that did not respect the accounting of the years that had been incorporated into the patrimony of rights of public sector employees based on norms of collective bargaining agreements that were in force when the law reform came into effect, for which the legislator disrespected the content of the subjective legal situations (situaciones jurídicas subjetivas) of public employees.

Finally, they argue that the legal technique used by the legislator in Articles 39, 50, 54, 56, and 57 subsection l), in relation to Article 12, all of the LSAP, and Transitional Provisions numbers XXVII and XXXI of Law No. 9635, is unconstitutional because it omitted to consider that, in accordance with Article 34 of the Political Constitution, the existence of subjective rights derived from own acts, nor consolidated legal situations born from instruments such as collective bargaining agreements (convenciones colectivas), regulations, and personnel statutes could not be ignored.

They conclude by requesting that the unconstitutionality of the norms challenged herein be declared.

27.- By interlocutory judgment of the Full Bench of the Constitutional Chamber at 10:15 hrs. on December 18, 2019, it was ordered to accumulate the action of unconstitutionality No. 19-022051-0007-CO to the one being processed in file No. 19-002620-0007-CO —which is now the main one— and that it be considered as an expansion thereof.

28.- On the action of unconstitutionality No. 19-023575-0007-CO.- Through a written brief filed in the Secretariat of the Chamber at 13:21 hrs. on December 10, 2019, Mélida Cedeño Castro, of legal age, divorced, educator, resident of Heredia, with identity card 9-0058-0394, appears in her capacity as president of the Association of Secondary Education Teachers (APSE), to bring an action of unconstitutionality against Article 53, third paragraph, of the LSAP added by the LFFP No. 9635, against Executive Decree No. 41564-MIDEPLAN-H, and against Resolution No. DG-139-2019 of the DGSC, considering that they violate the provisions of Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution.

She argues that the standing to bring this process comes from Article 75, second paragraph, of the LJC because her represented party works for the protection and defense of the labor rights of workers in the education sector and, therefore, holds standing based on the collective interests it protects. Her represented party is legitimized because the challenged norms directly affect the core of rights and interests of the collective that APSE represents.

The professional career (carrera profesional) is a system that exists in the Public Administration intended to promote the professional and labor advancement of professional civil servants (servidores profesionales) so that their performance reaches standards of efficiency that effectively contribute to the quality and timeliness of the benefits in favor of the public service provided to the citizenry, which comprises an economic incentive of a salary nature recognized to servants based on the points obtained for professional degrees or training. This regime is regulated in Resolutions No. DG-064-2008, modified by Resolution No. DG-139-2019 of July 24, 2019, which regulates the professional career of professional civil servants covered by Title I of the Civil Service Statute (Estatuto de Servicio Civil), and No. DG-333-2005 for servants covered by Title II of the Civil Service Statute, all from the DGSC. The economic incentive that, by concept of professional career, has been granted to a worker configures a perfected, subjective right that is incorporated into the patrimony of the worker; however, despite the foregoing, the challenged numeral establishes that the recognition of new points for professional career will only be recognized and remunerated for a maximum period of five years. Such a temporal limitation on the recognition of new professional career points is totally arbitrary, but also injures Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution. She concludes by requesting that the unconstitutionality of the norm be declared in the terms requested.

29.- In an interlocutory judgment of the Full Bench of the Constitutional Chamber at 9:20 hrs. on January 15, 2020, it was ordered to accumulate the action of unconstitutionality No. 19-023575-0007-CO to the one being processed in main file No. 19-002620-0007-CO and that it be considered as an expansion.

30.- The edicts referred to in the second paragraph of the art.

81 of the Constitutional Jurisdiction Law and in which the notification of the expansion of the course of the unconstitutionality action was communicated, were published in numbers 25, 26, and 27 of the Judicial Bulletin, of the days **07, 10, and 11 of February 2020**.

**31.-** In a written submission presented at the Secretariat of the Chamber on February 27, 2020, **[Name 002]** appears, of legal age, married, attorney, with identification number 1-0718-0497, in his capacity as special judicial representative of the National Union of Specialist Physicians (Sindicato Nacional de Médicos Especialistas, SINAME) to indicate that, due to the expansion that was made to this unconstitutionality action, he requests that his represented party be considered an active coadjuvant, considering that the decision adopted by the Chamber in relation to the challenged norms will have a direct impact on the sphere of interests of the union members he represents. He argues that Article 17 of Executive Decree No. 41564-MIDEPLAN-H must be declared unconstitutional because it violates the acquired rights and consolidated legal situations of public officials, since a retroactive effect is being granted to the norm to their detriment, to the detriment of the administered parties, in complete disregard of Article 34 of the Constitution. He argues that what is established in that paragraph of the regulation of Law No. 9635 is contrary to the Political Constitution because it nominalizes all annuities and salary bonuses even though those amounts were established as percentages since their creation, and this creates an impact on the economic rights of the administered parties, leaving them completely unprotected and without legal certainty, despite the fact that these are rights derived from collective bargaining. In accordance with the principle of non-retroactivity, a subsequent law cannot be allowed to influence these types of relationships forged under the protection of the law. The legal system must protect the intangibility of these acquired rights and consolidated legal situations that are being threatened by the challenged norms. He requests that this coadjuvancy be accepted and that the promoted unconstitutionality action be declared with merit.

**32.-** In a written submission delivered at the Secretariat of the Chamber on January 22, 2021, **[Name 003]** appears, of legal age, retired, married, resident of San Isidro de Pérez Zeledón, with identification number **[Value 002]**, to request to be considered an active coadjuvant in unconstitutionality action No. 19-002620-0007-CO. He states that he coincides with the arguments put forth therein by the petitioner and asks that this action be declared with merit.

**33.-** By means of a brief of **March 23, 2023**, **Melvin Reyes Durán** appeared in the process in his capacity as special judicial representative of **Ana Cristina Forn Moraga, Ana Lorena Rodríguez Castillo, Carlos Eduardo de Jesús Álvarez Rodríguez, Magdalena Castro Varela, Iris Solano Portilla, Ivone Odette Furgeson Redguard, Luis Alfredo Meza Sierra, Ruperto López Umaña**. They request the prompt dispatch of this matter, as the challenged regulations are related to a process they have filed before the Contentious Administrative and Civil Court of the Treasury.

**34.-** On **June 1, 2023**, Mr. Sergio Antonio Rodríguez Brenes appeared to request the prompt dispatch of this matter.

**35.-** On **June 22, 2023**, Mr. Albino Vargas Barrantes attached a prompt dispatch request.

**36.-** On **August 9, 2023**, Magistrate Garro Vargas presented a recusal (inhibitoria) request.

**37.-** By resolution at 11:06 hrs. on **August 17, 2023**, the Presidency of the Chamber granted the recusal request of Magistrate Garro.

**38.-** On **August 24, 2023**, the recusal request of Magistrates Castillo, Cruz, Rueda, Salazar, Araya, and Garita was attached to the process.

**39.-** In a drawing conducted by the Presidency of the Supreme Court of Justice, Magistrate Alexandra Alvarado Paniagua was elected.

**40.-** By resolution signed by the acting President Magistrate *a.i.* Ana María Picado Brenes at 10:13 hrs. on **August 31, 2023**, the recusal raised by the Full Chamber was admitted.

**41.-** In a drawing conducted by the Presidency of the Supreme Court of Justice, Magistrates Sánchez Navarro, Picado Brenes, Lara Gamboa, Rosibel Jara, Aracelly Pacheco, and Ana Cristina Fernández were elected.

**42.-** On **September 22, 2023**, the excuse of alternate Magistrate Rosibel Jara Velásquez was filed, considering that several challenged norms are applicable to her person.

**43.-** On **September 22, 2023**, alternate Magistrate Alexandra Alvarado Paniagua presented her recusal request. She stated that what is resolved is related to and affects the payment of the salary she periodically receives within the Judicial Branch.

**44.-** On **September 22, 2023**, alternate Magistrate Ana Cristina Fernández Acuña presented a recusal request.

**45.-** On **September 29, 2023**, the recusal request of alternate Magistrate Ileana Sánchez Navarro was filed.

**46.-** On **October 23**, the request of Mr. Vargas Barrantes was sent again.

**47.-** On **November 13, 2023**, the recusal request of Magistrate Ingrid Hess Herrera was filed in the Virtual Desk.

**48.-** On **November 21, 2023**, Magistrate Picado Brenes attached her recusal request.

**49.-** By resolution at 16:10 hrs. on **November 21, 2023**, the acting Presidency *a.i.* of the Constitutional Chamber resolved the following:

&nbsp;*“Given the object of this process and the statements of Magistrates Ingrid Hess Herrera, Ileana Sánchez Navarro, Rosibel Jara Velásquez, Ana Cristina Fernández Acuña, Alexandra Alvarado Paniagua, and Ana María Picado Brenes, regarding having a direct interest in what is resolved in this matter, as they work for the Judicial Branch and are a judicial retiree - the latter -, the appropriate course is to grant the recusals and have them separated from the knowledge of this unconstitutionality action (In the same sense, resolution at 10:13 hours on August 31, 2023). Notify the pertinent office to the Presidency of the Supreme Court of Justice, in order to proceed with their substitution, in accordance with Article 6 of the Constitutional Jurisdiction Law.”* **50.-** Through a drawing conducted by the Presidency of the Court, it was recorded that *“because originally 6 alternates had been requested and there are only 4 available, the drawing was conducted with the alternates that are available”*. The elected magistrates were Alejandro Delgado Faith, Ronald Salazar Murillo, Jorge Isaac Solano Aguilar, and Hubert Fernández Argüello.

**51.-** On **January 12, 2024**, Magistrate Alejandro Delgado Faith formulated a recusal request.

**52.-** On **February 6, 2024**, Paola Loría Castillo appeared in the process to request the prompt resolution of this unconstitutionality action.

**53.-** On **March 13, 2024**, the recusal request raised by Magistrate Ronald Salazar Murillo was added to the record (expediente).

**54.-** On **April 8, 2024**, Mrs. Karen Carvajal Loaiza (ANEP) appeared to provide a copy of legal opinion PGR-C-036-2024 of March 4, 2024, related to conventionality control.

**55.-** On **April 10, 2024**, Magistrate Fernández Argüello presented a recusal request.

**56.-** By resolution at 16:03 hrs. on **April 12, 2024**, the Presidency of the Constitutional Chamber ‒Magistrate Fernando Castillo Víquez‒ resolved the following:

*“The recusal formulated by Magistrate Alejandro Delgado Faith is rejected. Magistrates Ronald Salazar Murillo and Hubert Fernández Argüello are deemed separated from the knowledge of this process. Magistrates Fernando Castillo Víquez, Fernando Cruz Castro, and Paul Rueda Leal are declared qualified to hear this process. Notify. Continue with the processing of the record.”-* **57.-** By resolution at 16:10 hrs. on **April 17, 2024**, the investigating magistrate for the process, Aracelly Pacheco Salazar, ordered a hearing be granted to the **Office of the Attorney General of the Republic (Procuraduría General de la República)** and the **Ministry of Finance (Ministerio de Hacienda)**, and to integrate into this process the **Ministry of Economic Planning (Ministerio de Planificación Económica)** and the **Civil Service Directorate General (Dirección General de Servicio Civil)**. The foregoing, so that they may address the arguments raised in unconstitutionality action No. 19-023575-0007-CO, filed by Mélida Cedeño Castro, in her capacity as president of APSE and accumulated to this process. Specifically, for the following reasons:

*“The professional career is a system that exists in the Public Administration intended to promote the professional and labor advancement of professional servants so that their performance reaches efficiency standards that effectively contribute to the quality and timeliness of the benefits in service of the public good provided to the citizenry. It includes a salary-based economic incentive recognized to officials based on points obtained for professional degrees or training. This regime is regulated in Resolution No. DG-064-2008, amended by Resolution No. DG-139-2019 of July 24, 2019, which regulates the professional career of professional servants covered by Title I of the Civil Service Statute, and No. DG-333-2005 for servants covered by Title II of the Civil Service Statute, all from the Civil Service Directorate General (DGSC). The economic incentive granted to a worker for professional career constitutes a perfected, subjective right that is incorporated into the worker's assets; however, despite the foregoing, the challenged paragraph ‒ Article 53, paragraph 3 of the Public Administration Salary Law, reformed by the Public Finance Strengthening Law, No. 9635‒ establishes that the recognition of new points for professional career will only be recognized and remunerated for a maximum period of five years. Such a temporary limitation on the recognition of new professional career points, in the petitioner's judgment, is completely arbitrary, and furthermore, it injures Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution.”* **58.-** On May 7, 2024, **IVÁN VINICIO VINCENTI ROJAS**, in his capacity as **ATTORNEY GENERAL OF THE REPUBLIC (PROCURADOR GENERAL DE LA REPÚBLICA)**, rendered his report.

**On standing (legitimación):** It is deemed that the petitioner has sufficient standing (legitimación) to promote this unconstitutionality action, according to paragraph 75, second paragraph, of the LJC, since she acts in defense of a corporate interest, specifically, in safeguarding the interests of the members associated with that union.

**On the merits:** **On the *“Public Officials Statute”*** The PGR states that what traditionally characterizes the legal regime of the public function in general is that the conditions of employment are not established in a contract or by collective agreement, but are meticulously determined by objective norms, laws, or regulations of Public Law – Articles 9 and 112.1 of the LGAP– which, depending on their nature and hierarchy, can be unilaterally modified by the competent body, without it being possible to demand that the statutory situation be frozen in the terms in which it was regulated at the time of entry. Hence, it is affirmed that the official does not have a contractual relationship with the Administration, but a statutory one, since from the moment they enter the service of the Public Administrations, they are placed in an objective legal situation, essentially mutable. This is for the sake of achieving a clear pre-established goal: better and more efficient administrative performance and organization, in accordance with ever-changing circumstances – Article 4 of the LGAP–. An idea omnipresent even in our original constitutional framework of the public function, according to which: *“A civil service statute shall regulate the relations between the State and the public servants, with the purpose of guaranteeing the efficiency of the administration”* (Article 191 of the Constitution). So that the Constitution itself establishes an express reservation for the regulation by law of the diverse spheres of the Public Function, among which is the so-called “Statute” for officials, which includes among its essential contents the regime or remunerative system of public officials. Which, as has been noted in responding to the unconstitutionality actions processed under record numbers 19-6416-0007-CO, 19-12772-0007-CO, and 20-000491-0007-CO, constitutes an authorization for the legislator, in the exercise of their broad and inexhaustible freedom of normative configuration –Articles 9, 105, 121.1, and 191 of the Constitution–, to configure and regulate the employment conditions that must prevail in the Public Sector. Hence, it is the legislator who is called upon to establish the incentives and the amount of the economic benefits granted to their servants; this as part of the so-called *“Public Officials Statute”* (Articles 105, 121.1, and 191 of the Constitution).

The LFFP did not seek to establish, by way of artificial homogeneity, a unitary statute in formal terms; that is, a single normative instrument. Rather, it established a series of postulates and norms in remunerative matters that, as part of the salary policy of the Public Administration (Article 140, subsection 7 of the Constitution), in general terms and with a clear claim to generality, tend towards the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State. Based on the foregoing, they have been clear and emphatic in warning that the effects of the reform of the LSAP do not include the total and absolute repeal of the remunerative regimes pre-existing Law 9635, but rather adapting them to the homogenizing rules to which the salaries and extra salaries that continue to be paid in the stated public institutions must be subject in the future. Given its general scope of application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option for regulating the remunerative conditions of employment throughout the public sector (Art.

(191 constitutional), affirm that the regulatory provisions contained in the LSAP, introduced by Law 9635, related, among other matters, to the way in which salaries and their components must be calculated and paid, performance evaluation, payment frequency, temporary exclusion of increases, and caps on remuneration in the public institutions within its scope of coverage, take precedence over any other provision of legal or lower rank pre-existing at the sectoral level; this operates as an implicit repeal —total or partial— due to normative incompatibility of their contents.

From the reform, the so-called principle of "wage indemnity" (indemnidad salarial) is inferred, according to which: the total salary of public servants who are active in the institutions within the scope of application of its Title III upon this latest law's entry into force may not be reduced, and the acquired rights they hold will be respected. Thus, among other things, the changes to the salary regime established with the validity of that law will be applied "prospectively" (a futuro), without being able to be applied retroactively to the detriment of already appointed officials and their property rights.

In this way, in safeguarding acquired rights and consolidated legal situations, the questioned regulations establish that servants covered by the Professional Career regime before December 4, 2018 —the effective date of the aforementioned Law 9635—, whether under Title I or Title II of the Civil Service Statute, will retain, without time limitation, as long as their employment relationship subsists uninterruptedly, the quantity of points accumulated and recognized before that date and the respective economic compensation. And only for the updating and recognition of new points and other aspects regulated in the matter of Professional Career, will they be subject to the established regulatory modifications. Obviously, these rules do not, in a general manner, retroact their effects to the detriment of acquired rights or consolidated legal situations. On the contrary, they adjust the transition of the content of each of the cases regulated under the old regulations to the new provisions established in the norm. The foregoing does not mean, in any way, disrespecting the acquired rights or the consolidated legal situations of the professional beneficiaries of the professional career, as is groundlessly alleged in this action, because the application of the new legal and sub-legal (infra legales) mandates governs for the future; which implies that the employment benefits incorporated into each person's assets by the application of the previous legal regime of the professional career, will be kept intact in the assets of each of the persons who received them, according to the rules or conditions under which they were recognized. In this sense, the challenged legal and sub-legal (infra legales) norms cannot be considered unconstitutional for violation of the principle of non-retroactivity of the law —Art. 34 constitutional—, nor for violating the principle of patrimonial inviolability —Art. 45 Ibid.—, as is groundlessly alleged, because they truly did not imply any detriment to their total salary formed prior to the established reform. And the professional career points already earned before December 4, 2018, form an indisputable part of the assets of the beneficiary public servants and cannot be reduced under any circumstance, since they entered their assets prior to the legal reform and was so stipulated by the legislator.

It is not true that the new regulation on the professional career, which introduces a five-year validity —for the points acquired and compensated under this concept after December 4, 2018— is contrary to the principle of non-confiscation, since it is an economic compensation, quantitatively minimal, accessory, complementary, and optional to the total salary, which in terms of the Chamber itself does not affect the essential core of the constitutionally protected minimum wage —Art. 57 constitutional— (Rulings numbers 2011-014174, 2019-021130, and 2022-019113). Therefore, it cannot be affirmed that it turns out to be confiscatory in the terms alleged, especially when the plaintiff does not base or develop any technical, precise, and solidly supported argumentation in this regard in her filing brief.

Nor is any violation of the principle of non-waivability of social rights —Art. 74 constitutional— observed, because as there is no right to the immutability of the legal order, the matter of salary supplements for those still under the composite salary scheme is tangible and disposable material by the legislator, for not being part of the constitutional labor regime (minimum wage, Art. 57), since it is the ordinary legislation that must set and regulate them and, in this case, the challenged regulation, by its content, does not even entail an infringement of the principle of non-retroactivity.

**Conclusion** In sum, the legal change operated with Title III of Law No. 9635 in remuneration matters, which is of general application in the Public Sector, does not seek to create a salary detriment as is groundlessly alleged, but is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified; a need that goes beyond overcoming a passing or circumstantial economic crisis, as it constitutes an economic objective that it is desirable be maintained over time. It concludes that this unconstitutionality action must be entirely dismissed, on substantive grounds, as set forth.

**59.-** **LAURA FERNÁNDEZ DELGADO** submitted a report, in her capacity as **MINISTER OF NATIONAL PLANNING AND ECONOMIC POLICY.** **Background** In the context of the fight against the fiscal deficit, an enormous effort was made to contain spending and clean up public finances. The plaintiffs may or may not agree with some of the measures taken or consider that excesses were committed in that paradigm shift that had to be carried out. However, the spending containment measures were embodied, with majority approval by the Legislative Assembly and with the due constitutionality consultation with the Constitutional Chamber.

She emphasizes that the economic situation facing the Costa Rican State continues to be complex and sustained, and as of fiscal year 2020, public debt exceeded the sixty percent (60%) cap of the Gross Domestic Product (GDP) established in the LFFP in the Fiscal Responsibility section, and although, by reason of all the measures, adjustments, and efforts made by the Government of the Republic (especially by the Ministry of Finance and this office, in accordance with the relevant competence), at the close of fiscal year 2023, public debt reached sixty-one point one percent (61.1%) of GDP, which continues to exceed the normatively provided threshold, whereby the general, superior, and current interest subsists to maintain the validity of the norms. Therefore, the Public Administration continues to advocate for the balance between public finances, budgetary restrictions, and respect for the acquired rights and consolidated legal situations of public servants.

**On the merits: professional career** She cites the provisions of PGR opinions numbers C-366-2020 of September 16, 2020, PGR-C-223-2021 of August 9, 2021, PGR-C-120-2022 of May 31, 2022.

As of the entry into force of the LFFP, the professional career incentive will be recognized to public servants for those academic titles or degrees that are not a requirement for the position, but that are relevant to it. To be considered under the professional career heading, the cost of training activities must be covered by the public servant, whether or not they are taken during working hours, provided they are relevant to the position they hold. In those training activities not paid for by public institutions, permission with salary may be granted, upon due justification, to receive the training. The new professional career points would be compensated for a maximum period of five years, after which they must be excluded. *A contrario sensu*, the points recognized prior to December 4, 2018, would continue to be paid according to the previous parameters, but as a nominal amount. Newly hired public servants and those who were not subject to the professional career regime at the time the law came into force (within or outside the Civil Service Regime), must be compensated the incentive in accordance with the rules established by the LFFP (unless they fall within the assumptions established by the Public Employment Framework Law (LMEP) for applying the global salary). Exceptionally, professional career points could be recognized, according to the parameters prior to the entry into force of the LFFP, in the cases of those requests submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that had not been processed for causes attributable to the Administration. On the other hand, by regulation, labor continuity is configured as long as a period of no more than one calendar month has not elapsed without the public servant providing their services to the State. In this sense, the Theory of the Sole Employer State must be taken up again, which not only applies for the recognition of seniority bonuses (anualidades), but for the recognition of all labor rights acquired by the person in their performance in the public function. This aspect was included among the considerations that grounded the addition of subsection f) of Art. 14 cited, through Executive Decree No. 41904-MIDEPLAN-H of August 9, 2019.

Likewise, from the application of Art. 56 in concordance with the provisions of Transitional Provision XXV of Title III of Law 9635, the State (as sole employer, as long as labor continuity subsists) is compelled to safeguard salary amounts as a manifestation of the principle of wage indemnity (indemnidad salarial), the acquired rights, and the consolidated legal situations of the public servants covered by the scope of application of the law, such that the amounts that had already entered the asset sphere of the public servants at the time of approval of said law, cannot be reduced or an undue retroactive application made. However, the acquired rights and consolidated legal situations over the amounts recognized for the concept of professional career before the entry into force of the LFFP cannot be equated with the expectations of rights that public servants may have over the recognition of new points, nor can they aspire to a recognition that exceeds the maximum cap set by law, as this would indisputably incur a flagrant violation of the principle of legality.

She requests that the unconstitutionality action be declared without merit.

**60.-** **FRANCISCO CHANG VARGAS** submits a report in his capacity as **GENERAL DIRECTOR OF THE CIVIL SERVICE GENERAL DIRECTORATE.** He begins by clarifying that the compensation regime of the Public Administration is built on a premise of equality, justice, and dignified treatment of public officials; as well as based on the responsibilities of the position they hold. The foregoing is not only a desire to comply with the constitutional rights of every servant, but also for public institutions to fully, efficiently, and effectively fulfill the purposes legally entrusted to them, under the terms of Art. 4 of the LGAP.

The officials who provide services to the institutions covered by the Merit Regime and who entered the Administration prior to the entry into force of the LMEP are subject to the compensation regime regulated in the LSAP, in accordance with the provisions of the first and fourth numerals of that regulatory body. That is, their remunerations are based on the salary scale issued by this General Directorate and enjoy the protection contained in numeral 48 of the Civil Service Statute, Law No. 1581 of May 30, 1953, and its reforms.

The questioned norms in no way contain constitutional conflicts, as what the plaintiff questions is the elimination of a salary bonus that cannot, nor should, be considered an acquired right, for the reasons that will be set forth in the following section, such that this cannot translate or be considered a direct affectation to the salary of her represented parties.

He explains that the Constitutional Chamber has established that salary bonuses (sobresueldos) that depend on some condition to be granted —as is the case at hand— do not constitute an acquired right, as this cannot be considered part of the salary itself, since its granting depends on the objective conditions for which it was recognized. Congruent with this stance, the Second Chamber of the Court in Ruling No. 03167-2022 of November 18, 2022, was categorical in stating that as an acquired right, only those rights that have entered a person's assets can be framed, which could not be eliminated without causing a concrete and evident detriment to the conditions they previously held; a fact that does not happen in the present case, since from the reading of the already referenced numeral 53, it is categorically determined that the professional career incentive may only be recognized for a maximum period of five years. In other words, it is clear that in accordance with the legal reform introduced with Law No. 9635, it is widely known from the moment of its granting that said bonus will be recognized and compensated temporarily.

Reinforcing the stance set forth, he emphasizes that the Constitutional Chamber in Ruling No. 23953-2022 indicated that salary incentives cannot be considered an acquired right solely and exclusively when they depend on an objective fact or situation for their granting; as happens in the case at hand, in which the regulations related to the granting of the professional career incentive are contingent on compliance with legally established requirements.

He concludes then that when referring to the granting of salary incentives, such as the recognition of points for the concept of professional career, we are not in the presence of an administrative act generating acquired rights as the plaintiff mistakenly proposes; on the contrary, it is a benefit granted and conditioned not only on compliance with certain assumptions and requirements but also that its enjoyment is legally conditioned to a previously established period, so its suppression cannot be considered an abusive *ius variandi* by the Administration, upon the fulfillment of the temporal condition —five years— of the enjoyment of the cited salary bonus.

It is not possible to assert that the cessation of the recognition of the professional career incentive constitutes a violation of the principle of inviolability of one's own acts, as both doctrinally and jurisprudentially it has been sustained that this principle can only be violated when the Administration intends to *ex officio* annul an administrative act generating acquired rights or consolidated legal situations, a situation that is not comparable to the one at hand. In this regard, it is clarified that Art. 34 of the Political Constitution prohibits giving retroactive effect to acts generating acquired rights or consolidated legal situations that were born under the rule of legal norms, whenever this results in a detriment to the interested party or parties. In other terms, this principle prevents giving retroactive legal effects to a new norm to the detriment of acquired rights or consolidated legal situations under another norm. However, this is not an impediment to assert that a norm brought to legal life cannot be modified or suppressed by a later law; rather, what is intended with this principle is solely to protect the factual assumptions occurring prior to the new legal reform. In this regard, he brings up the explanatory memorandum of Bill No. 20.5806, since from it, it is determined that the LFFP was a product of the precarious economic situation prevailing in the country at the time of its issuance, whereby the legislator —exercising the powers conferred by the legal system— determined that the main objective of the cited reform was not only to modify but also to ensure compliance with these regulations, particularly those referring to the remuneration regime and payment of salary incentives for officials of the Central Administration, the Legislative Branch, the Judicial Branch, the TSE, and decentralized Administration: autonomous and semi-autonomous, public companies of the State, and municipalities. Law No. 9635 was brought to legal life as a product of the complicated economic situation our country faced and faces, and its primary purpose was to stabilize public finances and serve as a means of containing public spending by creating four fundamental pillars, two aimed at reducing the fiscal deficit in the short term, while the remaining two sought to generate fiscal discipline and higher quality in public spending in the medium and long term, as extracted from the explanatory memorandum. In this regard, he cites the motivation for the issuance of the LMEP and refers to criteria from the CGR that had warned the following:

"[T]he current remuneration scheme impacts fiscal sustainability, given the already mentioned characteristics of its structure, so it is necessary to deepen the discussion on more efficient systems that respond to the already stated principles as well as parameters of reasonableness, efficiency, effectiveness, and fiscal responsibility." &nbsp; He concludes then that the legislator not only could, but had to introduce changes in the legal regulations in force regarding the remunerations of servants, without this implying the violation of the principle of non-retroactivity and patrimonial inviolability, since what is constitutionally prohibited is to suppress a legally granted benefit, not so the Administration's possibility of regulating future situations, as happens in this case when the legislator regulates new conditions, requirements, and deadlines for the granting of the salary incentive for the concept of professional career. In this section, it must be considered that the deputies, upon enacting Law 9635, respected the cited principles, which can be verified from the reading of numeral 56 and Transitional Provision XXV of that legal body.

It notes that Comparative Law offers sufficient examples on this subject, concluding that there is no acquired right to maintain the remuneration of public officials unchanged and, to that effect, cites an excerpt from judgment 327:2111 of June 8, 2004, issued by the Superior Tribunal of Justice of the Province of Río Negro of Argentina, from which the following considerations are derived:

“[T]he intangibility of the public employee's salary is not guaranteed by any constitutional provision, nor does there exist, therefore, an acquired right to maintain a level of future remuneration without variations and under all circumstances.” A thesis reiterated by the Supreme Court of Justice of Mendoza, Argentina, which issued a final judgment on August 25, 2009, in case no. 80507, ruling that it is not unconstitutional to vary the scope of provisions related to future salary payments for public employees.

A situation similar to the case at hand arose in Spain, a country which, during 2010, due to the fiscal crisis it was undergoing, adopted Royal Decree-Law 8/2010 of May 20 of that same year, and when subjected to constitutional review, the Spanish Constitutional Court, in Plenary Order 85/2011, of June 7, 2011, decided not to admit for processing the question of unconstitutionality 8173-2010, raised by the Labor Chamber of the National Court in relation to various precepts of Royal Decree-Law 8/2010, of May 20, by which extraordinary measures were adopted.

In accordance with the analysis of comparative law conducted, in our context it must be kept in mind that the legislator, in compliance with numeral 34 of the Political Constitution, issued Law 9635, but this legal reform did not imply any violation of the principle of salary integrity (principio de indemnidad salarial) in accordance with the content of Articles 56 and Transitory Provision XXV of that legal body, by maintaining the remunerations that the public servants were receiving before its entry into force and by not applying the legal changes retroactively but prospectively. In this same order of ideas, it is necessary to reiterate that the changes ordered in the LFFP in relation to the recognition of the professional career salary incentive (incentivo salarial carrera profesional), regarding its recognition and payment, began to take effect from the entry into force of that law ‒December 4, 2018‒, therefore, there is no affectation whatsoever of legal situations prior to that date, since the salaries of the public servants who were providing services for the Costa Rican State prior to the entry into force of the cited law are respected.

Consistent with this legal position and the legal change introduced in our context, this General Directorate (Dirección General), in accordance with the powers constitutionally and legally assigned to it, issued resolution No. DG-139-2019 of July 24, 2019, which modified resolutions numbers DG-064-2008 of February 28, 2008, and DG-333-2005 of November 30, 2005, this with the purpose of adjusting these regulations to the precepts established in Law 9635 and its regulation.

The actions carried out by this General Directorate were not only timely and diligent, but also conformed to the norms in force, and were developed in strict adherence to the principle of legality.

Regarding the alleged harm to Article 74 of the Political Constitution, it states that with respect to this last grievance, it must be indicated that the plaintiff did not provide factual or legal elements that would allow this General Directorate to mount an effective defense and rule on the possible violation of this principle. However, it clarifies that, in its opinion, the questioned norms do not violate the principle of the inalienability (irrenunciabilidad) of the labor rights affected by them, because our Political Constitution, in Article 57, contemplates the right of every worker to receive a minimum salary, or in the case of public officials, it guarantees that they may not earn a salary lower than that established for their salary category. In that sense, the cessation of the recognition of professional career points for the incentive, since it is not an acquired right but a salary bonus (plus salarial) granted by the Administration for a determined period, in no way transgresses the principle of inalienability of the labor rights of public servants.

It concludes that there is no unconstitutionality whatsoever and requests that the appeal be declared without merit.

61.- NOGUI ACOSTA JAÉN, in his capacity as MINISTER OF FINANCE (Ministro de Hacienda), submitted a report.

On the salary nature of the professional career The professional career aims to stimulate the academic and professional development of the public servants, so that they remain in constant learning and updating, and that this is applied in the performance of their duties.

On the alleged harm to Article 57 of the Political Constitution The professional career incentive is considered a salary bonus (plus) and/or benefit, which will depend on whether the public servant has professional or training degrees and, additionally, whether these comply with the provisions of the regulations governing said incentive for its recognition. On the other hand, as administrative jurisprudence has indicated, the relationship existing between the State and the official is one of public law, which is inserted into a statutory regime (régimen estatutario), is subject to a legal status, to the duties of impartiality, objectivity, and independence that characterize the exercise of the state function, and to the power of unilateral modification in the hands of the Administration. For this reason, the regime of rights of public officials is not a static regime but a variable one, since the servant cannot resist its normative power, even regarding rights of economic content, within the constitutional limits of Article 34 of the Political Constitution, that is, in a retroactive manner unless it affects individual rights or consolidated legal situations, which is why it must be subjected to a more or less continuous process of adjustments and reforms for reasons of general interest.

It warns that in application of the principle of salary integrity (principio de indemnidad salarial), public servants who had professional career points recognized before December 4, 2018, will retain ‒without time limitation and as long as the employment relationship continues‒ the number of points accumulated and recognized before that date, and based on which they receive the respective economic compensation; but the points obtained after the entry into force of Law 9635 and other aspects regulated regarding the professional career will be subject to the normative modifications introduced by the cited law. The alleged violation of salary does not occur, since rights of economic content can be modified within the limits of the Constitution (Article 34 constitutional).

The reinforced protection of salary Labor Law is characterized by a series of its own principles, the protective principle being a classic one. The jurisprudence of the Second Chamber (Sala Segunda) has indicated that the protective principle in labor relations governed by public law is always subject to the principle of legality, and its application is impossible if it causes a normative breach.

In that order of ideas, it explains that the third paragraph of Article 53 of the law does not violate the protective principle. The purpose of Law 9635 is not to seek differentiation or salary detriment, but rather it was proposed to obey budgetary and financial limitations, with the clear objective of seeking to maintain a balance in public finances and ensuring that this economic objective is maintained over time and is not only applicable to a fiscal crisis. In that sense, it is the obligation of the State to guarantee the principle of efficiency by ensuring the necessary resources to meet employer obligations toward public officials and the expenditures for payroll payments that it must make, adjusted to the reality that the country's finances are going through. The payment of salary bonuses or incentives must be related to the equilibrium of public finances. Said reform introduced with Law 9635 aims to promote this equilibrium without this meaning that it has violated constitutional norms and/or principles. It is important to point out that, to safeguard salaries, and because Transitory Provision XXV of the LFFP so ordered, the total salary of the public servants who were active as of December 4, 2018 ‒the date on which that law entered into force‒ cannot be reduced.

On the alleged harm to Article 34 of the Political Constitution The final paragraph of cited Article 53 does not repeal the professional career incentive existing before the creation of Law 9635, but rather establishes a time limit for the recognition and remuneration of the economic incentive for the professional career, for a maximum of up to five years. Public servants who had professional career points recognized before December 4, 2018, will conserve ‒without time limitation and as long as the employment relationship continues‒ the quantity of points accumulated and recognized before that date, and based on which they receive the respective economic compensation, but the points obtained after the entry into force of Law 9635 and other aspects regulated regarding the professional career will be subject to the normative modifications introduced by the cited law.

It is important to reiterate what has been said, in that the regime of rights of public officials is not a static regime, but a variable one, especially regarding rights of economic content, modifiable within the limits of Article 34 of the Political Constitution. That is to say, it cannot be intended that the statutory situation be frozen or remain forever static, but rather it can be modifiable or vary by law or regulation, even eliminated by a later norm. Indeed, there is no right to the immutability of the legal system; the ordinary legislator keeps intact its power to enact laws, reform them, repeal them, and give them authentic interpretation (ordinal 121, subsection 1) constitutional).

This Ministry does not consider that acquired rights are being violated, since Law 9635 prevented the affectation of acquired rights by referring specifically to these in Transitory Provision XXV of the LFFP; the total salary of the public servants who were active as of December 4, 2018, the date on which that law entered into force, cannot be reduced and the acquired rights they hold will be respected.

On the presumed harm to the principle of the inviolability of assets (principio de intangibilidad del patrimonio) The reform made to Article 53 of the LSAP does not repeal the professional career incentive, since the points obtained before the entry into force of said law are conserved for the duration of the statutory relationship. It modifies the condition under which they will be granted after its effectiveness, in that only new career points will be recognized for a period of 5 years. In that sense, Article 191 of the Political Constitution, as well as the judicial and administrative jurisprudence that informs it, enable the uniform regulation, by law, of all employment relationships in the public sector, without this being considered a violation of the indicated constitutional principles. The law safeguards acquired rights and the non-reduction of salary, as observed in Transitory Provision XXV of the LFFP, therefore, in this regard, the impugned norm does not violate the principle of the inviolability of assets.

On the presumed harm to the principle of inalienability (principio de irrenunciabilidad) The principle of inalienability implies the impossibility for workers to waive the rights granted by labor legislation (ordinal 74 Political Constitution and Article 11 Labor Code). The rights of workers are inalienable; however, on this point, it is important to note that with the modification operated in Law 9635, the suppression of labor rights is not sought, but rather the law established Transitory Provision XXV of the LFFP, in order to safeguard acquired rights, as well as what concerns respecting the salary conditions of the public servants who were active as of December 4, 2018, the date on which that law entered into force.

Finally, it refers to the state of public finances, to conclude that it is clear that the State is under the obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet its obligations, adjusted to the reality that the country's finances are going through, and therefore the payment of salary bonuses or incentives must be related to the equilibrium of public finances.

It requests that the action of unconstitutionality be declared without merit.

62.- In a brief received at the Secretariat of the Chamber on July 5, 2024, Mr. [Name 004] appeared requesting to be considered a party to this case file.

63.- On October 31, 2024, a motion for prompt dispatch was attached.

64.- By means of a brief dated January 21, 2025, substitute magistrate Jorge Isaac Solano Aguilar attached a request for recusal.

65.- By resolution of the Presidency of the Chamber at 11:39 a.m. on January 24, 2025, the request for recusal of magistrate Solano Aguilar was rejected.

66.- The prescriptions of law have been followed in the proceedings.

Drafted by magistrate PACHECO SALAZAR; and,

CONSIDERING:

I.- Procedural Matters:

• 1)On the admitted joinders By resolution of the Presidency of this Tribunal at 9:29 a.m. on May 8, 2019, the following was ordered in relation to the requests for joinder (coadyuvancia) submitted up to that moment:
• a)Messrs. Enrique Egloff Gerli, in his capacity as president of the Asociación Cámara de Industrias de Costa Rica, and Álvaro Sáenz Saborío, in his capacity as special legal representative of the Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado, are considered passive coadjuvants (coadyuvantes pasivos), the foregoing because their interest is that this action of unconstitutionality be declared without merit; b) Messrs. Juan Carlos Chaves Araya, in his capacity as general secretary of SIBANPO, Miguel Ernesto Carranza Díaz as a public official, Marvin Atencio Delgado in his capacity as general secretary of SIPROCIMECA, Álvaro Adrián Madrigal Mora as general secretary of SITUN, Róger Muñoz Mata in his capacity as secretary of UNEBANCO, José Luis Soto Rodríguez in his capacity as general secretary of UPINS, and Luis Gerardo Chavarría Vega as general secretary of UNDECA, are considered active coadjuvants (coadyuvantes activos), all coinciding in their interest for this action to be declared with merit.
• 2)On the subsequent joinders Due to the broadening of scope that was made based on the arguments raised in the action of unconstitutionality No. 19-004931-0007-CO that was consolidated with this one, requests for joinder were submitted, which are resolved as follows:
• a)[Name 002], in his capacity as special judicial representative of SINAME, requested that his represented party be considered an active coadjuvant because he considers that the decision adopted by the Chamber in relation to the alleged norms will have a direct impact on the scope of the interests of the members of that union. Article 83 of the LJC states that in the fifteen days following the first publication of the notice referred to in Article 81, second paragraph of the LJC, those who have a legitimate interest may appear in order to coadjuvate in the allegations that could justify the appropriateness or not of the action of unconstitutionality, or to broaden, where appropriate, the grounds of unconstitutionality in relation to the matter that interests them. In the specific case, as observed, it was on February 27, 2020, when the representative of SINAME requested to be considered an active coadjuvant, estimating that his represented party has a legitimate interest in this action. Consequently, and given that the first publication of the notice of broadening of scope of this action occurred on February 7, 2020, the appropriate course is to consider this petitioner as an active coadjuvant within this process.
• b)[Name 003], ID number [Value 002], submitted on January 22, 2021, to the Secretariat of this Tribunal, a request to be considered an active coadjuvant in this action; however, his claim is untimely since, as was indicated, the first notice was published on February 7, 2020, and he came to this Tribunal almost a year later, meaning his motion is outside the period referred to in Article 83 of the LJC and therefore must be rejected.
• c)In a brief received at the Secretariat of the Chamber on July 5, 2024, Mr. [Name 004] appeared requesting to be considered a party to this case file. However, his motion is untimely and must be rejected.

</p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445376" class=""><span style="text-transform:uppercase">II.- On the Integration of the Chamber to Hear This Matter</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span>After carrying out the corresponding procedures, as recorded in the procedural history (resultandos) of this case file, the hearing of this case file was assigned to the following magistrates: </span><span style="font-weight:bold">Fernando Castillo Víquez, Fernando Cruz Castro, Paul Rueda Leal, Jorge Isaac Solano Aguilar, Fernando Lara Gamboa, </span><span style="font-weight:bold">Aracelly Pacheco Salazar and Alejandro Delgado Faith</span><span>. </span></p><h1 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445377" class=""><span style="text-transform:uppercase">On Admissibility:</span></a><br data-mce-bogus="1"></h1><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445378" class=""><span>III.- </span><span style="text-transform:uppercase">On the Formal Requirements of Admissibility and Standing (legitimación)</span></a><span style="text-transform:uppercase"> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>This Chamber has repeatedly indicated that the action of unconstitutionality (acción de inconstitucionalidad) is a process with certain formalities which, if not met, make it impossible to rule on the merits of the matter. Article 75 of the LJC regulates standing (legitimación) to file actions of unconstitutionality and provides for different situations. The first paragraph requires the existence of a matter pending resolution, either in a judicial venue – including habeas corpus or amparo appeals – or in the administrative venue – in the procedure for exhausting this route – in which the unconstitutionality of the challenged norm is invoked as a reasonable means to protect the right or interest considered harmed in the main matter. The second and third paragraphs regulate the direct action (acción directa), which are cases where the underlying matter is not required under the following assumptions: </span><span style="font-weight:bold">a)</span><span> when, by the nature of the matter, there is no individual and direct harm (lesión); </span><span style="font-weight:bold">b)</span><span> it involves the defense of diffuse interests (intereses difusos) or those that concern the community as a whole; and </span><span style="font-weight:bold">c)</span><span> when the action is brought by the Attorney General (Procurador General de la República), the Comptroller General (Contralor General de la República), the Prosecutor General (Fiscal General de la República), and the Ombudsman (Defensor de los Habitantes). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Thus, only in exceptional cases established by law is the existence of this requirement not necessary, and this Court has clarified that </span><span style="font-style:italic">“the assumptions contained in Article 75, second paragraph constitute an exception to the rule established in the first paragraph (incidental route (vía incidental)) that must be carefully assessed” </span><span>(judgment </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1145735" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">n.°</span><span style="text-decoration:underline; color:#000000">2022-003938</span></a><span>). </span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445379" class=""><span style="text-transform:uppercase">IV.- </span><span style="text-transform:uppercase">The Standing (legitimación) of the Claimants in THE SPECIFIC CASE</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>As is evident from the case file, in the different actions that have been consolidated into this main case file, the claimants justify the standing (legitimación) they hold based on the provisions of the second paragraph of Article 75 of the LJC, by affirming that they appear in defense of the diffuse interests (intereses difusos) of public officials, but also of the members of the different associations and unions they represent. This Chamber examined said legal basis and in interlocutory judgment </span><span style="font-weight:bold">n</span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-921416" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">.º</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2019-010635</span></a><span> of 9:20 hrs. on June 12, 2019 (issued in consolidated action n.º 19-004931-0007-CO), </span><span style="font-weight:bold; text-decoration:underline">it was expressly indicated that the criterion that they were appearing in defense of diffuse interests was not shared, and it was stated that, in the specific case, we are in the presence of corporate interests (intereses corporativos), also derived from the collective interests (intereses colectivos) that are what the appearing associations and unions seek to defend</span><span>. Likewise, the Chamber stated in that resolution that there is a clear relationship between the questioning of the norms and the interests of their members that produces standing (legitimación) to file this action of unconstitutionality. However, the following was also warned: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">[T]</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">hat relationship is not sufficient to protect the rights of the families of its members or of an even larger community, formed by taxpayers, those subject to the municipal regime, local governments, and public officials who work in various public institutions that are creditors of a certain level of autonomy</span><span style="font-style:italic">. Accepting that the Association is legitimated to defend the interests of that broader, general, and diverse group </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">would mean accepting the existence of a kind of popular action (acción popular), which is reserved to law in our legal system</span><span style="font-style:italic">, such that it must be expressly provided for by it, which is not the case” </span><span style="font-style:italic">(see interlocutory judgment n.º 2019-010635 of 9:20 hrs. on June 12, 2019, issued in case file n.º 19-0004931-0007-CO). </span><span>(The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In accordance with that resolution, it must be warned then, </span><span style="font-style:italic">prima facie</span><span>, that </span><span style="font-weight:bold; text-decoration:underline">the standing (legitimación) of the claimants is only for the purpose of questioning legal or regulatory norms that allegedly affect the labor and salary sphere of the workers, and not for questioning other aspects of public policy that are not directly related to strictly labor aspects</span><span>. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The Chamber's criterion has been reiterated in several subsequent resolutions. For example, in interlocutory judgment </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1061802" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2021-022948</span></a><span>:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic; background-color:#ffffff">III.- OF THE INADMISSIBILITY OF THE PRESENT ACTION, REGARDING THE ALLEGED VIOLATION OF THE AUTONOMY OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL.</span><span style="font-style:italic; background-color:#ffffff">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">In the </span><span style="font-style:italic; background-color:#ffffff">sub lite</span><span style="font-style:italic; background-color:#ffffff">, the claimants formulate as a first objection a presumed violation of the reinforced institutional autonomy (autonomía) recognized in the constitutional text to the Caja Costarricense de Seguro Social (articles 73 and 188 of the Political Constitution).</span><span style="font-style:italic; background-color:#ffffff">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">Regarding this particular point, it must be indicated that this Constitutional Court has repeatedly resolved that the defense of the autonomy of an institution must be made before this instance by that same entity and not by a third party (Votos Nos. 2008-014190 of 10:00 hrs. on September 24, 2008, 2008-017295 of 14:48 hrs. on November 19, 2008, and 2016-01669 of 09:30 hrs. on February 3, 2016). Said criterion was ratified by this Chamber, recently, when hearing an action of unconstitutionality analogous to the present one, filed by another union organization (ANEP) that also sought to challenge various articles of the cited Ley de Salarios de la Administración Pública (reformed by Ley No. 9635), precisely, for alleged violation of the autonomy of the municipalities and different autonomous institutions. On that occasion, this Tribunal issued Voto No. 2019-010635 of 9:20 hours on June 12, 2019, in which it was indicated – regarding this point – that: (…) This criterion was confirmed again by this Tribunal, subsequently, by rejecting repeated actions of unconstitutionality, through Votos Nos. 2019-19597 and 2019-22464, by reason of several actions filed by the Sindicato de Trabajadores del Instituto Nacional de Aprendizaje against diverse regulations for alleged violation of the autonomy of that institution. In such judgments, it was reiterated that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the representatives of union organizations do not have standing (legitimación) to act, directly, in alleged defense of the autonomy of an autonomous institution, but rather the defense of the autonomy of an institution must be made by that same entity</span><span style="font-style:italic; background-color:#ffffff">.</span><span style="font-style:italic; background-color:#ffffff">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">Ergo, this action is inadmissible regarding this particular objection”.</span><span style="background-color:#ffffff"> (Considerations reiterated in judgments numbers </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1117460" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000; background-color:#ffffff">2022-023912</span></a><span style="font-weight:bold; background-color:#ffffff">, </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1156180" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000; background-color:#ffffff">2023-010777</span></a><span style="font-weight:bold; background-color:#ffffff">, </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000; background-color:#ffffff">2024-007057</span></a><span style="background-color:#ffffff">).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>This being the case, it must be said that, for this Tribunal, it is clear that [Nombre 001] in his capacity as general secretary of SEBANA; Albino Vargas Barrantes in his capacity as general secretary of ANEP; Carlos Stradi Granados in his capacity as president of SIICE together with Mario Ching Rosales as president of ASDEICE; and finally, Mélida Cedeño Castro in her capacity as president of APSE, are duly legitimated to appear via this route before this Tribunal, based on the provisions of Article 75, second paragraph of the LJC, </span><span style="font-weight:bold; text-decoration:underline">in defense of corporate interests (intereses corporativos) derived from collective interests (intereses colectivos)</span><span> that are what they seek to defend, as was indicated in the resolution admitting this case file (19-002620-0007-CO) and in the referenced interlocutory resolution n.º 2019-010635, issued in consolidated action n.º 19-004931-0007-CO). Regarding the active coadjuvancies (coadyuvancias activas), it is also noted that their admission is for purposes of coadjuvating in relation to the defense of the labor rights of the persons unionized to the corresponding unions, and not, as has been noted in the precedents, to carry out the defense of the institutional autonomy (autonomía) of the institutions for which they work. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>It must be insisted that, in principle, these actions are admissible insofar as they concern the </span><span style="font-weight:bold; text-decoration:underline">concrete defense of the public servants unionized to the different claimant unions</span><span>. Therefore, when examining in detail the grievances raised, it will be detailed which norms are inadmissible for analysis before this Tribunal, precisely attending to the standing (legitimación) held by the claimants. In that sense, although </span><span style="font-style:italic">prima facie</span><span> the actions filed are admitted, it will later be detailed which grievances must be dismissed by virtue of the fact that the standing (legitimación) of the unions cannot be assimilated to a popular action (acción popular) in which all the content of the LFFP is questioned. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Magistrate Cruz Castro dissents and also admits the standing (legitimación) of the claimants regarding the defense of institutional autonomies (autonomías), fiscal responsibility, and the destination of free surpluses (superávits libres).</span></p><h1 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445380" class=""><span>CONSIDERATIONS ON THE MERITS</span></a><br data-mce-bogus="1"></h1><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445381" class=""><span style="text-transform:uppercase; background-color:#ffffff">V.- On the Methodology of Analysis of the Action.</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span style="background-color:#ffffff">To facilitate the study of the challenged regulations, in the following recitals (considerandos) each of the questioned articles will be analyzed, including all the topics that are directly related to what is challenged by the claimants. Likewise, in each specific point, a brief reference will be made to what the coadjuvants, PGR, Ministerio de Hacienda, MIDEPLAN, and DGSC indicate, to finally carry out the constitutionality analysis by this Tribunal. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Preliminarily, general considerations are made related to the context of the approval of the challenged regulations, reflections on the necessary balance that must exist between the approval of public salary policies and the safeguarding of the fundamental rights of public servants, on the mutability of the legal system, the principles of progressivity and non-regressivity, acquired rights (derechos adquiridos), a clarification on the application of this regulation, and the general principle that governs constitutionality control processes, which is the necessary substantiation of the grievances. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445382" class=""><span style="text-transform:uppercase">VI.- Preliminarily. Context and Approval of the Challenged Regulations.</span></a><span style="text-transform:uppercase"> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Before examining in detail the list of grievances raised, it is necessary to assess the context in which the reform occurred. As will be developed below, the LFFP received legislative impetus and approval at a critical moment in the Costa Rican fiscal situation, in which one of the axes is to seek uniformity and containment of spending in relation to the payroll of public servants. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Indeed, matters relating to the payment of salaries of state employees have been a subject of concern for several years on the part of public authorities, such that there has been an impetus and calls for attention that, in a context of fiscal crisis, it is relevant to take permanent actions aimed at ordering spending on remunerations and, very particularly, in relation to salary incentives. Thus, for example, in the </span><a href="https://cgrfiles.cgr.go.cr/publico/docsweb/documentos/publicaciones-cgr/memoria-anual/2015/memoria-anual-2015.pdf" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">Annual Report of the Contraloría General de la República (CGR)</span></a><span> for the year 2015, an analysis was made of the increase in spending on remunerations and the following warnings were made:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“•</span><span style="font-style:italic"> </span><span style="font-style:italic">Spending on remunerations in the public sector reached ¢5,132,158 million, 5.7% more than in 2014. However, its share within total spending is increasingly larger, going from 24.2% in 2010 to 26.3% in 2015. </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">•</span><span style="font-style:italic"> The Central Government absorbs 41.4% of total spending on remunerations, and its growth rate is 7.3%, higher than that of the public sector. </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">•</span><span style="font-style:italic"> The ratio of salary incentives/basic remunerations in the Public Sector goes from 0.99 in 2010 to 1.1 in 2015. Incentives grew 6.1% in 2015 while basic remunerations grew 4.8%. </span></p> </p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">•</span><span style="font-style:italic"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">Given the current fiscal situation, it is relevant to take permanent actions aimed at organizing spending on remuneration, so that it is governed by the principles of reasonableness, efficiency, and effectiveness</span><span style="font-style:italic">”.</span><span> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In that annual report, the CGR likewise warned</span><span> that while spending on remuneration is of the utmost importance for the functioning of the Public Administration, such payments must be governed by the principles of efficiency, effectiveness, and economy, and that the dispersion of salary regimes and the disbursement of high incentives lead to an </span><span style="font-style:italic">“</span><span style="font-style:italic">unsustainable behavior of remuneration”</span><span>. The CGR warned</span><span> that it would be up to the Legislative Assembly to approve the norms and legislative proposals to</span><span> regulate the matter:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Without a doubt, spending on remuneration is of great importance for the effective functioning of the public administration, however, it must be governed by principles of reasonableness, efficiency, effectiveness, and economy. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The dispersion of current salary regimes, salary policies, and wasteful salary incentives lead to an unsustainable behavior of remuneration. A situation that is critical for a line item that absorbs practically a quarter of public resources and is of a recurrent nature</span><span style="font-style:italic">. As has been mentioned in other sections of this Economic Year Annual Report, there are already several proposals in the legislative pipeline aimed at containing this spending; it is up to the legislator to analyze and approve them in order to promote permanent solutions”.</span><span> (The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>Subsequently, in the </span><a href="https://cgrfiles.cgr.go.cr/publico/docsweb/documentos/publicaciones-cgr/memoria-anual/2017/memoria-anual-2017.pdf" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">2017 Annual Report</span></a><span>, the CGR carried out</span><span> an analysis of what the fiscal deficit in our country is about and explained several reasons for how it could have been generated. Among the causes that are listed is</span><span> precisely the growth in the remuneration systems of the public</span><span> sector: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Another cause of spending growth is the public sector remuneration systems that foster inertial growth: annual increments (anualidades), professional points (for seniority, courses, and professional degrees, etc.), reclassification of positions and posts,</span><span style="font-style:italic"> extraordinary salary adjustments, an increase in the number of civil servants, laws that create government programs or functions and originate more spending, creation of new units through reorganization, among others. The design of the current remuneration scheme comp</span><span style="font-style:italic">rises the payment of incentives, which tend to have a more dynamic behavior compared to base salaries. On average for the 2012-2017 period, incentives grew at a rate of 6.3% compared to the 5.2% average of basic</span><span style="font-style:italic"> remuneration. The foregoing, because some of these incentives are adjusted for inflation or are otherwise strongly associated with the number of years served, as is the case with the annual increments (anualidades).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Incentives have also come to be higher than base salaries, since in the aggregate of the public sector, for every ¢</span><span style="font-style:italic">100,000 of base salary, ¢</span><span style="font-style:italic">109,106 were disbursed for incentives, and in some institutions, incentives not </span><span style="font-style:italic">only equal the base salary but double it, that is, up to two-thirds of a civil servant's remuneration can correspond to the payment of incentives, r</span><span style="font-style:italic">eflecting the distortion (desnaturalización) that incentives have undergone in the base salary plus components schemes, as they gradually went from being additional compensation to being more important than the salary itself. This incentives/base salaries ratio </span><span style="font-style:italic">has</span><span style="font-style:italic"> grown steadily over time, for example, in 2013 for every ¢</span><span style="font-style:italic">100,000 of base salary, ¢</span><span style="font-style:italic">104,093 were paid in incentives. It is worth noting</span><span style="font-style:italic"> that the magnitude of this ratio differs according to the institutional sector, as it is greater in </span><span style="font-style:italic">non-business public entities (instituciones descentralizadas no empresariales) and smaller in Local Governments (1.3 versus 0.7 respectively).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">The upward trend in salary spending, not only in the Central Government but also in entities with autonomous status that are financed through Government transfers, has repercussions on the Government's fiscal result</span><span style="font-style:italic">”.</span><span> (The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>In that report, it was further warned</span><span> that it was vital to finalize legal reforms to regulate remunerative aspects of public employment and that inaction on that matter was undermining fiscal sustainability: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom-left:0pt; margin-bottom:0pt; margin-bottom-right:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">In short, the remuneration scheme, employment behavior, and inflation define the trend of spending on remuneration; where the administration </span><span style="font-style:italic">only has some control over the second aspect, while salary regimes </span><span style="font-style:italic">and inflation are exogenous variables. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The finalization of reforms to organize public employment and simplify salary regimes is of the utmost importance in addressing the fiscal issue. Inaction constitutes one of the main risks that undermine fiscal sustainability</span><span style="font-style:italic">, while perpetuating the inequities and contradictions of the current regimes”</span><span style="font-style:italic">. </span><span>(The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>From the foregoing CGR reports, it is evident that at least since 2015 there had been insistence on the need to simplify and contain salary spending as a measure to address the fiscal deficit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In this way, it is understood that the LFFP was adopted</span><span> in a context in which the Government and the Legislative Branch determined that it was imperative to adopt measures of all kinds in order to</span><span style="font-style:italic"> “</span><span style="font-style:italic">resolve the fiscal imbalance in a sustainable manner”</span><span style="font-style:italic"> </span><span>and seek a solution</span><span> to the structural problem of public finances (containment of spending and increase in revenues). The foregoing, because</span><span> all economic indicators pointed towards a severe fiscal deficit and an imbalance in public</span><span> finances. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In fact, upon examining the very background records of this Court, it is found that </span><a name="_Hlk146720664" class=""><span>in advisory opinion </span></a><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-894553" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">No. 2018-019511</span></a><span> which precisely examined</span><span> the doubts of constitutionality raised in relation to the bill that sought to approve the LFFP</span><span style="-aw-bookmark-end:_Hlk146720664"></span><span>, the Court warned</span><span> that the context surrounding the approval of the bill could not go unnoticed and the</span><span> following statement was made that precisely served</span><span> as a parameter</span><span> to assess the constitutionality of the legislative reforms: </span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">[I]n legislative file No. 20.580 there are technical criteria and reports from various authorities with competence in the matter that, for the purposes of this process, constitute sufficient evidence to conclude that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">due to the disregard for the constitutional principle of financial equilibrium, enshrined in Article 176 of the Political Constitution, our country presents a fiscal situation so deteriorated that it threatens the State's financial sustainability</span><span style="font-style:italic">”.</span><span> (The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>After the analysis of both technical criteria contained in the legislative file, the Court assessed</span><span> that </span><span>—</span><span>in accordance with the specialists and the Government itself</span><span>—</span><span> the country's fiscal situation did not guarantee the State's financial sustainability and, therefore, it was not only desirable but unavoidable for the Costa Rican State to adopt measures to guarantee the qualities and principles of our </span><span>Social State of Law (Estado Social y de Derecho). The foregoing, under a harmonious interpretation of the princip</span><span>le of budgetary equilibrium and the Social State of Law. In this regard, this Court warned</span><span> of the following:</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">From this panorama, the Court observes sufficient technical criteria to (prove) that, at this time, the country's fiscal situation does not guarantee the State's financial sustainability and, therefore, the fulfillment of its constitutional obligations.</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-style:italic">In this regard, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">faced with a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant services, the decision of the competent authorities to define and apply measures suitable for alleviating or solving the problem is not only reasonable but, even more so, is unavoidable</span><span style="font-style:italic">.</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-style:italic">However, it is not for the Court to define specifically what</span><span style="font-style:italic"> type of remedies should be applied or which is the most suitable, since that is part of the State's economic policy, which in turn constitutes a matter of government. In reality, judicial review (control de constitucionalidad) is constrained to ensuring that the solutions are adopted while safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political system (in a democratic, free, independent, multi-ethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), all of which implies an exercise of balancing and optimizing the various constitutional principles, rights, and values at play.</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">In this context, a harmonious interpretation of the principle of budgetary equilibrium and the Social State of Law is of special importance. The Court warns that, for a Social State of Law to be able to persist and fulfill its constitutional and legal purposes, it becomes necessary for a healthy management of public finances to be carried out</span><span style="font-style:italic">; that is, there must inexorably be a balance between social 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 solidary political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Stated differently, the “ideal” Social State of Law is the “possible” Social State of Law, against which one precisely acts when the principle of budgetary equilibrium is violated, since, in the medium term, that 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. Ensuring then that a failed or paper Constitution is not reached, where social welfare rights of constitutional rank cannot be effective, is a fundamental task of this Court, strictly within what the framework of its competences allows it”.</span><span> (The highlighting does not correspond to the orig</span><span>inal). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Further</span><span> on, the Court again refers to the context of the approval of the regulation in question in order to conclude that the adequate respect for social and welfare rights is an aspiration that is contingent</span><span> upon the healthy and appropriate management of</span><span> public finances and that it is necessary for a balance to exist between social welfare rights and the State's economic solvency, since the former depend on the material possibilities brought about by the latter. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Therefore, the starting point is precisely the need to adopt legal, administrative, and material measures that would allow reversing the brink of a fiscal crisis of particularly serious gravity, which was characterized as unsustainable, which implied</span><span> a threat to the Social State of Law. In this regard, the Court made</span><span> the following reflections: </span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">As has already been stated in this ruling, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">for a Social State of Law to be able to fulfill its constitutional and legal purposes, the country's fiscal sustainability must be safeguarded; that is, there must inexorably be a balance between social welfare rights and the economic solvency of the State, since the former depend on the material possibilities brought about by the latter</span><span style="font-style:italic">. Hence</span><span style="font-style:italic"> the “Ideal” Social State of Law is the “Possible” Social State of Law, because indebtedness and irresponsible management of public finances, even if carried out with the aim of alleviating social problems, when they reach disproportionate levels can put the country's financial sustainability at risk, which not only leads to its economic weakening (even to levels of very difficult or traumatic management), but also increases the possibility of losing social programs and the socioeconomic gains achieved to date. Furthermore, as a starting point, this ruling is based on the premise that the challenged bill is guided by the constitutional principle of budgetary equilibrium, within a context in which there is sufficient body of evidence to verify a fiscal crisis of particularly serious gravity, which has been characterized either as unsustainable or as a threat to the Social State of Law, according to the technical criteria of various authorities from the university, economic, and oversight sectors (Institute of Economic Research of the University of Costa Rica, Central Bank, Office of the Comptroller General of the Republic, State of the Nation Program, among others). It is noted that such economic weakening of the country can undermine the foundations of the welfare and solidarity state, which precis</span><span style="font-style:italic">ely puts the Social State of Law itself at risk. In the task of solving such a problem, the legislator enjoys broad freedom of configuration, regarding which it is not for the Constitutional Court to define specifically what type of remedies</span><span style="font-style:italic"> s</span><span style="font-style:italic">hould be applied or which is the most suitable, since that is part of the State's economic policy, which at the same time constitutes a matter of government.</span></p> The function of the jurisdiction is limited to ensuring that the solutions adopted safeguard the fundamental rights protected in the Political Constitution and the international human rights instruments ratified by Costa Rica, as well as the organization and political structures contemplated in the Fundamental Law, the foundations of our democratic political system.” (The emphasis does not correspond to the original).

Magistrates Salazar Alvarado and Araya García pointed out that it did not correspond to the Chamber to define whether our country was effectively going through a fiscal crisis or not; however, they did recognize that, in light of the respective technical criteria contained in the legislative file, the context could be assessed and the legal reforms being proposed could be examined. However, they warned that the potential financial crisis could not justify, by that mere circumstance, the emptying of the content of the fundamental rights of the inhabitants, since this could imply, in essence, a dismantling of the Social State of Law. In the pertinent part, they made the following reflections:

“It is necessary to emphasize that it is not for this Chamber to define, specifically, whether the country is going through a fiscal crisis or not, nor the characteristics thereof—if one existed—and, much less, what type of remedies should be applied, nor which are the most appropriate, nor the timeliness and advisability of the financial and public spending reduction measures adopted, all of which falls within the macroeconomic policy of the State, a matter typical of government. Neither does it correspond to decide on one solution or another. It is for the competent administrative departments, through technical and actuarial criteria, to define whether a fiscal crisis exists in the country, to what extent, as well as its characteristics and economic and social consequences. This, however, does not prevent this Court, in light of those technical criteria—such as the Economic Report AL-DEST-IIN-114-2019, of March 2, 2018, from the Department of Studies, References and Technical Services of the Legislative Assembly (see page 1477 of the legislative file); official communication No. DFOE-SAF-0183, from the Audit Area of the Financial Administration System of the Comptroller General of the Republic of April 13, 2018 (visible on page 4525 of the legislative file); and official communications JD-5846/04, of September 26, 2018, and DEC-AAE-0083-2018, of October 16, 2018, from the General Secretary and the Department of Economic Analysis and Advisory, both of the Central Bank of Costa Rica (visible on pages 15805 and 20519, respectively, of the legislative file); among others—from assessing the situation—not defining it—in order to, within that context, carry out the constitutionality review which is its responsibility. These considerations are typical of a Court of the nature of this Chamber, because not only can it not be oblivious to the financial and social reality of the country, but this issue is inserted within the constitutional principle of financial balance that the Constituent Assembly of '49 established in Article 176 of the Political Constitution, which has serious repercussions on the Social State of Law. However, the financial crisis of the State cannot justify, by itself and in itself, the restriction or the curtailment of fundamental rights. In this sense, it is indeed incumbent upon this Court to determine whether the proposed measures are or are not in accordance with the Law of the Constitution, so that the content of constitutional rights is not emptied in order to seek a healing of public finances. In this matter, there exist intangible limits for the legislator. In this context, an exacerbated impairment of social guarantees cannot be admitted, especially of welfare rights, without this implying a dismantling of the Social State of Law.” (The emphasis does not correspond to the original).

Magistrate Hernández López also referred to the context of regulatory approval as a parameter of reasonableness and proportionality, warning, however, that it is a contingent aspect that could improve:

“Another aspect that is crucial to clarify is that, although this judgment contains references to the current economic situation (according to the technical studies provided in the record), that context has been taken into account insofar as the competent authorities rely on it to justify that some of the measures adopted are determinable for the economic sustainability of the State's responsibilities. In that sense, the references to that situation, from my perspective, have been made for the purpose of assessing the reasonableness and proportionality as constitutional parameters of some of the measures consulted. By acting in that manner, I understand that it reaffirms the necessity—also clearly recognized by the doctrine itself—that the decisions of this body take into account and always operate within a specific social and economic context, so that—within such specific circumstances—the best possible balancing, protection, and equilibrium of the fundamental rights of the administered parties is achieved, but without affecting the viability, endurance, and stability of the Political Constitution, as a legal and political instrument that makes the realization of the social pact possible; the opposite would risk ending up at the antipodes of the constitutional rule of law, with a fundamental Charter, in the air, with rights that exist only on paper, that is, with a failed state, incapable of guaranteeing its obligations, particularly those of welfare rights (especially those of the most vulnerable populations: children, adolescents, the elderly, poverty programs, security, health, justice, and peace, among others), which would be emptied of content. Nothing exempts a constitutional rule of law from fulfilling its obligations to guarantee, in a programmatic manner, the fulfillment of these responsibilities, which are also part of its raison d'être. In that sense, different contexts (economic, political, or social) can influence the way in which a Constitutional Court, fulfilling its protective and oversight function, endows specific meaning and scope, especially to so-called constitutional principles, due to their open texture, and guides the authorities on the scope of the programmatic norms of a given state, at a specific moment and under specific historical circumstances; it could not be otherwise, nor has it ever been, when it comes to the task of building a democratic and social State of Law, in which this Court also participates, insofar as it corresponds—due to its function as guardian of the Political Constitution—and as part of its role, to ensure the stability and endurance of the social pact. Such is the real meaning of what is stated in this judgment, which, as indicated, cannot serve to pre-judge in an exact and rigid manner the questions that in the future—facing concrete cases and in different contexts—may be brought before the Chamber, because it would not be correct for—for example—the specific parameters of reasonableness and proportionality employed under a given context to be maintained, without adjustment, in the face of changes or improvements that may arise in the future; such that, in a context of economic prosperity, the reasonableness and proportionality of some of the measures adopted would not have the same meaning from a constitutional standpoint. From my perspective, for example, it would not be constitutionally sustainable, in the face of future economic stability or prosperity, to maintain in force some of the growth restrictions on social spending—destined for populations in the greatest state of vulnerability and for workers' rights—that have been imposed in the current context.” It should be indicated that the LFFP included a series of provisions related to modifications in tax matters, specifically regarding the Value Added Tax Law (Title I), the Income and Profits Tax Law (Title II); a series of rules were added that reformed the LSAP (Title III)—which refers precisely to the subject matter to be examined in this action—; provisions related to fiscal responsibility were also introduced (Title IV); and finally, transitory rules to make the reforms in question operative.

Regarding the impact on the salaries of public servants, the statement of legislative intent for the bill explained the purpose of the initiative, namely: to guide the remunerations of the public function towards a framework of efficiency and quality in public spending. In this way, the statement of legislative intent for the bill stated the following:

“b) Addition to the Public Salaries Law With the reform of the Public Salaries Law, the aim is to guide the remunerations of the public function towards a framework of efficiency and quality in public spending. To this end, it establishes: i) Caps on the highest salaries of the Public Administration; ii) A single salary remuneration system for senior officials; iii) The legal regulation of the regimes of prohibition and exclusive dedication; and iv) The conversion of the annual increment (anualidad) into a mechanism for evaluating individual excellence, but one that takes into account the fulfillment of institutional goals and the National Development Plan. This last point seeks to reduce the paradox of having officials rated as excellent, who nevertheless provide services in entities that have not met expectations. The compensation of high-ranking officials must be based on the nature of their work and the competencies to be performed. For many positions of responsibility, the base salary represents only 20% of the total salary, their remunerations being adjusted through the most diverse bonuses, which are less transparent and controllable, and which can result in evidently abusive compensation, especially if the reality of our labor market is taken as a parameter. In this sense, the establishment of caps for the best-remunerated positions could bring the double benefit of, on the one hand, avoiding abusive compensation and, on the other, standardizing the compensation of high-ranking officials who perform functions of equal responsibility. On the other hand, it is undeniable that the performance evaluation system of the public sector is not only complex, but also facilitates the inflation of ratings and is carried out in isolation from the actual provision of services, which is, after all, what matters to the citizenry. Furthermore, according to INEC data, there are approximately 305,000 public officials in Costa Rica, representing a number close to 15% of the workforce. Determining whether that number is excessive does not depend on the number itself, but on the results achieved. An adequate evaluation system, based on ease of understanding, on transparency so that its results are publicly known, and on the merit of officials, would have as a necessary corollary the incentive for better individual performance and in the provision of services. This would also result in a better analysis of the resources allocated to our public workforce, and even in the possibility of redirecting them to those areas of greatest demand or impact. For these reasons, the following bill is presented to the deputies:” (The emphasis does not correspond to the original).

In the Integrated (Legal) Report No. AL-DEST-IJU-110-2018 from the Department of Studies, References and Technical Services, dated March 21, 2018, concerning the bill processed in legislative file No. 20.580, on the LFFP bill, precisely the intentions of the legislator to put a stop to the uncontrolled growth of public finances were highlighted, based on several rules that seek to avoid the exponential increase in the salaries of public servants and to unify the salary policy of the Public Administration. This report, in the pertinent part, established the following:

“As can be observed, the rule intends for the entire Public Administration to be governed by a single salary. This assumption has already been implemented in institutions such as the Comptroller General of the Republic, with the intention of managing in an adequate and rationalized manner the salary bonuses that have been granted to public officials up to now. Limiting the growth of so-called public remuneration has been an objective of the legislator, relatively recent and articulated through various mechanisms, as in this case, tending to restrict not only the amount of such compensation in the public sector through the legal establishment of maximum limits or caps, but also to curb the increase in public spending. On this matter, the Constitutional Chamber has warned the following: “(...) the effects that imbalances in the State's salary regime produce on public finances and, therefore, for the country in general, make it fully justifiable and even constitutionally necessary to subject everything concerning the salary policy of the Public Administration to uniform criteria. (....).” (Ruling No. 3309-94 of 15:00 hours on July 5, 1994). Therefore, it is not surprising that the proposal of this bill seeks to make effective a measure of general economic policy, of undeniable budgetary nature, aimed at containing the relative expansion of one of the components of public spending, namely that related to employee and high-level official remuneration. Even though it is true that there is no norm in our legal system that specifically supports the competence of the State to establish global maximum limits or caps on the remuneration of personnel serving in public administrations, it must be considered that even though the Executive Branch—strictu sensu—has among its powers that of “Ordering the collection and investment of national revenues” (Art. 140.7 of the Constitution), and from this the powers of salary fixing have been derived (resolution No. 1822-01 of 15:46 hours on March 7, 2001, Constitutional Chamber), the Magna Carta expressly establishes that it must do so “in accordance with the laws.” And what is proposed is undeniably a legal proposal that seeks to establish maximum limits or caps on the remuneration of all personnel serving the public sector, under a uniform scheme, based on the principles of equality and solidarity, aimed at containing the relative expansion of one of the essential components of public spending and reducing the public deficit.” (The highlighted portion does not correspond to the original).

In the month of April of the year 2018, the Permanent Ordinary Committee on Financial Affairs issued a favorable report on the bill by majority, and in the report submitted to the Plenary, they also referred to the economic context for the approval of the proposed reforms. Regarding this action of unconstitutionality, it is pertinent to highlight the legislators' purpose of adjusting salary elements that constitute a trigger for public spending:

"B) FISCAL CONTEXT AND THE PROPOSAL PRESENTED In recent years, there has been an increase in the country's tax collection, which has led fiscal revenues to be close to the average of fiscal revenues in Latin American and Caribbean countries. However, and despite this improvement and the efforts made to reduce spending, resources are insufficient to finance the expenditures currently needed in the country.

The high levels of deficit have caused a rapid increase in public debt, making it increasingly difficult to cover it with current tax revenues. The Central Government's budget went from a surplus of 0.57% of GDP in 2007 to a deficit of 6.2% in recent years. Public debt rose from approximately 25% of GDP in 2008 to more than 40% in 2015. The level of indebtedness in Costa Rica is high compared to the estimated average in the region's countries. On the other hand, indebtedness expressed as a percentage of public revenues reaches unsustainable levels and has grown more than in other countries in the region. In 2015, Costa Rica's debt level was nearly three times the Government's annual revenues, placing Costa Rica in the second-highest position in the region after El Salvador.

If not adequately addressed, Costa Rica's fiscal deficit could be unsustainable, and public debt could reach critical values that would jeopardize the country's growth. To balance the budget, Costa Rica must obtain new revenues and, at the same time, control public spending; it is necessary to correct the distortions generated, for example, by the excessive earmarking of tax revenues, which substantially limits governmental decisions on public financing, and it is also necessary to establish rules for the deceleration of spending and control of spending triggers, all of which, combined with a reform of the tax structure, are the necessary elements required to set Costa Rica on the path to fiscal sustainability.

(...)

All of the above highlights the need to approve the proposed reform, which contains the following pillars:

Improvement in the tax structure to allow for better collection and to approach a budgetary balance, which involves:

(...)

Establish improvements in the definitions of prohibition and exclusive dedication, cap the annual salary increases (anualidades), and other regulations governing public employment. (...)".

(The highlighted portion does not correspond to the original).

Subsequently, it was demonstrated that the legislative file was referred to a special committee: "Special Committee responsible for issuing a report on legislative file 20.580, Law for the Strengthening of Public Finances, which contains legislative file 20.730." A series of consultations and interviews were conducted within this committee. It was demonstrated, for example, that at ordinary session No. 28 on Thursday, June 21, 2018, the then Minister of Finance was received for an interview, during which she gave a broad explanation of the bill. Particularly, regarding public employment, she regretted that the country had delayed in taking concrete actions to standardize salary matters and made projections regarding making bonuses nominal. The foregoing, without any impact on the salary of public servants. On these points, the following statements are recorded:

"In this opinion study and her recent efforts, which the Office of the Comptroller General (Contraloría) released yesterday and made public, there are very interesting recommendations that I believe should be considered in that potential public employment law.

Regarding the estimate made, for the purposes of the ninety-six billion, it is an estimate based on the following.

Today, there are about one hundred fifteen thousand employees, one hundred twenty thousand Government employees, from the Budget of the Republic, one hundred thirty if all are included.

They have an average annual base salary of six million colones. So, what was done was to use the average seniority, which is more or less ─seniority in terms of the number of annual salary increases (anualidades)─ in the order of fourteen or fifteen, if I remember correctly.

What was estimated is based on several assumptions: 3% inflation and 100% payment of the annual salary increase. What is the impact on the growth of that incentive in the coming years, and what would the situation be if, instead of keeping it as a percentage, a fixed estimate is made?

Under that assumption that I am adding an annual salary increase to that group and that every time I make the salary adjustment, I am not just increasing that year's annual salary increase, but the inventory of those accrued, it yields a certain amount. And then, not only the savings from the annual salary increase are added, but also the rest of the social charges that would be avoided as a result of that non-adjustment of the automatic and inertial manner that annual salary increases have.

It is assumed, right?, because this is done based on assumptions, of course, as I said, that each person earns an annual salary increase each year, because as you know in the public sector, in the Central Government, practically 99%, I don't know if there is any exception, earns the full annual salary increase.

(...)

Deputy Yorleny León Marchena:

Always within the framework of that table, Mrs. Rocío, and thank you for expanding that information for us. A question arises regarding the participation yesterday by the Minister of Labor and your appearance here today.

In this table, there is an item that speaks of constant payment of each annual salary increase, and earlier you explained to us, then, how those ninety-six billion colones listed there are derived, representing 0.21, right?

For this effect of measures to occur, then, the situation that annual salary increases will go from being percentages to being nominal, and so forth, must take place in practice.

But yesterday, the Minister of Labor repeatedly indicated that no worker in this country would see their salary affected in any way. Now I have the doubt as to which is the correct interpretation.

Mrs. Rocío Aguilar Montoya:

No doubt. The salary that each public servant receives today is not reduced. What is modified is forward-looking, how certain components are calculated.

I would give them the example of a year when inflation was zero and in that year there was no salary adjustment, and despite there being no salary adjustment, remunerations grew by 1.93. And that is an effect of salary increases that are decoupled, let's say, from what happens with the cost of living, which is the classic case of the annual salary increase, the biennial bonus, the merit bonus, and others, they have another name, right?, but they are automatic increases as a percentage of the base.

So, here, no one is being stripped of that benefit they have today; what is being modified is how it is calculated going forward. And, as I was saying, what is sought here is to be able to manage salary policy in a better way and so that when I make an increase in the base, a series of other benefits do not start to float up which, being anchored as a percentage to the base, grow disproportionately.

Looking, for example, not only at the Central Government, if one looks at the budget report prepared by the Office of the Comptroller General for the entire institutional set, it is striking how remunerations grow at a lower rate than incentives, and the reason is precisely that: that incentives are thus divorced.

If one had managed to make the decision —I think I did the calculation very early in the morning— in 2014, if I remember correctly, having decoupled them would have generated savings of about... I said one hundred fifteen billion, one would have to do the math better, but I did that in very general terms.

That is what one wants to avoid. And what should one seek in the medium term? That the base salary really has value again. The base salary today is about 40%, but because no one touched it again because it became untouchable, because if I touch the base salary, the rest of the things automatically grow for me.

Deputy Yorleny León Marchena:

So, Mrs. Rocío, let's see. My current salary will not be modified, but my salary expectation based on future components will indeed be affected. That is the impact. Is that correct?

Mrs. Rocío Aguilar Montoya:

It is one way to describe it, and this is important because here we must begin to distinguish between acquired rights (derechos adquiridos) and expectations of rights. And regarding another concept that the Court itself has developed in a way that seems excellent to me, the concept of the immutability of the law, none of us has the right for that not to be modified going forward.

Of course, if that modification implies that my acquired right was modified, well, it must be compensated.

But if what we are talking about is the expectation of a right, which is somewhat the topic I referred to, then the matter is different, that can be varied.” Additionally, in regular session no. 29 of 27 June 2018, the appearance of the Comptroller General of the Republic was received, who made important reflections on the urgency of approving the LFFP:

“We referred on that occasion to a fiscal reality characterized by a deficit of more than six percentage points of GDP, associated with a public debt that brushes against the limit of sustainability and that has been fueled for almost thirty years by financing current expenditure with indebtedness, and that is rooted in political practices and decisions that have been established without a medium-term vision of their consequences on public finances and that have become a problem that is a structural matter.” Specifically, regarding the salary issue, the Comptroller provided the following explanations:

“With respect to title three, this is a modification to the Public Administration Salary Law and seeks, first, to regulate limits and general criteria for the recognition of compensation for exclusive dedication and prohibition, also indicating that it will be paid on base salary only.

More specifically, the text modifies the dedication incentive, establishing percentages of 55, 20, and 30% according to the academic degree of the official and, additionally, establishes that these contracts must be for a minimum of one year and a maximum of five years. The prohibition would be established at 65 for graduates and higher and 30 for bachelor's degree holders.

It declares incentives such as discretionary compensation, confidentiality, biennial supplements (bienios), quinquennial supplements (quinquenios), and similar ones as inadmissible. It regulates the severance pay (auxilio de cesantía), according to the provisions of the Labor Code, at eight years.

It establishes a limit on the remunerations for all public servants of twenty monthly base salaries of the lowest category in the Public Administration salary scale; twenty-five in the case of the President, and thirty in the case of officials of institutions operating in competition, which represents distortions regarding the level of responsibility and remuneration received, and we had pointed this out also in March.” Subsequently, the strengthening of public service delivery was advocated with the notion of uniform salary conditions:

“Given its importance in fiscal and social matters, I will briefly refer to the topic of public employment. And here, clarify that public employment is a means to contribute to and increase the State's capacity to offer goods and services that improve the quality of life of citizens.

Public employment is not merely compensation or remuneration. That is only one part, and everything must function effectively and efficiently to deliver the expected results.

Among other components of this system, we have recruitment, selection, the administrative career, performance evaluation, profiles, competencies; all of which must be designed so that public employment, which is fundamental for the economic and social growth of the country, is vigorous, fair, balanced, equitable, and transparent.

In that sense, various documents from the Comptroller's Office have advocated for a necessary comprehensive vision and the creation of a defined policy on public employment, given the diversity of the remunerative system in force in the public sector, characterized by unequal base salaries and salary incentives of very varied nature that are enshrined in laws, decrees, collective bargaining agreements, and internal regulations.

(…)

Specifically, on the topic of remunerative schemes, our most recent work corresponds to the study on challenges for the modernization of the remunerative scheme in the Government ministries, where general principles were identified towards which remuneration schemes can be oriented in order to attract and count on motivated, effective, and efficient personnel. That is, paying equal salary for the same work, paying different salaries only in the presence of differences in the work performed, in the responsibilities, and the required qualifications, paying salaries in the Government comparable, as far as possible, to those of equivalent strengths in the public sector, periodically and systematically reviewing the remuneration schemes to guarantee their continued validity.

The application of these principles has an important impact in five areas, such as governance, and there is the use of public resources and transparency, economic policy, the implementation of fiscal policy, the distribution of public goods and services, and fiscal sustainability.

(…)

In conclusion on this title three of the bill, it is considered that it is a positive signal towards the ordering of remunerations, which must advance towards a balance internally, but also externally to the institutions.

The Comptroller's Office proposes beginning a transition towards a remunerative system in which salary incentives are adjusted to the principles mentioned above, which is important as a step towards a more uniform remuneration regime, as well as addressing other crucial topics of public employment necessary to impact efficiency in public management.” (The highlighting does not correspond to the original).

With the context of the regulation's approval and the purposes of the Legislative Assembly being clear, each of the alleged claims will now be examined. It is emphasized that this argument was added for the purpose of evaluating the final motivation of the reform, without this in itself being a condition that legitimizes all provisions relating to public employment and salary provisions.

VII.- ON A NECESSARY BALANCE BETWEEN SALARY POLICIES AND THE SAFEGUARDING OF THE FUNDAMENTAL RIGHTS OF PUBLIC SERVANTS Considering the serious fiscal situation of our country, this Court considers that the Costa Rican State, in the broad sense, must aspire to a healthy balance between respect for the fundamental rights of working persons—a salary that ensures conditions of well-being and dignity, respect for acquired rights (derechos adquiridos), and the right to collective bargaining, among others—and the orientation of public finances, specifically the remuneration system, towards a scheme of efficiency and quality in public spending. The foregoing, with the purpose of curbing the salary gaps and disparities that have been affecting public finances. To achieve the above, the principles of equality, reasonableness, and proportionality must be taken into consideration in the recognition of salary improvements, so that there is no severe impact on the disposition of public funds and no unfair disparity among public servants themselves. For example, when this Court, in judgment no. 2018-008882, examined the cap on the amount of severance pay that can validly be improved through collective bargaining, it made the following considerations:

“The problem that the majority of the Chamber finds here—and which does not seem to have been specifically addressed previously—arises when the magnitude of the benefit is contrasted, not only internally within the group of employees favored by the Collective Bargaining Agreement, as was done in the cited judgments, but when the magnitude of that payment of severance pay is analyzed within the complete universe of public servants in the broad sense; this extension of the comparative framework is justified inasmuch as for all employees in the service of state institutions, the source of financing for that payment of severance pay is one and the same: the tributes and public prices paid by all the people inhabiting the Republic. And it does not preclude that, both in this case and in many others, it concerns state companies acting in a competitive market and administering funds from consumers, savers, and borrowers, since, inasmuch as such institutions belong to the State and have its backing, their health and financial practices can be—and are in fact—extremely relevant for public finances, as is clearly demonstrated by the well-known current condition of Bancrédito and the estimates that have been made regarding the impact its closure will have on the national budget.

Thus, it must be affirmed that provisions of an economic nature agreed upon by the administrators of public institutions when negotiating collectively with their workers cannot evade the necessary coherence and proportionality in relation to what constitutes the general framework of economic benefits that the State (in its broad concept) has been recognizing over time, in favor of its workers, nor can the financial possibilities of the entities in general and the way in which these provisions will affect state expenses and economic obligations be left unconsidered, given that such commitments determine and are simultaneously determined by the distinct economic variables and situations and have a direct impact on the general economic situation of the country.

Upon assuming this approach, the majority of the Chamber verifies the existence of a very wide gap between the payment of severance pay applicable to the vast majority of public servants, whose cap is 8 years, and the payment that the workers of Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months of salary for the same severance pay. This is a difference of one hundred and fifty percent (150%), which from the perspective of the majority of us who make up this Chamber, is abysmal and therefore, should have clear and incontestable arguments justifying it, but rather it lacks them and is disproportionate and unsustainable in such magnitude.

It must be remembered, on the one hand, that this Chamber, in tune with the development of fundamental rights linked to the work environment, has exercised its constitutional control work in this matter with great restraint, understanding that the fundamental nature of the right to collective bargaining—one of the fundamental pillars of the right to work—has as its legitimate purpose the improvement of workers' labor conditions and this necessarily entails the generation of differentiations and disparities that are in no way unjust or illogical in themselves and even less can they be labeled unconstitutional, for the mere fact of benefiting a group of people who have achieved such claims through the instrument of collective bargaining. But the foregoing cannot completely deactivate the need for the improvements to which the State commits itself to be proportionate and reasonable, not only regarding the condition in which the other state workers not protected by collective bargaining agreements are left, but regarding the burden that society must bear to cover such sums. Thus, a difference of 150 percent (that is, a difference halfway between double and triple the normal sums) between what may correspond to some public servants over all others for the same concept is located far beyond what can be understood as proportionate and acceptable as a legitimate claim in the condition of state workers.” (The highlighting does not correspond to the original.)

This criterion of the Chamber has been reiterated in multiple judgments, such as, for example, 2019-008679, 2019-009222, 2019-0009723, 2020-00320, 2020-014208 and 2021-025969, among others, in which the Chamber expressly warned that “due to the financial situation of the Costa Rican State, it should re-examine its original position.” So that the recognition of certain rights and labor improvements are also subject to contingent aspects such as the financial and fiscal situation of the Costa Rican State.

This thesis, if looked at in detail, is not a novel position, but rather in reality this Chamber has positively assessed that the salary policy of the Public Administration be subject to certain uniformity standards to avoid harm with respect to public finances.

Thus, for example, we have that in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81035" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">1994-3309</span></a> this Chamber addressed the constitutionality of the Law Creating the Budgetary Authority, n.° 6821 of October 19, 1982, which established in its article 1° that one of the main functions of the Budgetary Authority is the formulation of guidelines for the budgetary policy of the public sector, including aspects related to salaries. On that occasion, the Chamber stated the following:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“So that if in article 9 of the challenged law the Budgetary Authority was granted the power to ensure equal pay for equal work, thereby guaranteeing the constitutional principle of the right to equal pay </span><span style="font-style:italic">under </span><span style="font-weight:bold; font-style:italic">"identical conditions of efficiency"</span><span style="font-style:italic"> and thus issuing the necessary criteria to standardize the salary regime of all public servants, the actions of the Budgetary Authority must respect articles 57 and 68 of the Political Constitution as they establish:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:spaces">&nbsp;</span><span style="width:4.05pt; display:inline-block">&nbsp;</span><span style="font-weight:bold; font-style:italic">"Article 57: Every worker shall have the right to a minimum wage, to be fixed periodically for a normal workday, which will provide them well-being and a dignified existence. The wage shall always be equal for equal work under identical conditions of efficiency."</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Likewise, paragraph 1</span><span style="font-family:Symbol; font-style:italic"></span><span style="font-style:italic"> of article 68 of the Political Constitution indicates that:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="width:7.05pt; display:inline-block">&nbsp;</span><span style="font-weight:bold; font-style:italic">"Article 68: No discrimination may be made regarding salary, advantages, or working conditions between Costa Ricans and foreigners, or regarding any group of workers..."</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">On the contrary, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">the effects that imbalances in the State's salary regime produce on public finances and, therefore, on the country in general, make it fully justifiable and even constitutionally necessary to subject everything concerning the salary policy of the Public Administration to uniform criteria</span><span style="font-style:italic">”</span><span style="font-style:italic">. </span><span>(The highlighted text does not correspond to the original. See also judgments </span><span style="font-weight:bold">1994-6471, 1994-5297, 1995-6577 and 2003-09954</span><span>, among others). </span></p> <p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p> More recently, in judgment <span style="font-weight:bold">n.°</span><span style="font-weight:bold">2024-007057</span> this Chamber addressed the regulatory provisions that make the public employment regulations issued under the LFFP operative, and the Chamber affirmed precisely that such regulations respond to the “<span style="font-style:italic">public interest of reducing public spending and, consequently, alleviating the country's fiscal crisis</span>.” However, in the same way, it must be warned that one cannot lose sight of the fact that <span style="font-weight:bold; text-decoration:underline">the hollowing out of the fundamental rights of public sector workers in the eagerness to solve the problem of public finances is not valid</span>. The fiscal crisis that Costa Rica has been suffering is due to several reasons that must be addressed comprehensively. <span style="font-style:italic">Supra</span> mention was made precisely of the annual reports of the CGR. In that of the year <a href="https://cgrfiles.cgr.go.cr/publico/docsweb/documentos/publicaciones-cgr/memoria-anual/2017/memoria-anual-2017.pdf" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">2017</span></a> several reasons were listed, and while mention is made of the need to curb the disproportionate growth of remunerations, other reasons are also listed, such as the institutional design and atomization of the Costa Rican public apparatus with duplication of functions in various institutions that do not necessarily result in the efficiency of the Public Administration; differentiated tax treatments in favor of certain activities or persons and tax evasion, to name a few causes.

Therefore, while this Court accepts the general premise that the Legislator State can regulate and standardize public employment rules since there is no acquired right for certain regulations to remain intact, this must not in any way imply sacrificing the public workforce so that they perceive hollowing outs in their fundamental rights. In that sense, just as was previously pointed out, it is necessary to balance the scales, given that the stability and dignity of the salaries of public employees is also a cornerstone of the Social and Democratic Rule of Law. In this regard, it must be based on the fact that in accordance with the provisions of article 56 of the Constitution, the performance of their work is an obligation of the servant, but it also gives them the right to obtain the corresponding remuneration for it, in a timely manner and in an amount that provides well-being and a dignified existence (article 57 of the Political Constitution).

Now, it is worth noting that the regulations relating to the remunerations of public servants must not remain stagnant. As was examined, it was healthy and necessary to intervene in order to establish uniform salary provisions and avoid exponential increases outside of all economic and social reality in accordance with the state of national finances. However, this in itself is contingent or dynamic, so these regulations must not remain frozen in time to the detriment of public servants, to the point that salaries are not attractive —which could impact the efficiency of the Public Administration— or do not guarantee minimum conditions of dignity and well-being for workers. Therefore, it is the obligation of the Costa Rican State, even by virtue of the principle of progressivity, to assess, in accordance with fiscal conditions and efficiency in public spending controls, how to aspire for the salaries of public workers to guarantee conditions of dignity and well-being. In this regard, it is worth bearing in mind that article 56 of the Political Constitution recognizes the fundamental right to work as a dual situation, a right-responsibility. But it also enshrines the obligation for the State to ensure that all persons have access to employment that is <span style="font-style:italic">“duly remunerated”</span>. This means that people have the right to receive a fair and adequate salary for their work, which allows them to maintain a dignified standard of living. Article 56 states the following:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Art 56.- Work is a right of the individual and an obligation to society. The State must seek to ensure that everyone has honest and useful occupation, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">duly remunerated</span><span style="font-style:italic">, and prevent that because of it conditions are established that in some way diminish the freedom or the dignity of man or degrade his work to the condition of simple merchandise. The State guarantees the right of free choice of work”.</span></p> <p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p> Furthermore, article 57, when referring to salary, establishes that there is a right to a minimum wage and that it must be set periodically, to seek the well-being and dignified existence of workers, which confirms that salary aspects are dynamic and must be assessed in light of supervening circumstances so that well-being is recognized for the working person. In line with the above, we can verify that article 23 point 3) of the Universal Declaration of Human Rights establishes that <span style="font-style:italic">“Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”</span>. Article 7 of the International Covenant on Economic, Social and Cultural Rights also establishes that the States Parties recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, remuneration which provides all workers, as a minimum, a fair wage and a decent living for themselves and their families. Moreover, the ILO Convention C131 - Minimum Wage Fixing Convention, 1970 (n.° 131), law n.° 5851-A of December 9, 1975, confirms that the periodic fixing of minimum wages —which could be extrapolated to the periodic review of the salary rules for public servants or in general— responds to contingent situations that can be examined and assessed according to new evaluative elements, such as the following:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Among the elements that must be taken into account in determining the level of minimum wages, the following should be included, to the extent possible and appropriate, in accordance with national practice and conditions:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:47.55pt; margin-bottom:0pt; text-indent:-19.2pt; line-height:normal; font-size:12pt; -aw-import:list-item; -aw-list-level-number:0; -aw-list-number-format:'(%0)'; -aw-list-number-styles:'lowerLetter'; -aw-list-number-values:'1'; -aw-list-padding-sml:5.21pt"><span style="-aw-import:ignore"><span style="font-style:italic">(a)</span><span style="font:7pt 'Times New Roman'; -aw-import:spaces">&nbsp;&nbsp;&nbsp; </span></span><span style="font-style:italic">the needs of workers and their families, taking into account the general level of wages in the country, the cost of living, social security benefits, and the relative living standards of other social groups;</span></p> <p style="margin-top:0pt; margin-left:47.55pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:47.55pt; margin-bottom:0pt; text-indent:-19.2pt; line-height:normal; font-size:12pt; -aw-import:list-item; -aw-list-level-number:0; -aw-list-number-format:'(%0)'; -aw-list-number-styles:'lowerLetter'; -aw-list-number-values:'2'; -aw-list-padding-sml:5.21pt"><span style="-aw-import:ignore"><span style="font-style:italic">(b)</span><span style="font:7pt 'Times New Roman'; -aw-import:spaces">&nbsp;&nbsp;&nbsp; </span></span><span style="font-style:italic">economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment”.</span></p> <p style="margin-top:0pt; margin-left:36pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p> Consequently, it is reiterated that this Court is aware of the need and the justification of the LFFP as a legislative mechanism to establish general rules for remunerations in the public function with the clear purpose of curbing eventual salary increases that are not consistent with the fiscal reality of our country. And, on this point, as a matter of principle, it is established that it is legitimate for the legislator to modulate this topic of remunerations in accordance with the objectives outlined and duly explained in the preceding recital (considerando). Also, in accordance with the need to professionalize the public function through efficiency in the public service and aspiring to the proven suitability of public servants. The foregoing, without harming previously recognized rights and without emptying fundamental rights or essential principles of the Costa Rican Social State of content. In addition, without it being possible for these matters to become stagnant to the detriment of the rights of workers, especially if, as has been developed in these recitals, there are obligations imposed by the Law of the Constitution in the sense that remunerations must be fair and equivalent to guarantee conditions of well-being and dignity for all workers —in other words, to appropriately satisfy their basic needs and those of their families—. In this regard, the considerations made by the CGR in the oral appearance before the Legislative Assembly are highlighted, in the sense that it is the obligation of public authorities <span style="font-style:italic">“to periodically and systematically review the remuneration schemes to guarantee their continued validity”.</span> Regarding remunerations, it must finally be noted, and as a general premise, that there is not, as such, a fundamental right for the salary to be calculated in a specific manner, but rather that the amount be dignified and its setting be periodic in order to guarantee the worker the possibility of guaranteeing themselves and their family conditions of dignity and well-being. In that sense, it is warned, as this Chamber has manifested in other precedents, that no one has a <span style="font-style:italic">“right to the immutability of the legal order”</span>, that is, for the rules to never change and, to that extent, the legislator has the power to vary the conditions or requirements under which various salary bonuses are recognized for public servants, who, as a matter of principle, are subject to a statutory regime that establishes rules of public order regarding salary compensations. The foregoing, of course, provided that acquired rights of the servants are not harmed or unreasonable rules are established that harm in some way principles of constitutional order such as reasonableness, proportionality, and equality and non-discrimination lacking in legal support.

Finally, regarding the right to a dignified salary, it is necessary to refer to the considerations made by this Chamber in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-962204" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2019-016791</span></a> in which this Court addressed precisely this fundamental right and the fact that when alleging violations of this principle, sufficient arguments relating to the generality of public employees must be provided, and the alleged violation of the right to a dignified salary must not be argued in a generic and abstract manner. In the relevant part, the following was resolved:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">“On the right to a dignified salary. The union alleges that article 24, of the challenged</span><span style="font-style:italic; background-color:#ffffff"> Collective Agreement</span><span style="font-style:italic; background-color:#ffffff">, is an instrument that improves the salary of municipal officials, because the one they have is accused of not being decorous. It asks to dismiss the </span><span style="font-style:italic; background-color:#ffffff">action</span><span style="font-style:italic; background-color:#ffffff">, based on the fact that this salary would be protected for being a human right. It points out article 25, of the Universal Declaration of Human Rights, which establishes:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"/.</span><span style="font-style:italic; background-color:#ffffff"> Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, and in particular to food, clothing</span><span style="font-style:italic; background-color:#ffffff">,</span><span style="font-style:italic; background-color:#ffffff"> housing</span><span style="font-style:italic">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">,</span><span style="font-style:italic; background-color:#ffffff"> medical care and necessary social services; and has likewise the right to security in the event of unemployment, sickness, disability</span><span style="font-style:italic; background-color:#ffffff">,</span><span style="font-style:italic; background-color:#ffffff"> widowhood, old age or other lack of livelihood in circumstances beyond his control</span><span style="font-style:italic; background-color:#ffffff">\\</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Now, this Chamber has referred to the right to a salary in the public function, with the following:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"If work is conceived as a right of the individual whose exercise benefits society and which, regarding the official, guarantees periodic remuneration, it could not be accepted that the State receives a service without paying the public servant the corresponding salary or that it is delivered late. The salary as remuneration owed to the servant by virtue of a statutory relationship, for the services they have rendered or must render, is not only an obligation of the employer, but a constitutionally protected right" (Judgment N.° 2009-008062 of 21:35 hours on May 13, 2009).</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In this sense, the Union is correct that the State, or in its case, the Municipality, must pay the official the salary that corresponds to them for the work performed. Likewise, the Chamber has established that article 57, of the Political Constitution, establishes the protection of workers with the right to a minimum wage, which may be composed according to the freedom that the legislator or its interpreter has, to define its content and composition of the minimum wage (Judgment N.° 2017-16272 of 11:30 hours on October 11, 2017). For the Chamber, there is no doubt that the right to work is a human right that deserves protection, that ensures the individual the realization of many other rights and that allows them to achieve an adequate and dignified way of life, for themselves and their family. But, this Constitutional Court considers that to clear up the argument of the indignity of the salary put forward by the Union, it must be defined first, that the human right to a dignified salary must be understood as the remuneration that an employer owes for the work that the worker renders, by virtue of an employment contract (written or verbal), and that seeks a dignified existence. In this sense, there must be access to a salary determined through a national policy that must ensure a dignified life and family life. This type of remuneration must be fixed by the States, through the mechanisms established in international regulations (ILO Conventions N.°s 26, 95, and 131, among other instruments), as well as by the second paragraph, of article 57, Constitutional, with the purpose of avoiding ruinous and indecorous wages for persons. In its practical sense, it refers to a problem of salary policy (of public and private employers), which must be of general observance by all respective employers. But, of course, there is a problem of sufficiency that cannot be associated with each worker, considered individually and their own needs, nor those of their family; rather, one must aspire to a salary average that the representatives of the State, employers and workers must estimate with fair retribution for work in the national context, with the help of economic and social mechanisms, to provide a dignified existence and family life to workers.</span></p> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">It is reiterated, as occurs with many economic, social, and cultural rights, that they cannot be defined in terms of concrete solutions, nor of an individual, nor their specific needs, but rather of the collectivity, integrally established by technical studies based on a fair mean or average</span><span style="font-style:italic; background-color:#ffffff">.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Thus, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">to justify the indignity of the salary, as intended, a series of conditions must be taken into account that are not present in the case file, because if it is affirmed that municipal employees do not receive a decent salary, this should be argued and proven</span><span style="font-style:italic; background-color:#ffffff">. In this vein, to affirm that the salary received at the Municipality of Limón is not decent, and if it implies salary problems of such magnitude that it prevents reaching levels below the legal minimums, this is not credible, since we must start from the premise that if it concerns municipal officials, they are paid a salary whose setting already relies on technical studies and their respective increases, determined by the respective public authority, as well as their corresponding institutional approvals. Nor could it be thought that the State could be complicit in authorizing amounts lower than those required for the private sector. This Chamber notes the lack of other useful and pertinent information on this point provided by the Union, such that it cannot be sustained, in the abstract, that the challenge to the constitutionality of the contested salary improvement constitutes a violation of the effective exercise of the human right to a salary. Although it is alleged that the salary of municipal workers is very low, the truth is that State salaries must respond to technical criteria and could not, therefore, be lower than those established by the Executive Decree on minimum wages for the rest of the workers.”</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="background-color:#ffffff">(The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445384" class=""><span>VIII.- ON THE MUTABILITY OF THE LEGAL SYSTEM</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>As just noted, it should be indicated, as a general premise, that no one has a </span><span style="font-style:italic">“</span><span style="font-style:italic">right to the immutability of the legal system”</span><span>, that is, that the rules never change and, to that extent, the legislator has the power to vary the conditions or requirements under which various salary supplements are recognized for public employees. </span><span>In ruling </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1070372" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2021-011957</span></a><span> this Chamber referred to the principle of the mutability of the legal system in matters of social security and stated the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">LXXVI.-</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">Drafted by</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">Magistrate Herná</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">ndez Ló</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">pez.</span><span style="font-family:Arial; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">On the principle of mutability</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">in matters of social security.</span><span style="font-family:Arial; font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">A sector of the claimants argues that they understand the scope of the principle of mutability of the legal system because it responds to realities, but they also affirm that mutability must make it flexible, adaptable, and suitable for regulating life in society, considering that Law 9544 does not allow this to be applied because, in a single bubble of identical legal effects, it places officials who have very dissimilar personal circumstances, assuming the burden of the reform under equal conditions. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">In relation to this principle, it must be recalled that this Chamber has repeatedly pointed out that no one has a right to the immutability of the legal system, that is, that the rules never change (see ruling number 6134-98 of 17 hours 24 minutes of August 26, 1998)</span><span style="font-style:italic; background-color:#ffffff"> and, in the case of special retirement and pension regimes, the legislator has full authority to make the modifications deemed pertinent to give sustainability to the regime, but also because they are solidarity-based systems that are built with the contributions of workers, employers, and the State in the legally established proportion, so that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">in order to guarantee compliance with basic principles of social security and protection, it is the competence, but also the obligation of the legislator, to adopt the measures that are necessary to maintain the actuarial balance in those regimes, and this implies that the mutability of the legal system in this matter is aimed at satisfying the interest of the collectivity and not the particular interests that some of its members might have</span><span style="font-style:italic; background-color:#ffffff">. It should be remembered that, even in this matter, in light of the social purposes it protects, it might be possible that a modification eventually occurs that could be considered regressive, but that would be valid to the extent that it is by law, is justified on technical criteria, and conforms to parameters of reasonableness and proportionality. From this perspective, then, this argument is improper and it is considered that, in the specific case, the mutation of the legal system that has operated in the Pension and Retirement Fund of the Judicial Branch as a result of the contested reform, conforms to the Law of the Constitution because it is aimed at achieving an objective that is of a social, solidarity-based, and collective nature: guaranteeing the solvency of that Fund for 100 more years for the benefit of its current and future members”.</span><span style="background-color:#ffffff"> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>These considerations can also be applied in the matter of the salaries of State public employees. There are premises that are essential and must always be respected: the right to a minimum wage, the aspiration to decent wages that ensure a sphere of well-being for people, the review of the salary to face the increase in the cost of living, and the prohibition of applying reforms to the detriment of patrimonial rights that have already entered the sphere of rights of the public employee. However, this does not translate into a right for the payment rules to remain intact, especially since when this regulation was approved, a fiscal crisis was verified that generally justified the legal reforms aimed at standardizing salary policies and avoiding salary increases detached from the national reality. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445385" class=""><span style="text-transform:uppercase">IX.- On the principle of progressivity and non-regressivity.</span></a><span style="text-transform:uppercase"> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>In advisory opinion </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-894553" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2018-019511</span></a><span> which referred to the draft law for the approval of the LFFP, the Constitutional Chamber pronounced on the protection of benefit rights and the principles of progressivity and non-regressivity, endorsing that the protection and realization of these rights can be impacted by contingent aspects that require an adjustment in the level of protection. All of the foregoing under the adequate substantiation of the measures that must be adopted. In pertinent part, the Chamber stated the following:</span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“[W]hen it comes to applying conventionality control in matters of benefit rights, a relevant aspect to consider is the financial sustainability and availability of economic resources of the State, even according to its level of development, which depends on the economic context at a given historical moment and the technical basis that is held to justify some type of measure, so that the greatest possible realization of such rights is always sought in accordance with what the economic circumstances allow. Precisely, that progressive achievement of which the norms speak undoubtedly constitutes an objective to be achieved, but subject to an inexcusable condition: that there effectively be resources”. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Of importance for the resolution of the issues raised by the claimants, it must be noted that the Chamber was emphatic in pointing out that the principles of progressivity and non-regressivity do not imply the right to the immutability of the legal system. This Court, citing its own precedents, warned that the State is obliged not to adopt measures, policies, or approve legal norms that worsen, without reasonable and proportionate justification, the situation of rights achieved up to that point. However, it was warned that this principle does not suppose an absolute irreversibility, since all States experience national situations of an economic, political, social nature, or due to causes of nature, that negatively impact the achievements reached up to then and force a downward reconsideration of the new level of protection. In line with those considerations, the Chamber resolved the following: </span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">Neither the right of progressivity nor that of non-regressivity oppose the mutability inherent to law (permanent and inevitable modification), since no right is immutable or eternal, given that this would mean the petrification of the legal system</span><span style="font-style:italic"> and would cause Law to cease being a dynamic means for the resolution of society's problems, which perennially vary over time. What the mentioned principles do demand is that the keynote be to always and preferably aspire to increase the coverage of human rights and likewise of benefit rights in the interest of the Social State of Law; however, such a goal is not detached from the socio-economic context of a specific historical juncture nor from the obligation to carry out an exercise of weighing and optimizing the various constitutional principles, rights, and values at play (for example, between the principle of the Social State of Law and that of Budgetary Balance), so that in the context of a particularly serious financial unsustainability of the State, duly accredited from a technical point of view, measures can be taken to alleviate the situation, provided that these are adopted safeguarding the fundamental rights protected in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multiethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), which implies that the remedies in question cannot empty any constitutional right of content, a situation that in the specific case and at this moment is not observed to occur with the questioned regulation”.</span><span> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:spaces"> </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445386" class=""><span>X.- ON VESTED RIGHTS</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>In ruling </span><a href="file:///D:/MARICRUZ%20BARQUERO/MARICRUZ%20BARQUERO/19-2620/PROYECTO%2001/2005-16394" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2005-16394</span></a><span> the Chamber referred to vested rights (derechos adquiridos), explaining it in the following sense: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">“Well then, as acquired, one must understand that right (as an expression of a concrete legal relationship that projects onto a specific subject) that has effectively entered into a person's patrimony, in such a way that it could not be eliminated without causing concrete and evident impairment to the conditions they already held previously. Thus, a mere future expectation could not fall within this conception, even if one had objective parameters to calculate what could constitute its possible effective consequence, because the truth is that in this latter stage it has not yet become part of the subject's patrimonial sphere, ergo, it cannot then be considered 'acquired'. The spirit of Article 34 prevents the new law from affecting the legal effects already produced in certain concrete situations, subjective rights that already had an individualized expression in the patrimony of a person at the time the new legislation came into effect. Under this reasoning, it must be admitted that the future projection of a specific legal relationship cannot be protected by this constitutional guarantee, because such a thing entails a sort of 'freezing' or petrification of the legal system and of the legislative and regulatory power of the State, which does not align with the principle derived from Article 129 of the Constitution, when it states that 'laws are obligatory and take effect from the day they designate'. The foregoing, because before any possible variation in the legal regime concerning a specific matter, anyone could allege their 'vested right' for the prior normative conditions to be maintained or preserved, which in good logic is clearly inadmissible. Returning to what was said above, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the constitutional prohibition applies only to assumed rights, integrated into the patrimony</span><span style="font-style:italic; background-color:#ffffff">. In contrast, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">regarding pending, future situations, that which is not yet consummated, it is only possible to have an expectation</span><span style="font-style:italic; background-color:#ffffff">. </span></p> Within a legal relationship (relación jurídica) that is maintained over time, there is no retroactive application when the new regulatory conditions are applied to the future development of the relationship, without affecting the effects already consummated in the prior situation (RSC N.° 05291, 10:42 hours, June 2930, 2000).” (The emphasis does not correspond to the original).

The distinction made here is particularly relevant for examining the grievances raised, since in the majority of cases, the attempt is to classify certain salary incentives or calculation rules for such incentives as subjective rights that, as such, have not entered the patrimony of the public servants, all of which will be detailed below.

XI.- PRELIMINARY CLARIFICATION. APPLICATION OF THE QUESTIONED REGULATIONS TO THE INSTITUTIONS COVERED BY THE LFFP It is necessary to clarify beforehand, as stated in judgment n.° 2024-007057, that the constitutionality of the rules examined herein is contingent upon their application being limited to those institutions that are legitimately covered by the LFFP, as delimited in advisory opinion (opinión consultiva) n.° 2018-19511. In the aforementioned judgment, this Chamber made the following warnings:

“In summary, the bill that gave rise to the law regulated herein, through Executive Decree No. 41729-MIDEPLAN-H published in Digital Supplement No. 113 of La Gaceta Digital No. 94 of May 22, 2019, called ‘Reforma a los artículos 14, 17 y 22 del Decreto Ejecutivo No. 41564-MIDEPLAN-H, Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley No. 9635 del 3 de diciembre de 2018, referente al Empleo Público’, did not require a qualified majority, solely because under a systematic interpretation (interpretación sistemática) made by this Chamber of the rules indicated therein, it was ruled out that, in matters of salaries and regarding the performance evaluation of its officials, the Judicial Branch was subject to that regulation, given that its special laws are those that govern it. (…) Now, what has been said thus far does not apply to the officials of the excluded institution, since, as explained ut supra, the application of the law must be in adherence to advisory opinion No. 2018-19511, taking into consideration that the law for Strengthening Public Finances should not be applied to the institution excluded in said opinion, nor should the rules of the regulation of the cited law challenged in this action, specifically the regulation of Title III regarding public employment. (…) By majority, the consolidated actions are dismissed, on the understanding that the rules of the questioned decree must be applied only to the officials of the institutions that are not excluded from the application of the law for Strengthening Public Finances in salary matters in accordance with the provisions of advisory opinion No. 2018-19511, of 9:45 p.m. on November 23, 2018, mentioned in the considerandos.” The same warnings must be made here. That is to say, the rules of the LFFP that reformed the LSAP will be examined in detail according to the grievances raised, always on the understanding that they do not apply to the servants of the institutions excluded from the LFFP in salary matters in accordance with the guidelines of the analyzed advisory opinion.

XII.- ON THE NECESSARY SUBSTANTIATION OF THE GRIEVANCES By virtue of some precisions that will be made later, it is necessary to establish that this Chamber has been rigorous regarding the substantiation (fundamentación) of grievances. In judgment n.° 2023-19520, the following was stated:

“II.- ON THE NECESSARY SUBSTANTIATION (FUNDAMENTACIÓN) OF THE WRIT IN WHICH THE UNCONSTITUTIONALITY ACTION IS FORMULATED. As indicated, the unconstitutionality action (acción de inconstitucionalidad) is a process with certain formalities, which, if not met, make it impossible for the Chamber to hear the challenge intended. One of those requirements corresponds to the necessary substantiation of the writ in which the unconstitutionality action is formulated. The Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), in its Article 3, provides that ‘The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles.’ Now, in order for this Tribunal to deem the infringement established and to declare the unconstitutionality of the challenged norm or act, with the consequent annulment and expulsion from the legal system, whoever promotes an unconstitutionality action has the burden of demonstrating how that provision infringes the Law of the Constitution and, in addition, must indicate why the claim should be granted. This is referred to by this Chamber as the burden of argumentation (carga de la argumentación), meaning that ‘a norm that is facially (sic) contrary to the Constitution shifts the burden of argumentation to those who maintain that there is actually no conflict between that norm and the Political Constitution; the opposite occurs if action is taken against a norm that at first glance does not appear contrary to the Constitution, in which case it is the plaintiff who must advance with the arguments that convince of its unconstitutionality’ (see judgment No. 0184-95 of 4:30 p.m. on January 10, 1995). In a subsequent judgment, this Chamber stated, regarding the lack of exposition of the unconstitutionality arguments in matters of unconstitutionality actions, the following: ‘The unconstitutionality action is filed with the argument that the challenged Executive Decree is harmful, injures and infringes the fundamental rights to a healthy and ecologically balanced environment, the right to health and the international commitments subscribed to with the Kyoto Protocol. Despite the opportunity granted to the plaintiffs, it is confirmed, as the Attorney General's Office indicates, that there is no concrete analysis of the provisions of the challenged Executive Decree that are considered unconstitutional, but rather it is limited to establishing generic and abstract discrepancies against the entirety of the Regulation, moreover against all activity carried out by the Sugar Mills and Haciendas, since they maintain that they cause inconveniences in the quality of life and health of the surrounding inhabitants, without specifying what constitutionality arguments must be taken into account against each of the provisions or groups of norms of the challenged Regulation. […] The first paragraph of Article 78 of the Law of Constitutional Jurisdiction establishes the obligation to authenticate the writs filing unconstitutionality actions, given that it is deemed necessary for there to be arguments put forth by a legal professional, which this Tribunal does not rule out should respond to a serious study of the technical and scientific merits of a given matter, given the diversity and universality of the norms of the legal system. Unlike the guarantee processes, that is, the remedies of habeas corpus and amparo, which can be directly filed by any interested party before the constitutional jurisdiction in defense of their fundamental rights, generally against acts or omissions that injure their personal sphere (although not always, as in environmental cases), in the processes defending the Political Constitution (such as the unconstitutionality action), the legislator entrusted the authenticating attorney with a task whose demand is even greater, arguably more elaborate and exhaustive, which must be reflected in the filing brief by reason of their professional office, to demonstrate to the Tribunal the injury to the constitutional norm by a norm of lower rank, undermining the principle of constitutional supremacy (supremacía constitucional) contained in Article 10 of the Political Constitution. Precisely the material and formal drafting of the Law, as well as of the other secondary provisions, entail an extremely costly process for the State, in which organized civil society has participated in many ways for or against its drafting, and whose procedures for formation, approval, and promulgation should not be analyzed lightly. In this sense, this Chamber must recognize that there is limited space for this Tribunal to remedy the manifest absences of the legal professionals who authenticate the writs in this constitutional jurisdiction, without exposing the impartiality and analysis owed to each of the unconstitutionality actions.’ (Judgment No. 2012-05285 of 3:03 p.m. on April 25, 2012). The cited Article 78 of the Law of Constitutional Jurisdiction requires, in that sense, that the writ filing the action must set forth ‘its grounds in a clear and precise manner.’ (…) Finally, in vote No. 2020-000319 of 12:15 p.m. on January 8, 2020, this Chamber reiterated that: ‘(…) given the formalism legally provided for constitutional review proceedings, the argumentative burden in the processing of an unconstitutionality action falls on the plaintiff, who must explain, unequivocally, the contradiction existing between an infraconstitutional regulation and the constitutional block, as well as the standing that assists them’.” (The emphasis does not correspond to the original).

Thus, it must be established beforehand and as a general premise that, by virtue of the seriousness of a constitutional review process and given the formalism legally provided for these processes, the argumentative burden in the processing of an unconstitutionality action (acción de inconstitucionalidad) falls on the claimant, and the absence of sufficient reasoning (arguments and evidence for the claims) cannot be remedied or supplied by this Chamber. This Court has insisted, in this regard, that it is not enough to allege, in a generic and abstract manner, the lack of reasonableness of a norm or supposed discriminations. These arguments must be duly demonstrated. For example, in judgment n.° 2023-015596, the following was warned:

“In other words, the unconstitutionality action refers to mere hypothetical scenarios ‒ exponential growth of public spending, detriment to public services, and increase in the tax burden ‒ that are also not duly substantiated in serious and real economic projections (which is precisely the omission the claimant reproaches). Thus, in the terms in which the action was filed, without solid arguments or evidence, and barely a month after its approval, they do not allow for the accreditation of a supposed unreasonableness that has threatened the constitutional principles invoked by the claimant. (…) Furthermore, although a technical unreasonableness in the adopted measures is alleged, the claimant does not provide any element that allows for the analysis he proposes. This Chamber has been consistent regarding the need to provide objective parameters to be able to define the concurrence or not of a technical bias in the adoption of this type of norm. The insufficiency in this matter submits this Court to speculation about the content of the questioned norm and imposes on it the burden of making comparisons and assessments without having the minimum parameters or elements to do so. Hence, it finds no merit to order the unconstitutionality of the questioned regulation.” (The emphasis does not correspond to the original).

If the absence of adequate reasoning and proof of the grievances is verified, the challenge must be dismissed. The foregoing, without prejudice of course, that in a later scenario and with more complete and duly accredited reasoning, the presumed violation of the Law of the Constitution (Derecho de la Constitución) can be reassessed (art. 87 of the LJC).

Agravios de la acción n.° 19-2620-0007-CO XIII.- CAMBIO DE REGULACIÓN EN LO RELATIVO A LAS ANUALIDADES Normas impugnadas The secretary general of SEBANA questions, firstly, the constitutionality of the provisions relating to the regulation of annual salary increments (anualidades) following the approval of law n.° 9635. The challenged norms read as follows:

“Art. 50- Sobre el monto del incentivo. Upon the entry into force of this law, the annual salary increment incentive for public officials covered by this title shall be a fixed nominal amount for each salary scale, an amount that shall remain invariable.

(Thus added by article 3° of title III of the Law for the Strengthening of Public Finances, N° 9635 of December 3, 2018).

Art. 57.1 l) Article 12 of Law N.° 2166, Law of Salaries of the Public Administration, of October 9, 1957, is reformed. The text is as follows: Article 12- The annual salary increment incentive shall be recognized in the first half of the month of June of each year. If the servant is promoted, they shall begin to receive the minimum of the new category; under no circumstance shall incentives already recognized be revalorized.

TRANSITORIO XXXI. To establish the calculation of the fixed nominal amount, according to what is regulated in article 50, in the recognition of the annual salary increment incentive, immediately upon the entry into force of this law, one point ninety-four percent (1.94%) of the base salary for professional classes, and two point fifty-four percent (2.54%) for non-professional classes, shall be applied on the base salary that corresponds for the month of January of the year 2018 for each salary scale.” Provisions which, in the claimant's judgment, must be related to other norms of the LSAP that were also modified by law n.° 9635. Such as, for example, art. 58 subsection c) which repealed art. 5 and provisions 48 and 49 referring to the performance evaluation (evaluación del desempeño) and that, have in common, the correlation between the payment of annual salary increments and the existence of a merit system. Art. 5 made reference to the principle of efficiency of the Administration by indicating that the annual increases would be granted on the basis of merit, whereas now with the new regulation, it is indicated that the result of the annual evaluation will be the sole parameter for granting the annual salary increment incentive to each official. Art. 58 c) states:

“Art. 58- Derogatorias. The following provisions are repealed: c) Article 5 of Law N.° 2166, Law of Salaries of the Public Administration, of October 9, 1957.” The repealed norm stated the following:

“Art. 5º.- In accordance with this salary scale, each category shall have increases or steps, according to the amounts indicated in article 4º above, until reaching the maximum salary, which shall be the sum of the base salary plus the annual steps or increases of the corresponding category.

Every servant shall begin earning the minimum of the category that corresponds to the position, except in cases of inopia at the discretion of the respective Minister and the Dirección General de Servicio Civil. The annual increases shall be granted on the basis of merit to those servants who have received a rating of at least "good", in the previous year, granting them an additional step, within the same category, until reaching the maximum salary.

(Thus reformed by article 1 of law Nº 6408 of March 14, 1980).” Meanwhile, the performance evaluation provisions establish the following:

“Art. 48- Criterios para la evaluación del desempeño. Each head of department of the Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products, and services of the unit, establishing delivery deadlines and estimated time for their preparation. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; its non-compliance shall be considered a serious fault in accordance with the applicable regulations. For the regular and frequent follow-up of the work plan activities, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and compliance with deadlines and times. It shall be the responsibility of each official, including the entire managerial level, to update and maintain up-to-date the information necessary for evaluating their performance, in accordance with the processes, projects, products, and services particularly assigned, their delivery deadlines, and estimated times for their preparation, in said computer system that the Administration shall make available to them. Its non-compliance shall be considered a serious fault in accordance with the applicable regulations. The annual salary increment incentive shall be granted solely through performance evaluation for those servants who have met a minimum rating of "very good" or its numerical equivalent, according to the defined scale. Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter, and twenty percent (20%) shall be the responsibility of the head of department or superior.

Art. 49- Efectos de la evaluación anual. The result of the annual evaluation shall be the sole parameter for granting the annual salary increment incentive to each official. The annual ratings shall constitute a precedent for granting the incentives established by law and suggesting recommendations related to the improvement and development of human resources. It shall be considered for promotions, recognitions, training, and instruction, and shall be determined by the history of the official’s performance evaluations. Likewise, the evaluation process must be considered to implement actions for the improvement and strengthening of human potential. Annually, the Dirección General de Servicio Civil shall issue the technical and methodological guidelines for the application of the performance evaluation instruments, which shall be of mandatory compliance.” Agravios de la parte accionante (acción n.° 19-2620-0007-CO) Sobre la constitucionalidad del art. 50 y el Transitorio XXXI (test de razonabilidad y proporcionalidad) The reform to art. 50 and the provisions in Transitorio XXXI must be subjected to a reasonableness test to ascertain their necessity, their suitability, and their proportionality, as constitutional parameters in consideration of what is provided by the principle of due process (debido proceso).

Regarding the necessity of the new regulation regarding the payment of annual salary increments, the legislator's intention when converting the percentage of the increment into a fixed and permanent amount is not clear, nor is the reason for precisely setting the increment percentage contemplated in Transitorio XXXI clear, making the separation between professional classes and non-professional classes.

What the norms establish is a percentage anchored in the salaries earned in January 2018, from which a nominal amount is derived, which does not vary over time, regardless of the years a servant works in the public sector. By the time the law was approved, this reference salary that the legislator used had already been modified by the statutory salary adjustments.

With this mechanism introduced in the law, a future increase in the payment of annual salary increments is avoided, which would lead ‒ hypothetically ‒ to a reduction in public spending on salaries; however, this argument lacks internal logic because if the need to reduce the payment of annual salary increments and salaries in the public sector is due to an economic criterion, one cannot attempt to regulate the salary reduction once and for all, as if the country's economic conditions were to last sine die.

The challenged regulations are also not suitable, because if the amount of the annual increments is anchored to the salaries corresponding to each salary scale for the month of January 2018, such amounts will not only fail to grow over time, but will eventually reach a value very close to zero due to the effect of monetary devaluation and inflation, without there being a logical or reasonable relationship between the objective of the annual increment – as an economic incentive that allows for improved efficiency of public sector employees – or between the annual increment as a formula to reward those who are evaluated annually in the spirit of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning.

Art. 50 and Transitory Provision XXXI are also not proportional to the end they propose, because the payment of annual increments is eliminated in the future, and that is the true implicit purpose. The sacrifice that these rules impose on employees who earn a composite salary is completely radical and confiscatory, given that, in the future, earning a composite salary, with payment of annual increments, will have no real meaning for such employees because those increments are eliminated in the future, rendering them insubstantial, without any real economic content, and converted into a symbolic payment.

*Unconstitutionality of Art. 57, subsection 1) insofar as it reforms Art. 12 of the LSAP as amended by Law No. 9635. Regarding payment in June and the non-revaluation* The payment of the annual increment previously had to be made on the first day of the month closest to the date of the official's entry or re-entry into the position, but with the reform, the annual increment payments will be made in the first half of June of each year, which is considered openly unconstitutional, because in addition to creating a disproportionate and unjustified sacrifice against persons who are entitled to seniority when their entry or re-entry date is prior to the month of June, this contravenes the very nature of the annual increment, whose purpose is to remunerate an annual period of work and not any period arbitrarily or artificially constructed by the legislator, for which reason the rule is not suitable, nor is it logical or reasonable. Furthermore, Art. 12, subsection d) – which allowed time accumulated in other public sector entities to be considered for annual increment payment purposes – was eliminated, which is unreasonable and discriminatory, in addition to being harmful to the principle of proportionality because persons who have worked in other public sector entities would be forced to start counting from zero in each entity in which they work, damaging the doctrine of the State as sole employer which, as a legal concept, has been taking shape in the jurisprudence of the Second Chamber and the Constitutional Chamber. The rule is also not suitable because it discourages the transfer or re-entry of public employees and officials to the various State entities, contributing to hindering the constitutional system of access to public function based on merits.

It is also alleged that it is discriminatory because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely, over those who aspire to improve their condition or to provide a better public service elsewhere in the public sector, and, secondly, because it creates discrimination between all persons who, prior to Law No. 9635, succeeded in having the years worked in other public sector entities counted for annual increment purposes, with respect to those who wish to transfer or re-enter the public sector after the approval of Law No. 9635.

It summarizes that Arts. 50, 57 subsection l) and Transitory Provision XXXI, by lacking reasonableness, suitability, and proportionality, violate substantive due process and thereby violate the provisions contained in Arts. 9, 11, and 121 of the Political Constitution, but also an indirect violation of constitutional Arts. 191 and 192 by creating a system of annual increment payment that undermines the merit system and the principle of efficiency.

It argues harm to the principle of reasonableness because it was a Transitory Provision that established the annual increment percentage with which the calculation of what will later be the nominal and unmodifiable amount of the annual increment must begin, as well as the date from which that calculation will start, which, in its opinion, should have been included in a substantive rule so that it is part of the permanent legal body.

Grievances of the plaintiff (consolidated action No. 19-004931-0007-CO) The State intends to render useless over time the amount paid for annual increments and to empty it of content, eliminating the right to this remuneration that helps workers maintain their salaries' purchasing power against the cost of living.

Allegations of the plaintiff (consolidated action No. 19-022051-0007-CO) By virtue of the identity of the object, we shall proceed to include in this section the allegations of action No. 19-022051-0007-CO brought by ASDEICE.

In said action, it was questioned that the rules challenged in this section harm the principle of substantive due process and do not satisfy the test of reasonableness.

Regarding the necessity of the new regulations on the payment of annual increments, they reiterate that the legislator's intention when converting the percentage of the annual increment into a fixed and permanent amount is not clear, nor is the reason for which the annual increment percentage contemplated in Transitory Provision XXXI is precisely set, making the separation between professional classes and non-professional classes clear. The challenged regulations also do not meet the requirements of suitability and proportionality. Regarding the first, if the amount of the annual increments is anchored to the salaries corresponding to each salary scale for the month of January 2018, such amounts will not only fail to grow over time, but will eventually reach a value very close to zero, due to the effect of monetary devaluation and inflation. Therefore, there is no logical or reasonable relationship between the objective of the annual increment – as an economic incentive that allows for improved efficiency of public sector employees –, or between the annual increment as a formula to reward those who are evaluated annually in the spirit of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning. Articles 50 and Transitory Provision XXXI are also not proportional to the end they propose, because the payment of annual increments is eliminated in the future, thereby conferring an implicit purpose on the legal reform, which is the disappearance over time of the annual increments. Surreptitiously, the payment of a single or total salary is introduced, practically eliminating the composite salary system currently governing a large part of the public sector. In the particular case of ICE, as of the date of filing this action, the base salary plus bonuses continues to be the predominant salary modality, in accordance with the regulation made in the Personnel Statute, which is a unilateral administrative act of the institution's Board of Directors from which subjective rights for its employees emanate. One of the subjective rights originating in that Statute is the right to the payment of annual increments on a scale of 3.56% over the base salary of each category; however, in practice, the challenged rules will render those subjective rights void, substituting the scheme of employees' rights with another that infringes the principles of reasonableness and proportionality. The sacrifice that the cited rules impose on employees earning a composite salary is completely radical and confiscatory, given that, in the future, earning a composite salary, with payment of annual increments, will have no real meaning for such employees. Regarding the substitution made by Law No. 9635 of the text of Art. 12 of the LSAP, previously the payment of the annual increment had to be made on the first day of the month closest to the official's entry or re-entry date, but with the reform, the annual increment payments must be made in the first half of June of each year, which is considered openly unconstitutional. For its part, it exposes that subsection b) of the former Art. 12 of the LSAP established that if the previous position occupied by a promoted person had entitled them to one or more annual increases, upon moving to a superior position, they would be entitled to a revaluation of the annual increments previously received, according to the new category to which they were promoted; a rule that was modified in the challenged law by stating that *"under no circumstances shall incentives already recognized be revalued"*. The previous rule was logical and complied with the principle of proportionality insofar as it intended that the promotion to a position positively affect the person opting for a superior position, stimulating public sector employees to be able to opt for superior positions; however, with the reform, persons are discouraged from occupying positions of greater responsibility by freezing their previous annual increments and not allowing them to opt for a revaluation of them. Regarding subsection d) of the former Art. 12 that allowed time accumulated in other public sector entities to be considered for annual increment payment purposes, the elimination of this provision in the reformed Art. 12 is unreasonable and discriminatory as well as harmful to the principle of proportionality because persons who have worked in other public sector entities would be forced to start counting their annual increments from zero when they move to other public institutions or companies, violating the doctrine of the State as sole employer which, as a legal concept, has been taking shape both in the jurisprudence of the Second Chamber of the Supreme Court of Justice and the Constitutional Chamber. The rule is also not suitable, from a logical and rational standpoint, because it discourages the transfer or re-entry of public employees and officials to the various State entities, which hinders the constitutional system of access to public function based on merits. It is a discriminatory rule in a double sense: first, because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely over those who aspire to improve their condition or to provide a better public service elsewhere in the public sector, and, secondly, because it creates discrimination between all persons who, prior to Law No. 9635, succeeded in having the years already worked in other public sector entities counted – for annual increment purposes –, with respect to those persons who wish to transfer or re-enter the public sector after the approval of Law No. 9635.

PGR Report The legislator is the one called upon to establish the incentives and the amount of the economic benefits granted to its servants, so it must be understood that the economic amount granted for annual increments depends on the intensity with which the legislator wishes to incentivize the permanence in the position of public officials and on the economic possibility of paying the sums derived from that incentive. The legislator could even eliminate the payment of annual increments, and incentivize efficiency and permanence in the public service through a mechanism different from the one currently used, since the obligation to recognize annual increments is not stipulated in constitutional-level norms, but in legal ones.

Its represented party does agree with the plaintiff in that there is no logical reason for the payment of the annual increment to be made, in all cases, starting in the first half of the month of June of each year, and there is no justification for persons who complete their annual period immediately after that date having to wait periods that could be almost a year to receive the respective compensation; a situation that is unreasonable and discriminatory, since those who complete their annual period in May or June, for example, would receive their compensation under more favorable temporal conditions than those who complete it in July or August of each year, for which reason the Attorney General's Office considers that the system should allow that, once the performance evaluation is done and the level of efficiency required by current regulations is demonstrated, it be possible to recognize the economic incentive no later than the month following the date on which the official completes their annual period.

It insists that it is the legislator who has the power to decide which aspects of the service relationship should be incentivized through the payment of annual increments, or through the revaluation of that benefit, all in accordance with the prevailing economic possibilities. It considers it evident that revaluing the economic incentives already acquired in the event that the official is promoted to a new position could be an important incentive to foster the administrative career; however, it argues that this entails an expenditure of resources that might not be consistent with the intention of balancing public finances, and in view of this situation, it is up to the legislator to decide – as it has already done – whether to incentivize the administrative career, or whether to promote the balancing of public finances, without opting for one decision or the other implying any violation of constitutional norms or principles.

It considers that the suppression of the phrase in Art. 12 of the LSAP indicating that public sector servants would have their time of service rendered in other public sector entities recognized for annual increase purposes, is contrary to the doctrine of the State as Sole Employer, which emerged as a way of ensuring, for workers who move from one State institution to another, the continuity in the enjoyment of the rights recognized throughout the public sector; however, it argues that despite this, it is not possible to affirm that said doctrine is untouchable for the legislator, since its creation occurred through legal-rank norms, and not constitutional ones, which leads to validly affirming that just as the legislator authorized the recognition of time served in the different State institutions for the purpose of paying annual increments, it is the same legislator who is empowered to modify that authorization, when it deems it necessary to achieve the balance of public finances.

The permanent effects of a transitory rule: Regarding a transitory provision establishing permanent effects, it argues that such an objection could be useful to reflect that the duty to follow good legislative technique has been infringed; however, it considers that such an infringement could not generate the unconstitutionality of the rule, as it is not a substantial defect that justifies annulling the express will of the law.

It is also necessary to take into consideration the report given by the PGR in the unconstitutionality action No. 19-015299-0007-CO in which the following was reported:

*"On the topic of vested rights (derechos adquiridos), this Chamber has indicated that they are those that have definitively entered the patrimony of their holder, so mere expectations are not considered as such, and that consolidated legal situations are those that can never be modified (judgment No. 670-1994 of 8:46 a.m. on December 23, 1994). It has also held that a vested right is that circumstance already consummated, in which a thing, material or immaterial, has entered or impacted the person's patrimonial sphere, such that the person experiences an ascertainable advantage or benefit. (Judgment 2765-1997 of 3:03 p.m. on May 20, 1997).* *For its part, this Attorney General's Office, with respect to the specific topic of vested rights in salary matters, has held that the remuneration system may be modified in the future, provided that the global amount of the salary is not affected.* *(…)* *In summary, the legislator may make changes to the conditions under which services are rendered to the State, provided that the vested rights and consolidated legal situations of persons who maintained a service relationship before such changes are respected. Respect for vested rights implies, with regard to salary matters, not diminishing the salary received by the persons to whom the regulatory changes are directed.* *In the specific situation analyzed, this Attorney General's Office considers that both the Law for Strengthening Public Finances and the Regulation to Title III of that law (Decree No. 41564 of February 11, 2019), respect the acquired salary rights of the servants to whom the changes relating to the calculation of salary components are directed. (…)* *Specifically, with regard to annual increments, the method of calculating them set forth in the questioned provisions does not entail a reduction of the total salary that public servants were receiving as of December 4, 2018, the effective date of the Law for Strengthening Public Finances, since the sums already received for that incentive remain in the salary of each servant, without any reduction, in such a way that the conversion to nominal amounts referred to in Article 50 of the Public Administration Salary Law began to be applied as of the effective date of that law.* *The situation would have been different if the new calculation rules had been applied to the annual increments already accumulated by each official, calculated in accordance with the provisions in force at the time they obtained them, because that would indeed imply a reduction in the total salary of each servant; however, that is not what the challenged rules provide, and therefore the application of the latter has not implied any reduction in the total salary of the public servants."* Allegations of the coadjuvants *Active coadjuvants* The general secretary of SIBANPO and the general secretary of SIPROCIMECA expressed themselves in favor of the plaintiff's theses.

Mr. Álvaro Adrián Madrigal Mora, as general secretary of SITUN, states that the annual increment incentive is closely linked to the recognition of time served in the public sector which, in the case of UNA, is a salary bonus called annual increment that, as of that date, constitutes 4% over the base salary for each year worked for the institution and that is dissociated from any type of annual evaluation, included through salary negotiation in the various collective bargaining agreements.

It argues that the importance of worker permanence and experience has also been recognized in other public higher education institutions, and that is why the collective bargaining agreement recognizes it for all its academic and administrative workers, but that it is also included in the Agreement for the Coordination of State University Higher Education of Costa Rica, signed by the four rectors of the state universities. The objective that originates and sustains this recognition is permanence and experience in the public sector as opposed to the private sector, because the purposes or objectives of both are not the same. It considers it irrational and disproportionate that a single, invariable fixed nominal amount has been set for the entire salary scale when it is composed of a set of differentiated categories, since each position or post has a profile and other elements that assign it a specific, diverse salary according to the volume and responsibilities of the post. The provision of the challenged art. 50 affects the acquired rights of public sector workers because no differentiation is established between those who are already incorporated and acquired their right to an annual increment (anualidad) as a percentage, and now, suddenly, it is intended to transform it into a fixed, invariable nominal sum, which is a direct impact on salary that violates the principle of salary protection as a fundamental component of the employment relationship with the State as employer. Transitory Provision XXXI permanently complements what is provided in the challenged art. 50 by establishing the percentages that will later define the fixed nominal amounts of the annual increment (anualidad) which, by being frozen in time, will lose their real value, which implies discrimination in relation to the differences in percentages that existed (1.94% and 2.54%) and which are now intended to be calculated on a base salary from a date prior to the effective date of Law No. 9635.

The **Secretary General of UNEBANCO** states that it could never be argued that the annual increments (anualidades) that the servants had accumulated as of the date the new law came into effect could be subject to it, because this would be incompatible with the principle of non-retroactivity of the law. It is likewise contrary to this principle to attempt to apply the new calculation method and the payment of those annual increments (anualidades) under this new legal regime to the detriment of consolidated legal situations, and for this reason, it considers that they must continue to be paid as a percentage, as was done. That Transitory Provision XXXI could be reasonable if the legislature had configured a limited duration framework for it and had issued it as an extraordinary and temporary measure, but not indefinitely as it was enacted. The regulation lacks technical reasonableness by starting from differentiated percentages, depending on whether they are professional or non-professional classes, in the order of 1.94% or 2.54% respectively, without technical basis and violating free collective bargaining by not allowing another calculation method to be proposed. Art. 57 subsection l) distorts the nature of the annual increment (anualidad), which aims to remunerate an annual period of work, such that the recognition of the annual increment in June of each year lacks all logic and proportionality, and also eliminates the recognition of time worked in the public sector, going against the single public employer principle.

The representative of **UNDECA** questions that the new rule established for the payment of the annual increment (anualidad) incentive should not apply to public servants who were working on the effective date of Law No. 9635, and therefore, it could not be argued that the annual increments (anualidades) that the servants had recognized and accumulated as of the date the law came into effect could be subject to the new rules, so an interpretation of this kind would be unconstitutional since it violates the principle of non-retroactivity of the law to the detriment of acquired rights and consolidated legal situations of those public servants, diminishing the annual increments (anualidades) accumulated as of the effective date. Transitory Provision XXXI violates the principle of necessity, proportionality, and reasonableness, as it transforms the calculation parameter of the annual increment (anualidad) from a percentage factor to a nominal or absolute amount, which would remain invariable, that is, the annual increment (anualidad) amount is frozen *ad perpetuam*, which will imply that its real value will progressively deteriorate at the expense of inflation, deteriorating the country's economic situation. Art. 57 subsection l) distorts the nature of the annual increment (anualidad), whose objective is to remunerate an annual period of work, so its recognition in June of each year lacks all logic, proportionality, and eliminates the recognition of time worked in the public sector, going against the single public employer principle.

***Passive Co-adjuvants*** The president of the **Costa Rican Chamber of Industries Association** argued that annual increments (anualidades) are an exclusive creation of the legislature, so the first argument of the action refers to a typical case of legislative discretion, because increasing, decreasing, or eliminating annual increments (anualidades) can be varied over time as the country's economic and fiscal conditions change.

The representatives of **UCCAEP** stated that annual increments (anualidades) are not a fundamental labor right but a mere legislative creation subject to changes that the legislature itself can make, be it eliminating, regulating, and reforming them according to the country's economic realities. In this specific case, annual increments (anualidades) have been growing more than inflation, which was unreasonable, disproportionate, and inconvenient at the fiscal level. They point out that the existence of annual increments (anualidades) is not conditioned on the public employee's efficiency, but rather it is an additional salary bonus that was paid and grew automatically for public officials, which became an annual salary increase without any criteria and without relation to inflation; therefore, its regulation, elimination, or reduction does not violate any fundamental or constitutional norm. The legislature is not obligated to grant benefits *ad perpetuam* or *sine die*, as society's needs are changeable, so legislation that was beneficial for the community at one time may need to be changed or even abolished if the circumstances so require.

### Resolution of the Constitutional Chamber Regarding the action of unconstitutionality No. 19-022051-0007-CO that was consolidated into this case file, it is necessary to note that the plaintiffs allege a presumed injury to art. 121 of the Political Constitution; however, there was no concrete development of said argument regarding what the presumed contradiction is between the challenged provisions and the content of the referenced constitutional article. Therefore, since an appropriate substantiation of said grievance was not carried out, but rather it was a mere statement, the argument must be dismissed from the outset.

## General Information on Annual Increments (Anualidades) The concept of annual increment (anualidad) is found in art. 1 of the Regulation of Title III of the Public Finance Strengthening Law, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H, which defines it in the following terms:

“a) Annual increment (Anualidad): salary incentive granted to public servants as recognition for their continued permanence providing services to the Public Administration in those cases where they have met a minimum qualification of "very good" or its numerical equivalent in the annual evaluation, and as a fixed nominal amount for each salary scale”.

As can be seen, the annual increment (anualidad) is a salary incentive —a compensation mechanism—, that is, it is not part of the core salary of public servants, which is granted as recognition for their continued permanence efficiently providing their services to the Public Administration. Thus, for example, in opinion C-262-2007 of August 6, 2007, the PGR provided the following explanations:

“Articles 5 and 12 of the Public Administration Salary Law regulate the annual increment bonus (sobresueldo de anualidad), through which an amount of money is recognized for each year of seniority that the servant accumulates in service to the public sector.

“The salary supplement called ‘annual increment’ (anualidad), is a recognition granted by the Administration, whose purpose is to reward the experience acquired by its officials who have remained continuously providing their services to it. Basically, this incentive is a reward for the seniority of the official who has dedicated their effort, experience, and knowledge acquired over the years to put it at the service of a single employer, in this case the State and its institutions.” (Opinion C-242-2005 of July 1, 2005.)

The annual increment bonus (sobresueldo por anualidad) is based on the concept that the State is a single center for the imputation of labor rights, a principle commonly known as the theory of the State as a single employer, so that regardless of the specific public entity or agency in which the worker performs their productive activity, the annual increment (anualidad) benefit is recognized.” (The highlighting does not correspond to the original).

As it is an additional component to the salary, this Chamber has expressly stated that “granting or recognizing annual increments (anualidades) responds to the criteria of opportunity and convenience that the legislature embodied in the legislation, which it may well reform in the future” (judgment No. 2014-001227). Based on that premise and on the fact that there is no right to the immutability of the legal system, it is clear that the legislature is perfectly empowered to regulate, for the future, the terms and amounts through which this type of salary incentive can be recognized. Also, following the same logic, the legislature can perfectly regulate the requirements necessary to legitimately aspire to this salary recognition. The foregoing, of course, safeguarding acquired rights (constitutional art. 34) and other constitutional principles such as reasonableness and non-discrimination.

## On the Constitutionality of art. 50 of the LSAP and Transitory Provision XXXI (Reasonableness) The challenged legal norm establishes that upon the entry into force of the law, the annual increment (anualidad) incentive will be a fixed nominal amount for each salary scale, being an invariable amount. Furthermore, Transitory Provision XXXI establishes the successive amounts to be recognized for professional or non-professional classes.

First, the plaintiff asserts that it is not clear what the legislature's intention is with these decisions. In this regard, according to the analysis of the examined background and the reports submitted to the case file, it is possible to conclude that the legislature's intention in reforming the provisions related to the payment of annual increments (anualidades) was aimed at ensuring that said bonus be paid, in the future, as a fixed nominal sum, without this implying an impact on the amount of annual increments (anualidades) already accumulated, or on the total salary of public officials. That is, to set a cap to prevent a disproportionate increase in salary payments, but without affecting in any way the salary amounts already received and consolidated in each servant's salary status. From the background in the legislative file that was listed *supra*, it can be seen that the objective is for the annual increment (anualidad) amount to be a fixed one in order to prevent them from having revaluations due to cost of living or other factors that, in the long run, excessively inflated the amount of the corresponding incentive (“that non-adjustment in the automatic and inertial way that annual increments (anualidades) have” —Appearance of the Minister of Finance before the Legislative Assembly).

It should be noted, as already stated *supra*, that the legislature can make changes to the conditions under which services are provided to the State. That is, it has the competence to issue general guidelines for the regulation of remunerations and, in that sense, it is appropriate to establish that there is no fundamental right to maintain a specific regulatory mechanism. The foregoing, provided that the acquired rights and consolidated legal situations of persons who maintained a service relationship before these changes were made are respected, and also, constitutional principles such as reasonableness and non-discrimination are respected. The foregoing, in the judgment of this Chamber, is safeguarded in general terms by the provisions of the law itself by establishing in art. 56 of the LSAP that “the incentives, compensations, caps, or annual increments (anualidades) remunerated as of the effective date of the law will be applied to the future and may not be applied retroactively to the detriment of the official or their patrimonial rights”. Furthermore, Transitory Provision XXV of the LFFP orders that:

“The total salary of the servants who are active in the institutions contemplated in article 26 upon the entry into force of this law may not be decreased, and they will be respected for the acquired rights they hold”. (The highlighting does not correspond to the original).

Meanwhile, art. 3 of the Regulation of Title III of the Public Finance Strengthening Law, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H provides that:

“Acquired rights correspond to the incentives, additional bonuses, pluses, additional remunerations, or any other of equivalent nature, that prior to the entry into force of Law No. 9635, made up the total salary of the public servant, whether permanent or interim”.

With the above, it is proven that the regulations that the legislature is authorized to execute were established for the future, leaving the amounts already received by active servants unharmed.

Regarding necessity, this Chamber verified that there is a legitimate motivation, which is precisely to address the fiscal crisis caused, among several reasons, by the lack of uniformity of salary remunerations in the public sector. It is pertinent to emphasize that compliance with the principle of financial or budgetary equilibrium in this case is an objective and reasonable justification to conclude that the legislature's motivation is in accordance with Constitutional Law, especially if the highly deteriorated fiscal situation of the central Government is taken into account, which endangers the viability of the Social State of Law and the Costa Rican economy as a whole.

In this line, it is pertinent to note that this Chamber has verified that through this type of additional bonuses (sobresueldos), injuries have been caused to public finances. For example, in judgment No. 2006-17440, the following was resolved:

“**VII.** **Annual increments (Anualidades) of a minimum of 3%.** The plaintiffs consider it unconstitutional that the National Production Council recognizes a higher annual increment (anualidad) percentage than that of other workers, without providing a maximum cap, which violates the principle of legality.

In this regard, clause 36 of the Collective Labor Agreement (Convención Colectiva de Trabajo) of the Consejo Nacional de Producción establishes:

"Article 36°: The Institution shall automatically pay a minimum of 3% annually on base salaries for seniority (antigüedad), as the worker completes each year of service." This Chamber does not consider that setting a higher seniority percentage for officials of the Consejo Nacional de Producción compared to other workers is discriminatory, as this responds to the salary policy of each institution and is supported by the Public Administration Salary Law. However, what this Chamber can assess is the reasonableness of the amount set, since an abusive use of this power can mean evident harm to public finances. It is on this point that the Chamber observes the unconstitutionality of a part of the challenged rule, because it establishes that seniority shall be paid with a "minimum" of 3% annually on base salaries, making it evident that said clause does not establish a cap, and consequently, it empowers the Administration to dispose of public resources without limit. This is undoubtedly contrary to Constitutional Law, as it constitutes a disproportionate liberality in favor of the Consejo Nacional de Producción that cannot be justified. Consequently, given the normative openness of the clause in question, this Chamber deems it appropriate to annul the phrase "a minimum of" contained in Article 36 of the analyzed Collective Labor Agreement (Convención Colectiva).

One may also consult judgment No. 8254-2020 in which, moreover, this very Chamber reiterated that the recognition of this type of incentive cannot be detached from the performance evaluation (evaluación del desempeño) process:

"B. 2.- ON THE SALARY INCREASE BASED ON THE WORKER'S SENIORITY. The provision allowing workers to receive annual salary increases based on the percentages established in Transitorio I of the Collective Labor Agreement (Convención Colectiva) is challenged. These increases occur in a staggered manner, as detailed in the provision transcribed below:

"TRANSITORIO I. For workers whose anniversary falls in the second half of 2007, the seniority increase shall be applied as soon as this convention is approved and retroactively from the date of the anniversary (...).

c.- After the first five-year period, and up to 10 (ten) years of service, the worker shall receive a salary increase for each year of efficient service of 7% (seven percent) of their base salary, and from year 11 (eleven) to year 25 (twenty-five), 4% (four percent), and from year 26 (twenty-six) until their retirement from the Institute, 3% (three percent) of their base salary.

d.- (...)".

In this way, the worker will be entitled to percentage salary increases for each year of efficient service, which implies that a performance evaluation (evaluación del desempeño) system for the worker exists or must exist, through which they become entitled to the staggered increase. Although the plaintiffs state that this is a rule that grants the annual increment automatically by the passage of time, this Chamber agrees with the PGR's reading of the provision. The foregoing does not mean that the Chamber varies the jurisprudence that classifies fixed increases established only by the passage of time as unconstitutional (judgment No. 17438-2006). This position is maintained and reaffirmed in this case. The problem of constitutional relevance with the rule we are now analyzing is quantitative, not nominal, since the source of the increase would be verified annually, according to the valuable final output of the worker (considered individually), similarly to what is regulated in the General Public Administration Salary Law.

Now, regarding the 7% increase on salary per step or year of service, where the most significant increase occurs at the beginning of the employment relationship with the INS, a percentage which is questioned by the plaintiff. It is important for this Chamber to establish the existence of a breach of the principle of reasonableness of the rules.

Although a Collective Labor Agreement (Convención Colectiva) could precisely exceed the legal minimums for salary increases by annual steps, the fact is that these must pass a reasonableness test. In the Chamber's opinion, as INS is an autonomous institution, although its relationship with the majority of employees is one of common or labor law, it is subject to the criteria of financial legality, reasonableness, and proportionality of its actions. The UPINS union did not provide further criteria to explain that the rule has an important purpose, other than ensuring that the Collective Labor Agreement (Convención Colectiva) reinforces the loyalty and retention of its employees. Specifically, there is no record justifying a rule such as the one challenged, which appears excessive if the goal is to keep employees in the institution, since if it was indeed created as a mechanism to prevent the exodus of employees with the breaking of the INS insurance monopoly, it is currently in a market regime that does not justify that type of action. The Chamber therefore leans towards considering that the 7% increase is contrary to the principles of legality, austerity, and reasonableness in public spending (see judgments Nos. 6347, 6728-2006 and 3267-2012). Regardless of whether it would be aimed at producing worker loyalty and fidelity, 7% proves to be a significant sum, since some employees would be consolidating their initial skills at work after five years, and there would be no logical and fair relationship with a compensation at such a high percentage. Furthermore, this Chamber considers that workers must be efficient in their duties, receiving benefits for good performance, following objective, reasonable, and proportional criteria. But increasing 7% of the base salary after the first five-year period up to ten years is a very particular way of managing the experience and suitability of workers, because those with less experience at the start would receive a greater salary increase, and those with more experience would receive a smaller increase. In addition to the foregoing, the executive presidency report of the INS establishes that Article 54 of the Collective Labor Agreement (Convención Colectiva de Trabajo) currently provides for an annual salary increase of 6.8% and 9.99%, depending on the job category, from the first through the fifth year of service. This shows that the increase in the percentage of annual increments (anualidades) has a greater impact over time, for example, that the 2007 budget for this item doubled by 2015. Consequently, the action must be granted, that is, the unconstitutionality of the 7% annual increase for workers. Regarding the other percentages established in subsection c), the action is dismissed, but this Chamber declares these percentages constitutional provided they are granted conditional on the approval of the performance evaluation (evaluación del desempeño)." With that, it is understandable that the legislator promoted legislation to regulate these types of compensations and established rules to prevent them from growing disproportionately, thereby meeting the reasonableness conditions in their determination.

Now, given that granting or recognizing annual increments (anualidades) responds to criteria of opportunity and convenience that the legislator must establish, it is not considered that the established regulatory mechanism is openly unreasonable or disproportionate. Within legislative prerogatives, the legislator could choose the amount to be recognized going forward, even making a legitimate distinction between the percentages to be recognized for professional and non-professional classes.

It is true that matters relating to remuneration need not necessarily remain stagnant, as set forth supra, but regarding bonuses and their growth—given the serious fiscal situation—it is subject to the legislator's discretion, and since it was now urgent to cap these bonuses to safeguard the state of public finances, it is also true that in the future, more favorable compensatory mechanisms for retaining personnel may be provided, but that will correspond to a public policy from the legislator which, given the current state of public finances, cannot be anticipated.

Moreover, the plaintiffs in case numbers 19-02620-0007-CO and 19-022051-0007-CO made generic arguments about the mechanism devised by the legislator, arguing that it lacks reasonableness and proportionality, that it violates substantive due process, that it lacks internal logic, that over time these bonuses will approach a value close to "zero," and that the sacrifice is radical and "confiscatory." In this regard, this Chamber must reiterate the resolution of this Chamber, No. 2024-007057, to the effect that these generic statements, without adequate legal grounding and without proof of their assertions, must be rejected. Regarding this, the Chamber already resolved the following:

"b.- On the partial inadmissibility of the plaintiff's allegations in this action. Once the writs initiating this process have been analyzed, it is clear that there are allegations by the plaintiff that were not duly substantiated or that do not constitute constitutional issues, but rather issues of legality, and, therefore, prevent this Tribunal from ruling on them.

1- As this Chamber has repeatedly indicated, the action of unconstitutionality is a process with certain formalities, which, if not met, prevent this jurisdiction from hearing the intended challenge. One of these requirements corresponds to the necessary legal grounding of the writ in which the action of unconstitutionality is filed. The Constitutional Jurisdiction Law, in its Article 3, provides that 'The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the challenged rule or act, its effects, or its interpretation or application by public authorities, with constitutional norms and principles.' Now, for this Tribunal to consider the infringement established and to declare the unconstitutionality of the challenged rule or act, with the consequent annulment and expulsion from the legal system, whoever brings an action of unconstitutionality has the burden of demonstrating how that provision infringes Constitutional Law and, furthermore, must indicate why the claim should be granted. This is called by this Chamber the burden of argumentation, that is, that 'a norm that prima facie (sic) is contrary to the Constitution shifts the burden of argumentation to those who maintain that there is in fact no conflict between that norm and the Political Constitution; the opposite occurs if action is brought against a norm that upon first examination does not appear contrary to the Constitution, in which case it is the plaintiff who must advance arguments that convince regarding the unconstitutionality' (see judgment No. 1995-0184 of 16:30 hours on January 10, 1995).

(...)

The plaintiff alleges the following: a) The violation of the right to a decent and fair salary, considering that the reductions are excessive, disproportionate, and unreasonable, not only due to the calculation they will apply to the payment of annual increments (anualidades), but also regarding how the assessment will be subjectively conducted. It is indicated that the percentage of decrease in the payment of annual increments (anualidades) is such that it contradicts the criteria of equity, justice, proportionality, and reasonableness, because that nominal value reaches almost zero and will not grow over time. It is argued that it is unreasonable as an economic stimulus for the worker and disproportionate, by eventually eliminating the future payment of annual increments (anualidades) in a composite salary. b) The violation of the principle of prohibition of arbitrariness, by subjecting workers to unequal treatment in the management of their recognized rights and/or consolidated legal situations. c) The violation of the principle of prohibition of abuse of power, due to the abusive, excessive, and unconstitutional use made by the Executive Branch regarding its powers. d) The violation of the principle of equality, due to the drastic decrease that the questioned regulations will entail in the amount of payment of annual increments (anualidades) for only some workers and, for making a distinction in the amount of that same item between professionals and non-professionals.

However, in the sub examine, a clear and sufficient legal grounding concerning these allegations is notably absent.

The action requires rigor not only when setting out the grounds of unconstitutionality perceived in a regulation, but also in establishing them with due specificity and substantiation, so that any eventual judgment on the merits is consistent with the arguments raised; this is not fulfilled in these cases.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Without those evidentiary elements to support its argument, it is not possible to undertake an examination of the reasonableness of a norm, due to the absence of a coherent line of argument grounded in evidence. In this regard, the following has been stated:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide proof or at least evidentiary elements on which to base its argument, and the same procedural burden falls on whoever refutes the arguments of the action, and failure to comply with these requirements renders claims of unconstitutionality unacceptable. The foregoing, because it is not possible to conduct a 'reasonableness' analysis without the existence of a coherent line of argument that is supported by evidence. This, of course, when the cases are not those whose 'unreasonableness' is evident and manifest" (Judgment No. 1999-005236 of 2:00 p.m. on July 7, 1999, reiterated in Judgment No. 2016-014392 of 9:05 a.m. on October 5, 2016).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In this sense, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the Chamber considers that the claimants' approach is abstract and general, as it merely mentions that there is a salary detriment to workers that they consider disproportionate and irrational, through a norm that, subjectively, is considered unreasonable; however, the reasons are not specified, they do not present solid data or evidence, or evidentiary elements that would allow a reasonableness analysis of the decision made by the Executive Branch, as required by the jurisprudence of this Chamber</span><span style="font-style:italic; background-color:#ffffff">. Thus, for this Tribunal, it is impossible to carry out a reasonableness analysis in the absence of suitable evidence which, as stated, is an indispensable requirement, unless it is a case of evident and manifest unreasonableness, which is not the case here.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">On the other hand, the claimants consider that, to the extent that the granting of incentives such as the annual salary increments (anualidades) depends on subjective evaluations by those who qualify them, the right to a salary will be violated. However, in the Chamber's view, the questioning of the subjectivity in the evaluation to which the employee could eventually be subjected is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the eventual violation of fundamental rights. And, in any case, any disagreements that officials may have with the results of the conducted examination is a matter of legality that this Tribunal is not responsible for assessing and that, therefore, must be discussed before the Administration or in the corresponding jurisdictional venue.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Likewise, regarding the alleged injury to the principle of the prohibition of arbitrariness and the principle of the prohibition of misuse of power, the filing brief does not provide an adequate substantiation of the reasons on grounds of constitutionality for which the eventual violation of those principles is considered, but rather refers to criteria that must be verified in the legality venue.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In relation specifically to the principle of equality and non-discrimination, simply invoking its violation is not enough. In this sense, it is appropriate to remind the claimant that it has been the jurisprudential line of this Tribunal that, when a violation of the principle of equality or proportionality is alleged, as in this case, they have the duty to provide a parameter of comparison, along with the corresponding analysis. Hence, whoever invokes that type of breach is obligated to provide elements that allow for a full comparison between subjects treated differently, allowing for verification of whether the alleged inequality occurs or not. This, in doctrine, is known as the "tertium comparationis" (point of reference, of comparison), and regarding it, in Judgment No. 1994-7261 of 8:30 a.m. on December 9, 1994, reiterated in Judgment No. 2021-24764 of 9:20 a.m. on November 3, 2021, and in Judgment No. 2022-13096 of 9:30 a.m. on June 8, 2022, it was stated:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"Regarding the principle of equality, as this Chamber has repeatedly held, the most important factual presupposition is that there exists a discriminatory treatment devoid of any objective and reasonable justification; this is the reason why whoever invokes a violation of this principle must provide, for the purposes of enabling a full comparison, parameters of comparison, and in this way, verify whether or not inequality occurs (see, among others and by way of example, Judgments Nos. 196-91 in Considerando II; 1432-91, in Considerando II and 1732-91)."</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In the sub examine, the claimant in the consolidated action neither provided nor developed a parameter of comparison that would allow the Tribunal to carry out the corresponding analysis; they only questioned a differentiated treatment for the nursing workers sector, without referring to which other sector specifically and how the articles of the challenged regulation caused it. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">They also did not do so when questioning the difference in the recognition of the annual salary increment payment between the professional and non-professional sector; and the assessment they make regarding a future possibility that the payment of annual salary increments might disappear is merely subjective, without objective parameters of constitutionality.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">Consequently, the lack of substantiation of the action regarding these aspects prevents even an assessment of the violation of the stated principles. As already indicated, the jurisprudence of the Chamber is emphatic in pointing out this duty to substantiate the arguments of unconstitutionality (see also in this regard Judgment No. 2023-31744, of 9:30 a.m. on December 6, 2023). In the case under study, the claimant merely points out the constitutional principles allegedly affected by the regulation they intend to challenge, without detailing or constructing concrete arguments that would allow for an assessment of whether, in effect, the stated defects are present.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">It is therefore inappropriate for this Chamber to rule on the merits of norms challenged in an action when the plaintiff does not substantiate the reasons for the challenge, as this would imply conducting an abstract constitutional review as an academic exercise, which is not compatible with the purpose of a process of this nature."</span><span style="background-color:#ffffff"> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-family:Arial; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>So that —because of the manner in which this set of arguments was presented by the claimants and active coadjuvants— the Chamber must dismiss them because they amount to nothing more than generic and abstract assertions about the supposed effects of the challenged norms (loss of purchasing power). The absence of clear substantiation and a real demonstration of grievances </span><span>prompts this Chamber to reject these arguments of alleged unconstitutionality.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding these allegations, the unconstitutionality action is declared without merit.</span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445400" class=""><span>Regarding the recognition of annual salary increments in the month of June, employment continuity, and revaluation</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:8pt"><span>The claimants questioned the terms in which Article 12 of the LSAP was regulated in its version after the reform operated by the LFFP. Said norm, as set forth supra, stated the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"Art. 12. The annual salary increment incentive shall be recognized in the first half of the month of June of each year.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">If the employee is promoted, they shall begin to receive the minimum of the new category; under no circumstances shall incentives already recognized be revalued."</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding this provision, three grievances were raised: 1) that it radically changed the date of recognition of the annual salary increment, making it not the moment when each employee completes the corresponding annual period but artificially in the month of June, implying a sacrifice for employees who, having the right to receive the annual salary increment in a specific month, must wait until the following month of June; 2) that it eliminated subsection d) of Article 12, which allowed considering the time accumulated in other public sector entities for the purposes of paying annual salary increments, forcing them to start the count from zero if they change employment entity, generating discrimination and disincentives; and 3) that subsection b) of the former Article 12 of the LSAP established that if a person was promoted, upon moving to the new position they would have the right to have the annual salary increments previously received be revalued, meaning that people are discouraged from occupying positions of greater responsibility by freezing the previous annual salary increments and not allowing the revaluation of annual salary increments already received.</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span>To resolve these allegations, it is necessary to reiterate the basic premises indicated supra, in the sense that the recognition of annual salary increments obeys criteria of timeliness and convenience of the legislator, </span><span style="background-color:#ffffff">that there is no right to the immutability of the legal system, and that the legislator is empowered to regulate, for the future, the amounts and terms in which this type of salary incentives may be recognized, safeguarding acquired rights (Article 34 of the Constitution) and other principles of constitutional order such as reasonableness and non-discrimination.</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="background-color:#ffffff">In the Chamber's view, based on the foregoing, the Chamber considers that the first two allegations are admissible, since, as recognized by the PGR, there is no logical reason for the payment of the annual salary increment to be made in all cases in the first half of the month of June, and there is no justification for such an odious distinction between employees who, for example, complete their anniversary in the months of May and June and can receive the payment of their annual salary increment within a reasonably close period; and other employees who must wait until the following month of June to receive the annual salary increment that would correspond to them, for example, in the month of January. This Chamber agrees with the PGR that it is a discriminatory and unreasonable situation among public employees in the same conditions, that is, who have completed the calendar year of service and have received a "very good" performance evaluation, but whose salary recognition will be made in dissimilar periods.</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="background-color:#ffffff">As a second aspect, in the Chamber's view, the fact that the recognition or counting of annual salary increments in other public sector dependencies was eliminated is also a decision lacking reasonableness; because if </span><span style="text-decoration:underline; background-color:#ffffff">the general motivation for the annual salary increment incentive is the recognition of the public employee's permanence, providing their services efficiently in favor of the Public Administration</span><span style="background-color:#ffffff"> (see definition supra), it is not reasonable for said counting to be carried out individually by particularized entities to the detriment of the public employee who has provided their services efficiently in those entities. In that sense, if the legislator decided —within the scope of its discretion— to contemplate this salary recognition, it must do so under conditions that do not generate discriminatory or unreasonable situations, that is, contrary to the very reason for the recognition or the historical definition of "anualidades." This Chamber must insist that, although it is an incentive available to the legislator, its regulation cannot injure constitutional principles such as reasonableness and non-discrimination; therefore, if the very definition and creation of the incentive is due to the desire to incentivize efficient and continuous services in the Public Administration by public officials, it seems unreasonable to render the counting of previous annual salary increments without effect.</span><span style="background-color:#ffffff; -aw-import:spaces"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="background-color:#ffffff">Therefore, regarding these grievances, it is appropriate to declare the action with merit solely for the effects it may have produced during the validity of the challenged norm</span><span>. It is worth noting that the legislator itself proceeded to enact the LMEP and to expressly reform what was established in Article 12 of the LSAP, so that the norm currently states the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"Article 12- </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The annual salary increment incentive shall be recognized in the month immediately following the anniversary of the entry or re-entry of the public servant who works under the composite salary scheme</span><span style="font-style:italic">, in accordance with the following rules:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">a) If the employee is transferred to a position of equal or lower category to the one they are occupying, there shall be no interruption whatsoever in the computation of time for the salary increase.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">b) If the employee is promoted, they shall begin to receive the minimum annual salary increments of the new category; under no circumstances shall incentives already recognized be revalued.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">c) </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">For public servants, whether permanent or interim, the time of service provided in other public sector entities shall be computed for the purposes of recognizing the annual salary increment incentive</span><span style="font-style:italic">.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus reformed by Article 49, sub-subsection a) of the Ley Marco de Empleo Público, No. 10159 of March 8, 2022)"</span><span style="font-style:italic">.</span><span> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:normal"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Said norm —in the Chamber's view— addressed what was questioned by the claimants, in the sense that the annual salary increment is recognized according to the anniversary of each specific employee, and also that public servants —whether appointed permanently or on an interim basis— shall have all the time of service provided in other public sector entities computed</span><span>.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Finally, regarding the allegation that the challenged regulation limits salary improvements by virtue of promotions because subsection b) of Article 12 of the LSAP in its original version was suppressed, it is questioned that the norm had a logic in that it intended for the position promotion to positively affect the person who opted for a higher position, whereas now people are discouraged from occupying positions of greater responsibility by freezing the previous annual salary increments and not opting for a revaluation. This Chamber considers that the discussion raised is one of normative interpretation and integration and not a matter of constitutionality. It should be noted, on this point, that the challenged norm in its original wording stated: "If the employee is promoted, they shall begin to receive the minimum of the new category," from which it is rejected that the public employee will not receive a salary improvement. It is true, and this Tribunal has so verified, that the point has been the subject of analysis by the various competent instances in its interpretation and application, and, as demanded by the claimants, the interpretation has been reached that, in effect, upon a promotion, the serving person begins to receive the amount corresponding to the annual salary increments according to the qualities of the new position they perform. In fact, Executive Decree No. 41564-MIDEPLAN-H explains this explicitly in Article 14 by providing that:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"d) In accordance with Article 12 of Law No. 2166, added by Article 3 of Law No. 9635, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">if the employee is promoted, the accumulated annual salary increments shall be recognized at the value of the annual salary increment corresponding to their new position</span><span style="font-style:italic">, as a fixed nominal amount according to the provisions of this article. Under no circumstances shall the annual salary increments they were earning prior to the promotion be revalued. The same shall apply in the case of demotions."</span><span> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>It is also possible to find that through Circular No. DG-CIR-009-2019 of August 9, 2019, the DGSC explained the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"With the objective of facilitating the application of said reforms and for the purposes of paying the annual salary increments of employees covered by the Statutory Regime, it is established that the calculation thereof must be made according to the annual salary increment amount established for the salary level to which the class of the position held by the serving person is linked.</span></p> The foregoing implies that when the official is part of a personnel movement that results in a promotion or demotion in the classification and position held, the total amount to be recognized for the concept of annuities must be calculated considering the annuity amount established for the salary level to which the new position classification is assigned.” Additionally, it is verified that the PGR, through opinion [n.° 075 of April 6, 2022](http://www.pgrweb.go.cr/scij/Busqueda/Normativa/pronunciamiento/pro_ficha.aspx?param1=PRD&param6=1&nDictamen=23278&strTipM=T), made the following considerations:

“Now, regarding the scope of the regulatory precept in question, two possible interpretations could arise. The first, given by opinion C-396-2020, according to which, based on the understanding that the concept ‘revaluation (revalorización)’ in common language refers to any increase in value, in cases of promotions, it is no longer possible to revalue or increase, based on the category of the position to which the employee is promoted, the nominalized annual increases the employee carries, which will remain invariable. The second consists of the notion that ‘revaluation (revalorización)’ has a specific technical-legal meaning, which in the case of annuities refers to the automatic change or increase that, before the reforms introduced by the Law for Strengthening Public Finances, occurred in them as a result of the base salary increase decreed by the Executive Branch, whether generally for cost of living or through a technical adjustment of some salary levels. Thus, the invariability or non-revaluation (no revalorización) –arts. 50 and 12 of the Public Administration Salary Law- refers to the increase in the value of annuities resulting from those increases, but not to changes occurring in the classification or in the positions due to the employee's promotion, a scenario in which, due to the correlation with the respective salary level that the nominalization mechanism involves, in the case of promotions, the amount of the annuities the employee carries must be adjusted, recognizing their value according to the salary level of the new class of the position to be occupied.

However, in special consideration of the sufficient and legally relevant reasons given by both the DGSC and MIDEPLAN, and for which the technical-legal criterion contained in our opinion is not shared, there are important arguments to opt this time for the second interpretation of the regulatory precept.

In the first place, we must recognize that, prior to the entry into force of the Law for Strengthening Public Finances, No. 9635, annuities were revalued automatically, taking into account the base salaries updated by adding to them the cost of living periodically decreed by the Executive Branch, as well as specific technical adjustments (Among many others, opinion C-314-2018 of December 14, 2018), and that this produced an exponential increase in salaries, thus constituting one of the main triggers of public spending, the solution to which the legislator sought specifically through the nominalization of its economic value based on a fixed and invariable parameter -the base salary corresponding to each category for the month of July 2018-. Not in vain have we held that ‘the non-revaluation (no revalorización) of incentives already recognized alludes to the invariability of both the fixed nominal amount into which the annuities received prior to December 4, 2018 –entry into force of Law No. 9635- are converted, and that of those acquired after that date, which will also be calculated as a fixed nominal amount, as ordered by the Law’ this last, according to art. 50 of the Salary Law-.” (Opinion C-153-2020 of April 24, 2020). Consequently, it is reasonable to affirm that the invariable refers to the inadmissibility of that revaluation of annuities that previously occurred due to constant change in their value as a result of a periodic salary increase decreed by the Executive Branch, and not to other scenarios involving changes in classification or positions, as is the case with promotions. This is the interpretation that best aligns with the objective of the Law.

In the second place, derived from the above, by providing content or concrete meaning to that indeterminate legal concept of ‘revaluation (revalorización)’ currently referred to in article 12 of the Public Administration Salary Law, beyond the common linguistic meaning we resorted to in opinion C-396-2020, given the clear lack of precision of the normative precept, by the autonomy, independence, and especially, by the self-integration of Administrative Law with respect to other branches of law (art. 9.1 LGAP), the first supplementary source the legal interpreter must turn to in case of gaps or deficiencies in the regulation of certain public nature relationships is the administrative legal system (art. 9.2 Ibid.), comprising all the written rules of Public Law. Therefore, it is reasonable to then resort to the linguistic-dogmatic meaning given by national law on salary matters, as alluded to by the technical criteria of both the DGSC and MIDEPLAN, and which, as a direct conceptual reference, gives a very specific content to that concept; understanding by it the ‘Modification of the salary for position classes due to increases decreed by the Executive Branch’ (Decree No. 38916-H of March 13, 2015 and its reforms. Without limiting with it -we insist- other different scenarios involving changes in classification or positions, as is the case with promotions. This interpretation is oriented in the most rational direction that corresponds to the satisfaction of the public interest (arts. 10 and 113 of the General Public Administration Law).

Thus, contrary to what was originally concluded, in reality a corrective interpretation is not necessary to harmonize the normative provisions contained in articles 12 of the Public Administration Salary Law and 14, subsection d) of the Regulation to Title III of the Law for Strengthening Public Finances, Executive Decree No. 41564-MIDEPLAN-H, like the one made in section II of opinion C-396-2020. The literal wording of the regulatory norm is sufficient in itself: ‘In accordance with article 12 of Law No. 2166, added through article 3 of Law No. 9635, if the employee is promoted, the accumulated annuities will be recognized with the annuity value corresponding to their new position, as a fixed nominal amount according to the provisions of this article. Under no circumstance will the annuities earned before the promotion be revalued. It will apply equally in the case of demotions’ (Thus amended the previous subsection by article 1° of Executive Decree No. 41807 of July 23, 2019).

Therefore, contrary to what was stated in opinion C-396-2020, it must be understood that, due to the correlation with the respective salary level that the mechanism for the nominalization of salary bonuses and incentives involves, when an employee is promoted or demoted –temporarily or permanently- in the classification or the position held, the amount or value to be recognized for the concept of accumulated annuities they carry must be calculated considering the annuity amount nominally established for the salary level of their new position. It is important to point out that this adjustment situation should not be confused with the concept of annuity revaluation prohibited by law, which refers exclusively to the adjustment for cost of living or any other increase decreed by the Executive Branch, which was done before and which the legislator wanted to avoid (…)

Consequently, given the change in criterion operated in this opinion, in response to the specific order of the questions asked, we must indicate that, in the context of the objective desired by the legislator at the time of enacting the Law for Strengthening Public Finances, No. 9635, the ‘non-revaluation (no revalorización)’ of the annuities is referred to the inadmissibility of modifying the nominalized amount into which they are converted as a consequence of salary increases resulting from cost-of-living adjustments or other technical adjustments decreed by the Executive Branch. This allows, in the case of promotions or demotions, to give the previously accumulated annuities the nominalized value corresponding to the new position to be occupied.” (The emphasis does not correspond to the original).

In accordance with these administrative precedents, it is corroborated that what is raised in this specific section refers to a question of legality regarding the proper interpretation of the norm, which, in itself, does not generate the limitations raised by the petitioner.

## On the alleged injury to the principle of reasonableness because the percentages of annuities are established in transitory norms The petitioners argue an injury to the principle of reasonableness since it is a transitory norm that came to regulate the annuity percentages, which, in their view, should have been reflected in an ordinary norm. In this regard, the PGR concluded that such objection is useful to show that the legislator did not use good legislative technique, but it could not generate the unconstitutionality of the norm. This Chamber agrees with that point of view. It is true that transitory law has a purpose aimed at regulating aspects related to the application of norms over time and precisely the transition that must occur between one regulation and a subsequent one. In this regard, in advisory opinion [No. 2021-017098](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1049802), the following was stated:

“As is well known, transitory law is a legal technique that seeks to respond to the problems of applying norms over time, which arise from the repeal and the entry into force of another, in which it becomes necessary to adapt the prevailing situations to the new reality created by the newly enacted law. Indeed, as doctrine has well held, transitory provisions form part of Intertemporal Law insofar as they aim to resolve conflicts of laws. Faced with the transitory problems that the new law causes, the legislator establishes a legal regime applicable to pending legal situations. In that sense, the function of so-called transitory provisions is to regulate, temporarily, certain situations, in order to adjust or accommodate the new regulations or to give a different and temporary treatment, of an exceptional nature, to certain situations. It is worth highlighting that at the basis of the transitory norm lies that need to respond to problems posed by the entry into force of the new law; that is its essence. It has been said that the content of transitory provisions seeks to solve several situations. In the first place, whether the new regulations apply or not to legal situations prior to the law, whether by declaring the application of the new law, the survival of the old law, or by establishing a transitory regime different from that established in both laws -the old and the new-. Another option available to the legislator, within a range of alternatives, is to provisionally regulate new legal situations when this is intended to facilitate the definitive application of the new law.” It is evident that the content of Section XXXI of the LFFP, which regulates the calculation and amounts to be paid for annuities as a fixed nominal amount of 1.94% of the base salary for professional classes, and 2.54% for non-professional classes, on the base salary corresponding to the month of January 2018 for each salary scale, does not seem to be a truly transitory norm, as it does not respond to a need to address the application of norms over time, nor does it have a temporary purpose, but rather intends to establish the rules for calculating annuities going forward. However, the PGR is correct in that this incorrectness in legislative technique does not imply the unconstitutionality of the norm, which in any case was adopted by the Legislative Assembly through the legitimate mechanisms for issuing legal norms. The petitioners are correct that the most suitable approach would have been to reflect that provision in a substantive legal norm, but from the arguments presented, it is not perceived that we are facing an essential or substantial defect that invalidates the legislative will and warrants the unconstitutionality of the norm.

## On Potential Normative Antinomies The representatives of ASDEICE (plaintiffs in action No. 19-022051-004-CO), as well as the joining parties from SITUN, refer to specific situations and possible antinomies between the provisions of the LSAP and the internal regulations ‒personnel statutes‒ regarding the payment of service-years increments (anualidades) and that even, in the case of UNA, the payment is dissociated from any type of annual evaluation.

On this point, beyond the possible unconstitutionality of such provisions that promote the recognition of salary incentives regardless of the performance and efficiency of public servants, it is pertinent to note that these questions refer to discussions of mere legality regarding which rules prevail for the recognition and payment of certain salary bonuses.

In this regard, it is worth recalling that this Chamber, when referring to the amendments to the National Teachers' Pension Regime (Régimen de Pensiones del Magisterio Nacional), warned that it is not its role to examine specific cases in order to resolve the potential legality issues that may arise when applying certain regulations:

"[I]t is necessary to insist that in an action of unconstitutionality (acción de inconstitucionalidad) it is not appropriate to carry out a legality analysis to examine whether the authorities of JUPEMA or the Ministry of Finance are properly applying the legal framework in light of the specific situation of each retired person. In this regard, this Chamber has reiterated that 'the improper application of the law or its erroneous interpretation in the specific case' is not a matter to be heard through the action of unconstitutionality (judgment No. 1994-5966). Each particular situation may be examined in accordance with the entire block of legality in the competent ordinary venues. Thus, for example, in judgment No. 2001-02235 this Tribunal warned the following:

"The Chamber finds no reasons to modify its previous criterion, apart from the fact that, as the transcribed judgment also adds, establishing whether there is an impact on the essential content of the right is a question that must be analyzed case by case." Additionally, in judgment No. 2019-024201 the following was resolved:

"On repeated occasions, this Chamber has indicated that questions regarding the application of norms cannot be the subject of an action proceeding (proceso de acción), which is designed to exercise a constitutionality control of the norms and not to examine the correct interpretation and/or application of the Law. Consequently, it is not up to this Constitutional Tribunal to determine which norm is applicable in the specific case, or whether or not the statute of limitations (prescripción) declared by JUPEMA applies, as this alludes to a conflict of ordinary legality that exceeds the scope of competence of this Tribunal. For the same reasons, the claim seeking that this Tribunal order the payment of a specific sum of money is rejected. In light of the foregoing, the action is inadmissible and must be rejected." Therefore, each specific situation may well be aired in the competent legality venues, venues in which all reproaches referring to the correct application and interpretation of the legal and regulatory rules in force may be raised." (Judgment No. 2024-006250).

Likewise, when questions of this type are raised regarding the prevalence of one or another legal norm in relation to the payment and recognition of salary bonuses, the Chamber stated the following:

"As the General Attorney's Office of the Republic (Procuraduría General de la República) indeed explains, it is clear that the discussion presented in this numeral is of ordinary legality, since it involves a conflict of norms applicable over time; that is, of legal antinomies. At issue is whether some of the provisions that support the percentages regulated conventionally, or established by law, have been repealed, thus discussing whether a presumed tacit repeal of various provisions of the Law on Salaries of the Public Administration (Ley de Salarios de la Administración Pública), the Law on Economic Compensation for the Payment of Prohibition (Ley de Compensación Económica por el pago de Prohibición), occurs with the reforms introduced in the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas). As is evident, it must be defined whether subsection a), of article 1, of the Law on Economic Compensation for the Payment of Prohibition, survives the legal reforms, and in this type of circumstances, the integration and interpretation of infra-constitutional norms is required, which is not the responsibility of the Constitutional Chamber, but rather of the administrative and judicial authorities, as appropriate." (Judgment No. 2023-010798. The highlighting does not correspond to the original).

Finally, it is necessary to point out that the active joining parties also refer to an alleged violation of Article 34 of the Political Constitution due to the alleged injury to acquired rights. This grievance will be examined in the following section.

## Conclusions Based on the considerations made, the action must be partially granted only due to the unreasonableness of the recognition of the service-years increment incentive in the month of June of each year and for breaking labor continuity. This is according to what is regulated in Article 12 of the LSAP in its version amended by the LFFP and during the term it was in force. In all other respects, the grievances are declared without merit.

Judge Rueda Leal issues a separate opinion and grants the action regarding the phrase "The service-years increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged Article 12 of the Law on Salaries of the Public Administration as amended by Law No. 9635 'Strengthening Public Finances' during its period of validity.

Judge Lara Gamboa grants the action only regarding the phrase "The service-years increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged Article 12 of the Law on Salaries of the Public Administration as amended by Law No. 9635 'Strengthening Public Finances' during its period of validity.

Judge Cruz Castro dissents and grants the action regarding service-years increments, particularly with respect to Article 50 and Transitory Provision XXXI.

## XIV.- ON THE ALLEGED VIOLATION OF THE PRINCIPLE OF NON-RETROACTIVITY OF THE LAW AND DISRESPECT FOR CONSOLIDATED LEGAL SITUATIONS ### Preliminary Clarification Regarding this section, and given that it is a cross-cutting issue in the consolidated proceedings, the arguments from various actions will be addressed, identifying in each case the respective grievances and the response given by the PGR.

### Challenged Norms The norms questioned on this ground are Articles 50, 54, 56, subsection 1) of Article 57 insofar as it amends Article 12, and Transitory Provisions numbers XXVII and XXXI of the LSAP, as amended by Law No. 9635.

The norms state the following:

"**Art. 50- On the amount of the incentive**. As of the entry into force of this law, the service-years increment incentive for public officials covered by this title shall be a fixed nominal amount for each salary scale, an amount that shall remain invariable.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).

**Art. 54- Conversion of incentives to fixed nominal amounts**. Any other existing incentive or compensation that, upon the entry into force of this law, is expressed in percentage terms, its future calculation shall be a fixed nominal amount, resulting from the application of the percentage to the base salary as of January 2018.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).

**Art. 56- Application of incentives, caps, and compensations**. The incentives, compensations, caps, or service-years increments remunerated as of the date of entry into force of the law shall be applied prospectively and may not be applied retroactively to the detriment of the official or their patrimonial rights.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).

**Art. 57. 1)** l) Article 12 of Law No. 2166, Law on Salaries of the Public Administration, of October 9, 1957, is amended. The text is as follows:

Article 12- The service-years increment incentive shall be recognized in the first half of the month of June of each year.

If the servant is promoted, they shall begin to receive the minimum of the new category; under no circumstance shall the incentives already recognized be revalued.

**TRANSITORY PROVISION XXVII**. From the application of Article 39, Unemployment Assistance, those officials covered by collective bargaining agreements (convenciones colectivas) that grant the right to more than eight years of unemployment compensation (cesantía) are excepted, who may continue enjoying that right, as long as the current agreements that so contemplate it are in force, but in no case may the compensation be greater than twelve years.

In cases where a right to unemployment compensation greater than eight years has been granted through legal instruments other than collective bargaining agreements, and which are in force, the number of years to be compensated may not exceed twelve years, in the case of those persons who have already acquired that right; for all other cases, any compensation exceeding eight years shall be without effect.

**TRANSITORY PROVISION XXXI**.

To establish the calculation of the fixed nominal amount, as regulated in Article 50, in the recognition of the seniority bonus (anualidad) incentive, immediately upon the entry into force of this law, one point ninety-four percent (1.94%) of the base salary for professional classes shall be applied, and two point fifty-four percent (2.54%) for non-professional classes, on the base salary corresponding to the month of January of the year 2018 for each salary scale." <h3>Complaints of the Claimant (Action No. 19-002620-007-CO)</h3> The claimant asserts that the legal technique used by the legislator in Articles 50, 54, 56, and subsection 57(l) in relation to Article 12 of the reformed LSAP, and Transitory Provisions XXVII and XXXI of Law No. 9635, is unconstitutional by ignoring that, in accordance with Article 34 of the Political Constitution, there are consolidated legal situations arising from instruments such as collective bargaining agreements (convenciones colectivas), regulations, and personnel statutes, which should have been respected.

Article 50 of the LSAP and Transitory Provision XXXI impose a seniority bonus (anualidad) for a fixed nominal amount that overrides what has been established in some institutions through collective bargaining agreements (convenciones colectivas) or other normative instruments that usually grant a higher and different seniority bonus amount through a percentage payment calculated on the employee's base salary, whereby these rules impose calculation techniques for seniority bonuses that directly clash with the collective bargaining agreements (convenciones colectivas) and regulations that exist in the public sector on this matter. The legislator exceeded its powers, thereby violating consolidated legal situations by not establishing—as it did, with the salary component for exclusive dedication (dedicación exclusiva) in Transitory Provision XXVI of Law No. 9635—or establishing in a defective manner on the topic of severance pay (cesantía), provisions to mitigate the effect on consolidated legal situations.

The challenged Article 54, which refers to the "conversion of incentives to fixed nominal amounts" ("conversión de incentivos a montos nominales fijos"), implies a direct and heteronomous intrusion into existing collective bargaining agreements (convenciones colectivas) and future ones that may be negotiated, which seriously injures the principle of non-retroactivity of legal norms, for two reasons: first, because the salary corresponding to the month of January 2018 that the law uses as a reference to determine the nominal amount to be paid for the seniority bonus concept had already been modified by the time the law was approved, so the legislator disregarded the principle of non-retroactivity in drafting the norm by using a delimiting parameter of the article's content that was then outdated in time; the second reason is that the provision of the norm ignores the existence of collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions on the payment of incentives or compensation in percentage form, such as the collective bargaining agreement (convención colectiva) of Banco Nacional, signed by his represented party, where percentages for productivity incentive payments have been set in Article 63, denominated in several prior agreements as results-based incentive, so for the persons to whom this collective bargaining agreement (convención colectiva) applies, there is a right and not a mere expectation of a right, that during the entire time the collective bargaining agreement (convención colectiva) is in force, that subjective right be respected.

Regarding the challenged Article 56 relating to the "application of incentives, caps, and compensations" ("aplicación de los incentivos, topes y compensaciones"), this is a norm with an intelligibility problem, which is confusing even though it regulates a topic of great interest such as acquired rights and consolidated legal situations. If the legislator intended to refer to a future regulation, it could not state that what applies in the future are the previous incentives, compensations, caps, or seniority bonuses, and interprets that perhaps what the legislator meant to say was that the new regulations on incentives, compensations, caps, or seniority bonuses govern prospectively and not retroactively. The norm is contrary to the principle of reasonableness and, therefore, to substantive due process, as well as violative of Article 34 of the Political Constitution, as acquired patrimonial rights are not respected.

Regarding subsection 57(l) which reformed numeral 12 of the LSAP, the claimant affirms that the provisions contained in collective bargaining agreements (convenciones colectivas) or other legal instruments creating subjective rights were also not respected on topics such as when payment of each seniority bonus is appropriate, the way it is calculated when there are promotions, the recognition of those rights to those coming from other institutions in the public sector or when they rejoin it, making it uncertain what happens with persons who were transferring from a company or institution within the public sector prior to the publication of Law No. 9635 but for whom the years worked in other public sector dependencies have not yet been accounted for, nor whether the consolidated legal situation that their prior time worked be registered should be disregarded. On this point, it is alleged that the law was remiss in the solution of conflicts of laws over time, and this omission is visible throughout all its provisions, except regarding exclusive dedication (dedicación exclusiva) where the exclusive dedication (dedicación exclusiva) contracts signed before the law's entry into force are respected, and also, less rigorously, regarding severance pay (cesantía).

Regarding Transitory Provision XXVII, which refers to the application of severance pay assistance (cesantía), this is a norm containing two defects of unconstitutionality: the first is the violation of the right to collective bargaining and the second is the disrespect for the principle of non-retroactivity of the law and disregard of consolidated legal situations. The norm limits the payment for severance pay assistance with caps above twelve years, without considering that many collective bargaining agreements (convenciones colectivas) in force when Law No. 9635 took effect established rules with higher caps, such as the one signed between his represented party and Banco Nacional which provided that it was a real right in favor of the institution's employees paid with a cap of twenty years and which was not considered unconstitutional when analyzed in an action that challenged it. The limitation introduced by this Transitory Provision extends to other legal instruments different from collective bargaining agreements (convenciones colectivas) in which the payment of severance pay (cesantía) is regulated under more beneficial conditions than those stipulated in Article 29 of the Labor Code, in which case the twelve-year limit is also imposed. The defect of unconstitutionality of the Transitory Provision resides in the omission to dimension the scope of its effects, in such a way that the consolidated legal situations in favor of public employees were duly safeguarded and not affected, who, under the protection of existing collective bargaining agreements (convenciones colectivas) or other legal instruments, at the time the legal reform entered into force, had already accumulated a labor seniority that granted them the right to earn severance pay assistance (cesantía) exceeding eight or twelve years.

<h3>Complaints of the Claimant (Action No. 19-004931-0007-CO)</h3> The claimant challenges Article 50 added to Law No. 2166 and also cites the provisions in Article 1, subsection a) of its regulation which enshrines the definition of what is meant by seniority bonus (anualidad). The claimant alleges an injury to the constitutional principles of municipal autonomy and that of decentralized entities and, with it, the principle of legality. Also, to the principles of progressivity of labor rights, non-retroactivity of the law, reasonableness and proportionality, interdiction of arbitrariness, and the tax principles of non-confiscation, economic capacity, and progressivity.

The consolidated legal situations of public officials who began working before the entry into force of Law No. 9635 are being injured by the norms that reformed Article 12 of the LSAP and Transitory Provisions XXVIII and XXXI insofar as they establish new forms of payment, fixed amounts for seniority bonuses (anualidades) for all public officials, even for those who, by special norms (collective bargaining agreements [convenciones colectivas], internal work regulations, autonomous service work regulations, Council agreements, etc.) have another payment modality for bonuses, incentives, seniority bonuses, quinquenios. While it is provided that they cannot be applied retroactively to the detriment of workers, an inadequate analysis has been made of what should be understood by acquired right and consolidated legal situations.

<h3>Complaints of the Claimant (Action No. 19-022051-0007-CO)</h3> Article 50 of the LSAP, in conjunction with the aforementioned Transitory Provision XXXI, impose a seniority bonus (anualidad) for a fixed nominal amount for each salary scale, overriding the fact that, in the institutions where it will be applied—including ICE—a different, higher seniority bonus amount has been established through the personnel statute and other instruments than the one contained in Transitory Provision XXXI, by a percentage payment calculated on the base salary of each employee. The percentage amounts with which the calculation of seniority bonuses (anualidades) begins in the mentioned transitory provision—which later go on to form a nominal amount—the differentiation between professional and non-professional classes, and that the seniority bonus becomes an invariable amount that will lose economic value, are calculation techniques that clash directly with the subjective rights of workers and especially, in the case of ICE, which derive from the Personnel Statute. Normative provisions must be interpreted and applied in the manner most favorable to the human being or under the pro homine principle, so, under that context, the challenged norms must be interpreted in clear safeguarding and protection of the consolidated legal situations that ICE employees have under the Personnel Statute.

Article 54 of the LSAP implies an absolute prohibition for collective bargaining in Public Administrations, which also injures the principle of non-retroactivity of legal norms, for two reasons: the first because the salary corresponding to the month of January 2018, which is used as a reference to determine the nominal amount to be paid for the seniority bonus concept, had already been modified by the time the law was approved as a consequence of the salary readjustment applied semi-annually; the second reason is that it ignores the existence of collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions on the payment of incentives or compensations in percentage form, as is the case of the ICE Personnel Statute. For all personnel covered by the cited statute, there is a right and not a mere expectation of a right, that during the entire time such instrument is in force, the subjective rights born during its validity be respected, therefore there is a violation of Article 34 of the Political Constitution.

Article 56 of the LSAP contains confusing precepts, so that the norm would only have a logical and legally admissible meaning if it were interpreted that the new caps, incentives, and compensations can only govern for new employees who join after the law's enactment and not for those with subjective rights or consolidated legal situations prior to other regulations.

Subsection 57(l) also does not respect the provisions already contained in other instruments, as is the case of the ICE Personnel Statute on aspects as important as the moment when payment of each seniority bonus (anualidad) is appropriate, the way it is calculated when there are promotions, or the recognition of those rights to those who come from other public sector institutions or rejoin it.

<h3>Report of the PGR (Action No. 19-002620-0007-CO)</h3> The objections raised here revolve around the issue of the prevalence or not of a supervening law (the LFFP) over existing collective bargaining agreements (convenciones colectivas) and, in this regard, it recalls that in opinion C-060-2019 the Attorney General's Office expressed its criterion that there are no constitutionality reasons justifying giving prevalence to the mandates of a collective bargaining agreement (convención colectiva) or any other normative instrument, over the law. It points out that the foregoing does not mean disrespecting acquired rights or the consolidated legal situations of the beneficiaries of collective bargaining agreements (convenciones colectivas) because the application of legal mandates that conflict with what was agreed in said agreements, governs prospectively, implying that the labor benefits incorporated into the assets of each person by the application of conventional clauses repealed by the law, will remain in the assets of each person who received them. It refers that the right to severance pay (cesantía) is acquired only upon the cessation of the service relationship, and provided that said cessation is due to one of the grounds that justify the payment of that indemnity, so that, before that occurs, what the interested party has is a mere expectation of a right that could not prevail over legal-rank provisions such as those introduced to the LSAP through the LFFP.

For the reasons stated, the Attorney General's Office does not consider that Articles 50, 54, 56, subsection 57(l), and Transitory Provisions XXVII and XXXI of the LSAP, violate Article 34 of the Constitution.

<h3>Report of the PGR (Action No. 19-004931-0007-CO)</h3> In the judgment of the PGR, the allegations related to the nominalization of seniority bonuses must be dismissed. The foregoing, according to the following considerations:

*"As we indicated in the original report of March 18 last, within this file, regarding the possible invalidity of granting a nominal value to seniority bonuses permanently and indefinitely, without knowing if the economic situation that justifies that sacrifice will be maintained in the future, we must indicate that, in the judgment of this Attorney General's Office, the legislator is the one called to establish the incentives and the amount of economic benefits it grants to its servants; this as part of the so-called 'Public Officials Statute' (Art. 191 constitutional).* *Based on the foregoing, it must be understood that the economic amount granted for seniority bonuses is a function of the intensity with which the legislator wishes to incentivize the permanence of public officials in their posts, and the economic possibility of paying the sums derived from that incentive.* *We consider that the legislator could even eliminate the payment of seniority bonuses, and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, since the obligation to recognize seniority bonuses is not stipulated in constitutional-rank norms, but legal ones, as it is part of the remuneration regime or system typical of the so-called civil service 'Statute,' which the legislator has an authorization to configure and regulate (Arts. 105, 121.1 and 191 constitutional), as we have noted when recently answering the unconstitutionality actions processed under File Nos. 19-6416-0007-CO and 19-12772-0007-CO."* <h3>Allegations of the Co-adjuvants</h3> The secretary general of SIBANPO limited himself to supporting the claimant's thesis.

The president of the Asociación Cámara de Industrias de Costa Rica alleged that all norms can be modified prospectively by another of equal or higher rank without this implying a violation of the principle of non-retroactivity of the law; a principle that is only violated when acquired rights have arisen and consolidated legal situations as a direct consequence of subjective legal situations created under the prior legislation, and warns that those derived from collective bargaining agreements (convenciones colectivas), regulations, or statutes are not considered consolidated legal situations or acquired rights, because these are norms that regulate objective situations. None of the norms being challenged implies a violation of the principle of non-retroactivity of the law, because what the legislator has done is to modify, with future effects, objective situations created by prior legislation.

<h3>Ruling of the Constitutional Chamber</h3> <h2>Preliminarily</h2> First of all, on many of the aspects questioned, it is necessary to abide by what has already been resolved on seniority bonuses (anualidades) in the preceding considerando.

On the other hand, most of the allegations in Action No. 19-004931-0007-CO must be dismissed because they refer to municipal or decentralized entity autonomy and it has already been established and defined that the standing of the claimants, based on a corporate issue and defense of members' rights, is insufficient to question aspects relating to autonomies. The allegations related to the presumed injury to the principles of reasonableness and proportionality, interdiction of arbitrariness, and the tax principles of non-confiscation, economic capacity, and progressivity must also be rejected, since in its judgment, the State intends to render useless over time the amount paid for the seniority bonus concept and empty it of content. In this regard, it was already noted supra that said allegations lack adequate foundation because the alleged injury to said principles is neither justified nor demonstrated properly.

Regarding the vicissitudes of the application of seniority bonuses (anualidades) and the regulations related to the moment of their recognition and labor continuity, this was resolved in the preceding considerations.

<h2>Amounts of seniority bonuses and other bonuses that disregard what is established in other legal instruments</h2> The allegations related to the fact that supposedly the challenged norms (Articles 50, 54 and Transitory Provision XXXI) violate Article 34 of the Political Constitution, reasonableness, and substantive due process by disregarding consolidated legal situations or acquired patrimonial rights in collective bargaining agreements (convenciones colectivas), regulations, or personnel statutes must be rejected for the reasons explained below.

Firstly—regarding the alleged violation of the Article 34 of the Political Constitution for the alleged injury to acquired rights — this Chamber must reiterate the considerations made in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2024-007057</span></a><span style="font-weight:bold"> </span>in which, after distinguishing between an acquired right and a consolidated legal situation — citing what was resolved by this Chamber in precedent <span style="font-weight:bold">n.°</span><span style="font-weight:bold">2019-1601</span> — it concluded the following:

<span style="font-style:italic">“</span><span style="font-style:italic">In the sub examine, it must be noted that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">the future payment of an annuity is not an automatic effect incorporated into the salary of every public servant, but rather, as recognized by the Procuraduría General de la República, it constitutes an expectation of right if certain conditions are met, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">for example, reaching the annual period and also qualifying within the evaluation parameters</span><span style="font-style:italic">. If such conditions are not met, the recognition in question would not be made. In that sense, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">it cannot be attempted to establish as an acquired right the manner in which these will be paid or the assumptions under which it must be done, since there is no right to the immutability of the legal system, according to the precedent cited above.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Certainly, the challenged regulations also establish that, as of December 4, 2018, the payment of the annuity to public servants will be recognized solely through performance evaluation and when they achieve a rating of "very good" or "excellent," or its numerical equivalent, according to the defined scale, and no longer merely by the passage of time. However, this is not an innovation of the regulation under review, since Law No. 9635, in Article 48, so contemplates it, that is, there is a provision of legal rank that already establishes it, and the decree, as will be discussed later, develops said legal provision. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">Nor does it imply a retroactive application of the law, since it concerns the future payments of the annuities, not those whose amounts have already entered the public servant's personal estate, the amount of which remains intact, regardless of whether the public servant was evaluated on previous occasions o</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">r not, nor of the value obtained in his or her rating. </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">Thus, what was already acquired and contemplated in the salary received by the worker prior to the entry into force of Law No. 9635, as was made explicit, is maintained, with public servants preserving their acquired rights and without any affectation to the salary due to them</span><span style="font-style:italic">”</span><span style="font-style:italic">. </span>(Highlighting not in the original).

Due to its importance in clarifying the point, reference must also be made to judgment <a href="file:///D:/MARICRUZ%20BARQUERO/MARICRUZ%20BARQUERO/19-2620/PROYECTO%2001/2005-16394" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2005-16394</span></a> in which the Chamber referred to acquired rights, explaining it in the following sense:

<span style="font-style:italic; background-color:#ffffff">“</span><span style="font-style:italic; background-color:#ffffff">Well, then, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">as acquired, one must understand that right (as an expression of a concrete legal relationship that is projected onto a specific subject) that has effectively entered the patrimony of a person, in such a way that it could not be eliminated without causing a concrete and evident impairment in the conditions previously held</span><span style="font-style:italic; background-color:#ffffff">. Thus, a mere expectation for the future could not fall within this conception, even if there were objective parameters to calculate what its possible effective consequence could be, since </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the truth is that in this last stage it has not yet become part of the subject's patrimonial sphere, ergo, it cannot be considered "acquired" then</span><span style="font-style:italic; background-color:#ffffff">. The spirit of Article 34 prevents the new law from affecting legal effects already produced in certain concrete situations, subjective rights that already had an individualized expression in the patrimony of a person at the time the new legislation supervened. Under this reasoning, it must be admitted that the future projection of a certain legal relationship cannot be covered by this constitutional guarantee, because such a thing entails a kind of "freezing" or petrification of the legal system and of the legislative and regulatory power of the State, which does not align with the principle derived from Article 129 of the Constitution, when it states that "laws are obligatory and take effect from the day they designate." The foregoing, because before any possible variation in the legal regime pertaining to a given matter, anyone could allege their "acquired right" for the previous normative conditions to be maintained or preserved, which in good logic is clearly inadmissible. Returning to what was said earlier, the constitutional interdiction governs only for assumed rights, integrated into the patrimony. In contrast</span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">, regarding pending, future situations, regarding what has not yet been consummated, it is only possible to hold an expectation</span><span style="font-style:italic; background-color:#ffffff">. Within a legal relationship that is maintained over time, there is no retroactive application when the new normative conditions are applied to the future development of the relationship, without affecting the effects already consummated under the previous situation (RSC No. 05291, 10:42 a.m., June 29-30, 2000).”</span><span style="background-color:#ffffff"> (Highlighting not in the original). </span> In the *sub lite*, it is pertinent to reiterate these considerations, which are applicable to the issue of annuities, but also to any other bonuses. That is, the salary incentives that the legislator provides within its liberality are conditioned on the fulfillment of certain requirements, so that if they are not already incorporated into the patrimony, they are merely an expectation of right and the legislator validly can regulate them for the future, without any irregularity contrary to the Law of the Constitution arising from the generic allegations. From the text of Art. 56 —which is questioned here— as from what was stated in the precedent, it is very clearly evident that the regulation is prospective and that <span style="font-style:italic">“</span><span style="font-style:italic">the incentives, compensations, caps, or annuities remunerated as of the date the law entered into force will be applied prospectively and may not be applied retroactively to the detriment of the public servant or his or her patrimonial rights”</span>. This was emphasized in Transitory Provision XXV of the LFFP by stressing that the total salary of the public servants who are active upon the law's entry into force <span style="font-style:italic">“</span><span style="font-style:italic">may not be decreased and the acquired rights they hold will be respected”</span>. That is, there was an express legislative decision to safeguard the patrimonial rights of public servants so that the amounts established by the legislator do not affect them retroactively, but rather the regulations will apply to new recognitions that are made. However, the adequate application of this maxim in each specific case corresponds to a particularized assessment and not to the constitutionality of the challenged legislation, since, it is reiterated, the legislator expressly provided that the regulation cannot be applied retroactively to the detriment of the public servant or of their patrimonial rights.

In a second order of ideas, it is necessary to insist on the fact that it is incumbent upon this Chamber to guarantee the supremacy of constitutional norms and principles, and in constitutional review, it is its role to assess whether a norm of a general nature injures the Law of the Constitution by contradiction or omission. However, this Court is not competent to resolve problems of application or interpretation of norms of *infra*-constitutional rank to determine the prevalence of one or the other for the resolution of conflicts of a labor nature such as those raised in these unconstitutionality actions, where what is sought is to resolve eventual antinomies between the law and collective bargaining agreements, regulations, or personnel statutes. It is reiterated that the Constitutional Chamber is not responsible for the integration and interpretation of *infra*-constitutional norms, but rather the administrative and judicial authorities are, as appropriate. The allegations of action n.° 19-022051-0007-CO coincide with what was raised and rather seem to seek that this Chamber resolve what should prevail —whether what was provided by the legislator in a law of a general nature and of public interest such as the LSAP or the special provisions that regulate the labor relations of various entities— which, as was already stated *supra*, is a discussion of legality and not of constitutionality.

Additionally, the plaintiffs allege an infringement of the stated constitutional principles because the salary corresponding to the month of January 2018, which the law uses as a reference to determine the nominal amount to be paid for the annuity concept, had already been modified when the law was approved as a consequence of the salary adjustment applied semi-annually, and therefore the legislator disregarded the principle of non-retroactivity in the drafting of the norm. In this regard, it is necessary to reiterate that the recognition of annuities responds to criteria of opportunity and convenience of the legislator, there is no right to the immutability of the legal system and that, therefore, the legislator is empowered to regulate prospectively the requirements, amounts, and terms under which these types of salary incentives can be recognized, safeguarding acquired rights (Art. 34 of the Constitution) and other constitutional principles such as reasonableness and non-discrimination. In that sense, the parameter that the legislator opportunely and conveniently used to delimit the payment of future annuities, under the allegations raised by the plaintiffs, does not appear unreasonable nor injurious to Art. 34, given that, it is repeated, they are regulations that govern the future annuities to which the public servant aspires.<span style="background-color:#ffffff; -aw-import:spaces"> </span> Sobre el Transitorio XXVII que se refiere a la aplicación del auxilio de cesantía It is alleged that the norm limits the payment for the concept of severance pay (auxilio de cesantía) with caps higher than twelve years, without considering that many collective bargaining agreements in force when Law n.° 9635 came into effect established rules with higher caps, such as the one entered into between its represented party and Banco Nacional, which provided that it was a real right in favor of the institution's employees paid with a cap of twenty years and which was not considered unconstitutional when it was analyzed in an action that challenged it. The vice of unconstitutionality of the Transitional Provision resides in the omission to dimension the scope of its effects, in such a way that the consolidated legal situations in favor of public employees would be duly safeguarded and not affected, who, under the protection of collective bargaining agreements in force or other legal instruments, at the time the legal reform came into force, already had accumulated a length of service that granted them the right to earn compensation for severance pay higher than eight or twelve years. This section questions the alleged infringement of Art. 34 of the Political Constitution.

It is necessary to point out that this Chamber has already examined cases in which the fact that the Labor Code has established a ceiling or limit on the issue of severance pay is questioned. In judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81592" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">1995-2754</span></a>, this Chamber examined grievances very similar to those raised in this opportunity, namely, the possibility that the legislator introduce limits to the payment of severance pay, as well as the alleged injury to the principle of non-retroactivity, that is, what pertains to the supposed breach of acquired rights. Since that judgment, the Chamber was emphatic in the sense that, in general terms, it is for the legislator to regulate the form and the parameters within which the severance compensation (cesantía) will be paid and that “<span style="font-style:italic">there is no fundamental right of the citizen to receive the severance pay in an unlimited manner</span>,” that is, it is legitimate and possible to introduce reasonable limits. Furthermore, as long as the pecuniary amount of the severance pay has not entered the worker's patrimony, one cannot speak of a supposedly acquired right. The judgment under analysis explains it very clearly:

<span style="font-style:italic">“</span><span style="font-style:italic">The Political Constitution, in Article 63, enshrines a principle that was previously established in Article 29 of the Labor Code, which is, the right of the worker dismissed without just cause to receive compensation called severance pay (auxilio de cesantía). </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">From such constitutional statement, it does not derive, as the plaintiff claims, that it is an absolute and unlimited right not subject to any type of regulation; on the contrary, it is for the legislator to regulate the form and the parameters within which such compensation will be paid</span><span style="font-style:italic">. It is clear, then, that there is no friction between Article 29 subsection d) of the Labor Code and the principle established in Article 63 of the Constitution; both norms complement each other. Within this same order of ideas, the argument that the challenged norm violates the content of Article 50 of the Constitution, insofar as severance pay is a form of wealth distribution and a method of social solidarity for the protection of the Costa Rican family and therefore cannot be limited, is also not acceptable.</span><span style="font-style:italic"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">There is no fundamental right of the citizen to receive severance pay in an unlimited manner</span><span style="font-style:italic">. The State opted for a certain way of regulating such compensation, contributing to the well-being of citizens and developing, in what corresponds, the mandate of Article 50.</span> From this perspective, the substantive matter that the claimant seeks to discuss is not a constitutional violation but rather an issue of the State's social and economic policy, which must be resolved before other instances and not in this venue.

III.- Regarding the violation of the principle of non-retroactivity of the law, the claimant's argument is summarized as follows: the cap on the unemployment benefit (auxilio de cesantía) undermines a legal situation consolidated by the passage of time, protected by adverse possession (prescripción adquisitiva), because each year that passes, the worker acquires the right to the unemployment benefit (cesantía) and it becomes part of his assets. This argument is not acceptable. For a retroactive effect of a law to be unconstitutional, the right considered injured must have been acquired before the enactment of the law:

"Article 34 of the Political Constitution prohibits giving retroactive effect to a law when it harms acquired rights or consolidated legal situations. Both concepts have been clearly defined by constitutional doctrine and national jurisprudence. (...) A legal situation can become consolidated—as the Full Court has stated before—by a judicial ruling that declares or recognizes a contested right, and also under a legal provision that establishes or guarantees certain consequences in favor of the right holder, a consequence that a later law cannot disregard without incurring unconstitutionality for violation of Article 34 of the Constitution (ruling number 1119-90 of fourteen hours on the eighteenth of September of nineteen ninety.)" In the same vein, it has been stated:

"Article 34 of the Political Constitution prohibits giving retroactive effect to a law when it harms, inter alia, 'acquired property rights.' A distinction must be made between: a) A law that regulates a past factual situation to the detriment of those rights, which we could call retroactivity proper and in principle unconstitutional, which affects consummated facts, and: b) The regulation of a factual situation that comes from the past but extends to the moment of the law's enactment—in which case the validity or invalidity of indirect ex tunc effects must be examined on a case-by-case basis" (ruling number 4691-94, of seventeen hours thirty-nine minutes on the thirty-first of August of nineteen ninety-four) There is no judicial ruling in the claimant's favor that declares or recognizes a contested right, nor a prior law that guarantees him receipt of the unemployment benefit (auxilio de cesantía) without being subject to the eight-year cap, since the provision of subparagraph d) of Article 29 of the Labor Code that sets the unemployment benefit (cesantía) cap predates the beginning of his employment relationship with JAPDEVA. Therefore, and in accordance with this provision, the claimant never had an acquired right to receive the unemployment benefit (auxilio de cesantía) without the eight-year cap." Subsequently, the Chamber addressed the unemployment benefit (auxilio de cesantía) with respect to public servants in the ruling n.° 2005-07180, where its origin in the Labor Code was explained—which predates the Political Constitution—where the stability of public servants was guaranteed, and in that ruling it was also emphasized that it is not an unlimited or absolute right, but rather it is up to the legislator to design the manner in which such compensation is regulated:

“To facilitate the examination of the constitutionality of the challenged Article 586, subparagraph b), it is pertinent to refer to certain historical aspects of the contested provision as well as to the adoption of the concept of the State as the sole employer in our legal system. It is through Articles 585 and 586 of the Labor Code, located in Title Eight, called 'The regime of the servants of the State and its institutions,' whose sole chapter is titled 'Special provisions for the servants of the State and its Institutions,' that the legislator recognizes in favor of public servants a minimum of rights, specifically: the unemployment benefit (auxilio de cesantía), the prior notice (preaviso), and the payment of damages (artículos 585 and 586 in relation to 28, 29, and 31 of the Labor Code). This regulation predates the Political Constitution of 1949, which came to guarantee in its Article 192 the stability of public officials who had entered the civil service regime, a constitutional guarantee that covers all officials serving the State, both in the Central Administration and in decentralized entities (To this effect, see rulings of this Court 5778-94 and 5222-94). In this regard, it is worth mentioning what is set forth in considerando V of ruling 2000-00229 of ten hours thirty-five minutes on the eighteenth of February of the year two thousand of the Second Chamber of the Supreme Court of Justice, as it states that the legislative provision made through Articles 585 and 586 was explained by:

“V (…) the non-existence, at that time, of the guarantee of immovability or stability, since it was not until the Political Constitution of 1949 that it was incorporated into the national legal system (Article 192) (Second Chamber of the Supreme Court of Justice, Voto n° 299, of 9:05 hours, on October 11, 1996). (…)

It is along the same line of reasoning set forth by the Labor Cassation Chamber in the cited ruling, as well as by the statements of the Attorney General's Office and SUGEF in their respective reports, that this Chamber, in agreement with the common jurisprudence on this matter, recognizes the right of every worker to be compensated upon the termination of their relationship with the employer, not only because it includes inalienable rights such as salary, vacation, and the year-end bonus (aguinaldo), but also because labor laws, in cases where a cause for unilateral dismissal by the employer is not invoked, require the employer to recognize a certain monetary compensation to the worker (In that regard, see ruling 942-97 of fifteen hours thirty-nine minutes on the twelfth of February of nineteen ninety-seven). However, it is worth highlighting what SUGEF stated in its report, in that it says that the reimbursement of sums paid as compensation, when the servant is hired again by the State, with the exception of amounts corresponding to the period during which they were unemployed, is justified by the theory of the State as sole employer; a theory that should be remembered emerged to correct the situation of servants who transferred to work for a different public entity or administration, without their previous service time being recognized, to the detriment of benefits derived from seniority in service, for the State as employer. The natural evolution of the concept of the State as sole employer fully justifies the proportional reimbursement of money paid as unemployment benefit (auxilio de cesantía), if it is demonstrated that the person held another remunerated position in the Public Administration.

VIII.- THE RIGHT TO COMPENSATION FOR UNEMPLOYMENT BENEFIT ARISING FROM ARTICLE 63 OF THE CONSTITUTION.- Regarding the provision of Article 63 of the Constitution, which establishes the obligation to pay the worker a sum as compensation for the breaking of the employment relationship without just cause, and which, as stated in its report by the Attorney General's Office, does not regulate public service relationships, this Chamber reiterates what was stated in the previous considerando, to the effect that Article 63 of the Constitution embodies a principle previously established in Article 29 of the Labor Code, which is the right of a worker dismissed without just cause to receive compensation called unemployment benefit (auxilio de cesantía). As already stated, Article 586 of the Labor Code, challenged in its subparagraph b), incorporated the right to compensation in favor of public servants whose relationship ceases without just cause; a situation that, while difficult to assume due to the prevalence of the guarantee of stability in service for public servants as provided in the constitutional text in its Article 192, does not clash with the constitutional pronouncement establishing the obligation to pay compensation for unemployment (desocupación) when the dismissal was not justified. On the contrary, the Chamber observes that in cases where the situation of dismissal without just cause may arise, the payment of the unemployment benefit (auxilio de cesantía) in favor of the servant is justified, adjusted, and fully complemented by the provisions contained in Articles 585 and 586 in relation to Articles 28, 29, and 31, all of the Labor Code, which provide the basis for unemployment compensation and seek to protect the right of every worker to be compensated upon the termination of their relationship with the employer, regardless of whether or not it is the State. This, this Court emphasizes, is not only because it includes inalienable rights such as salary, vacation, and the year-end bonus (aguinaldo), but also because labor laws, in cases where a cause for unilateral dismissal by the employer is not invoked, require the employer to recognize a certain monetary compensation to the worker to allow for their support and that of their family, as well as to preserve their dignity (in this regard, see ruling 942-97 of fifteen hours thirty-nine minutes on the twelfth of February of nineteen ninety-seven, already cited), which is what gives meaning to the benefit. Consequently, Article 63 of the Constitution must be understood as a guarantee of every worker to be compensated for the breaking of the relationship without just cause.

(…)

As the reporters rightly state, the right to compensation for unemployment (indemnización por desocupación), elevated to constitutional rank, called unemployment benefit (auxilio de cesantía), is not an unlimited right; rather, it is up to the legislator to regulate the form and parameters within which such compensation will be paid. It is in this sense that this Court, through ruling 2754-95 of fifteen hours forty-five minutes on the thirtieth of May of nineteen ninety-five, stated: “There is no fundamental right of the citizen to receive the unemployment benefit (auxilio de cesantía) in an unlimited manner. The State opted for a particular way of regulating such compensation, contributing to the well-being of citizens and developing, as appropriate, the mandate of Article 50 (…).” (The highlighting does not correspond to the original).

These considerations were also taken up by the Chamber in ruling n.° 2012-008891, where it was justified that payment of the unemployment benefit (cesantía) no longer applies only for dismissal, but also to workers who take retirement, old-age pension, or voluntary withdrawal (retiro), and to the contingency of death, but understanding, again, that it is not an unlimited or absolute right:

“Now, in ruling number 17439-2006 of 19:36 hours on November 29, 2006, the Constitutional Court held that the unemployment benefit (cesantía) has a proportional relationship with the worker's seniority (antigüedad): 'Although it recognizes a compensation higher than the legal minimums, the fact is that it does not become unreasonable, if one takes into account that it is subject to a limit and that it is relatively proportional to the official’s seniority (antigüedad) in the institution, so that this right is held only by someone who has served for a long period of time. The benefit is thus constituted as an incentive for permanence within the institution, preventing the departure of officials with experience in handling matters pertaining to the Junta's competencies. In this way, the Chamber considers that the challenged provision does not transgress the constitutional rules and principles invoked by the plaintiffs.' (The highlighting is not from the original). From the cited texts, it is evident that the unemployment benefit (auxilio de cesantía) is not an unlimited or absolute right. The law extended its application to workers who take retirement, old-age pension, or voluntary withdrawal (retiro), and to the contingency of death. Furthermore, the Chamber has conceived it as a deterrent mechanism against unjustified dismissal, but has also admitted that it can be an incentive for the permanence of the employed person in an institution.” (The highlighting does not correspond to the original).

In ruling n.° 2018-008882, this Chamber examined its own precedents regarding the breaking of the unemployment benefit (cesantía) caps that were established in the Labor Code, arriving at the current point of assessment, to the effect that through collective bargaining (negociación colectiva) it was legitimate to expand the minimum set forth in the Labor Code so that servants regulated by such provisions who may eventually engage in collective bargaining (negociación colectiva) have a constitutionally legitimate maximum cap, or a margin of negotiation where the maximum is twelve years. In this regard, the following considerations were made:

“In adopting this approach, the majority of the Chamber verifies the existence of a very wide gap between the payment of unemployment benefit (auxilio de cesantía) applicable to the vast majority of public servants, whose cap is 8 years, and the payment that workers of the Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements (convenciones colectivas) will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months of salary for the same unemployment benefit (auxilio de cesantía). This is a difference of one hundred fifty percent (150%), which, from the perspective of the majority of us who make up this Chamber, is abysmal and therefore should have clear and incontestable arguments to justify it, but rather lacks them and proves disproportionate and unsustainable in such magnitude.

(…)

XXIII.Having said the above, the majority of the Chamber must then face the need to determine a limit or “ceiling” for those conventional clauses that could be negotiated regarding the breaking of the cap on the payment of unemployment benefit (auxilio de cesantía), and to this end we find two main ideas that should guide the decision: on the one hand, there is the fact that a mere equalization with the eight-year cap established in the Labor Code would mean—in practice—a virtual exclusion of this matter from the possibility of collective bargaining (negociación colectiva), which would become an unjustified limitation on the exercise of that right whose fundamental nature has been recognized by the Court.

Furthermore, in the opposite sense, there is a need to take into account a sense of proportionality—which has led to rejecting a maximum cap of 20 years in the preceding recitals—and to assess the economic environment in which the public finances that directly and exclusively fund the cap exceptions for the direct payment of unemployment assistance (auxilio de cesantía) to the worker operate—and are expected to operate for the coming years. The public and notorious fact that our country is going through a serious crossroads regarding the quality and quantity of public spending and the economic contribution that the different sectors are willing to deliver for the maintenance of our social and democratic rule of law cannot be alien to this particular type of decision. It would be unacceptable for this Chamber, in this environment, to fail to take into account that pressing situation, which this type of negotiation could worsen further if an adequate balance of all the elements at play is not carried out. For the foregoing reasons, this Chamber considers that collective bargaining on this specific point of the cap exception for the payment of unemployment assistance must not exceed a cap of twelve (12) years, which allows a respectable margin of negotiation for the parties to collective bargaining agreements in the public sector, which—eventually—would allow them to raise the floor of 8 years established by the Labor Code for this specific type of benefit payable by the public employer by up to 50 percent. This addresses the legitimate claims that could come into play, by allowing a margin of negotiation that is considered relevant, but without significantly affecting public finances at a historical moment where their austere and careful management has a prominent priority for the very subsistence of our institutional framework.

*In conclusion regarding this point, the majority of the Chamber agrees that the payment of unemployment assistance agreed upon in clause 47, second paragraph, of the Bancrédito collective bargaining agreement (Convención de Bancrédito) cannot be made without any cap and that—for the reasons stated—said cap cannot be maintained at twenty (20) years as had been previously held, but rather the maximum that could be paid under this scenario is one month's salary for each year worked up to a maximum cap of twelve (12) years. Therefore, when the payment of such sums is appropriate, it shall be made—as to the amount of unemployment assistance to be paid—under similar conditions and terms set forth in the collective bargaining agreement or in the applicable legislation for those cases of termination of the contract for reasons not attributable to the will of the worker, but on the understanding that the sums paid may not exceed the recognition of more than 12 years of service.”* In accordance with such arguments, it is necessary to conclude that it is legitimate for the legislator to regulate the form and limits for the recognition of unemployment assistance, since it has already been established that it is not an unlimited right. By reason of the foregoing, the fact that the LSAP introduces a rule in an identical sense to that established in the Labor Code with a specific cap does not appear illegitimate or harmful to the acquired rights of workers. As can be seen, this Chamber had to reconsider its jurisprudential lines in the sense that it is neither valid nor legitimate to pay unemployment compensation without a cap or a reasonable parameter, as this would be contrary to the principle of equality and the sound management of public finances. In this order of ideas and in the context of the approval of the LFFP, the challenged rule is understood as reasonable, which does not affect the acquired rights of workers because if the necessary condition to aspire to the compensation in question has not been fulfilled, what is maintained is a mere expectation of a right and not an acquired right. For a retroactive effect of a law to exist and for this effect to be unconstitutional, the right that is considered harmed must have been acquired before the enactment of the law. In the *sub lite* case, reference is made to the mere expectation of acquiring the compensation without the caps introduced by the legislator, whereby a violation of Article 34 of the Political Constitution is not verified. Moreover, as can be seen, what the legislator agreed upon within the framework of its discretion responds to and is consistent with the jurisprudential lines of this Chamber, given that since 2018 it has been reiterated that the maximum to be recognized for unemployment compensation within the framework of collective bargaining is 12 years, which was respected by the legislator given that Transitory Provision XXVII warns *that “from the application of Article 39, Unemployment Assistance, those officials covered by collective bargaining agreements that grant the right to more than eight years of unemployment assistance are exempted, who may continue to enjoy that right, as long as the current agreements that so contemplate it are in force, but in no case may the compensation be greater than twelve years”*. In that sense, it is observed that the Transitory Provision established by the legislator seeks to recognize what was agreed upon conventionally, introducing a limit of constitutional order derived from the jurisprudence of this Chamber. From this perspective, the view of the plaintiffs regarding the alleged violation of Article 34 of the Political Constitution is not shared.

## Conclusion As a corollary of the considerations made, it is imperative to declare the claims related to the alleged violation of the principle of non-retroactivity and Article 34 of the Political Constitution without merit.

Judge Cruz Castro partially dissents and declares Articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.

## XV.- Violation of the principle of free collective bargaining ### Preliminary clarification Regarding this section, and given that it is a cross-cutting issue in the accumulated proceedings, the claims of various actions will be addressed, identifying in each case the respective grievances and the response given by the PGR.

### Challenged rules In general terms, the plaintiff says that the challenged rules result in an emptying of collective bargaining.

The rules challenged in this section are as follows:

### Grievances of the plaintiff (case file action No. 19-2620-0007-CO) It is reproached that the regulation established by Law No. 9635 leaves no space for these matters to be regulated through collective bargaining and thus exceed the minimums contemplated by ordinary legislation. This, despite the fact that these are essential labor matters and that the Labor Procedural Reform, approved by Law No. 9343, in its Article 690, subsection i), established the possibility for unions and employer representatives to negotiate clauses of a salary nature.

The articles of the LSAP introduced or amended by Law No. 9635 that are challenged, absolutely exclude any negotiation of salary components or bonuses, as well as prohibit the negotiation of the right to unemployment assistance, all of which is observed in the insurmountable cap of eight years on the compensation for the payment of unemployment assistance (Art. 39), or with the establishment of a single seniority payment that has a single way of calculating it through an inelastic division between professional classes and non-professional classes and an invariable amount that remains anchored in time based on the salaries earned in January 2018 (Arts. 50 and 57, subsection l), or imposing a prohibition on establishing incentives or compensations in percentage terms (Art. 54), or establishing a legal reserve for the creation of all types of incentives, economic compensations, or salary bonuses (Art. 55) and, furthermore, obligating the heads of entities to denounce collective bargaining agreements upon their expiration (Transitory Provision XXXVI). The right to collective bargaining of incentives and components of a salary nature contemplated in subsections h) and i) of Article 690 of the Labor Code, whose legal framework derives from Convention No. 98 of the ILO and Article 62 of the Political Constitution, has been emptied of all economic content. The intention of the legislator who enacted Law No. 9635 was to create a kind of legal reserve in matters of supplementary salaries (sobresueldos) and seniority payments, supplanting the constitutional legislator in clear violation of Articles 60 and 62 of the Political Constitution, but Articles 26 of the ACHR and 8, subsection a) of the Protocol of San Salvador are also transgressed.

When ruling on legislative file No. 20.580, the Constitutional Chamber was clear that it was not possible to establish a total interdiction on the creation of supplementary salaries by means of a collective bargaining agreement; notwithstanding the foregoing, the rules challenged here do establish that type of interdiction, despite the warning made by the Chamber, so Law No. 9635 was approved according to the text decreed in the first debate that the Chamber reviewed, and this confirms the unconstitutionality that is requested.

For this reason, the challenged rules are violative of the principle of free collective bargaining, which implies the violation of ILO Convention 98, of Article 8, subsection a) of the Protocol of San Salvador, and of Article 62 of the Political Constitution.

Article 39 of Law No. 2166, amended by Law No. 9635, by imposing a cap of eight years for the payment of unemployment assistance, imposes very serious limitations that impact the constitutional order of collective bargaining and points out that even the Constitutional Chamber, on repeated occasions even with restrictive criteria, has endorsed clauses of collective bargaining agreements signed in the public sector that establish unemployment assistance caps exceeding eight years, understanding that the exception to the legal cap is constitutionally valid and conforms to parameters of reasonableness and proportionality.

The alleged unconstitutionality is magnified by the existence of Transitory Provisions XXVII and XXXVI of Law No. 9635, from which it is inferred that the legislator's purpose has been none other than to establish an absolute prohibition so that, via collective bargaining agreement, rules on compensation for unemployment assistance different from those established in the articles can be negotiated.

39 of the Salary Law under review, as amended by Law No. 9635, and 29 of the Labor Code, without taking into account that in Costa Rica, the payment of the severance pay (auxilio de cesantía) with caps higher than those established in the Labor Code has been accepted for more than thirty years, since the approval of the Solidarist Associations Law No. 6970 of November 7, 1980, which establishes the payment of severance pay (auxilio de cesantía) by the employer—public or private—without any type of year cap and as a real right, that is, its recognition is appropriate under any assumption regardless of the cause that extinguishes the employment relationship. Based on the foregoing, an unequal and unjustified treatment is also created to the detriment of the union organization compared to the solidarist organization, since the latter can do so by special law, while the union cannot, which generates a disparity of conditions in the legal treatment that the legal system offers to one and the other organization.

Transitory Provision XXVII represents a clear intrusion and imposition by the legislator on the content to be negotiated in the collective bargaining agreements (convenciones colectivas de trabajo) that were in force when the reform contained in Law No. 9635 came into effect, as this transitory rule limits the payment for severance pay (auxilio de cesantía) to a maximum of twelve years, despite the existence of conventional rules that provided for higher limits.

These articles are unconstitutional because they disregard the legal nature that the Political Constitution grants to collective bargaining agreements (convenciones colectivas), but also because they violate the right to free collective bargaining (libre negociación colectiva), by supplanting the negotiating will of the signatory parties to these normative instruments.

It reiterates that Article 50 of the LSAP, together with Transitory Provision XXXI contained in Law No. 9635, by imposing an annuity at a fixed nominal amount, implies an unreasonable and disproportionate limit on free collective bargaining (libre negociación colectiva) but also a total prohibition on negotiating the payment of annuities in collective bargaining agreements (convenciones colectivas de trabajo) as had been negotiated before the entry into force of Law No. 9635; Article 54 of the LSAP is unconstitutional because it denies any possibility of negotiating a different amount for incentives or compensations, which have now been transformed into a fixed percentage, anchored in the month of January 2018, without any possibility of future improvement, in contrast to the provisions of Article 690, subsection h) of the Labor Code, which contemplates the possibility that salary incentives may be negotiated; With the reform made by Law No. 9635 to Article 55 of the LSAP, the legislator sought to create a legal reserve so that any incentive, compensation, or salary bonus (plus salarial) had to be created by law; however, this is unconstitutional because Article 62 of the Political Constitution and Convention No. 98 of the ILO, duly approved by Costa Rica, prevent establishing a limitation of such a nature, but also because this article harms the principle of free collective bargaining (libre negociación colectiva); Transitory Provision XXXVI is one of the most pronounced intrusions of the Public Power into the right to collective bargaining (negociación colectiva), since it obliges the heads of public entities to denounce collective bargaining agreements (convenciones colectivas) upon their expiration, thereby suppressing the content of Article 62 of the Political Constitution and of Conventions 87 and 98 of the ILO, in conjunction with Articles 26 of the CADH and 8 subsection a) of the Protocol of San Salvador, for which reason it considers it contrary to the Law of the Constitution; this regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements (convenciones colectivas) are negotiated, they must adapt to the provisions of Law No. 9635, which means that working conditions that worsen the previous ones will have to be inserted, without respect for consolidated legal situations. Furthermore, the rule leaves the door open for the Executive Branch to establish any content for those agreements, all of which is also introduced in a rule of a transitory nature but that causes permanent and definitive effects.

### Grievances of the Claimant Party (Action No. 19-004931-0007-CO) The representative of ANEP alleges that the challenged Article 39 harms the principles of collective bargaining (negociación colectiva), rationality, proportionality, progressivity of rights, and the most favorable condition, as well as Articles 33 and 62 of the Constitution.

This provision closes the possibility for the public sector to sign collective bargaining agreements (convenciones colectivas), which have the force of law between the parties, which harms Article 62 of the Constitution. The challenged rule not only harms the right to collective bargaining (negociación colectiva), but also the acquired rights, the consolidated legal situations of the officials who, at the time the rule came into effect (December 3, 2018), had already acquired working conditions that cannot be affected.

On the other hand, this provision overlooks that there are collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions on the payment of incentives or compensations in percentage form.

Collective bargaining (negociación colectiva) is a fundamental right contained in Article 62 of the Political Constitution, so the possibility of negotiating better working conditions between the parties that sign a collective bargaining agreement (convención colectiva) is a fundamental right that must be protected. Expressly prohibiting the possibility of negotiating a higher severance pay (auxilio de cesantía) cap, through an agreement between parties, limits not only the right of collective bargaining (negociación colectiva), but also the possibility of obtaining better working conditions for officials, which empties it of content.

Article 7 of the Political Constitution establishes that international treaties and conventions have authority superior to laws. For its part, freedom of association is a right contained in Article 16 of the American Convention on Human Rights, in Article 8 of the Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador; also in Article 23 of the Universal Declaration of Human Rights, and Article 22 of the American Declaration of the Rights and Duties of Man and, therefore, must be observed in Costa Rica. Convention 87 of the ILO, called "Convention concerning Freedom of Association and Protection of the Right to Organise", duly ratified by Costa Rica, establishes the obligation of the Costa Rican State to put into practice the provisions of said convention. The challenged Article 39 harms Article 4 of that convention, which orders that the State must promote and encourage collective bargaining (negociación colectiva) and not limit or hinder it, and recognizes that the collective bargaining agreement (convención colectiva) is the quintessential mechanism for improving employment conditions through social organizations. The fact that the country's economic situation is difficult does not make collective bargaining (negociaciones colectivas) unconstitutional.

Likewise, the claimant challenges Article 55, stating that the legislator's intention is clear in seeking that there be no other way to create incentives other than the legislative one. This, in ANEP's judgment, harms the right to collective bargaining (negociación colectiva) and violates municipal autonomy and that of decentralized entities, whose powers derive from the Political Constitution and the respective laws. The regulatory power in matters of administration enjoyed by minor entities is undermined by a legal rule that aims to legislate in an unrelated field. For this reason, the principle of legality is harmed.

### Grievances of the Claimant Party (File Action No. 19-022051-0007-CO) The representation of ASDEICE challenged that Article 39 of the LSAP, in relation to Transitory Provision XXVII, are rules that infringe the right to collective bargaining (negociación colectiva). They point out that although the article exempts the application of Article 39 of the law for those public officials covered by collective bargaining agreements (convenciones colectivas) or other legal instruments in which the right to payment for severance pay (auxilio de cesantía) is granted with caps higher than that established in Article 29 of the Labor Code, such exception is relative insofar as the rule always ends up limiting the payment of the right to a twelve-year cap, without taking into account that in many normative instruments existing before the law came into effect, rules are established for the payment of severance pay (auxilio de cesantía) with caps higher than twelve years.

### Report of the PGR (Action No. 19-2620-0007-CO) The PGR indicates that the regulation of collective bargaining agreements (convenciones colectivas) is a matter of law, as is compiled with in this case. It states that public employment is called to be governed by statutory rules and, therefore, the legislator can establish restrictions on the exercise of the right to collective bargaining (negociación colectiva) in the public sector, such as those regulated in Article 55 of the LSAP and in Transitory Provision XXXVI of the LFFP. Imposing certain restrictions on collective bargaining (negociación colectiva) in the public sector regarding severance pay (cesantía), the valuation of annuities and incentives, and the creation of new salary supplements, does not empty the right to negotiation of content, nor does it affect its essential core. Establishing certain restrictions on collective bargaining (negociación colectiva) in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been public knowledge and whose attention has required sacrifices, not only from people linked to the State by a public employment relationship, but from all economic and social sectors.

It is not possible to compare unions with solidarist associations, as they are distinct figures, with their own characteristics, very different from each other, and, in that sense, it recalls that solidarist associations have not been conferred the right to collective bargaining (negociación colectiva), nor the right to strike, without thereby finding themselves in a situation of disadvantage or unconstitutional discrimination with respect to unions.

Regarding the Transitory Provision that includes permanent rules: with respect to the objection relating to the permanent and non-temporary nature of what is regulated in Transitory Provision XXXVI of the LFFP (related to the obligation to denounce collective bargaining agreements (convenciones colectivas) upon the expiration of the agreed term), it may be considered as a possible infraction of adequate legislative technique, but it does not generate the unconstitutionality of the affected rules, as it is not a serious defect that justifies annulling those provisions.

### Report of the PGR (Action No. 19-004931-0007-CO) The PGR suggests dismissing the alleged unconstitutionality attributed to Article 39. The foregoing, based on the following considerations:

*“In this regard, as we indicated in the original report of this action, dated March 18, 2019, the institutional position of this advisory body on said topic was expressed in our opinion C-060-2019, of March 5 last. In said pronouncement, the conclusion was reached that collective bargaining agreements (convenciones colectivas) are subject to the law, even when the latter is supervening, especially when that law is expressly aimed at derogating (with future effect, consequently respecting acquired rights and consolidated legal situations) the conventional rules that have a specific content. (…)”* &nbsp; Next, the PGR cites the referred opinion, from which the following is essentially derived:

*“And we must be clear and forceful in pointing out that the legal modification carried out by Law No. 9635 does not seek the denial, much less the suppression, of collective bargaining (negociación colectiva) and its effective exercise as a negotiating faculty of the unions in our environment, nor is it rendering the collective bargaining agreement (convención colectiva) signed in that institutional sphere inoperative or without content – by administrative dispensation or non-application –* ***but rather the future adaptation of working conditions to the new prevailing circumstances that, by provision of the legislator, mandate conjunctural measures of reorganization and rationalization, for the containment and reduction of personnel expenses of the Public Administrations, required by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budget balance*** *.* *Which makes said legal precept, in itself, compatible with the effectiveness of the agreed collective bargaining agreements (convenciones colectivas pactadas).”* (The highlighting does not correspond to the original).

&nbsp; Subsequently, the PGR adds the following:

*“The conventional rules agreed 'previously' may have their effectiveness affected by a supervening norm with the rank of Law, which would have an indubitable prevailing character – due to strict subjection to the principle of normative hierarchy – over those in matters of mandatory law and absolute content thus regulated by the legislator. Thus imposing the preeminence of the supervening Law, and for the future, with respect to the previously agreed collective bargaining agreement (convenio colectivo).* *A similar solution occurs in the case of collective bargaining agreements (convenciones colectivas) renegotiated and approved after December 4, 2018, since they must adapt in all their extremes to the provisions of the cited Law No. 9635 and other regulations issued by the Executive Branch; this in accordance with Transitory Provision XXXVI of the cited Law.”* &nbsp; Regarding Article 55, on the prohibition of generating new incentives via collective bargaining agreement (convención colectiva), the PGR reported the following:

&nbsp; *“Although we are aware that in Resolution No. 2018-019511 of 9:45 p.m. on November 23, 2018, the Chamber indicated that the cited Article 55, insofar as it imposes the creation of incentives and compensations only through a formal law, is not unconstitutional, as long as it is understood that it does not apply to public employees and workers who may enter into collective bargaining agreements (convenciones colectivas), in accordance with the reform introduced by the Labor Procedural Reform, Law No. 9343, to Article 112, subsection 5) of the General Law of Public Administration (LGAP), according to the inverse determination or* *contrario sensu* *that Articles 683 and 689 make of them, since in those articles it is rather defined who are those who participate in public management; then all other servants, except those stated therein, are enabled to conclude collective bargaining agreements (convenios colectivos). This is in order not to empty the content of the right to enter into collective bargaining agreements (convenciones colectivas) and the union action itself.* &nbsp; *Which leads us to reaffirm that,* ***for the rest of the public officials who, by participating in public management, do not have the right to enter into collective bargaining agreements (convenios colectivos) and for whom union action can reasonably be limited or even prohibited (ILO Conventions 87, 98, 151, and 154; See OJ-035-2019, of May 17, 2019), that legal reserve is constitutionally feasible*** *.* &nbsp; *As we indicated in the original report of March 18 last, within this file, in the judgment of this Attorney General's Office, the legislator is the one called upon to establish the incentives and the amount of the economic benefits granted to its servants; this as part of the so-called "Statute of public officials" (Article 191 of the Constitution), which is characterized by its determination, not by contract or collective bargaining agreements (convenios colectivos), but through objective norms, laws or regulations, which, depending on their nature and hierarchy, can be unilaterally modified by the competent body.”* <span style="font-weight:bold; font-style:italic; text-decoration:underline">Hence</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> it is rightly affirmed that the public official does not have a contractual relationship with the Administration, but rather a statutory one. An idea omnipresent even in our original constitutional framework of the public function, according to which:</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">A civil service statute shall regulate</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> the relations between the State and public servants, for the purpose</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> of guaranteeing the efficiency of the administration”</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">(Art. 191).</span> (…)

*Thus understood, that legal norm is not per se unconstitutional in the terms accused, as long as it is interpreted in its proper dimension, as this Chamber itself has dimensioned it, regarding its scope, in that optional precedent”.* (The emphasis does not correspond to the original).

### <a name="_Toc193445426" class=""><span style="text-transform:uppercase; background-color:#ffffff">Report of the Ministry of Finance</span></a> Regarding the cap on the severance pay benefit (auxilio de la cesantía) established in the legislation, the Minister suggests dismissing the objections raised and agrees with the PGR in the sense that it can be perfectly regulated by a law of the Republic. The report states the following:

*“[T]he constituent power limited itself to establishing the worker's right to receive that compensation when he has been dismissed without just cause, but it did not establish the form, nor the specific guidelines for the payment of that compensation; that is, it did not define the manner of calculating the quantum to be granted for that concept; in this context, the ordinary legislator is the first called upon to regulate the conditions and limitations under which that compensation is paid, in accordance with the policy on the matter maintained at a given socio-economic moment, but it must always respect the constitutional framework established in Article 63 of our Magna Carta. It is thus that Article 29 of the Labor Code contains a series of guidelines that regulate the granting of that compensation only in cases of dismissal without just cause. And although said article has been subject to several changes, especially regarding the salary percentages to be received for each year worked (Art. 88 of the Law for the Protection of Workers), the truth is that it maintains an apparent cap of eight years as the compensation limit, which has been interpreted in our medium as a legal minimum that can be surpassed or improved for the benefit of the worker.* *However, in the Public Sector, although it has been admitted that the severance pay cap can be surpassed when there are specific and special norms – which may be collective bargaining agreements or autonomous service regulations – “that must inexorably be applied until they are repealed, modified, or declared illegal or even unconstitutional” (OJ-116-2005, of August 8, 2005; OJ-072-2008, of August 22, 2008; OJ-018-2017, of February 15, 2017; C168-2012, of July 2, 2012 and C-146-2016, of June 24, 2016), we have been clear and forceful in warning that its establishment by regulatory or conventional rules must inexorably respect that which until now has been an unwritten rule (Arts. 7 of the LGAP and 13 of the Law of Constitutional Jurisdiction) derived from constitutional jurisprudence, and according to which, the payment of severance pay cannot be unlimited or, rather, must have a reasonable cap (Opinions C168-2012 and C-146-2016 op. cit.)… …In this regard, emphasis has been placed on the fact that, in the case where one of the parties is a public institution, what is negotiated in a collective bargaining agreement regarding the severance pay cap must be subject to the principle of reasonableness. This is insofar as public institutions have the duty to avoid agreeing to breaches of the severance pay cap that involve an improper use of public funds, affect the public services that the institution is called upon to provide, or lack any objective reason to permit the differentiation established in favor of that group of officials. (…)* *Below, it is important to warn that, as constitutional jurisprudence has indicated, it is evident that those conventional provisions that provide for a severance pay payment without any cap, whether because they do not establish a limit on the number of years to be recognized for the payment of compensation, are unreasonable because they constitute an improper use of public funds. This is insofar as such compensation would constitute a disproportionate burden on the public treasury that would eventually imply a detriment to the public services provided by the institution. (…)* *From the reading of the considerations set forth by the Attorney General's Office of the Republic, it is deduced in a clear manner that, unlike what the claimant has indicated, the right to severance pay is acquired only when the cessation of the service relationship occurs. The foregoing implies that as long as this does not happen, what the interested party has is an expectation of a right, which consequently does not prevail over legal provisions like those that were added to the Salary Law, by means of Law No. 9635 and its reform. Starting from the above, it can be affirmed that the provisions in Articles 50, 54, 56, and 57 do not violate Article 34 of the Magna Carta, because they do not disrespect acquired rights or consolidated legal situations”.* Regarding both the limitations on freedom of association and the possibility of developing rights via collective bargaining agreements invoked by the claimant, the Minister of Finance also suggests dismissing the accumulated actions and for this refers to reports from the PGR and precedents of the Constitutional Chamber. In this regard, she dictates the following passages:

*“[O]ur Legal System merely recognizes the existence of collective bargaining agreements in the Public Sector and indicates the obligatory nature of what is agreed in them. But this does not imply attributing constitutional or legal rank to the content of any agreement; rather, this content must be maintained within administrative legality, because state laws are competent to fix the hierarchy of legal sources (Art. 6 of the LGAP) and the law applicable in this regard (Art. 57 of the current Labor Code) has established that the collective agreement is subordinated to the Laws.* *Judicial jurisprudence has been clear and consistent in recognizing and warning of the supremacy of the Law over the collective bargaining agreement, as something normal, insofar as the latter must be inserted into the general legal system in a descending order, so to speak; that is, subordinating itself to the former, which is the Law of state origin and of a mandatory nature (Resolution No. 2004-00335 at 09:40 hrs. of May 7, 2004, Second Chamber); which means that collective labor agreements are subject to and limited by public policy laws (Resolution No. 1355-96 at 12:18 hrs. of March 22, 1996, Constitutional Chamber). Hence, the force of law is conferred upon them, insofar as, the collective bargaining agreements have been agreed in accordance with the legislation (Resolution No. 783 at 15:21 hrs. of June 3, 2010, Second Chamber). From which follows a subordination of these to the legislative power of the State, which produces a normative precept of public order, inderogable by essence before mere private initiative – Art. 129 constitutional –, so that a collective agreement cannot render mandatory rules ineffective (Resolution No. 2007-000213 at 11:00 hrs. of March 30, 2007. And in a similar sense, among many others, Nos. 108 at 09:40 hrs. of March 12, 2003, 2015-000399 at 09:00 hrs. of April 14, 2015, 2016-000011 at 09:45 hrs. of January 8, 2016 and 2016-000075 at 09:45 hrs. of January 27, 2016, all from the Second Chamber. No. 94-2013-I at 13:00 hrs. of August 28, 2013, from the Contentious-Administrative Tribunal, First Section. No. 18485 at 18 hours 2 minutes of December 19, 2007, Constitutional Chamber). And this is so, because in labor law, the agreement can only decide on those aspects not regulated by public policy rules or mandatory rules issued by the legislator when it is considered that there are fields of interest that warrant imposing the will of the State in the negotiation (Arts. 1, 11, 14 to 17 of the Labor Code); cases in which the principle of autonomy of collective will does not apply in its full extension, because those imperative laws lead to establishing, between employer and worker, certain principles or norms that are incorporated into the legal relationship and prevail over the will of the parties (Resolution No. 100 at 10:40 hrs. of March 29, 1995, Second Chamber). All of which evidences that the Law operates on a double channel: as an instrument that comes to configure another source of lesser law: the statutory collective agreement; with the obligation to provide it with a material space so that it can be real, existing, and effective; and secondly, the Law as a source concurrent with the collective agreement, a proper source of law that can directly regulate the matter regulated by the statutory agreement or even reserve for itself certain matters that are therefore excluded from collective bargaining; which implies that the collective agreement must conform to the provisions of the Law. It is not possible, then, to allege the immutability or unalterability of the collective agreement in the face of the Law, even if it is a supervening state norm, because by virtue of the principle of normative hierarchy, it is the collective agreement that must respect and submit to the Law, and not the contrary; especially when the legislator's unavoidable and permanent task of configuring, with a public policy character, the legal regime applicable to public officials and employees is at stake (Art. 191 constitutional), including the regulatory framework within which the right to enter into collective bargaining agreements must be exercised, especially in the Public Sector; whether with normative provisions of different imperative configurations, as explained; whether through imperative, dispositive, or dispositive norms that enable or not the concurrence of collective autonomy; legislating on this matter is a general, permanent competence, entirely available to the legislator, who discretionally may choose to maintain or not such regulations. So that, although collective agreements in the Public Sector have binding force between the parties that have signed them and constitute perhaps the most direct and specific norm regulating the legal-labor relations existing between them, the truth is that from a formal and material point of view, in the system of legal sources, it is always subordinated to the Law; which, as an undisputed source of law of a higher hierarchical rank than that other one, has the permanent capacity to, among other matters, regulate working conditions and, therefore, is automatically incorporated into the employment contract, and may even have, unlike the collective bargaining agreement, general efficacy. Therefore, in case of conflict, the Law imposes its primacy over the collective bargaining agreement. For all these reasons, even when the principle of collective autonomy in the regulation of labor relations in the public sector is inserted within the rights of freedom of association and collective bargaining; the latter understood – with some degree of conceptual narrowness – as the power of consensual regulation and ordering of labor relations as a whole that has been recognized to workers' representatives, with direct legal efficacy – force of law, as a special norm – over individual contracts (Arts. 54 and 55 of the Labor Code), the truth is that this binding force of the agreements does not make them immune to the provisions of the Law, even if it is subsequent to them and alters their internal equilibrium, because that right of collective bargaining and the binding force of the agreements is in no way opposable to the general normative competence of the legislator, which is an expression of the popular will in democratic systems and which cannot remain inert or inactive in the face of social reality and the transformations it imposes, regardless of its incidence on previous legal situations and the production of differentiated treatments over time (Arts. 105 and 121 constitutional). Thus, the collective agreement must conform to what is provided in the Laws. And consequently, there is no right whatsoever for what is established in the collective agreement to remain unaltered and be immune to the provisions of a subsequent law until the moment it ceases to be in force; the existence of collective bargaining agreements cannot, in any way, make it impossible for the effects established by the laws to take effect on the date set by them; which would be equivalent to contradicting the mandate of Article 129 constitutional, developed in Arts. 7 and 8 of the Civil Code… What has been exposed up to here ratifies that the prevalence of the law in our constitutional system is, therefore, solidly and unequivocally established in the sphere of public employment (Art. 191 constitutional). And consequently, we can do nothing more than affirm the primacy of rank of the normative provisions contained in Law No. 9635 over collective bargaining agreements and any other products of collective bargaining, as well as the inexorable subjection of the latter to the provisions of the former with the character of absolute necessary and imperative right5. And we must be clear and forceful in pointing out that with the legal modification operated by Law No. 9635, what is sought is not the negation, much less the suppression, of collective bargaining and its effective exercise as a negotiating power of the unions in our medium, nor is the collective agreement signed within that institutional sphere being rendered inoperative or without content – by dispensation or administrative non-application –, but rather the future adaptation of working conditions to the new prevailing circumstances that, by legislative order, require conjunctural measures of reorganization and rationalization, for the containment and reduction of personnel expenses of the Public Administrations, demanded by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budgetary balance.* Which means that said legal precept is, in itself, <span style=\"font-style:italic\">compatible with the effectiveness of the agreed collective bargaining agreements."</span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span style=\"-aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Subsequently, the Minister refers to what was resolved in the advisory opinion on this bill and refers to the report issued by the PGR in the unconstitutionality action brought by the union of the Banco Nacional. </span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445427\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Arguments of the Coadjuvants</span></a><br data-mce-bogus=\"1\"></h3><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-weight:bold; font-style:italic\">Active Coadjuvants</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The Secretary General of SIBANPO, </span><span>Miguel Ernesto Carranza Dí</span><span>az </span><span>expressed himself</span><span> in favor of the petitioner's thesis. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The </span><span style=\"font-weight:bold\">Secretary General of SITUN</span><span>, regarding the payment of </span><span>severance pay (auxilio de cesantí</span><span>a), states that the reform contained in Law No.</span><span>9635 did not consider</span><span> the </span><span>last reform to the Worker Protection Law (Ley de Protecció</span><span>n al Trabajador) in which the right to severance pay (auxilio de cesantí</span><span>a) was stipulated as an effective right for workers without being</span><span> subject to a limit of years, according to what was provided in Art. 8 of Law No.</span><span>7983, therefore, in his opinion, the rule contained in Art. 3 of Law No.</span><span>9635 that added</span><span> Art. 39 of Law No.</span><span>2166 and the Transitory Provision XXVII challenged herein, would also be contrary</span><span> to Art. 7 of the Political Constitution (Constitució</span><span>n Polí</span><span>tica), this because the ILO Conventions are superior authority over the ordinary laws of Costa Rica in which it has been established that collective bargaining, labor relations in the public administration, and the right to unionization are acquired rights, and he recalls that Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. He indicates that the arguments raised in the unconstitutionality action regarding severance pay (auxilio de cesantí</span><span>a) are fully applicable to the workers of the Universidad Nacional where, by way of collective bargaining agreement, the cap on severance pay (cesantí</span><span>a) has been fifteen years and this remains in force in the recently</span><span> extended IV Collective Labor Agreement UNA-SITUN, with a progressive and staggered increase up to twenty years as the maximum cap, its full application being effective as of the year 2017</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The </span><span style=\"font-weight:bold\">Secretary General of UNEBANCO</span><span> stated</span><span> that the cut in severance pay (auxilio de cesantí</span><span>a) to a maximum amount of eight years is incompatible with the evolution that the development of this right has had in Costa Rica and violates the principle of progressivity of fundamental rights, substantive due process, collective bargaining, and is openly discriminatory against unions. He refers that the questioned rules, instead of, as corresponds, developing and strengthening severance pay (auxilio de cesantí</span><span>a), diminish that right and instead of promoting the maximum effectiveness of that right, impose a regressive regulation, incompatible with the principle of progressivity. They violate reasonableness and proportionality because the regression of eight years lacks any basis and that cap </span><span style=\"font-style:italic\">ex lege</span><span> has no equivalence or proportional relationship with the average career or labor seniority of public servants.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The </span><span style=\"font-weight:bold\">Secretary General of UPINS</span><span> says that collective bargaining agreements have the force of law, which allows both the institution and the unions to have the legal certainty that what is agreed therein will be fulfilled, and, therefore, the challenged rules cannot limit or tacitly repeal the rights contained in a rule of a collective bargaining agreement without undermining its nature. The challenged rules are unconstitutional because they also contravene the provisions of Arts. 188 and 189 of the </span><span>Constitution (Constitució</span><span>n), according to which, autonomous institutions ‒</span><span>such as the case of the INS‒</span><span>, have administrative independence and are only subject to the law in matters of government, such that it is unconstitutional for Law No.</span><span>9635 to attempt to regulate and limit their </span><span>administrative independence, which threatens their autonomy.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The representative of </span><span style=\"font-weight:bold\">UNDECA </span><span>refers that the challenged Art. 39 and Transitory Provision XXVII are unconstitutional, firstly, due to the cap imposed on severance pay (auxilio de cesantí</span><span>a) to a maximum of eight years, which is totally incompatible with the evolution that the development of this right has had in Costa Rica and which implies a violation of the principle of progressivity of fundamental rights, of substantive due process, of the right to collective bargaining, and for being discriminatory against unions. He concludes that, regarding Transitory Provision XXXI, its second paragraph violates the principle of collective bargaining because it imposes the obligation that the agreements be submitted not only to provisions of this law, but also to any other regulation of the Executive Branch.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-weight:bold; font-style:italic\">Passive Coadjuvants</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The president of the Costa Rican Chamber of Industries Association (Asociació</span><span>n Cá</span><span>mara de Industrias de Costa Rica) reiterated</span><span> that </span><span>collective bargaining agreements are only applicable to public enterprises and to the economic services of the State governed by private law; therefore, the challenged regulation is applicable to all public servants since the signing of collective bargaining agreements in the state sphere is prohibited, and thus the legislator can modify the maximum amount of severance pay (auxilio de cesantí</span><span>a) for public servants without incurring a violation of the freedom to enter into collective bargaining agreements. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The representatives of </span><span style=\"font-weight:bold\">UCCAEP </span><span>state that this Chamber has been reiterative in its jurisprudence that the relationship between public servants and the State is statutory in nature, and therefore it is not possible to obtain benefits from collective bargaining agreements signed in the state sphere </span><span>since that prerogative is only limited to public enterprises and the economic services of the State.</span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445428\" class=\""><span style=\"text-transform:uppercase; background-color:#ffffff\">Decision of the Constitutional Chamber (Sala Constitucional)</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><h2 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445429\" class=\"\"><span>Preliminarily</span></a><br data-mce-bogus=\"1\"></h2><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>As </span><span>was previously noted, many of the arguments in Action No.</span><span>19-004931-0007-CO filed by ANEP must be dismissed because they refer to municipal autonomy or that of decentralized entities, and it has already been established and defined that the petitioners' standing </span><span>‒</span><span>based on a corporate matter and the defense of the rights of the members of the union corporation</span><span>‒</span><span> is insufficient to challenge aspects pertaining to institutional autonomies. In the same vein, the argument of the alleged injury to the regulatory power of minor entities and the presumed injury to the principle of legality must be rejected. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Secondly, it was previously clarified that all arguments related to potential antinomies or discussions about the prevalence of certain rules such as collective bargaining agreements or internal labor statutes must be dismissed. Such</span><span> reproaches refer to ordinary legality analyses that fall within the purview of the competent instances. It is not for this Chamber to examine in a constitutional review process the particular situations of prevalence of alleged acquired rights in light of another particular legal framework. It is reiterated that everything related to the analysis of potential antinomies or the resolution of specific cases must be raised and resolved in the ordinary instances of legality. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Finally, many of the arguments raised by the petitioners and coadjuvants must be referred to what was said in the preceding recital (considerando) regarding the subject of severance pay (cesantí</span><span>a) and the alleged acquired rights to a severance pay amount greater than the limit established in the LFFP based on the precedents of this jurisdiction (maximum of twelve years).</span><span style=\"-aw-import:spaces\">&nbsp; </span></p><h2 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445430\" class=\"\"><span>What was ruled by this Court in advisory opinions </span><span>No.</span><span>2018-019511 and No.</span><span>2021-017098</span></a><br data-mce-bogus=\"1\"></h2><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>In advisory opinion </span><a href=\"https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-894553\" style=\"text-decoration:none\"><span style=\"-aw-bookmark-start:_Hlk193376646\"></span><span style=\"font-weight:bold; text-decoration:underline; color:#000000\">No.</span><span style=\"font-weight:bold; text-decoration:underline; color:#000000\">2018-019511</span></a><a name=\"_Hlk193376646\" class=\"\"></a><span style=\"-aw-bookmark-end:_Hlk193376646\"></span><span> the Chamber referred</span><span> to several doubts of constitutionality raised regarding Art. 55 of the LSAP added by virtue of Title III of the LFFP. On that occasion, the consultants questioned whether the rule in question affected </span><span>the right to collective bargaining contemplated in numeral 62 of the Political Constitution (Constitució</span><span>n Polí</span><span>tica) and Art. 690 subsections h), j), and m) of the Labor Code (Có</span><span>digo de Trabajo). Additionally, the consultants raised a supposed conflict with Art. 4 of </span><span>Convention No.</span><span>98, concerning the Right to Organise and Collective Bargaining of the ILO, which urges the adoption of measures appropriate to national conditions to encourage and promote the full development and utilization of machinery for voluntary negotiation, with a view to the regulation of terms and conditions of employment by means of collective agreements. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Likewise, the consultants raised doubts of constitutionality regarding the provisions of Transitory Provision XXXVI of the LFPP (in the bill it was identified as Transitory Provision L), which is the numeral that establishes the obligation for the heads of public entities to terminate (denunciar) collective bargaining agreements when they reach their expiration period. Furthermore, said rule warns that if it is decided to renegotiate the agreement, it must be adapted in all its respects to the provisions of that law and other regulations issued by the Executive Branch. In this regard, the legislators warned that such obligation possibly limited the right to renegotiation or automatic extension under the conditions stipulated in the Labor Code (Có</span><span>digo de</span><span> Trabajo).</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>When developing the topic, the Chamber, firstly, referred to the constitutional origins of the figure of collective bargaining, for which the following considerations were made: </span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">Collective bargaining agreements (Convenciones Colectivas), effectively, have their basis in </span><span style=\"font-style:italic\">Article 62 of the Political Constitution (Constitució</span><span style=\"font-style:italic\">n Polí</span><span style=\"font-style:italic\">tica). The legislative history of this numeral is found in the incorporation, in July 1943, of the Chapter on Social Guarantees (Capí</span><span style=\"font-style:italic\">tulo de Garantí</span><span style=\"font-style:italic\">as Sociales) into the Political Constitution of 1871 -then in force-, whose most important legislative development is the Labor Code (Có</span><span style=\"font-style:italic\">digo de Trabajo). With this, the Costa Rican State transforms into a true Social State of Law (Estado Social de Derecho).</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Later, in the National Constituent Assembly of 1949, in Act No.</span><span style=\"font-style:italic\"> 122, article 2, a motion was presented so that article 57 of the Political Constitution of 1871, which contained the matter relating to collective labor agreements and which was the text </span><span style=\"font-style:italic\">that served</span><span style=\"font-style:italic\"> as the basis for the current Magna Carta, would read as follows:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">In relation to article 57 of the 1871 Constitution, the Social Democratic faction (fracció</span><span style=\"font-style:italic\">n Social Demó</span><span style=\"font-style:italic\">crata) presented a motion for it to read as follows:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">"Collective labor agreements entered into between employers and legally organized workers, in accordance with the law, shall have the force of law." [62]</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">The previous motion, put to a vote, was approved".</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Later, in Act No.</span><span style=\"font-style:italic\"> 171, article 2, the following modification was made:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">"Deputy MONGE ALVAREZ presented a motion, which was approved, to add the concept "or employers' unions" (sindicatos de patronos) to article 63. Article 63 was approved and shall read: </span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Article 63.- "Collective labor agreements entered into between employers or employers' unions and legally organized workers' unions, in accordance with the law, shall have the force of law."</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">This text of the original constitutional regulation is the one maintained to date. With it, the Original Constituent Power guarantees not only that validly concluded collective bargaining agreements have the force of law, but also clearly establishes the right to the free conclusion of this type of collective bargaining </span><span style=\"font-style:italic\">–</span><span style=\"font-style:italic\">since to conclude (concertar) has the sense of a free agreement or pact of wills-, which implies that it is not possible to mandatorily impose collective bargaining, nor to impose its termination. Furthermore, this guarantee forms part of the freedom of association (libertad sindical). It must be borne in mind that collective bargaining is a process of dialogue and rapprochement between employers and workers that, eventually, can lead to an agreement on certain working or labor conditions. In such a way, that the parties must be completely free to negotiate a collective bargaining agreement, renegotiate it, or terminate it. </span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">In this regard, it should not be forgotten that the aforementioned Article 62 of the Political Constitution (Constitució</span><span style=\"font-style:italic\">n Polí</span><span style=\"font-style:italic\">tica) </span><span style=\"font-style:italic\">is part of Title V of the Constitution (Derechos y garantí</span><span style=\"font-style:italic\">as sociales), Article 74 of which states the following:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-weight:bold; font-style:italic\">ARTICLE 74.-</span><span style=\"font-style:italic\"> The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others arising from the Christian principle of social justice and as indicated by law; they shall be equally applicable to all factors involved in the production process, and regulated in a social and labor legislation, in order to procure a permanent policy of national solidarity."</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">The content and scope of the right to collective bargaining must be understood, consequently, in harmony with the cited numeral 74, Constitutional, and, additionally, with the Conventions of the International Labour Organization (ILO) No.</span><span style=\"font-style:italic\"> 87, concerning Freedom of Association and Protection of the Right to Organise (approved by Law No.</span><span style=\"font-style:italic\"> 2561 of May 11, 1960), No.</span><span style=\"font-style:italic\"> 98, concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (approved by Law No.</span><span style=\"font-style:italic\"> 2561 of May 11, 1960), No.</span><span style=\"font-style:italic\"> 135, concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking, (approved by Law No.</span><span style=\"font-style:italic\"> 5968 of November 9, 1976), and No.</span><span style=\"font-style:italic\"> 151, concerning Labour Relations in the Public Service (not yet ratified by Costa Rica).”</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"-aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Subsequently, this Chamber, echoing its own precedents, delimited the scope of the possibility of conducting collective bargaining in the public sector. In this regard, the Chamber stated the following: </span></p><p style=\"margin:0pt 2.55pt 0pt 28.35pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">On the other hand, the issue of collective bargaining agreements in the public sector has been recurrent in the pronouncements of this Court. In Judgment No.</span><span style=\"font-style:italic\"> </span><span style=\"font-style:italic\">2006-17441 of 19:39 hours on November 29, 2006, this Court ruled on the matter, in the following terms:</span></p><p style=\"margin:0pt 2.55pt 0pt 28.35pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">The possibility of collective bargaining for workers who do not participate in the public management of the Administration, the employees of state enterprises or economic services, entrusted with management subject to Common Law, has been repeatedly recognized by this Chamber since judgment number 03053-94, a criterion subsequently reaffirmed or ratified in judgments 2000-07730 and 2000-04453. It is admitted as a general theory of Collective Labor Law that it is integrated, principally, by a trilogy of rights that seek to realize and provide a solution to the need of workers to group together to compensate for the real inferiority in which they find themselves when acting alone, before the employer and in the face of the generic regulation of their rights in the Labor Code (Có</span><span style=\"font-style:italic\">digo de Trabajo); these are the right to unionization (sindicació</span><span style=\"font-style:italic\">n), to collective bargaining, and to the effective resolution of collective conflicts. There are two regimes in labor matters: one regulated by the Labor Code and the other by Public Law norms. This Chamber has therefore recognized that the relationship between the State and public servants, as a principle thesis, is a public or statutory employment relationship; in other words, the servant of the public employment regime is in a relationship with the Administration in a state of subjection; the latter can unilaterally impose the conditions of the organization and provision of the service to guarantee the public good. This conclusion implies that collective bargaining in the public sector cannot be tolerated, in accordance with constitutional articles 191 and 192.</span> Finally, in judgment number 1696-92 of this Chamber, the unconstitutionality of the mechanisms of direct arrangement, conciliation, and arbitration was declared for officials who perform public management, but recognizing that it is valid for laborers, workers, or employees who do not participate in the public management of the Administration to enter into collective labor agreements, such that entities with an employment regime of a labor nature (not public), such as, for example, State enterprises, may indeed bargain collectively in accordance with the provisions that inform Collective Labor Law.

Based on the recognition of a public employment regime, the jurisprudence of this Constitutional Court has been consistent regarding the conditions under which it is possible to apply Article 62 to State workers and regarding the content of the bargaining.

Once the foregoing was established, the Chamber reiterated that collective bargaining is a fundamental right that is provided for in favor of working persons for the purpose of improving labor and salary conditions:

"From the jurisprudential citations that precede, it is inferred that collective agreements not only have the force of law, but also a minimum content intangible for the legislator, among which is the improvement of minimum labor conditions and, therefore, also salary conditions. The foregoing based on the Christian principles of social justice and solidarity, which, as was indicated, are contained in Article 74 of the Political Constitution. (...) the right to collective bargaining arises from the possibility of free and voluntary bargaining; and, moreover, from a minimum or essential content, which is the possibility of bargaining over better socioeconomic conditions for workers." (The emphasis does not correspond to the original).

Later, the Chamber also pointed out that the possibility of entering into collective agreements is framed within freedom and the correlative trade union action. On the matter, the following was stated:

"Hence, as an essential part of trade union freedom—and of its counterpart, trade union action—is the right of workers to collective bargaining, as an instrument for the improvement of their socioeconomic conditions, through incentives, compensation, or salary bonuses. This is framed within the four rights that comprise trade union freedom: a) freedom to constitute trade union organizations; b) freedom to join a trade union organization; c) freedom to cease belonging to a trade union organization; and d) freedom of the member to participate democratically within the union; to which must be added the right of every trade union organization to develop freely with respect to the State and in relation to society, considered as a whole, always within the respective legal framework." Subsequently, the Chamber referred to the limits of collective bargaining. In this regard, it cannot be overlooked that, although it is a fundamental right, the constitutional text itself provides that these negotiations must be agreed upon "in accordance with the law." To the foregoing, it must be added that this Chamber, through its jurisprudence, has delimited that collective agreements must also be subject to the values and principles emanating from the Constitution itself. Now then, the limitations that are imposed on the possibility of entering into collective agreements and on their content must also be delimited and respect the Law of the Constitution, since it is likewise not lawful to empty the fundamental right under analysis of content. For this reason, the Chamber made the following statement:

"[S]aid capacity for bargaining cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must be in conformity with the Political Constitution and with the International Instruments relating to the matter." (The emphasis does not correspond to the original).

Specifically, regarding the limits, the Chamber reviewed its precedents to reach these conclusions:

"[T]he Chamber has indicated that the laws, regulations, or governmental directives in force must be respected, as well as the legal competencies of public entities, attributed on the basis of the normative hierarchy or the special conditions of the Public Administration in relation to its workers.

Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected, in the interest of the citizen’s right to the sound management of public funds, derived from numeral 11, Constitutional (see Judgment No. 2017-013443 of 9:15 a.m. on August 25, 2017).

It must also be understood that the faculty of bargaining is subject to legality and constitutionality controls, in consideration of the principles of reasonableness, proportionality, and good use and management of public funds." (The emphasis does not correspond to the original).

To these effects, the Chamber relied on its jurisprudential lines that make these reflections:

"[B]ecause these are decisions that entail financial consequences chargeable to the Public Treasury, it is clear that clauses such as those now challenged can be subject to review not only regarding compliance with the procedures for their creation, but even in relation to their adaptation to substantive constitutional norms and principles. The obligations contracted by public institutions and their employees can be subject to an analysis of reasonableness, economy, and efficiency, whether to prevent that, through a collective agreement, the rights of the workers themselves are limited or harmed, or to prevent an abusive use of public funds." (The Chamber cited on that occasion judgment no. 2006-17441, but it is a criterion sustained in subsequent resolutions, such as, for example, see judgments numbers 2013-007931, 2019-017398, 2020-012800, 2021-018421, 2022-016287 and 2023-010798, among others).

That is, collective agreements must be subject to some limits so that the bargaining conforms to the Political Constitution, constitutional principles, and the legal norms that regulate the matter. However, this Court has been emphatic in the sense that the limitations cannot be of such magnitude as to render the fundamental right nugatory. For this reason, the Chamber made these reflections:

"[I]t must be insisted, the fact that these controls exist cannot lead to emptying the minimum content of the right to collective bargaining, nor to obligating its denunciation. And, for this reason, it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally possible, only through a formal law, emanating from the Legislative Branch, can incentives or compensation, or salary bonuses be created, since that, according to what has been said, would empty that right of content and, therefore, would violate the principle of trade union freedom, which has been developed by this Chamber through its jurisprudence." (The emphasis does not correspond to the original).

Based on all the foregoing premises, the Chamber concluded that it is contrary to the Law of the Constitution—specifically to trade union freedom and the right to collective bargaining—for the legislator to prevent the terms related to salary components from being able to be agreed upon within collective bargaining and to reserve them only to formal law. In which case, the Chamber determined that Art. 55 should not be perceived as unconstitutional, under the understanding that it does not apply to those public sector workers who may indeed enter into collective labor agreements, all of which must be subject to the corresponding constitutionality and legality controls in consideration of the principles of reasonableness, proportionality, and the good use and management of public funds. In the operative part of the advisory opinion, the following was recorded:

"H) Concerning numeral 3 of Title III 'Amendment to the Public Administration Salary Law' of the bill that adds Article 55 of chapter VII 'General Provisions', the consultation is evacuated in the sense that it is not unconstitutional, as long as it is understood that this provision does not apply to employees of the Public Sector who may validly enter into collective agreements in accordance with the Constitution and the law; in this latter case, without prejudice to the legality and constitutionality controls over the result of the bargaining, in consideration of the principles of reasonableness, proportionality, and the good use and management of public funds. Judge Rueda Leal gives different reasons regarding this point, inasmuch as he considers that Article 62 of the Constitution, by referring to the law, and in the interest of guaranteeing the sound management of public funds, empowers the legislator to regulate the creation of incentives, compensation, or salary bonuses through the law, provided that by this means the right to collective bargaining is not emptied of content." (The emphasis does not correspond to the original).

Regarding the constitutionality of the Transitory Provision, the Chamber considered that the obligatory nature of the denunciation is contrary to the principle of free and voluntary bargaining. To these effects, this Court relied on criteria of the ILO that state the following:

"[T]he International Labour Organization (ILO), in Report No. 344, of March 2007, Case No. 2460, paragraph 990, expressed:

'990. As regards the court's ruling in the Atkins case, according to which the legal prohibition of collective bargaining is acceptable under the Constitution of the United States because it does not contain any provision—including the right of free association, enshrined in the First Amendment—that obliges a party to conclude a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith for the maintenance of a harmonious development of professional relations, wishes to emphasize that the voluntary negotiation of collective agreements and, therefore, the autonomy of the social partners in bargaining, constitutes a fundamental aspect of the principles of trade union freedom. Collective bargaining, to be effective, must have a voluntary character and does not imply recourse to measures of coercion that would alter the voluntary character of said bargaining. No provision of Article 4 of Convention No. 98 obliges a government to coercively impose a system of collective bargaining on a specific organization, government intervention that would clearly alter the character of such negotiations [see Digest, op. cit., paragraphs 925-927 and 934]. Therefore, while a legal provision that obliged a party to conclude a contract with another would be contrary to the principle of free and voluntary bargaining, provisions such as paragraphs 95-98 of the NCGS, which prohibit public authorities and public employees, including those who do not participate in the administration of the state, from concluding an agreement, even if they wish to do so, are equally contrary to said principle'." (The emphasis does not correspond to the original).

For the foregoing, the Chamber concluded that "a legal provision that obliged a party to conclude a collective agreement with another would be contrary to the principle of free and voluntary bargaining." Therefore, the Chamber concluded with the following reflection:

"Similarly, in relation to Transitory Provision L, of the bill consulted, it must be interpreted that each head of public entities has the authority to denounce or not the respective collective agreement, in accordance with the current legal system." The considerations made were taken up again in advisory opinion no. 2021-017098, relating to the analysis of constitutionality of the LMEP.

In that resolution, the Chamber conducted an analysis of the background:

*“2) Jurisprudential Background on the Fundamental Right to Collective Bargaining* *The trilogy of fundamental rights derived from Collective Labor Law are: the right to unionize (sindicación), the right to collective bargaining (negociación colectiva), and the right to the effective resolution of collective disputes (see judgment No. 2006-03002 of 10:40 a.m. on March 9, 2006). These rights seek to realize and provide a solution to the need of workers to group together to compensate for the real inferiority in which they find themselves when acting in isolation, vis-à-vis the employer and given the generic regulation of their rights in the Labor Code. Specifically, regarding collective bargaining agreements (convenciones colectivas), Article 62 of the Political Constitution contemplates their constitutional recognition, their force of law, and the need for such agreements to conform to what the law provides. Indeed, this constitutional provision states that:* *“Article 62. Collective labor agreements that, in accordance with the law, are entered into between employers or unions of employers and legally organized unions of workers shall have the force of law.”* *The placement of the provision in the Chapter on Social Rights and Guarantees of the Political Constitution and its content indicate that what is sought to be guaranteed is the right to “collective labor bargaining.” On this particular matter, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, this Court highlighted the three aspects that derive from this provision, namely: a) the recognition of collective bargaining as a constitutional right; b) that negotiations thus entered into have the character of force of law; and c) that such agreements must be reached in accordance with what the law provides. All of which is, moreover, ratified by the Inter-American Court of Human Rights, through Advisory Opinion OC-27/21 of May 5, 2021, when it states the following:* *“94. In consideration of the foregoing, and by way of corollary, the Court considers it pertinent to point out that the right to collective bargaining, as an essential part of freedom of association (libertad sindical), is composed of various elements, which include, at a minimum: a) the principle of non-discrimination against a worker exercising union activity, since the guarantee of equality is a prerequisite for negotiation between employers and workers; b) the non-interference, direct or indirect, of employers in workers' unions during the stages of constitution, functioning, and administration, since this can produce imbalances in the negotiation that undermine the objective of workers to improve their living and working conditions through collective bargaining and other lawful means; and c) the progressive encouragement of processes of voluntary negotiation between employers and workers, which allow for improving employment conditions through collective contracts.”* *Specifically regarding the right to collective bargaining in the public sector, first, judgment No. 1696-92 of 3:30 p.m. on August 23, 1992, can be cited, where the Chamber declared the unconstitutionality of the mechanisms of direct settlement, conciliation, and arbitration for officials who perform public management (gestión pública), but recognized that it is valid for laborers, workers, or employees who do not participate in the public management of the Administration to enter into collective bargaining agreements, such that entities with an employment regime of a labor nature (not public), such as, for example, State enterprises, can indeed bargain collectively. A criterion that is reiterated in several subsequent judgments (see No. 2000-07730 and No. 2000-04453). Then, in judgment No. 2020-008396 of 9:20 a.m. on May 6, 2020, this Court resolved the following regarding collective bargaining agreements in the public sector, ratifying that they are permitted only in the case of workers who do not perform public management:* *“V.- Regarding collective bargaining in the public sector.- As derived from the jurisprudence of this Chamber, as a principle thesis, the labor relationship established between the State (including Municipalities) and its workers is governed by Public Law – and not the Labor Code – a relationship that has been called public or statutory employment. That said, it is stated as a principle thesis that State workers are subject to a public employment regime because an exception has been made, namely, workers who do not participate in public management, being workers of State enterprises. Thus, it has been established that workers who do not participate in public management, being subject to common law, may resort to the procedures for resolving collective disputes of an economic and social nature provided for in the Labor Code (resolution No. 94-3053) and to arbitration under certain limitations (resolution No. 92-1696); and they may enter into collective bargaining agreements (resolution No. 00-4453), although also under certain limitations. Thus, the possibility of bargaining collectively for workers who do not participate in the public management of the Administration (the employees of State economic enterprises or services, charged with activities subject to common law), has been repeatedly recognized by this Chamber starting from judgment number 03053-94, a criterion which it reiterates or ratifies later in judgments 2000-07730 and 2000-04453. The rest of the State employees, who therefore do participate in public management (these being in general, not only the institutional heads and legal and financial control bodies as the Union representative states, but all those workers who exercise public powers), can neither resolve their collective labor disputes through arbitration (resolution No. 92-1696), nor can they enter into collective bargaining agreements (resolution No. 00-4453), it being unconstitutional for collective bargaining agreements entered into in the public sector when dealing with personnel governed by a statutory relationship to be celebrated. Which implies that collective bargaining in the public sector cannot be tolerated, in accordance with constitutional articles 191 and 192. In conclusion, collective bargaining agreements are not entirely prohibited in the public sector, but rather they are permitted only in the case of workers who do not perform public management, that is, those covered by articles 3, 111, and 112 of the General Law of Public Administration. The determination in each specific case of which workers are covered by said norms is a matter outside this constitutional jurisdiction and corresponds to legal operators.” (judgment No. 2013-14499)* *IV.- Regarding the challenged regulation. (…) it must be reiterated that there is no absolute prohibition on entering into collective bargaining agreements in the public sector or that these are per se unconstitutional, since, as already indicated, there is a group of public sector employees who can validly enter into collective bargaining agreements in accordance with the Constitution; specifically, it is “constitutionally possible for the institution of collective bargaining agreements to be applied…. in the so-called State economic enterprises or services and in those personnel groups of public institutions and entities where the nature of the services provided does not participate in public management” (vote No. 2000-004453. The highlighting does not correspond to the original). Thus, with respect to the collective bargaining agreements challenged in the present action, these are constitutionally valid with regard to the referred personnel groups who work or provide their services for the entities or institutions in question. However, as already indicated in the partially transcribed precedent, it corresponds to:* *“(…) each Public Administration to define which are those officials covered by the collective bargaining agreement or with the possibility of negotiating or agreeing upon this type of collective bargaining agreements, all in accordance with the criteria of the Public Administration, or that of the Courts of Justice, according to the corresponding decision.”(vote No. 2015-7221).”* *With respect to the content of collective labor bargaining, the Chamber has referred to the so-called normative clauses (cláusulas normativas) (regulating the interaction arising from the provision of the worker’s service and the payment of wages or remunerations by the employer), the configuration clauses (cláusulas de configuración) (specifying the personal, temporal, and spatial scope of the agreement and among which are included the employer's disciplinary power and the exercise of their right to organization and management), and the obligatory clauses (cláusulas obligacionales) (creating rights and obligations between the parties and which have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, installation of training centers), in the following terms:* *“Within the specialty of the matter, the parties can only validly agree upon what they can legally fulfill, due to the contractual nature of the collective agreement and as a principle thesis it is admitted that its scope be working or labor conditions, without this purpose being extended to regulate extra-labor issues. In other words, the collective bargaining agreement aims to regulate, on the one hand, the conditions to which individual labor relations must be subject, or what is the same, the so-called normative clauses, which regulate the interaction arising from the provision of the worker’s service and the payment of wages or remunerations by the employer, as affirmed by the majority of Labor Law doctrine, and this leads to the conclusion that anything that could be the subject of an individual labor contract can be the subject of a collective bargaining agreement; also, within this content, the so-called configuration clauses can be the object of collective bargaining, which are those that specify the personal, temporal, and spatial scope of the agreement and among which are included those that limit or establish procedures for the exercise of the employer's rights, especially regarding disciplinary power and the exercise of their right to organization and management. In second order, the obligatory clauses, which are those that create rights and obligations between the parties and which have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, the institution of employer benefits destined for social works within the labor community, installation of training centers, among others. By way of synthesis, we will say that collective bargaining agreements, by constitutional provision, have as their immediate purpose the revision, inter partes and with the character of law, of the minimum content of the legal benefits governing labor relations, all with the objective of improving or exceeding that essential minimum.” (see judgment No. 2007-18485 of 6:02 p.m. on December 19, 2007).* *On this same topic, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, the Chamber considered that a greater right than that recognized by law may be recognized:* *“Likewise, it is also not possible to argue that through collective bargaining, greater rights may be recognized for the parties, which is certainly the case, but it must be noted that this involves greater concessions regarding validly and legitimately recognized rights, which is not the case when limiting the free negotiation of either of the parties involved. In other words, a collective bargaining agreement may recognize a greater right than that recognized by law, but it cannot limit it. And, in any case, that greater recognition, in accordance with what was stated in the preceding recital (considerando), must equally be subject to the Law of the Constitution, to thus achieve the legal harmony upon which a legal system depends.” (the highlighting is not from the original).* *For its part, in judgment No. 2008-003935 of 2:48 p.m. on March 12, 2008, the Chamber noted that Public Administration entities may grant certain incentives or benefits to their workers, which will be constitutionally valid only when supported by objective reasons that also translate into a better provision of the public service. In this regard, it stated:* *“In other words, this Chamber has not questioned that any Public Administration entity may recognize certain incentives or benefits for its workers, since this may constitute a suitable measure to remunerate a special requirement of the job, implying certain professional qualifications or skills for those who perform it, or to compensate a particular risk characterizing the performance of such functions, be it a material risk (for example, physically dangerous work) or a legal one (for example, work susceptible to generating civil liability).”* *Now, while the right to collective bargaining in the public sector is recognized, through which rights or benefits may be granted or recognized more broadly than what is legally predefined, there are also limits to such negotiations, in that they must be reconciled with the exercise of the legal powers (competencias legales) of public entities, and respect the necessary limitations to harmonize public spending with budgetary availability and the sound management of public funds. On this particular matter, the Chamber has referred to the limits of collective bargaining, such as the constitutional principles of reasonableness, proportionality, economy, and efficiency, and the law:* *“It has also been indicated that, without any detriment to collective bargaining being a right recognized constitutionally and by international instruments of the International Labor Organization, the fact is that its content is also subordinated to constitutional norms and principles, insofar as the decisions taken therein, in many cases, imply consequences for public finances. Within this context, their adoption and validity are not solely subject to the mere verification of the adoption procedure, but also to an analysis on the merits, insofar as their content must conform to constitutional norms and principles because public funds are involved.”* In this way, the obligations agreed upon by public institutions toward their employees, as occurs in this type of negotiation, may be subject to an analysis of reasonableness, economy, and efficiency, with the aim of preventing the rights of the workers themselves from being disproportionately limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds” (see judgment No. 2021-009580 of 9:15 a.m. on May 12, 2021).

Of particular interest is judgment no. 2018-19511, not only because it compiles relevant constitutional jurisprudence on the matter, but because it ratifies that the right to collective bargaining is based on free and voluntary negotiation; and, furthermore, on a minimum or essential content, which is the possibility of negotiating better socioeconomic conditions for workers. The Chamber stated that (…)

Likewise, in judgment no. 2020-12800 of 11:01 a.m. on July 8, 2020, it was indicated, in what is relevant:

“Under this understanding, a norm in that sense would not only be contrary to the principle of free negotiation, but clearly would also be antagonistic to the principles of reasonableness and proportionality.

It is in this sense that, in the same judgment 2018-19511, the Chamber stated that:

“[E]ach head of public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the current legal system.” – emphasis added – Thus, if the norm now being questioned states, as it indeed does, that both parties to the Collective Labor Agreement of the National University commit not to unilaterally denounce said Agreement, it is imposing on both parties, not only on the University, but also on the union, a duty that contradicts the constitutional provision on collective bargaining, by preventing both from freely exercising the negotiation to which they are entitled within a framework of reasonableness and proportionality, and, on the claimant, obliging it to be unable to validate, together with the union, situations related to the proper use of public funds.

In this sense, the action must be granted, because the aforementioned phrase of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to Constitutional Law, in the terms indicated.

-Conclusion. - In short, since the first part of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to Constitutional Law, the appropriate course of action is to grant this action of unconstitutionality, annulling as unconstitutional the phrase “The parties commit not to unilaterally denounce this Agreement”.

Derived from the constitutional recognition of the right to collective bargaining in the public sector, as well as from the constitutional limits previously indicated, the jurisdiction of this court to exercise control over the content and scope of collective labor agreements is verified. Thus, in judgment No. 2020-024200 of 12:11 p.m. on December 16, 2020, the Court emphasized that there are no zones of immunity or public actions that escape constitutional subjection, even in the case of public enterprises, in the following terms:

III.- COLLECTIVE LABOR AGREEMENTS IN RELATION TO THE PARAMETER OF CONSTITUTIONALITY. This Constitutional Court has established solid jurisprudence to the effect that there is a need to subject collective labor agreements to the constitutionality control exercised by this Chamber. Since judgment no. 2006-17441, it was considered that whatever normative rank is recognized for these types of instruments, it is clear that they are subordinated to constitutional norms and principles. For this reason, despite the constitutional recognition of the right to collective bargaining and its development in various international instruments, there are no zones of “constitutional immunity” in the Costa Rican legal system, that is, public actions that escape subjection to the principle of constitutional regularity. Based on this, the Chamber has been consistent in that, although they have a constitutional origin, specific collective bargaining agreements can indeed be subjected to the assessment of their constitutional conformity, even in the case of public enterprises. Likewise, emphasis has been placed on the fact that the obligations contracted by public institutions and their employees can be the subject of an analysis of reasonableness, economy, and efficiency, whether to prevent the rights of the workers themselves from being limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds (see, among others, judgments 2019-008679, 2019-009222, 2019-016791 and 2019-017398).” From the broad jurisprudential compendium alluded to, it can be concluded that the right to collective bargaining is a constitutional right recognized in Article 62 of our fundamental charter whose immediate purpose is the review, between the parties and with the force of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or exceeding that essential minimum. This Chamber has recognized that collective bargaining in the public sector can only be admitted for those workers who do not perform public management, employees of state economic enterprises or services, and those in charge of activities subject to ordinary law. Regarding the content of collective bargaining in the public sector, it has been pointed out that the parties can only validly agree on what they can legally fulfill, due to the contractual nature of the collective agreement, and it is admitted that its scope is working or labor conditions, without this purpose being able to be extended to regulate extra-labor issues. In this way, a collective bargaining agreement can cover everything that could be the subject of an individual employment contract (that is, those that regulate the interaction arising from the provision of the worker's service and the payment of wages or remuneration by the employer), as well as norms that limit or establish procedures for the exercise of the employer's rights, especially regarding disciplinary power and the exercise of its right to organization and direction, and norms that create rights and obligations between the parties that have to do primarily with social peace and the duty to execute the agreement, such as the creation of labor relations boards. It is not about recognizing other rights distinct from those validly and legitimately recognized, but about seeking greater concessions on those validly and legally recognized rights, hence a collective bargaining agreement can recognize a greater right than that recognized by law, but cannot limit it. In this sense, the possibility of recognizing salary incentives or supplementary wages has been admitted, as instruments to encourage greater quality, permanence, efficiency in service, loyalty, and suitability; hence, it is contrary to Constitutional Law, specifically to union freedom and the right to collective bargaining, for the legislator to prevent those aspects from being agreed upon within a collective bargaining agreement and reserved only for formal law. Thus, the Public Administration may grant certain incentives or benefits to its workers, when these are supported by objective reasons that seek a better provision of the public service. There is “a constitutional doctrine of collective bargaining agreements in the public sector (indispensable in the absence of a formal law regulating them), which can be summarized in that all the rights, benefits, and advances in legal minimums (that proceed from social legislation from the middle of the last century) contemplated in a collective labor negotiation must be based on objective reasons that seek a better provision of the public service, while signifying joint and solidary social progress for public servants and the Administration, respectful, of course, of an adequate and reasonable management of public funds.” And that “collective bargaining agreements not only have the force of law, but also an intangible minimum content for the legislator, among which is the improvement of minimum labor conditions and, therefore, also salary conditions. The foregoing based on the Christian principles of social justice and solidarity, which, as indicated, are contained in Article 74 of the Political Constitution…” (judgment No. 2012-08891 of 4:02 p.m. on June 27, 2012). As public entities that administer public funds are involved, their content is also subordinated to constitutional norms and principles. In this way, the validity of collective bargaining in the public sector is not only subject to the mere verification of the adoption procedure, but also to a substantive analysis of legality and constitutionality controls, in attention to the principles of reasonableness, proportionality, and proper use and management of public funds, with the aim of preventing the rights of the workers themselves from being disproportionately limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds. In the Public Administration, the authorization to bargain collectively cannot be unrestricted, that is, comparable to the situation in which any private employer would find themselves, since current laws, regulations, or governmental guidelines must be respected, as well as the legal competences of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. In this way, the obligations contracted by public institutions and their employees can be the subject of an analysis of reasonableness, economy, and efficiency, whether to prevent the rights of the workers themselves from being limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds. The right to collective bargaining is subject to the jurisdictional control of the Chamber, because as indicated, it is subordinated to constitutional norms and principles.” (The emphasis does not correspond to the original).

Based on what the Chamber has stated, in the sub lite it must be reiterated that Article 55 (legislative reserve in the creation of salary incentives and compensations) —and, therefore, all the provisions related to the questioned bonuses, namely Articles 39 (severance pay assistance), 50 (incentive for years of service), 54 (incentives transferred to fixed nominal amounts) and Transitory Provision XXVII (recognition of the severance pay assistance covered and respected by the current collective bargaining agreements)— must be understood as constitutional, because the legislator can perfectly establish the general regulations for relationships subject to the public employment regime. The foregoing, under the understanding that the restriction on negotiating certain salary improvements does not apply to employees of the Public Sector who can validly enter into collective bargaining agreements in accordance with the Constitution and the law. This Court was emphatic and warned that for those persons who legitimately can participate in a collective negotiation, their fundamental right to negotiate certain salary benefits cannot be emptied of content —within the margins of the Constitution and the law, as well as the financial possibilities, reasonableness, proportionality, and the constitutional principles emanating from the jurisprudence of this Chamber—. Due to its importance, what was stated by this Court is reiterated, to the effect that it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally possible, only through a formal law emanating from the Legislative Branch can incentives or compensations, or salary bonuses, be created, because said absolute limitation would empty that right of content and, therefore, would violate the principle of union freedom, which are fundamental rights recognized by our Political Constitution.

In a second line of thought, following what was established in the advisory opinion, this Chamber must declare the unconstitutionality of the provision in paragraph 1 of Transitory Provision XXXVI of the LFFP, because said numeral disregards the free and voluntary nature of collective bargaining and, quite the contrary, establishes the obligation for all heads of public entities to denounce the collective bargaining agreements once their expiration date arrives. The interpretation proposed by the Chamber in the advisory opinion is incompatible with the express text of the norm adopted by the Legislative Assembly. Therefore, it is imperative to declare the unconstitutionality of the provision contained therein in the sense of subjecting the heads to the obligation to denounce the collective bargaining agreements, to the detriment of the fundamental rights examined here.

Regarding the alleged violation of the principle of equality for distinguishing with respect to solidarity associations In relation to the right to collective bargaining, the possibility of negotiating higher severance pay caps, and union rights, both the claimants and active coadjuvants accuse an alleged violation of the principle of equality. They question an unequal and unjustified treatment to the detriment of unions, since through the Worker Protection Law, the payment of severance pay without a limit of years was established, while in the case of unions there is no such possibility, generating a disparity of conditions regarding these organizations and violating Article 7 of the Political Constitution due to the disregard of international instruments that recognize the right to voluntary bargaining.

In this regard, the PGR explained that it is not possible to compare unions with solidarity associations, as they are very different figures with their own characteristics that are very different from each other and recalls, for example, that solidarity associations have not been recognized the right to collective bargaining or to strike, without this constituting alleged discrimination.

In this Chamber's opinion, the allegations barely raised and not developed are insufficient to examine an alleged violation of Constitutional Law, because the characteristics of both organizations are not detailed to distinguish where the unconstitutional differences lie, nor is it explained how Article 7 of the Political Constitution is violated. However, and given that the matter in question is related to the payment of severance pay negotiated through collective bargaining agreements, it is necessary to return to and recall the considerations made by this Chamber in judgment no. 2018-008882 in which this Chamber reconsidered the constitutionality of severance pay exceeding twelve years and, furthermore, the existing differences with other forms of labor organization were highlighted. In this regard, the following arguments were made:

“XX.- Seemingly, the first of the arguments (the link of the benefit to the employee's seniority) would appear to be barely debatable, as long as the conventional clauses in general and the one contained in the Collective Bargaining Agreement of Bancrédito, establish a benefit that recognizes the payment of severance pay assistance to the favored workers, linked to their seniority at the service of the institution and, therefore, directly proportional to it.

The problem that the majority of the Chamber finds here—and which does not appear to have been specifically addressed previously—arises when the magnitude of the benefit is contrasted, not only internally among the group of employees favored by the Convention, as was done in the cited rulings, but when the magnitude of that severance pay (auxilio de cesantía) is analyzed within the complete universe of public employees in the broad sense; this extension of the comparative framework is justified insofar as for all employees in the service of state institutions, the source of funding for that severance pay is one and the same: the taxes and public prices paid by all persons inhabiting the Republic. And it is no obstacle that, both in this case and in many others, these are state enterprises operating in a competitive market and administering funds from consumers, savers, and borrowers, for, insofar as such institutions belong to the State and have its backing, their financial health and practices can be—and in fact are—extremely relevant to public finances, as is clearly demonstrated by the well-known current condition of Bancrédito and the estimates that have been given regarding the impact its closure will have on the national budget.

Thus, it must be stated that provisions of an economic nature agreed upon by the administrators of public institutions when they collectively bargain with their workers cannot evade the necessary coherence and proportionality in relation to what constitutes the general framework of economic benefits that the State (in its broad concept) has been recognizing over time, in favor of its workers, nor can they fail to take into account the financial possibilities of the entities in general and the manner in which these provisions will affect state expenses and economic obligations, given that such commitments determine, and are simultaneously determined by, the various economic variables and situations and directly impact the general economic situation of the country.

By adopting this approach, the majority of the Chamber verifies the existence of an extremely wide gap between the severance pay (auxilio de cesantía) applicable to the enormous majority of public employees, whose cap is 8 years, and the payment that the workers of Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months' salary for the same severance pay. This is a difference of one hundred fifty percent (150%), which from the perspective of the majority of us who make up this Chamber, is abysmal and therefore, it should have clear and incontestable arguments to justify it, but it rather lacks them and proves disproportionate and unsustainable in such magnitude.

It must be remembered, on the one hand, that this Chamber, in line with the development of fundamental rights linked to the labor environment, has exercised its constitutional review function in this matter with great restraint, understanding that the fundamental nature of the right to collective bargaining—one of the fundamental pillars of the right to work—has as its legitimate purpose the improvement of the working conditions of workers, and this necessarily entails the generation of differentiations and disparities that are in no way unjust or illogical in themselves and even less can be branded as unconstitutional, by the mere fact of benefiting a group of people who have achieved such gains through the instrument of collective bargaining. But the foregoing cannot completely disable the need for the improvements to which the State commits itself to be proportionate and reasonable, not only with respect to the condition in which other state workers not protected by collective bargaining agreements are left, but also regarding the burden that society must bear to cover such sums. In this way, a difference of 150 percent (that is, a difference halfway between double and triple the normal sums) between what may correspond to some public employees above all others for the same concept lies far beyond what can be understood as proportionate and acceptable as a legitimate gain in the condition of state workers.

On the other hand, and in relation to this same issue of disproportionality in this particular form of disposition of sums from the public treasury, it must be noted that another reason for considering this 20-year cap disproportionate is that said expense presents the characteristic of being a mere transfer of funds from the public coffers directly to the worker's patrimony, without such transfer being nuanced by options for economic improvement or advantages for third parties or for the country's economy as a whole. This last alternative, in which resources from different sources, including state ones, are gathered to finance, among other economic improvements, those related to the payment of severance pay (auxilio de cesantía), is what characterizes the so-called savings and retirement funds, the solidarist associations (asociaciones solidaristas), and even the figures of the Worker Protection Law, which—for that very reason—can be clearly distinguished from the figure of the simple increase in the severance pay (auxilio de cesantía) payment cap that is analyzed here. For the Court, these figures incorporate mechanisms for improvement in the condition of workers, but they do so through the use of much more sophisticated wealth redistribution mechanisms and with more moderate participation from the public coffers. Furthermore, it must be pointed out that many of the Savings Funds and, of course, all the solidarist associations (Asociaciones Solidaristas) and the advantages of the Worker Protection Law, have undergone legislative scrutiny and approval, which grants them—from the outset—much greater legitimacy compared to the financial commitments acquired by the State that affect the community. For all of the foregoing, adjustment to the principles of proportionality and reasonableness of state resources delivered to workers, under the shelter of these recently mentioned legal figures, cannot be judged by the same measure as simple breaches of the cap for severance pay (auxilio de cesantía) payments, which are nothing more than mere transfers, as was explained, and which therefore require a much stricter scrutiny, which cannot be overcome when we are facing a cap of 20 months' salary.” (The highlighting does not correspond to the original). See in the identical sense rulings numbers 2020-11168, 2020-24200, 2019-8679, 2019-9222, 2021-15419, 2023-012086, among many others.

In accordance with the foregoing, it is seen that this Chamber expressly distinguished between the mere transfer of funds for severance (cesantía), from those forms of organization in which, with the contributions of the workers, capitalization funds are constituted for the better performance of the amounts collected.

Likewise, for several years now this Court has been reiterating that solidarist associations (asociaciones solidaristas) and unions differ substantially, so it would be valid for the legislator to establish differentiated regulations:

“Solidarist associations (asociaciones solidaristas) are clearly distinguished from the other two types of forms of social organization with express constitutional mention: Unions and Cooperatives. They differ substantially from the former, insofar as, according to the provisions of article 339 of the Labor Code (Código de Trabajo), Law No. 2 of August 23, 1943, the '(...) Union is any permanent association of workers or employers or of persons of an independent profession or trade, constituted exclusively for the study, improvement and protection of their respective common economic and social interests (...)'. Union prerogatives are special, guaranteed by international conventions (Nos. 87 and 98 of the International Labor Organization) and irreplaceable in matters of collective bargaining (…)

Despite the fact that these are different forms of organization with purposes of social advancement, truly, each one has its own nature translated into its form of integration and separate fields of action, which necessarily caused the legislator to enact independent regulation for each one of them, as well as prohibitions of interference, expressed in article 8 of the Law of Solidarist Associations, No. 6970 of November 7, 1984. In a truly democratic society, these three forms of social organization must exist in fullness.” (Advisory opinion no. 2010-009927). See equally ruling no. 2023-014796.

In light of the foregoing considerations, it is not seen that, from the merely generic and enunciative arguments made by the claimants and active coadjuvants, an injury to the invoked principles of equality or to Article 7 of the Political Constitution is verified. Regarding the latter, it is not even explained in what way it would be injured. In which case, it is appropriate to dismiss these reproaches.

On the constitutionality of Transitory Provision XXXVI, second paragraph As has been indicated, in general terms, the claimant parties questioned the unreasonable limitations on collective bargaining and the possibility of agreeing to salary improvements through said instrument. Additionally, it is seen that claimants and coadjuvants challenged what is regulated in Transitory Provision XXXVI, second paragraph of the LFFP. It is alleged that the right to collective bargaining is injured because through a transitory norm—but with a vocation for permanent and definitive effects—it is established that in the event that a decision is made to renegotiate a collective bargaining agreement, it must be adapted in all its extremes to what is established in the law and “other regulations enacted by the Executive Branch”. It is debated that “the door is left open” for the Executive Branch to be able to establish any content in those regulations. Therefore, it is alleged that collective bargaining agreements must no longer only submit to legal provisions, but to any other regulation of the Executive Branch.

As we have just recently mentioned, in the advisory opinion issued through resolution no. 2018-19511, the Chamber referred extensively to the right to collective bargaining—which is not unrestricted—to collective bargaining agreements in the public sector and, specifically, to the limits and control of the content of collective bargaining agreements. Of importance for the resolution of this point, the following must be emphasized:

“2.4.- On the limits and control of the content of collective bargaining agreements: It is clear, that said bargaining capacity cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must be in conformity with the Political Constitution and the International Instruments relating to the matter.

In this sense, what was resolved by this Chamber in Ruling No. 2000-004453 of 2:56 p.m. on May 24, 2000, must be understood, in which it was stated:

“Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector in which the application of the institution of collective bargaining agreements is constitutionally possible, that is to say, in the so-called economic enterprises or services of the State and in those personnel nuclei of public institutions and entities in which the nature of the services provided do not participate in public management, in the terms of subsection 2 of article 112 of the General Law of Public Administration (Ley General de la Administración Pública), the Chamber repeats and confirms its jurisprudence in the sense that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since by that means, laws, regulations or current government directives cannot be dispensed with or excepted, nor can laws that grant or regulate the competencies of public entities, attributed due to normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion that is inferred from article 112 subsection 3) of the General Law of Public Administration (Ley General de la Administración Pública) and from considering clause XI of ruling No. 1696-92 of this Chamber”. (See in the same sense rulings numbers 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 and 2006-17436). (…)

Thus, with respect to public sector agreements, the Chamber has indicated that laws, regulations or current government directives must be respected, as well as the legal competencies of public entities, attributed based on normative hierarchy or on the special conditions of the Public Administration in relation to its workers. Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected for the sake of the citizen right to the sound management of public funds, derived from numeral 11, Constitutional (see Ruling No. 2017-013443 of 9:15 a.m. on August 25, 2017).

It must be understood, moreover, that the bargaining faculty is subject to legality and constitutionality controls, in attention to the principles of reasonableness, proportionality, and good use and management of public funds.” (The highlighting does not correspond to the original).

Echoing these considerations, this Chamber examined the legitimacy of the Commission on Policies for the Negotiation of Collective Bargaining Agreements in the Public Sector (Comisión de Políticas para la Negociación de Convenciones Colectivas en el Sector Público). This through ruling no. 2021-005668 in which it was concluded that the challenged regulations are not unconstitutional provided it is interpreted that the guidelines issued by said Commission—article 3 subsections b) and c) of the Regulation for the functioning of the Commission on Policies for the Negotiation of Collective Bargaining Agreements in the Public Sector, no. 41553-MTSS, of November 30, 2018—are not binding. Of importance for the sub lite, it is relevant to highlight that this Court was emphatic that “the employer entity being a public authority and dealing with the disposition of public funds, these negotiations must be bounded and sustained by constitutional principles (reasonableness, proportionality, continuity of public services), as well as by provisions of legal and regulatory rank that make what is agreed upon by the parties coincide with the principle of legality”. In fact, if one examines the Labor Code (Código de Trabajo) in detail, one can easily conclude that within the parameters of regularity are found not only laws, but also the provisions of the Executive Branch that are legitimately issued. Article 690 of the Labor Code (Código de Trabajo) states the following:

“Article 690.- With the limitations to which reference will be made, the following matters can be the object of a solution in the manner described:

• a)The union rights and guarantees both for the leaders of the organizations and for the unions themselves as legal entities of indefinite duration. These rights and guarantees include those of assembly, facilities for the use of premises, leave for leaders with and without pay, facilities for the dissemination of activities, as well as any other contained in Recommendation Number 143 of the International Labor Organization or in the specific recommendations of the Committee on Freedom of Association of this latter organization.

It is understood that the application of the guarantees mentioned herein must not seriously or recklessly alter the efficient functioning or the continuity of the essential services of each institution or agency.

**b)** Everything related to the application, interpretation, and regulation of current collective law norms.

**c)** The disciplinary regime, provided there is no express or tacit waiver or delegation of the legal or regulatory powers granted in this matter to the heads of the institutions or agencies.

**d)** The regulation and oversight of entry, promotion, and professional career regimes, without prejudice to what is established by the legal and regulatory norms that exist in each institution or agency, which shall be of mandatory compliance.

**e)** The internal preparation of descriptive job manuals and the application of internal procedures for the assignment, reassignment, reclassification, and restructuring of positions, within the limits established by the general directives of the Executive Branch, the norms of the Civil Service Statute and its regulations, or other statutory norms. It is understood that any decision adopted in this field, which does not expressly contravene what is provided by the general directives of the Executive Branch, may not under any circumstances be objected to by external oversight authorities or by the Budgetary Authority.

**f)** Safety and hygiene and occupational health measures, as well as precautionary measures in the event of natural disasters. Union organizations and the heads of each institution or agency may create bipartite and parity bodies for the purpose of determining the needs of the latter and of their workers in the field of occupational safety and health.

**g)** Procedures and policies for the allocation of scholarships and work incentives.

**h)** The establishment of salary incentives for productivity, provided they are agreed upon within the framework of the policies that the boards of directors of each entity or the Executive Branch itself have previously designed regarding their general objectives and public spending limits.

**i)** Matters related to salaries and the assignment, calculation, and payment of all types of salary bonuses (pluses salariales), such as exclusive dedication, availability, travel, zoning, hazardous duty, and any other economic claim, provided it does not contravene any prohibitive legal or regulatory provision or the consistency of salary structures, and subject to the provisions of Article 695.

**j)** The creation and operation of bipartite and parity bodies, provided that public law competencies or attributions, corresponding to the heads of each institution, defined by law or regulation, are not delegated to any of them.

**k)** The right of workers and their organizations to have timely and truthful information about the projects or decisions of the collegiate bodies and managements of each institution or agency, when they directly affect them or may represent a public interest.

**l)** The right of workers' organizations and their leaders to have their requests addressed and answered, in the shortest possible time, by the heads of each institution or agency, with the sole exception of requests that are openly impertinent or unnecessary.

**m)** Other matters, benefits, or supplementary labor collective bargaining incentives that, in accordance with the law, do not exceed the competence of administrative bodies. (Thus added by Article 2 of Law No. 9343 of January 25, 2016, "Labor Procedural Reform".)" (The highlighting does not correspond to the original).

More forcefully, Article 692 of the Labor Code, regarding negotiations in the public sector, provides the following:

"**Article 692.-** Likewise, dispensing with or making exceptions to current, duly enacted laws or regulations, through the resolution mechanisms, is absolutely prohibited.

It is understood that when it concerns expenditures that affect the national budget or that of a particular institution or company, the decisions issued by the hierarchies and arbitral bodies must be subject not only to the restrictions resulting from this regulation, but also to the constitutional norms regarding the approval of public budgets, which, in the event of having been disrespected, shall imply the absolute nullity of what is provided." (The highlighting does not correspond to the original).

Additionally, Article 695 orders the following:

"**Article 695.-** The collective bargaining agreements (convenciones) and agreements (acuerdos) adopted in any type of collective bargaining with employees under a public employment regime shall be subject, for their validity and efficacy, to the approval of the hierarchical body of the institution or company with the competence to bind it, after verification of the limits and validity requirements.

The respective act must be issued within one month following the agreement.

The non-approval of the agreement by the Administration does not constitute an infraction sanctionable through repressive means.

In the case of norms that, by their nature or their impact on the principle of budgetary legality, require legislative or regulatory approval, their efficacy shall be conditional upon inclusion in the budget law or in the respective regulations, as well as upon approval by the General Comptroller of the Republic, when it affects the budgets of institutions whose ordinary and extraordinary budgets or budgetary modifications require the approval of this latter entity. In any case, the agreements reached through the Public Sector Salary Negotiating Commission shall be binding on the parties and, to this effect, the administrations shall issue the necessary administrative acts to make them effective throughout the centralized and decentralized public sector." Thus, it is observed that when authorizing collective bargaining in public employment, reasonable limitations were included in consideration of legal and regulatory provisions, since it is reiterated that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since by that means general laws, regulations, or current governmental directives cannot be dispensed with or excepted. This naturally responds to the principle of legality that prevails throughout the Public Administration (Article 11 of the Political Constitution), in concordance with the mandate that a civil service statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration (Article 192 of the Political Constitution) and with the principles of budgetary coverage and balance derived from the provisions of Article 176 of our Constitution, according to which:

"Article 176- Public management shall be conducted in a sustainable, transparent, and responsible manner, which shall be based on a multi-year budgeting framework, in pursuit of the continuity of the services it provides.

The ordinary budget of the Republic includes all probable revenues and all authorized expenses of the Public Administration, throughout the entire fiscal year. In no case may the amount of budgeted expenses exceed that of probable revenues.

The Public Administration, in a broad sense, shall observe the foregoing rules when issuing its budgets.

The budget of the Republic shall be issued for a term of one year, from January first to December thirty-first." (The highlighting does not correspond to the original).

Based on the considerations made, it must be reviewed that in the sphere of public function, the legislator itself left a space to permit collective bargaining and, within that framework, to aspire to salary improvements, since the contrary would be to empty a fundamental right enshrined in the Political Constitution of its content. However, the possibility of negotiation must be nuanced in the public sector, since the bargaining capacity has a limited scope, as it cannot be compared with the bargaining capacity of a private employer and, in addition, the negotiation must occur within the mentioned constitutional margins. Within the cited margins is precisely the principle of legality, which is derived even from Article 62 itself of the Political Constitution. Within that framework of legality, regulatory-rank provisions can be included, just as the Labor Code itself foresees. Thus, the challenged norm is not unconstitutional in and of itself. That is, the provision that at the time of renegotiating the collective bargaining agreements (convenciones colectivas) their content must be adapted to the provisions of the Executive Branch is not unconstitutional because it is a norm that reflects what is regulated in the Labor Code and the principle of legality.

Now, this generic determination by the Chamber does not prevent the provisions issued by the Executive Branch for the purpose of regulating this matter from being subsequently subjected to a constitutionality review. Note that what is being questioned here is the norm that requires renegotiations to be subject to the law or the regulations issued by the Executive Branch. However, no specific provision has been questioned or listed that would allow a particularized examination in order to determine a presumed injury to the fundamental right to collective bargaining, in which case the grievance raised must be dismissed.

Conclusions

Based on the considerations made, it must be concluded that the objections raised against the questioned norms —namely, Articles 39, 50, 54, 55 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP in the sense that the fundamental right to collective bargaining is harmed and no space is left for matters related to salary bonuses (pluses salariales) to be eventually improved through said negotiation— must be dismissed under the understanding that they be interpreted in the terms explained. In the advisory opinion concerning this regulation, it was already established that public servants are subject to a statutory relationship that regulates the majority of issues related to salary aspects and, in such cases, the legislator has sufficient legitimacy to, within the margins of reasonableness and proportionality, regulate matters corresponding to salary incentives and establish rules for their recognition and payment. However, there is a space where certain workers of the Public Administration can validly exercise union action through collective bargaining and, in such cases, the restriction established in Article 55 of the LSAP would not be applicable, since the contrary would be equivalent to admitting an emptying of the fundamental right enshrined in Article 62 of the Political Constitution. Consequently, Article 55 —and, therefore, all the provisions related to the questioned bonuses (pluses), namely, Articles 39, 50, 54 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP— must be deemed constitutional under the understanding that the restriction on negotiating does not apply to Public Sector employees who can validly enter into collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law. All the foregoing, without prejudice to the legality and constitutionality controls over the result of the negotiation, in consideration of the constitutional principles of reasonableness, proportionality, and the good use and management of public funds.

Finally, the unconstitutionality of the provision in Transitory Provision XXXVI, paragraph 1 of the LFFP is declared, as said article disregards the free and voluntary nature of collective bargaining and, quite to the contrary, establishes the obligation for all heads of public entities to denounce the collective bargaining agreements (convenciones colectivas) once the expiration date arrives. Regarding the second paragraph of said transitory norm, the action must be declared without merit.

Judge Cruz Castro partially dissents and declares Articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.

Judge Cruz Castro records additional reasons regarding Transitory Provision XXXI.

Grievances of Action No. 19-004931-0007-CO In the resolution that admitted the unconstitutionality action and accumulated it to this process, it was established that the norms subject to challenge and which are admissible for such effects are Articles 28, paragraphs 2 and 4, 30, 31 clause 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 52, 53, 54, 55, 57 clauses f), g), h), i), m), n), o) and p), added to Law No. 2166, Title IV of the LFFP No. 9635 of December 5, 2018, Articles 23, 24, 25 and Articles 1, clause a), 3, 4, 7, 9, 14, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H, the latter by connection.

GRIEVANCES THAT PRIMA FACIE MUST BE DISMISSED XVI.- Art. 3 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 concerning Public Employment The claimant challenged Art.

26 </span><span>added to the LSAP and Article 3 of Regulation No. 41564-MIDEPLAN-H for violating the principle of municipal autonomy (autonomía municipal) and Articles 11, 169, 170, and 188 of the Political Constitution. All arguments revolve around the alleged injury to the autonomy of autonomous corporations to set their own salary policies.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In this regard, it must be noted that these arguments related to municipal autonomy and the possibility of autonomous entities setting their own salary policies were dismissed in the interlocutory judgment (sentencia interlocutoria) <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-921416" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">No. 2019-010635</span></a><span style="font-weight:bold"> </span><span>of <span style="font-weight:bold">June 12, 2019</span></span>. Consequently, the matters pertaining to Article 26 were dismissed by this Chamber:</p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“II.- ON THE PARTIAL INADMISSIBILITY OF THE ACTION. From the foregoing, <span style="font-weight:bold; text-decoration:underline">the action is not admissible regarding the violation of the principle of autonomy</span> and, therefore, is flatly rejected with respect to Article 26 of Law No. 2166 and Articles 5 and 11 of Law No. 9635. Additionally, the alleged violation of this principle is flatly rejected in relation to Articles 28, paragraphs 2 and 4, 40, 46, 47, 48, 50, 52, 53, 54, and 55 of Law No. 2166, 17, 23, 24, and 25 of Law No. 9635, and 1 c) 1°, 6, 15, 16, 17, 21, 22 of Executive Decree No. 41564-MIDEPLAN-H. Finally, the violation of Articles 169, 170, 188, and 189 of the Political Constitution by Articles 26 and 55 of Law No. 2166 and Articles 5, 11, and 17 of Law No. 9635 is flatly rejected”.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>However, the alleged challenge to Article 3 of the regulation for Title III of the LFFP, Law No. 9635 on Public Employment (Empleo Público), Decree No. 41564-MIDEPLAN-H, remains. This provision was included in interlocutory resolution No. 2019-010635 as an admissible norm subject to the action, despite the fact that Article 26 of Law No. 2166 was flatly rejected and that matters relating to municipal autonomy, as well as the autonomy of decentralized entities, were also flatly rejected in that resolution. Likewise, it is observed that it was included as a challenged norm for study in the resolution on the expansion of proceedings (ampliación de curso).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Nevertheless, this Court, upon better consideration, must dismiss this aspect of the action. In the first place, its inclusion in the filing brief (libelo de interposición) was done alongside Article 26, a grievance already rejected by this Chamber because the plaintiff lacks standing (legitimación) to claim representation of the autonomous institutions. The regulatory norm challenged by the plaintiff precisely refers to the scope of application of the law, and no additional concrete or specific argument was made regarding this article; rather, it is titled on the basis of the alleged infringement of the aforementioned autonomy, which, as noted, must be dismissed.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Consequently, due to a lack of specific substantiation and because the plaintiff's standing regarding an alleged infringement of the principle of autonomy was rejected, the stated—but not developed—unconstitutionality of Article 3 of the regulation for Title III of the LFFP, Law No. 9635 on Public Employment, Decree No. 41564-MIDEPLAN-H, must likewise be dismissed.</span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445437" class=""><span style="text-transform:uppercase">XVII.- </span></a>Articles 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation for Title III of the LFFP, Law No. 9635 on Public Employment<br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Due to a material error in the interlocutory judgment <span style="font-weight:bold">No. 2019-010635</span>, Articles 4, 9, and 14 of the regulation were included as admissible norms for study in the “<span style="font-style:italic">object of the action</span>” (see Considering IV).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>However, upon a careful review of the brief in which the plaintiff responded to the preliminary warning (prevención) issued by the Presidency of this Chamber, those articles were not included as challenged, nor were any concrete arguments made regarding their unconstitutionality. By virtue of the foregoing, said provisions were not included in the resolution expanding the proceedings (resolución de ampliación de curso) of the unconstitutionality action (acción de inconstitucionalidad).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Therefore, as they were not expressly challenged by the plaintiff and there is no concrete and substantiated argument against them, the Chamber must dismiss the action against Articles 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation for Title III of the LFFP.</span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445438" class=""><span>XVIII.- ON THE FISCAL RESPONSIBILITY RULES. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC</span></a><span> </span></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445439" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged Norms</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:8pt"><span>The plaintiff challenges Articles 15, 23, 24, and 25 of Title IV on Fiscal Responsibility of the LFFP, No. 9635. In the plaintiff's opinion, Articles 7, 11, and 50 of the Constitution and the principle of progressiveness of fundamental rights are violated by granting the Executive Branch powers to alter specific allocations (destinos específicos) in a clear deviation of power (desviación de poder) that would affect institutional goals and neglect fundamental rights. The challenged norms are the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">“</span><span style="font-weight:bold; font-style:italic">Art. 15- Specific Allocations</span><span style="font-style:italic">. If the Central Government's debt exceeds fifty percent (50%) of nominal GDP, the Ministry of Finance may budget and transfer the legal specific allocations considering the availability of current income, the levels of budget execution, and the free surplus of the beneficiary entities.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 23- Criteria for Budgetary Allocation</span><span style="font-style:italic">. The Dirección General de Presupuesto Nacional shall make the budgetary allocation of transfers based on the following criteria:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">a) The Government's priorities, according to the National Development Plan.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">b) The commitments established in the multi-year programming.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">c) The social purpose of the benefited institution in the provision of public services of collective benefit, such as education boards, development associations, and associations administering community aqueduct and sewer systems.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">d) The fulfillment of institutional objectives and goals.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">e) The budget execution of the three periods prior to the year of budget formulation.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">f) The accumulated resources from previous fiscal years in the single treasury account (caja única) of the State.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">g) The availability of financial resources.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">h) Variations in the consumer price index.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">i) The effective fulfillment of the rights intended to be financed and the principle of progressiveness of human rights.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">j) Other criteria used by the Dirección General de Presupuesto Nacional in the exercise of its constitutional powers.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 24- Budgetary Allocation</span><span style="font-style:italic">. The Dirección General de Presupuesto Nacional shall make the budgetary allocation of transfers using the criteria of the preceding article. Said allocation may not be less than the budget in force at the time this law is approved, including the specific allocations established for the regional campuses of public universities repealed in this law.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus amended by the sole article of Law No. 9732 of November 19, 2019)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 25- Administrative Management of Specific Allocations</span><span style="font-style:italic">. In the case of specific allocations that are not expressly provided for in the Political Constitution, or whose financing does not come from a special revenue created to exclusively finance the social service, the Ministry of Finance shall determine the amount to be budgeted, based on the state of public finances for the respective budget period and the criteria set forth in Article 23 of this law”.</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>The original version of Article 24 provided the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Art. 24- Budgetary Allocation. The Dirección General de Presupuesto Nacional shall make the budgetary allocation of transfers using the criteria of the preceding article. Said allocation may not be less than the budget in force at the time this law is approved”.</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445440" class=""><span style="text-transform:uppercase; background-color:#ffffff">Arguments of the Plaintiff</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The plaintiff states that Article 15 violates Articles 7, 11, 50, and 74 of the Political Constitution and the principle of progressiveness of fundamental rights.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Specifically, regarding Article 15, the plaintiff says that the Constitutional Chamber has recognized the obligation of the State to respect the amounts of specific allocations established by legal norm, especially when they are aimed at financing social welfare programs, serving vulnerable populations, or fulfilling fundamental rights in general. Granting the Executive Branch the power to vary these amounts or allocations is a clear deviation of power and a serious violation of fundamental rights that the State must guarantee. The omission of the Ministry of Finance to transfer special funds in such an open-ended manner, without the norm making any exception, is irrational and violates the Constitution's Law. It is not possible for the State, due to the fiscal crisis, to stop attending to its obligations.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In relation to Articles 23, 24, and 25 of Law No. 9635, the plaintiff says that these violate the principle of progressiveness of human rights, according to which “<span style="font-style:italic">as the level of development of a State improves, the level of commitment to guarantee rights improves</span>”.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Article 23, the source of unconstitutionality invoked for all three norms, contains a list of criteria for the budgetary allocation of the Costa Rican State. The budgetary allocation places the protection of rights and their progressiveness in the ninth position, behind even the availability of financial resources, the fulfillment of institutional goals, and the priorities of the government in power. The order of state priorities set forth in this law will allow any public law institution to invoke a lack of budget in order not to finance the human rights that the State is obligated to protect, or allow the State to establish budgets neglecting or minimizing the fulfillment of human rights.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Articles 24 and 25 are closely related to Article 23, on the understanding that the Dirección Nacional de Presupuesto must use those criteria to budget transfers to State institutions.</span><br><span style="font-weight:bold; text-transform:uppercase">Report of the PGR</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>For the PGR, the arguments raised by the plaintiff are entirely unfounded. In the first place, the PGR refers to the legitimacy of the fiscal rule (regla fiscal) — a figure that, as such, is not challenged in this unconstitutionality action — to make an analysis of the legitimacy of the State adapting to certain fiscal rules that derive from the constitutional norms themselves. The PGR states the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Reiterating the considerations we have made in various reports before this Chamber (case files Nos. 19-0011540-0007-CO and 19-013318-0007-CO), the establishment of fiscal rules by Western States has become a popular vehicle for imposing a certain fiscal discipline, in the face of the problems of fiscal deficit and increase in public debt, especially since the economic crisis that devastated the most developed economies of the planet about a decade ago and whose aftermath is still being felt. In the case of the Member States of the European Union — following the American example — the path used has been to elevate those rules to the highest legal rank, incorporating, through constitutional reform, a series of mechanisms to limit fiscal and budgetary power that go beyond budgetary stability per se, to the point that some authors have called it the "constitutionalization of the economic crisis". In this way, the intervention of the Federal Government or Central Administration is legitimized — as guarantor of the general economic stability of the State itself — imposing budgetary limits on the various subnational territorial organizations endowed with political and financial autonomy and, therefore, with the freedom to prepare their own budgets (case of Federated States, Autonomous Communities, and Local Governments), to the extent that budgetary policy is conceived as an instrument of general economic policy, whose ordering is attributed to the State.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The need to maintain a certain balance between public revenues and expenditures, which summarizes the principle of budgetary stability, finds an answer in our environment in the first paragraph of Article 176 of the Political Constitution.</span></p> (…)</span><span style="font-style:italic">)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">From the foregoing provision, the case law of this Chamber has extracted the foundation of the constitutional principle of financial or budgetary equilibrium, as recently reaffirmed in the well-known ruling no. 2018-19511, of 21:45 hours on November 23, 2018, and which the legislator defined in Article 5, subsection c), of the Financial Administration of the Republic and Public Budgets Law, in the following terms:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“c) Principle of budgetary equilibrium. The budget must reflect the balance between revenues, expenditures, and sources of financing.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">We are, therefore, faced with a constitutional mandate that, as such, binds all public powers and which, therefore, in its principal sense, is beyond the availability or competence of the State and other public entities, regardless of their degree of autonomy.”</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>After that general reference to the fiscal rule, the Attorney General's Office explains that the Law to Strengthen Public Finances (Ley de Fortalecimiento de las Finanzas Públicas, LFFP) entails a paradigm shift regarding the regulation of earmarked revenues (destinos específicos) and the establishment of a floor for the budgeting of public resources. The Attorney General's Office cites its own administrative case law to indicate the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“The Republic's budget has been affected by the creation of earmarked revenues (destinos específicos) through ordinary laws, which hinder the programming and allocation of budgetary resources according to public needs, economic and social development priorities, the availability of existing resources, and, therefore, make it difficult for the Executive to allocate resources and decide on their execution.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The Law to Strengthen Public Finances produces a substantial modification to the relationship between ordinary law and budget law from two points of view: Firstly, by repealing certain earmarked revenues (destinos específicos) created by law. Secondly, because it authorizes the Budget Law to affect spending obligations provided for by ordinary law, so that they are adjusted according to the country's fiscal conditions, in order to achieve the objective of budgetary equilibrium.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Thus, the Executive Branch when drafting the budget bill and the Legislative Assembly when approving it can adjust the resource allocations to which it is obligated by virtue of laws that create earmarked revenues (destinos específicos), according to fiscal conditions. From strict subjection to the percentages and sums established by the legislator, there is a shift to a possibility of assessing the financial resources available to give content to the spending obligation established by law, as well as other public policy imperatives, in order to, where appropriate, budget a lesser amount than would correspond under application of that law creating the obligation.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">We emphasize that various provisions of the Law determine that, under certain conditions, the Budget Law will not contemplate or, once it is approved, the Ministry of Finance will not transfer, the budgetary transfers or the earmarked revenues (destinos específicos) originating from ordinary laws that are in force. This implies that the budget allocation will not be determined by the ordinary law creating the earmark; in other words, the entity benefiting from the earmark will not see the resources provided by the ordinary law as guaranteed.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">This possibility is even considered a provision of Fiscal Responsibility. Indeed, Chapter III of the Law establishes the provisions on Fiscal Responsibility, stipulating among them:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“ARTICLE 15- Earmarked revenues (Destinos específicos). If the Central Government's debt exceeds fifty percent (50%) of nominal GDP, the Ministry of Finance may budget and transfer legal earmarked revenues (destinos específicos) considering the availability of current revenues, the levels of budget execution, and the free surplus of the beneficiary entities.”</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">In that case, the budgeting of earmarked revenues (destinos específicos) would depend on the availability of revenues, the levels of budget execution, and, where appropriate, the existence of free surplus.” (Legal Opinion C-099-2019, of April 5, 2019. In a similar sense, legal opinion C-292-2019, of October 8, 2019).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:spaces"> </span><span>The Attorney General's Office explained that a previous legal opinion — OJ-064-2019, of June 12, 2019 — referred to the provisions of the challenged Art. 15:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Even though the consulting party develops the eventual application of Article 15 of Title IV 'Fiscal Responsibility of the Republic' as an argument for the unconstitutionality of subsection c) of numeral 31, prima facie, no contradiction between that article and our Fundamental Charter is observed. On this point, the deputies argue that Article 15 allows the Ministry of Finance to budget (in the budget formulation process) amounts lower than those indicated in legal earmarked revenues (destinos específicos) (such as the legal earmark of numeral 24 of the bill itself) and, even if they were already budgeted, to transfer (in the execution process) amounts lower than those indicated in the Budget Law; however, that article constitutes a manifestation of the constitutional principle of Budgetary Equilibrium, and therefore, a priori, no incompatibility in its wording is evident.” </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Subsequently, the Attorney General's Office extensively cites Legal Opinion C-099-2019 to make the following conclusions:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Hence, contrary to what is alleged, the Law to Strengthen Public Finances, No. 9635 of December 3, 2018, as a legitimate manifestation of the constitutional principle of Budgetary Equilibrium, allows the Ministry of Finance to budget the allocation of resources provided by laws that create earmarked revenues (destinos específicos) based on the assessment of fiscal conditions and other public policy imperatives. Therefore, it allows adjusting that allocation to the financial resources available.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">And in the exercise of these new powers, the Executive Branch's limits are the earmarked revenues (destinos específicos) created by the Constitution, as well as those created by law to finance a social service exclusively. On the contrary, earmarks referring to taxes intended to finance public spending in general, such as those from taxes like income tax or now value-added tax, do not constitute a limit.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">In any case, as ordered by Article 24 of the Law to Strengthen Public Finances, the Ministry of Finance and the Executive Branch are obligated to allocate a sum no less than the sum allocated in the 2019 budget. Therefore, that allocation in the current budget constitutes the minimum amount that must be granted. Consequently, the Ministry of Finance may allocate a greater amount of resources than budgeted in 2019, but it may never reduce the sum allocated in the budget currently in force, in order to guarantee the non-affectation of associated benefit services.”</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:spaces"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445441" class=""><span style="text-transform:uppercase; background-color:#ffffff">Resolution of the Constitutional Chamber</span></a><span style="text-transform:uppercase; background-color:#ffffff"> </span></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>In summary, the plaintiff's allegations regarding Arts. 15, 23, 24, and 25 of Title IV on Fiscal Responsibility of the LFFP, No. 9635, concern the claim that the order of state priorities set forth in the law “will allow any public-law institution to invoke a lack of budget in order not to finance the human rights that the State is obligated to protect.”</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In the judgment of this Chamber, the standing (legitimación) invoked by the plaintiff — as a representative of the Union of the National Association of Public and Private Employees — is the representation of the conglomerate of public officials affiliated with said union. However, its standing cannot encompass the intended protection of all fundamental rights of the inhabitants of our country for an alleged injury to the principle of progressivity regarding budget allocation. The union standing invoked cannot become an actio popularis through which any other norm that may indirectly affect the national community is questioned, for example, the right to education, as invoked by the plaintiff in the filing brief for this action of unconstitutionality. In fact, if the ruling No. 2019-010635 that allowed this process to proceed is examined in detail, the Chamber expressly warned of the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“In the case under study, the plaintiff states that the standing (legitimación) of the party he represents to file this action derives from the defense of diffuse interests, as he defends the interests of public officials and their families, which constitute a more or less determined group. He also claims to defend a larger collectivity, formed by taxpayers, those subject to the municipal regime, local governments, and public officials who work in diverse public institutions that hold a certain level of autonomy. The Chamber does not share the plaintiff's criterion regarding his standing for defense of diffuse interests. The plaintiff is a legally constituted association, whose objectives include, among others, 'b. Safeguarding the rights and interests of all members; 'c. Studying, advocating for, and defending better working conditions for workers affiliated with the union' (articles 2 and 3). It is clear that we are in the presence of corporate interests, also derived from collective interests, which are those the plaintiff Association intends to defend. There is a clear relationship between the challenge to the norms and the interests of its members, which confers standing to file the action. However, that relationship is not sufficient to protect the rights of its members' families or an even larger collectivity, formed by taxpayers, those subject to the municipal regime, local governments, and public officials who work in diverse public institutions that hold a certain level of autonomy. Accepting that the Association has standing to defend the interests of that broader, more general, and diverse group would mean accepting the existence of a kind of actio popularis, which is reserved to law in our legal system, and therefore must be expressly provided for by law, which is not the case.”</span><span> (The highlighting is not from the original).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Thus, these grievances must be dismissed on the grounds that the plaintiff lacks standing (legitimación).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and admits standing.</span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445442" class=""><span>XIX.- FISCAL RESPONSIBILITY. USE OF FREE SURPLUSES</span></a><br data-mce-bogus="1"></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445443" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged Norm</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The plaintiff challenges Article 17 of Title IV on Fiscal Responsibility of the LFFP, No. 9635, which reads as follows:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Art. 17- Use of free surpluses (superávit libres) generated by the application of the fiscal rule. In the event that public entities that have liabilities generate a free surplus (superávit libre) at the end of the budget year, this shall be used to amortize their own debt. In the case of free surplus (superávit libre) generated by entities that receive transfers from the national budget as a consequence of the application of the fiscal rule, such surplus must be returned to the national budget in the year following that in which said surplus was generated, to be used for debt amortization or public investment.” </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445444" class=""><span style="text-transform:uppercase; background-color:#ffffff">Grievance of the Plaintiff</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>According to the plaintiff, this norm violates the independence of autonomous institutions in fulfilling their purposes; it is not valid that they be ordered to cover the Central Government's debt with resources that are their own and that are earmarked to fulfill specific purposes.</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445445" class=""><span style="text-transform:uppercase; background-color:#ffffff">Report of the Attorney General's Office</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding Article 17 of the LFFP, they do not consider that the norm can be deemed unconstitutional for the alleged defects, especially when they reiterate, as in other reports (19-0011540-0007-CO), its conforming interpretation, in the sense that it can only be applied to free surpluses (superávits libres), and not to resources with earmarked revenues (destinos específicos) determined by the Constitution, which could only give rise to specific, non-free surplus, or tied, in the language of the Constitution, unavailable to the ordinary or budget legislator.</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445446" class=""><span style="text-transform:uppercase; background-color:#ffffff">Resolution of the Constitutional Chamber</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>Due to a material error, this provision was included in the expansion of the admissibility of the action of unconstitutionality.</span></p> However, given that the grievance revolves around the alleged injury to the autonomy of autonomous institutions, it must be dismissed by virtue of the fact that, as has been reiterated, the claimant lacks standing to assume the representation of municipalities or any other autonomous institution (see ruling of this Chamber no. 2019-010635). In said resolution, it was noted that the claimant acts in his capacity as representative of a workers' organization, for which reason he is not legitimized to act in defense of municipal autonomy or that of any other autonomous entity. By virtue of the foregoing, this aspect of the action must be dismissed, given that the claimant lacks standing.

Judge Cruz Castro dissents and admits standing.

ANALYSIS OF THE RULES RELATING TO PUBLIC EMPLOYMENT THAT ARE HEARD ON THE MERITS XX.- ON EXCLUSIVE DEDICATION CONTRACTS Challenged Norms Article 28, paragraphs 2 and 4 of the LSAP are challenged, as well as Article 6 of regulation no. 41564-MIDEPLAN-H. The aforementioned norms read as follows:

"Art. 28- Exclusive dedication contract. The additional payment for exclusive dedication shall be granted, exclusively, by means of a contract between the granting Administration and the official who accepts the conditions to receive the economic compensation, in accordance with this law.

The term of this contract may not be less than one year, nor more than five.

Once the contract is signed, the payment for exclusive dedication shall not constitute a permanent benefit nor an acquired right; therefore, upon the expiration of its validity, the Administration shall have no obligation to renew it.

Not signing an exclusive dedication contract does not exempt the official from the duty to refrain from participating in activities that compromise their impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest. (As added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)". (The highlighted portions are those specifically challenged by the claimants).

And the regulation reads as follows:

"Art. 6.- Terms of the exclusive dedication contract. The maximum term of the exclusive dedication contract may not be less than one year, nor more than five.

Once the respective term has ended, the contract may be renewed when the Administration, after reviewing and analyzing the existing conditions, certifies by means of a reasoned and duly justified administrative resolution, the institutional need to proceed with the extension, as indicated in Article 29 of Law No. 2166, added by Article 3 of Law No. 9635. Extensions may not be less than one year nor more than five.

In those cases where it is legally appropriate to hire personnel for fixed terms, substitutions, replacements, or any other figure that is not for an indefinite term, the exclusive dedication contracts shall be signed for the same term as the appointment".

Grievances of the Claimant Party The claimant party indicates that the questioned norms injure the principles of autonomy, legal certainty, reasonableness and proportionality, progressivity of rights, and autonomy of will, as well as the content of Article 28 of the Constitution. The challenged norm is unconstitutional to the extent that it imposes on public institutions in general, and mainly on autonomous and decentralized ones, an obligation to sign exclusive dedication contracts for a time determined in this law, violating the autonomy of the institutions to decide under what terms, according to their interests and particular conditions, for how long (duration of the contract) they may sign this type of contract with their collaborators. Establishing in this article the obligation to sign exclusive dedication contracts within the indicated temporal range (from one to five years maximum) also makes it impossible for provisions on the matter, more beneficial for the worker or more in line with institutional needs, to be established through specific norms such as collective bargaining agreements or internal labor regulations, which injures the principles of progressivity of labor rights and the protective principle of labor law.

Paragraph 4 of the norm has defects of unconstitutionality to the extent that it violates the principle of legal certainty, by establishing in an ambiguous manner the express prohibition for officials who, without having an exclusive dedication contract nor receiving economic compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over the public interest. It considers this prohibition to be completely confusing, ambiguous, and, therefore, violates the principles of rationality insofar as there is no certainty as to what should be understood by public interest, its scope, and effects.

Report of the PGR The PGR prepared a report, in general terms, in which it referred to the exclusive dedication regime and, additionally, the characteristics of public servants, together with the Administration's powers to establish rules to avoid conflicts of interest. In general, the PGR states that the exclusive dedication regime is of legal and not constitutional creation, and therefore, the defects are untenable. To the extent relevant, the following was reported:

"Through the exclusive dedication regime, the Administration seeks, for reasons of public interest, to have personnel dedicated exclusively and permanently to the state function, making it a suitable and more efficient workforce, by contracting the exclusive services of a professional-level official, in exchange for a salary bonus. In this regime, the servant assesses whether or not it suits them to avail themselves of it, being able to agree with the Administration, if it is also in its interest, on the payment of the salary bonus or to continue practicing their profession freely." (Resolution No. 2011-000174 of 09:35 hrs. on February 23, 2011, Second Chamber).

Then, conceptually and legally, the so-called "exclusive dedication" is conventional in our system; that is, a product of the formal agreement between the employing entity (Public Administration) and the professional public servant, in the sense that the latter shall dedicate themselves exclusively to the exercise of the functions of the public position they hold, renouncing the private practice of their profession, and for which the former shall economically compensate them, by way of a bonus –not as a permanent salary component– a specific additional percentage calculated on the base salary of that specific position.

And it should be noted that at the judicial level, it has been recognized that the signing or not of that exclusive dedication contract by the Public Administrations involves an undeniable discretionary power; that is, a freedom in the sense that the basis or not of its granting is openly discretionary (See rulings Nos. 019-2015-VI of 08:30 hrs. on February 6, 2015 and 2432-2009 of 09:45 hrs. on November 3, 2009, both from the Contentious-Administrative Tribunal, Sixth Section).

Now, that inter partes agreement is materialized in a contract that, according to the rules established –before the legal reform introduced by the Law for the Strengthening of Public Finances, said regime was regulated by sub-legal provisions issued by the General Directorate of Civil Service, in the case of servants attached to the merit regime of the Central State Administration (ministries and attached bodies)–, had to be "approved" by the Human Resources Departments of each institution (Art. 145 LGAP) and once approved, it would take effect during the agreed term; which, once expired or elapsed, renders said agreement ineffective, without it being possible to affirm that there is a right in favor of the servant, with a correlative obligation of the Administration, to sign a new contract or to extend the previous one, because, as stated, the signing or not of that agreement involves discretionary powers of the Administration.

There is therefore no obligation to grant that type of salary bonus (Resolution No. 2016-001113 of 10:25 hrs. on October 19, 2016, Second Chamber) or to maintain it when the original term has expired. Thus, there is no subjective right to the extension of that contract nor to the perpetual maintenance of the salary conditions derived from that bonus. And therefore, it cannot be affirmed either that there is a consolidated situation for the extension of that contractual link, as is unfoundedly claimed, and even less that this can be understood as derived from Constitutional Law.

In the context explained, many of the accused defects would lack constitutional relevance, since in reality the exclusive dedication regime is a matter of legal regulation.

Undisputedly, the regulation of the "exclusive dedication" regime established by the Law for the Strengthening of Public Finances, and specifically its Title III, referring to the Modification of Law No. 2166, Law of Salaries of the Public Administration, of October 9, 1957, and its amendments, and other applicable Transitory provisions, forms part of the compensation regime characteristic of the so-called civil service "Statute", over which there is an express constitutional authorization for the legislator, in the exercise of its inexhaustible power, to configure and regulate the employment conditions that must prevail in the entire Public Sector (Articles 105, 121.1, and 192 of the Political Constitution); especially with regard to its professional stratum.

With said legal regulation, the aim is not to establish, by way of artificial homogeneity, a unitary statute in formal terms; that is, a single normative instrument–, but rather to establish a series of postulates and norms on compensation matters that, in general terms and with a clear intention of generality, tend towards the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State.

And in accordance with hermeneutical rules duly and reasonably applied, the Attorney General's Office recently, in the exercise of its binding advisory function, determined that given its general scope of application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option to regulate the compensation conditions of employment throughout the public sector (Article 192 of the Constitution), the provisions on public employment contemplated in the Law of Salaries of the Public Administration related, among other topics, to the way in which salaries and their components must be calculated in the Public Sector, and why not regarding exclusive dedication, prevail over any other provision of legal or lower rank pre-existing at the sectoral level; this by way of tacit repeal –total or partial– by normative incompatibility of their contents (Opinion C-281-2019, of October 1, 2019); recognizing even its supervening prevalence with respect to pre-existing collective bargaining agreements, especially when that law is expressly aimed at repealing (with future effect, consequently respecting acquired rights and consolidated legal situations) the conventional norms that have a specific content incompatible with it (Opinion C-060-2019, of March 5 just past).

And starting from the concept of «Statute of public officials» and its scope, it is worth remembering that what has traditionally characterized the legal regime of the public function in general is that employment conditions are not established in a contract or by collective agreement, but are meticulously determined by objective norms, laws, or regulations, which, depending on their nature and hierarchy, can be modified unilaterally by the competent body. Hence, it is rightly affirmed that the official does not have a contractual relationship with the Administration, but a statutory one. An idea omnipresent even in our original constitutional framework of the public function, according to which: "A civil service statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the administration" (Article 191). Therefore, the sub-principles derived from the protective principle of labor law invoked by the claimant are not applicable in the dimension that is erroneously argued.

And what the claimant incorrectly qualifies as discrimination for an alleged imposition of exclusive dedication without compensation is, in reality, a misunderstood functional incompatibility regime, which, as part of the essential ethical content of the public employment relationship, seeks to enhance the principles of impartiality and independence that must govern the exercise of the public function.

From the foregoing, it can be deduced that the principle of impartiality, together with that of independence in public management, constitutes the pillar on which all legislation on incompatibilities is based.

Indeed, to obviate or rather avoid conflicts of interest and safeguard the public interest, the legislator has elaborated a set of ethical rules that must be observed by all public officials in the exercise of public function.

Thus, within the diffuse regime of incompatibilities of the Costa Rican public function, we find the duty of impartiality, which has a direct connection—according to the doctrine—with the institutional purpose of Public Administrations to serve the general interests with objectivity; which implies, first of all, political neutrality or independence, also called indifferent efficacy of administrative action, according to which every public servant is obliged to exercise their functions observing the strictest ideological neutrality, without favoritism towards persons or groups; that is, without favoritism or discrimination (Among many others, I refer to resolutions Nos. 932-95 of 15:33 hours on July 18, 1995, 2883-96 of 17:00 hours on June 13, 1996, and 11524-2000 of December 21, 2000, 1749-2001 of 14:33 hours on March 7, 2001, from the Sala Constitucional).

But that impartiality is not exhausted in the aforementioned duty of political neutrality; rather, it also manifests itself in the official's relations with society in the performance of their duties. This means that, as a derivation of the principle of legal equality and non-discrimination of administered persons (Articles 4, 8, and 10 of the Ley General de la Administración Pública and Article 33 of the Constitution), every public servant must refrain from any action that involves illegally or illegitimately favoring themselves or third parties, social organizations, or private groups.

It is for this reason that, as the Sala itself states, based on a moral and ethical demand from society regarding the concrete provision of the public service and under the aegis of the constitutional principles of legality, responsibility, transparency, equal treatment for all administered persons, and the requirement of suitability and efficiency in public employment (In this regard, see resolution No. 2883-96 of 17:00 hrs. on June 13, 1996), the official is not permitted to place themselves in situations or circumstances that could compromise their official impartiality or independence, or because they could impede or undermine the strict fulfillment of their duties and even harm the general interests—cases of conflict or opposition of direct and immediate interests. All in order to ensure that the Administration makes its decisions solely in accordance with the legal system and with the purpose of the general interest that motivates it; that is: "(...) the achievement of objective, impartial, independent, and crystalline justice, typical of democratic and rule-of-law regimes" (Resolution No. 7531-97 of 15:45 hours on November 12, 1997, Sala Constitucional)". (The highlighting does not correspond to the original).

### Report of the Ministerio de Hacienda The Minister requests that these aspects of the acción de inconstitucionalidad be declared without merit, since, in her opinion, the issue of public sector salaries and employment is dynamic, and the adjustments made do not harm the principles of progressivity and non-regression:

"In this regard, the petitioner's claims are unfounded, because as has been demonstrated since its very granting, exclusive dedication (dedicación exclusiva) is not a right of the servant, but rather it is conferred when, for certain functions, the Administration assesses that it requires the official not to work privately. Precisely, in relation to the final paragraph of Article 4 of the Reglamento del Título III and its reforms, the Procuraduría General de la República recently stated: '...The same does not occur with what is established in the last paragraph of Article 4 of the Reglamento al Título III of the Ley de Fortalecimiento de las Finanzas Públicas, according to which it is necessary to "accredit an institutional need to sign the contract of exclusive dedication (dedicación exclusiva)," as well as "verify the full compliance of the applicable legal and academic requirements," because those requirements are deduced, in themselves, from the figure of exclusive dedication (dedicación exclusiva), and are reasonable and consistent with the purposes of the law...' (See Dictamen C-166-2019 of June 13, 2019). It is striking that a constitutional violation is invoked because one of the challenged rules provides that Exclusive Dedication (Dedicación Exclusiva) contracts be subject to a term and that the possibility of automatic or tacit renewals be excluded, as the petitioner states. On this matter, like any contract, for reasons of legal certainty and security, the Exclusive Dedication (Dedicación Exclusiva) contract must have its validity clearly established, as well as the procedures or formalities required to extend it; hence, the promulgation of a regulation that contemplates these aspects, far from violating the principles of legal certainty, reasonableness, and proportionality, on the contrary fulfills them, and does not imply any regression that would support the claim that there is a retreat in the recognition of an already established labor right. V- In this same vein, the petitioner points out that the Principle of Progressivity implies that gradual progress only occurs when there is an increase, an assertion that is not entirely true, because for example, when a labor right is regulated in a diffuse manner and rules are issued which, although they do not imply an increase either economically or in the scope of the right, but which do manage to standardize and concentrate the regulatory framework, this contributes to that progress." Subsequently, a violation of the principle of legal certainty is rejected, because the rules establish the guidelines under which the renewal of exclusive dedication (dedicación exclusiva) contracts would operate, as well as the recognition of said contracts in their various variants.

She denies a violation of the principle of equality, because, as the PGR explained, the general parameters contained in Title III of Law No. 9635 and its reform apply to all employment relationships in the public sector, since the legislator is empowered to regulate generally the conditions of employment throughout the public sector.

### Resolution of the Sala Constitucional Firstly, it is necessary to note that the issue of the autonomy of the institutions cannot be alleged in this constitutional review process. In the resolution partially rejecting the acción de inconstitucionalidad No. 19-004931-0007-CO, the Sala resolved that "a person who does not have the judicial and extrajudicial representation of an institution lacks standing to defend that institution's autonomy. In this case, it must be made clear that the defense of any fundamental right of the petitioner is not being sought, but rather, it is repeated, solely the defense of the institutional autonomy of an entity for which some of its associates work" (sentence No. 2019-010635). Therefore, it is necessary to reiterate that in the sub lite the petitioner acts in their capacity as a union representative, and therefore they are not legitimized to act in defense of the autonomy of municipal entities, or any other autonomous entity. Consequently, the grievances related to the supposed illegitimate imposition on autonomous entities to sign contracts for the term defined in the law, as well as the duration of the contract, are dismissed—aspects that, in the petitioner's opinion, could be regulated in other types of provisions more consistent with institutional needs (Article 28, paragraph 2 of the LSAP and Article 6 of the regulation).

Regarding the perspective of the public servant, the petitioner alleges that the principles of progressivity of labor rights and the protective principle are violated. However, in the judgment of this Sala, that mere statement, without an adequate analysis of the rules and the impact they may have on the workers' labor rights, prevents an appropriate constitutional analysis from being carried out. Such statements must be dismissed due to improper and insufficient substantiation by the petitioner.

In a second line of thought—regarding the perspective of the public servant—the petitioner does not explain to what extent the rule harms the principle of legal certainty. They only point out a supposed confusion or ambiguity in the sense that the servant, despite not receiving economic consideration, must refrain from participating in activities that compromise their impartiality or favor private interest over the public interest (Article 28, paragraph 4 of the LSAP). In this regard, it is appropriate to clarify the concept and scope of the figure of the exclusive dedication (dedicación exclusiva) contract. This Sala, in reiterated jurisprudence, has examined that matters relating to the figure of exclusive dedication (dedicación exclusiva) are mostly matters of ordinary legality because its origin has a contractual vocation between the parties. Since 1995, this Sala has referred to this contractual figure in the following terms:

"IV.- THE EXCLUSIVE DEDICATION REGIME: Before rendering the judgment of constitutionality on the rule challenged here, it is necessary to describe generally the exclusive dedication (dedicación exclusiva) regime and point out the modifications it has undergone. In that sense, it is understood that exclusive dedication (dedicación exclusiva) is defined as the regime of reciprocal benefits agreed between the State and its professional-level servants, the purpose of which is to allow the servant to opt not to practice their profession outside the position they hold, in exchange for additional financial compensation on top of their salary. In turn, the Administration obtains the servant's complete dedication to the public function. (...)

From a simple reading of the challenged rule, it is clear that its purpose is to define what should be understood by exclusive dedication (dedicación exclusiva), that is, the obligation acquired by the professional who commits, through a contract, to work exclusively for a public institution. The rule establishes a general scope of application: any professional who agrees to dedicate themselves exclusively to working for the State. This general vocation of the rule is not harmful to the principle of equality as it has been presented, because the professions held by a given official do not constitute a relevant element to be considered for the purposes of being granted different treatment. This is because the rule regulates a general situation, namely, the possibility for an official to voluntarily bind themselves to work exclusively for the State. Regarding the right to equal pay, the Sala considers that it is not applicable to the case, since the challenged rule does not generate a difference in treatment regarding salary matters and, on the contrary, independently of the official's personal conditions, it establishes a specific general percentage as payment for exclusive dedication (dedicación exclusiva). It remains to analyze now in this section whether the application of the rule generates the alleged discriminatory treatment. The Sala considers that the challenged provision, by defining a general scope of application—any professional who signs an exclusive dedication (dedicación exclusiva) contract with the State—and by making it possible for the official to voluntarily place themselves within the factual presupposition of that provision, excludes the possibility of an arbitrary exclusion or an improper inclusion. At this point, it is worth pointing out that it is the official, in association with the Administration, who decides to bind themselves not to practice the professions they hold outside the institution for which they work. Consequently, it is not the rule that strictly establishes that prohibition. Regarding the reservation of law in matters of imposing obligations and limiting the right to work, it is pertinent to note that legal rules, regardless of the hierarchy to which they correspond, are capable of imposing obligations on individuals. Therefore, the argument put forward by the petitioner in that regard would lack all support. What does require a reservation of law is the limitation of fundamental rights, so it is appropriate to correct the petitioner's perspective and analyze the point as a supposed problem of limiting the right to work through a rule of a hierarchy lower than law. In that sense, it is pertinent to specify what was pointed out by the Procuraduría General de la República regarding the contractual nature of the obligation not to practice the professions held when an exclusive dedication (dedicación exclusiva) contract has been signed with the State. From the contract, which is understood as a voluntary agreement between parties, arises the limitation on the exercise of professions outside the institution for which one works. From this, it is inferred that it is not the rule that generates the described obligation, but rather that it results from the signing of the contract between the official and the institution. Consequently, it is not appropriate to allege the unconstitutionality of the challenged rule on the grounds stated. (...)

From that perspective, it is understood that through the exclusive dedication (dedicación exclusiva) regime, the Administration seeks, for reasons of public interest, to have personnel exclusively and permanently dedicated to the state function, making it a suitable and more efficient workforce, by contracting with the professional-level official for their exclusive services, in exchange for a salary bonus. Thus, the system allows the servant to calculate whether the benefit of the private practice of their profession is greater or less than the salary compensation the State provides in exchange for the exclusive provision of their services. Consequently, the servant evaluates the situation and voluntarily decides to arrange with the Administration (if the latter also agrees) the payment of the salary bonus or to continue freely practicing their profession. This system is not irrational, and it differs from the prohibition regime which, by legal impediment, limits the official from freely practicing the profession. In this latter case, the servant is not empowered to decide about the economic compensation, because it is part of the salary and inherent to the employment relationship. The reasonableness of the exclusive dedication (dedicación exclusiva) regime, in the way it is defined by the challenged rule, thus results from its contractual or conventional nature, which gives the official the possibility of requesting or renouncing it according to their convenience." In consideration of the foregoing, and since no violation of fundamental rights is observed on the part of the challenged regulation, the action is declared without merit.” (Judgment n.° 2312-1995. The underlining does not correspond to the original).

In echoing that resolution, this Chamber has stated the following:

“[I]t is a facultative agreement, whose scope and fulfillment constitute a matter of mere legality. Indeed, the payment of exclusivity (dedicación exclusiva) claimed by the protected party implies the granting of a benefit that may or may not be agreed upon by the parties, as the service relationship can subsist with or without it, being an element foreign to the essential obligations that make up the employment contract (see in this regard, judgment number 2725-97 of ten hours forty-eight minutes of the sixteenth of May of nineteen ninety-seven).” (Judgment n.° 2002-04003. The underlining does not correspond to the original).

And more recently, it resolved that:

“For its part, in this regard, the Chamber has also established that the determination of the appropriateness or not of the payment of this salary item is a matter of mere legality that must be aired in the ordinary jurisdiction:

"III.- (…) However, determining when this item is appropriate or not is a matter of mere legality that must be aired before the common courts." (Judgment No. 03502-94, of fifteen hours eighteen minutes of the twelfth of July of nineteen ninety-four).

In this regard, see also judgments No. 95-0893, of seventeen hours of the fifteenth of February; No. 95-04160, of ten hours three minutes of the twenty-eighth of July, both of nineteen ninety-five; and No. 96-01536, of ten hours fifty-one minutes of the twenty-ninth of March of nineteen ninety-six.)” It should be added that in judgment N° 2019-018480 of 09:30 hours of the 24th of September, 2019, the Chamber declared the following:

"(...)disputes regarding the payment of salary supplements (pluses salariales) do not affect the essential content of the right to a salary, from a constitutional perspective (article 57 of the Political Constitution), and are therefore conflicts that must be resolved in a legality venue. For this reason, in judgment N° 2011014174 of 09:58 hours of the 21st of October 2011, the Chamber held:

“(…) This Court has repeatedly stated that claims and grievances regarding salary supplements –such as double working hours (doble jornada laboral) and exclusivity (dedicación exclusiva)- are matters whose cognizance corresponds to the legality channel, since this does not affect the essential content of the right to a salary from a constitutional perspective.” Thus, if the appellants consider it arbitrary and improper that the respondent authority decided not to pay them the amount corresponding to exclusivity for this year, this is a matter they may raise and discuss, if they so choose, in the corresponding legality channel through the means of challenge granted to them by the legal system, given that by its contractual nature, it proves to be a problem of ordinary legality and not of constitutionality. (See in a similar sense judgments No. 2022-8002 of 09:50 hours of the fifth of April 2022 and No. 2022-4883 of 09:15 hours of the twenty-fifth of February 2022).” (Judgment n.° 2023-002002. The underlining does not correspond to the original).

Likewise, of special importance for this section and the following ones, it is pertinent to cite judgment n.° 2004-07764 in which the following considerations were made:

“III.- On the merits. According to the criterion repeatedly expressed by this Chamber (see, for all, judgments number 1995-02312 of 16:15 hours of the 9th of May 1995, 1995-04160 of 10:03 hours of the 28th of July 1995, 1996-04494 of 11:18 hours of the 30th of August 1996 and 2000-00444 of 16:51 hours of the 12th of January 2000) exclusivity constitutes a regime of reciprocal benefits for public servants and the Administration, through which the Administration decides, for reasons of public interest, to exclusively contract the services of one or several of its professionals and attempts to agree with them on the payment of an economic remuneration for the benefits they will cease to receive by being unable to practice their profession privately. Hence, it is clear that exclusivity has a consensual or conventional nature, because it arises from an agreement between parties. This implies, for the time being, that both the obligation of the servant not to practice their profession outside the institution for which they work, and that of the Administration to pay the economic remuneration, arise from the agreement between both parties. Therefore, the servant is free to choose whether or not to avail themselves of this benefit and provide their services exclusively to the Administration, just as the latter, in exercise of its discretionary authority, is free to choose whether or not to agree with the servant on the granting of that salary supplement. From the foregoing it also follows that exclusivity is a matter negotiable for both parties, since in exercise of its discretionary authority the Administration has a greater margin of decision in this case, just as the servant has the possibility of assessing whether the remuneration compensates for the benefit produced by the private practice of their profession and deciding whether or not to accept its recognition. As a consequence of the conventional or contractual nature of exclusivity, its condition as an element not inherent or consubstantial to the public employment relationship also arises, a situation that reinforces the idea that under these conditions the Administration is not legally obligated to contract or agree on exclusivity with all professional servants. It will simply be a decision it will make within the framework of the existence or not of a true public need to have all or part of the professional staff dedicated exclusively and permanently to the state function. It is understood that since it is not an essential obligation of the public employment relationship, if an agreement between the parties is not reached regarding the recognition of exclusivity, said relationship is not affected at all.

IV.- In the instant case, the plaintiff exclusively accuses an injury to the right to equality because the recognition of exclusivity has been denied to her despite being in equal conditions with other fellow servants who receive said benefit. From the reasons set forth in the preceding recital (considerando), it is clearly deduced that in the case of exclusivity, given its condition as a non-substantial element of the public employment relationship and, consequently, a matter negotiable for the contractual parties (the Administration and the servant), one cannot be facing a problem involving the right to equality, above all because the Administration in this case has the possibility, in exercise of its discretionary authority, of agreeing or not with professional servants on the recognition of that salary benefit. Hence, the Administration is not legally obligated, at all times, places, and circumstances, to agree on the payment of exclusivity with all or some professionals of a given institution, because that economic compensation does not form part of what could be called the essential core of the public employment relationship (a set of essential obligations, in principle, not negotiable). Under these conditions, one cannot allege an infringement of the right to equality, because the Administration could, in exercise of its discretionary authority, deny the recognition of exclusivity to some servants and grant it to others for reasons of public interest, institutional convenience, and opportunity. On the other hand, if what the plaintiff intends with this amparo is for the Chamber to review the conditions under which the recognition of exclusivity was denied to her, she must understand that since this is a matter of ordinary legality, this Court does not issue any pronouncement in this regard as it is not within its competence. The foregoing, of course, without prejudice to the possibilities the appellant has to resort to the corresponding administrative and judicial channels of challenge in defense of her rights and interests. In light of the reasons set forth, it is necessary to declare the appeal without merit.” (The highlighting does not correspond to the original).

In the Integrated (Legal) Report **No. AL-DEST-IJU-110-2018** of the Department of Studies, References and Technical Services, dated March 21, 2018, regarding the bill processed in file No. 20.580, concerning the LFFP bill, the following analysis was conducted in relation to exclusive dedication (dedicación exclusiva) contracts:

“For its part, exclusive dedication (dedicación exclusiva) has a contractual basis, through a contract signed between the public official and the Administration, in which the former agrees to dedicate their professional services exclusively to the institution, and the latter grants them compensation for that exclusivity.

Regarding exclusive dedication (dedicación exclusiva), the Office of the Attorney General (Procuraduría General de la República), in Opinion C-294-2014, stated:

‘For its part, the exclusive dedication (dedicación exclusiva) regime is a regime of a contractual nature, which arises from the agreement of wills between the administration and the official, for the purpose of achieving greater efficiency in public service. “Such an institution (referring to exclusive dedication (dedicación exclusiva)), is permissible in the Public Administration through a contract signed between it and the official, who by virtue of the profession they hold, their exclusivity is required in the position they occupy, and consequently it is necessary that they do not practice the profession or professions or trade, in any other public or private institution. The foregoing, in exchange for receiving a constant salary supplement. With this, it is also intended to incentivize the servant (who does not receive any emolument similar to exclusive dedication (dedicación exclusiva), such as the prohibition on practicing the profession established by Law No. 5867 cited above) so that they not only perform their functions more efficiently but also guarantee their permanence in the provision of their services. In that sense, the Constitutional Chamber has repeatedly pronounced itself. By way of example, in Resolution No. 2312-95 of 10:15 a.m. on May 9, 1995, it said: ‘...through the exclusive dedication (dedicación exclusiva) regime, the Administration intends, for reasons of public interest, to have personnel dedicated exclusively and permanently to the state function, making them a suitable and more efficient workforce, to contract with the professional-level official their exclusive services, in exchange for a salary supplement. Thus, the system allows the servant to calculate whether the benefit of the private practice of their profession is greater or lesser than the salary compensation that the State gives them in exchange for the exclusive provision of their services. Consequently, the servant evaluates the situation and decides voluntarily to arrange with the Administration (if it in turn agrees to it) the payment of the salary supplement or to continue freely practicing their profession (…)’.’ The Office of the Attorney General established in the aforementioned opinion the characteristics of the exclusive dedication (dedicación exclusiva) contract, pointing out that it is: public, synallagmatic, and commutative. On this matter, it comments as follows:

‘It is concluded then that the contract under analysis presents three fundamental characteristics: // It is public. Inasmuch as the employer subject that authorizes and signs the bond is precisely the Administration, having as counterpart an official of the same nature, the only one possible to sign a contract that grants such benefit. It becomes synallagmatic, since it imposes obligations on both parties, in this case, on the professional not to practice their career on behalf of third parties and on the Administration to remunerate them with a salary supplement. Furthermore, the obligation on the part of one correlatively becomes a right for the other. That is to say that the Employer has the right to demand that the official not serve as a professional on behalf of others, and the latter has the right to require the former to pay the agreed amount. It is commutative, because the benefit in favor of each stipulator in exchange for what they give consists of a certain advantage. For the servant, a salary-type asset increase, and for the State, the exclusivity of the official. “(Opinion C-206-2009 of July 23rd, 2009)’ Likewise, an important aspect that the Office of the Attorney General pointed out in its Opinion No. C-294-2014 -cited above- is that currently exclusive dedication (dedicación exclusiva) does not only apply to liberal professionals, but also applies to any professional. The foregoing, since Decree 23669 of October 18, 1994, Rules for the Application of Exclusive Dedication (Dedicación Exclusiva) by Public Business Institutions covered by the scope of the Budgetary Authority, does not establish that the contractual object must be solely the practice of liberal professions, but refers in generic terms to the practice of the profession.

For its part, the General Directorate of Civil Service (Dirección General de Servicio Civil), according to resolution DG-254-2009 of one o’clock in the afternoon of August twelfth, two thousand nine, regulates exclusive dedication (dedicación exclusiva) for the purposes of officials subject to the Civil Service, as follows:

**“Article 1.-** “Exclusive Dedication” is understood as the professional practice of the official solely for the public body that contracts their services, which demands that the same hold a university degree with the corresponding academic degree and that it be duly accredited”.

**“Article 2.-** Exclusive Dedication under the Civil Service Regime, due to its contractual nature, requires that it be agreed upon for a determined period and obliges the servant to practice professionally only on behalf of the public body with which they work and where it assigns them. The servant may not practice privately, in a paid or ad honorem manner, the profession they hold and which constitutes a requirement to perform the position they occupy, nor any other activity related to it, with the exceptions that will be indicated. The Exclusive Dedication regime allows an economic remuneration in favor of the servant, agreed upon and in agreement with the Administration, for which the latter must ensure that it has the budgetary availability that supports it, for the period expressly provided for within the contract or respective extension”.

***(…***) In exclusive dedication (dedicación exclusiva), there is no prohibition on liberal practice, but rather what exists is an agreement for exclusivity in the practice of the profession with respect to a body or entity.

Likewise, it is recommended to elaborate the definition of “exclusive dedication” according to its nature, object, and characteristics, for which it must be considered that it does not necessarily imply the legal prohibition of practicing the profession, but rather it is about a decision to dedicate oneself exclusively to their position, a decision that proceeds from an agreement between parties, that is, from the employer and worker and not from the law, where the worker decides to request payment of that salary compensation for the exclusivity and the employer decides, within its discretion, if the occupied position requires that exclusive dedication. This definition must include some other aspects, such as the term of the exclusive dedication (dedicación exclusiva) contract, whether its payment will proceed only for liberal professions or for all professions, as well as the form of termination since it is waivable and does not constitute an acquired right.

(…)” In the LSAP we can find the definition of what is understood by exclusive dedication, in the following terms:

“art. 27. 1. Exclusive dedication: regime of a contractual nature that arises on the initiative of the Administration when the need is identified for whoever holds a public office to perform in that position exclusively, which implies that they do not practice their liberal profession or professions related to said position in any other public or private institution, for a defined period of time. It is optional in nature and may only be granted to public sector officials who sign the respective contract. Its economic compensation is granted depending on the academic degree and the characteristics of the position”.

In turn, the regulation defines that it is a contractual salary supplement that arises on the initiative of the Administration when the need is identified for whoever holds a public office to perform in that position exclusively, which implies that they do not practice their liberal profession or professions related to said position in any other public or private institution, for a defined period of time. It is optional in nature and may only be granted to public sector officials who sign the respective contract. Its economic compensation is granted depending on the academic degree and the characteristics of the position (art. 1° subsection d)).

On the other hand, it is appropriate to refer to the general postulates that must characterize the public servant of the entire Public Administration, centralized or decentralized. In this regard, it must be kept in mind that the employment relationship of public employment is subject to certain specificities and principles, such as those of merit and capacity in access, and also to certain rules of public law, such as the incompatibilities regime, which guarantee objectivity and impartiality in the provision of public service. In that sense, it must not be forgotten that the constitutional mandate is that the public servant be appointed based on proven suitability in order to always aspire to efficiency in the Public Administration (arts. 191 and 192 of the Political Constitution). Furthermore, art. 11 of our Constitution establishes the following:

“Art. 11.- Public officials are mere depositaries of authority. They are obliged to fulfill the duties that the law imposes on them and cannot arrogate powers not granted therein. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand penal responsibility for their acts is public. The Public Administration in a broad sense shall be subject to a procedure for evaluating results and accountability, with the consequent personal responsibility for officials in the fulfillment of their duties. The law shall indicate the means so that this control of results and accountability operates as a system covering all public institutions.

(Thus amended by the sole article of law No. 8003 of June 8, 2000)”. (The highlighting is not from the original).

Which is reiterated in art. 194 of the Constitution regarding the constitutional oath that public officials must take.

Additionally, the United Nations Convention against Corruption, law No. 8557 of November 29, 2006, part of the international concern about “the seriousness of the problems and threats posed by corruption to the stability and security of societies by undermining institutions and the values of democracy, ethics, and justice and by compromising sustainable development and the rule of law” and calls on States to take preventive measures in order to ensure the proper management of the public interest. Therefore, art. 5 states the following:

“Each State Party, in accordance with the fundamental principles of its legal system, shall formulate and apply or maintain in force coordinated and efficient policies against corruption that promote the participation of society and reflect the principles of the rule of law, the proper management of public affairs and public property, integrity, transparency, and the obligation to render accounts”. (The highlighting is not from the original).

Furthermore, said Convention, in art. 7 paragraph 4°, calls on each State Party, in accordance with the fundamental principles of its domestic law, to endeavor to adopt systems aimed at promoting transparency and preventing conflicts of interest, or to maintain and strengthen such systems. The Inter-American Convention against Corruption, law No. 7670 of April 17, 1997, in its article 3, for its part, establishes the following:

“Preventive Measures For the purposes set forth in Article II of this Convention, the States Parties agree to consider the applicability of measures, within their own institutional systems, designed to create, maintain and strengthen:

1.- Standards of conduct for the correct, honorable, and adequate fulfillment of public functions. These standards shall be oriented to preventing conflicts of interest and ensuring the preservation and proper use of the resources assigned to public officials in the performance of their functions”. (The highlighting is not from the original).

To which corresponds adding what is expressly established in arts. 113 and 114 of the LGAP, which expressly provide the following:

“Art. 113.- 1. The public servant shall perform their functions in a way that primarily satisfies the public interest, which shall be considered as the expression of the coinciding individual interests of the administered parties. 2. The public interest shall prevail over the interest of the Public Administration when they may be in conflict. 3.

In assessing the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, and mere convenience may under no circumstances be placed above them.

Art. 114.- 1. The public servant shall be a servant of the administered, in general, and in particular of each individual or administered who interacts with him by virtue of the function he performs; each administered must be considered in the individual case as a representative of the community upon which the official depends and for whose interests he must watch.

2. Without prejudice to what other laws establish for the servant, any act, deed, or omission that through his fault or negligence causes unjustified or arbitrary hindrances or obstacles to the administered shall be considered, in particular, irregular performance of his function.” (Emphasis is not from the original).

On the other hand, the Law against Corruption and Illicit Enrichment in Public Office, Law No. 8422 of October 6, 2004, establishes the duty of probity and reiterates that the public servant is obligated to orient his work toward satisfying the general interest:

“Art. 3.- Duty of Probity. The public official shall be obligated to orient his management toward the satisfaction of the public interest. This duty shall manifest itself, fundamentally, by identifying and attending to priority collective needs, in a planned, regular, efficient, continuous manner and under conditions of equality for the inhabitants of the Republic; likewise, by demonstrating rectitude and good faith in the exercise of the powers conferred upon him by law; ensuring that the decisions he adopts in fulfillment of his duties conform to impartiality and the specific objectives of the institution in which he serves and, finally, by administering public resources in accordance with the principles of legality, effectiveness, economy, and efficiency, rendering accounts satisfactorily.” (Emphasis is not from the original).

Finally, the General Law of Internal Control, Law No. 8292 of September 4, 2002, establishes “the minimum criteria that the Contraloría General de la República and the entities or bodies subject to its oversight shall observe in the establishment, operation, maintenance, improvement, and evaluation of their internal control systems.” Among these, “maintaining and demonstrating integrity and ethical values in the exercise of their duties and obligations” (art. 13 subsection a)).

Consequently, being a public servant implies a series of responsibilities and commitments to the office and the public interest. Thus, the challenged rule – art. 28 of the LSAP – is not unconstitutional, since the prohibition against participating in activities that could compromise impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest is practically intrinsic to the public office. The rule is consistent with the aforementioned postulates in the sense that although it is optional for the Administration to enter into exclusive dedication (dedicación exclusiva) contracts because it is an agreement for exclusivity in the practice of the profession with respect to a body or entity, this does not detract from the principle and duty of probity in public office, nor from the constitutional bases of the duty of objectivity and impartiality of public officials. By the very nature of public office, the servant cannot place himself in a situation where there is a conflict or collision between public interests and his private interests. In this regard, this Chamber – when examining in general the incompatibility regime of public servants – has stated the following:

“Undoubtedly, this matter contains a deep content of the democratic values that inform the Costa Rican State – Article 1 of the Political Constitution – insofar as they impose the need for impartiality in the functioning of the State, as derived from the principle of legality, objectivity, and respect for the fundamental rights of citizens (…)

[I]n accordance with Article 192 of the Political Constitution, the proven suitability required for the appointment of public officials leads to the prohibition of undue favoritism that harms or puts at risk the correct exercise of public office.” (Judgment No. 2013-011454).

Furthermore, since Judgment No. 1995-3932, it has been stated that:

“It must be pointed out that Article 11 of the Political Constitution establishes the principle of legality, and also lays the constitutional bases for the duty of objectivity and impartiality of public officials, by indicating that they are subject to the Constitution and the laws; herein lies the foundation of incompatibilities, the public official cannot be in a situation where there is a collision between public interest and private interest.” In said judgment, a presumed injury to the principle of equality was even examined, which was argued to have been damaged because, in accordance with art. 5 of the Family Code, some servants of the Patronato Nacional de la Infancia are prohibited, under penalty of losing their respective positions, from sponsoring, directly or indirectly, in the exercise of their profession, before judicial or administrative instances, in their respective jurisdictions, family matters in which there are interests of minors. On that occasion, it was questioned that such servants have said obligation, despite not necessarily having an exclusive dedication contract. In this regard, this Chamber resolved as follows:

“In the case under review, the plaintiff alleges the violation of the right to equality and the principle of human dignity, arguing that this occurs when the PANI demands the same professional and labor obligations and responsibilities, both from officials covered by the exclusive dedication (dedicación exclusiva) regime – who receive payment of that economic compensation – and from officials not covered by said regime. The Chamber considers that there is no such discrimination here, by virtue of the fact that the employment contract entails a series of duties and responsibilities, which, regardless of whether or not the official has accepted the exclusive dedication regime, the servants of said institution must fulfill, as they are duties intrinsic to the position. On the other hand, it is neither logical nor reasonable to think that human dignity is undermined when a servant is required to fulfill the duties of the position he voluntarily performs, as long as the working conditions respect the worker's dignity. Human dignity is the due respect owed to every human being, by their very condition as such; which prevents, due to diverse circumstances, an impairment in the exercise of their fundamental rights. A contrario sensu, if a fundamental right is not threatened or violated, therefore, human dignity is not undermined.” (Emphasis does not correspond to the original).

Consequently, it is in no way apparent that the challenged rule (art. 28, paragraph 4) is injurious to the principle of legal certainty. It is a provision of a general nature that gathers and summarizes the provisions concerning the public office enunciated herein. In this Tribunal's judgment, it is impossible to list in a law all the possible conducts that could justly compromise the impartiality of the public servant and generate a conflict of interest that tends to favor a private one over the public interest. But the rule does gather general principles in the sense that, regardless of the signing of a contract, all public servants are bound by the principle of legality, which imposes respecting the duties of objectivity and impartiality and, in contrast, avoiding activities or conducts that compromise impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest. Consequently, in the opinion of this Chamber, there is no injury to the principle of legal certainty. In any case, it will be in specific and punctual cases where the adequate and reasonable exercise of disciplinary action for eventually damaging these principles pertaining to the public office can be assessed in a particularized manner.

Magistrate Cruz Castro records a note regarding the exclusive dedication contract (art. 28 of the Public Administration Salary Law).

XXI.- ON THE EXTENSION OF EXCLUSIVE DEDICATION CONTRACTS Challenged Rules The plaintiff challenges art. 30 of the LSAP, added by the LFFP, which reads as follows:

“Art. 30- Extension of the contract.

Sixty calendar days before its expiration, the official must request the extension from the immediate superior so that the Administration reviews the request, in order to determine the institutional need for the extension, by means of a duly reasoned resolution established in Article 29 above, an extension that may not be less than one year, nor more than five.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).” As well as art. 7 of the regulation of Title III of the LFFP, Law No. 9635 regarding Public Employment, No. 41564-MIDEPLAN-H, which states:

“Art. 7.- Extension of exclusive dedication contracts. No payment whatsoever shall be appropriate for the concept of exclusive dedication (dedicación exclusiva) in those cases where the contracts entered into, whether or not prior to the entry into force of Law No. 9635, are not extended by the Administration.” Grievances of the Plaintiff The plaintiff states that the provisions under analysis injure the principles of legal certainty, reasonableness, the protective principle and non-regressivity of labor rights, as well as Article 34 of the Constitution. Both rules contain vices of unconstitutionality insofar as they represent a regression of rights and guarantees for the most vulnerable party in the labor relationship, which is the worker. The fact that through these normative provisions a situation of legal uncertainty is generated for officials whose contracts have not been extended, including those contracts that were entered into before the entry into force of Law 9635, and by prohibiting tacit extension, creates a situation of disadvantage and uncertainty, violating the protective principle. He alleges a possible injury to the principle of non-retroactivity – by virtue of what is provided in the regulation – because contracts entered into prior to the law are disregarded. He refers, finally, to an injury to the principle of autonomy so that the parties may agree on their salary conditions.

Report of the PGR As previously stated, the PGR suggests dismissing the grievances related to the issue of payment for exclusive dedication contracts because the alleged vices lack constitutional relevance, being a matter of legal regulation.

Resolution of the Constitutional Chamber In the judgment of this Chamber, the challenged rules are not unconstitutional. It has already been stipulated that the regulation of this type of contracts is a matter of law, so the aspects related to the renewal procedure or the term of the contracts are not a matter of constitutional relevance, but rather fall within the aspects of opportunity and convenience that the legislator can define. Perhaps the plaintiff could be right in that it is a burden for the worker to have to manage the renewal of his contract by himself, but this falls within the margin of discretion that the legislator has in regulating this type of contract, and it is not discerned that such a requirement or the condition that the Administration substantiate the need to extend the contract – which, moreover, must be subject to a term – is contrary to the fundamental rights of public servants. Moreover, no injury to Article 34 of the Political Constitution is discerned, since, dealing with contractual benefits, these should be linked to an effective period, and from the content of the rules it is in no way apparent that contracts that were in force would be disregarded. What the rules provide is the obligation to process the extension of the contract and that, before an eventual decision not to extend it by the will of any of the parties (employer or worker), there is no obligation to make any payment, which is reasonable considering the very characteristics of the figure – examined supra –, that is, a consideration in exchange for a contractual commitment that, dealing with public funds, must be reasonably substantiated – a contractual nature regime that arises on the Administration’s initiative when the need is identified for whoever holds a public position to perform in that post on an exclusive basis –. To that extent, it is reasonable that the contracts must be subject to a term and that, in each case, the extension and the duration period of the contract be assessed considering the qualities of the servant, the position he holds, and the institutional needs; whereas, the opposite, tacit extensions without adequate assessment, could indeed imply an improper lack of control of the public office, the principle of legality, and the adequate management of public funds. It should be remembered that this is a contractual matter where the servant and the employer decide, on one hand, to restrict their professional activities and dedicate themselves completely to public service and, on the other hand, to compensate for that restriction. If there is no contract, the servant, while it is true he must submit to general rules of probity and prevalence of the public interest over private interest, could well perform professional activities during hours that do not imply a schedule overlap. All of this must be valued and weighed by the Administration and by the public servant himself.

The rest of the plaintiff's arguments lack adequate substantiation because he does not explain in what way the rules in question cause uncertainty, or in what way they prohibit agreeing on labor relations. Such reproaches, lacking adequate substantiation, must be dismissed.

XXII.- REGARDING THE PUBLIC SERVANTS WHO MAY BE GRANTED EXCLUSIVE DEDICATION OR PROHIBITION **Challenged Provisions** The appellant claims to challenge Article 31, subsection 1) of the LSAP, as added by the LFFP, which regulates the requirements for public servants seeking to enter into exclusive dedication (dedicación exclusiva) or prohibition (prohibición) contracts. As relevant, the challenged provision regulates the following:

*“Art. 31- Requirements for officials. Officials who sign an exclusive dedication contract and those indicated in the law as possible beneficiaries of the additional payment for prohibition must meet the following requirements:* *1. Be appointed or designated by a formal act of appointment as a permanent employee, interim, substitute, or a position of trust”.* **Grievances of the Claimant** It is questioned that the provision does not include, among the positions that could be subject to the payment of the bonus for exclusive dedication and prohibition, all possible modalities of contracting within the Public Administration. The provision, insofar as it establishes a *numerus clausus* of persons who may be subject to the payment of exclusive dedication and prohibition within the Public Administration, generates clear inequality and a situation of legal uncertainty, in relation to other officials whose categories are not contemplated.

**Report of the PGR** As has been pointed out, the PGR suggests dismissing the grievances related to the issue of payment for exclusive dedication contracts because the alleged defects lack constitutional relevance, being a matter for legal regulation.

**Report of the Ministry of Finance** In relation to Article 31, the Minister says she does not understand the criticisms of the claimant, given that said article merely enumerates the requirements or conditions for opting for the salary benefit in question:

*“With respect to Article 31, in his assertions the claimant states that this provision violates rights, given that it does not include all modalities of contracting, causing, in his opinion, inequality and uncertainty for those not in those categories, a criterion with which we disagree, given that this provision contains the requirements that officials must meet to sign the Exclusive Dedication contract or to be possible beneficiaries of the prohibition. From reading the requirements set forth in Article 31, the claimant's considerations are not understood, since, for example, subsection 1) refers to those appointed as permanent employees, interim, substitutes, or positions of trust; thus, it is unknown which modality of the employment relationship would be excluded. On the other hand, in order to practice privately, one must meet the academic requirements inherent to the profession and, if a Professional Association exists, be incorporated into it; therefore, it is not considered that the enunciation of these requirements conflicts with Article 33 of the Constitution”.* **Resolution of the Constitutional Chamber** In the Chamber's view, the grievance must be rejected because, as has already been established, the requirements and conditions for signing exclusive dedication or prohibition contracts are matters of ordinary legality and not of constitutionality. To this effect, the LGAP precisely defines in its Articles 111, 112, and 113 who the public servants are who provide their services on behalf of the Public Administration, which coincides with the investiture referred to in the challenged provision: *“be appointed or designated by a formal act of appointment as a permanent employee, interim, substitute, or a position of trust”*.

The claimant questions that the challenged provision omits other types of special contracts that the Administration may enter into, such as—according to his claim—contracts for special services or occasional services. From the foregoing, it must then be inferred that these are precisely special contracts that the Public Administration can validly arrange for special tasks, and in whose contract the specific conditions of the work or task entrusted and the corresponding remuneration must be agreed upon, it being in no way illegitimate that these services—as they have a different contractual modality—are excluded from the fixed salary remuneration that the LSAP precisely establishes for public servants who provide services to the Administration or on behalf of and for it as part of its organization by virtue of a valid and effective act of investiture.

On the other hand, it is worth insisting that, when a violation of the principle of equality and alleged legal uncertainty among public servants is claimed, as occurs in this case, the claimant has the duty to provide a parameter of comparison, along with the corresponding analysis. Hence, whoever invokes that type of breach is obliged to provide elements that allow for a full comparison between the subjects treated differently, making it possible to verify whether the alleged inequality occurs or not. In the *sub examine*, the claimant of the consolidated action did not provide, nor did he develop, a parameter of comparison that would allow this Court to carry out the corresponding analysis; he only questioned a differentiated treatment with respect to other officials or other types or modalities of contracting, without referring to which other one specifically and how the articles of the challenged regulations cause a supposed harm. It is true that *supra* the Chamber explained that this matter is within the legislator's discretion but that when regulating it, they must do so in reasonable terms. However, in this section, the claimant does not enumerate or reasonably justify which other public servants are being harmed or threatened by this provision. Consequently, the allegations must be dismissed.

XXIII.- REGARDING THE OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION AND PROHIBITION CONTRACT **Challenged Provisions** Articles 32 and 33 of the LSAP, as added by the LFFP, are challenged, which regulate the following:

*“Art. 32- Obligations of officials. The official subject to an exclusive dedication contract who holds more than one profession may not practice, privately or ad honorem, the profession or professions that are related to the position they hold and that constitute a requirement to hold the position they occupy, nor any other activity related to the contractual commitment of exclusivity in the function.* *The signing of the contract will be based on the profession required for the position. **Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become entitled to the compensation for this concept.*** *(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)* **Art. 33- Extension of the limitation.** *If the official holds more than one profession and has signed an exclusive dedication contract with the Administration, they may practice the profession or professions that have not been covered by the signed contract, provided that those related to the position the servant holds do not contravene the institution's schedule, nor the interests of the State. **For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice in a private manner, whether remunerated or ad honorem, the profession or professions they hold.*** *(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)”*.

**Grievances of the Claimant** The claimant alleges a presumed harm to the principles of legal certainty, equality, reasonableness, proportionality, the prohibition of arbitrariness, and Article 33 of the Constitution. Establishing limitations such as those indicated in Articles 32 and 33 creates a clear situation of inequality between officials who have an exclusive dedication or prohibition contract and, therefore, are paid the corresponding item, compared to officials who do not have this salary incentive and, even so, the State prohibits them from practicing their profession, according to the cited provisions, which is patently unconstitutional.

**Report of the PGR** The PGR warned that the principle of impartiality, together with that of independence in public management, constitutes the pillar upon which all legislation on incompatibilities rests. Indeed, to obviate or avoid conflicts of interest and safeguard the public interest, the legislator has developed a set of ethical rules that must be observed by all officials in the exercise of public function. Furthermore, it insists that the public function is governed by a set of values, principles, and norms of high ethical and moral content, for the purpose of guaranteeing impartiality and objectivity (see, among others, rulings number 1749-2001 and 5549-99 of the Constitutional Court, which, although referring to incompatibilities, have a general scope), independence, and even avoiding nepotism in the exercise of public function, as a typical manifestation of conflict of interest. And from this perspective, the aim is to *“provide public servants with independence, in order to place them in a position of impartiality to avoid conflict of interest and unfair competition”* (judgment No. 1995-3932). In this matter, evidently, the public interest prevails over the private interest, so the claimant's grievances are untenable.

**Report of the Ministry of Finance** Regarding Articles 32 and 33, the grievances are rejected by appealing to the very definition of the bonuses in question:

*“The limitations contained in the provisions cited above have their reason for being in preventing officials from compromising their impartiality and even practicing their other professions during the time they are in the work day. Recall, in this regard, the concept of overlapping schedules, which has been maintained over time and to which it is considered the previously cited provisions conform”.* In relation to an alleged harm to the principle of legal certainty by subjecting public servants to principles of impartiality, it rejects the claim. On that specific point, the following is reported:

*“This Office does not understand the claimant's assertion that, by ambiguously establishing the express prohibition for officials who, without having an exclusive dedication contract nor receiving economic compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over public interest, the principle of legal certainty is violated. In this regard, said provision is not ambiguous and, on the contrary, it conforms to other bodies of the legal system that refer to that impartiality, which itself is based on Article 11 of the Political Constitution”.* The Minister reiterates the will for uniformity in the system and the safeguarding of acquired rights:

*“Finally, it is necessary to indicate that, in order to safeguard acquired rights, and because Transitory Provision XXV of the Law for Strengthening Public Finances so provided, the total salary of public servants who were active as of December 4, 2018, the date on which that law came into force, cannot be reduced…” The arguments developed by the Office of the Attorney General of the Republic in its repeatedly cited Legal Opinion, unlike what was expressed by the claimant, become clearly substantiated, demonstrating that the regulations set forth in Law No. 9635 and its reform, far from entailing arbitrary, discriminatory, disproportionate, and irrational actions, are directed at establishing a uniform regulatory framework, through legal means, for all employment relationships in the public sector”.* **Resolution of the Constitutional Chamber** In the first place, the questioning is general and covers both public servants who have an exclusive dedication contract and public servants covered by the prohibition. However, the challenged provisions directly allude to the fact that public servants who are possible beneficiaries of economic compensation for prohibition may not privately practice the profession they hold. The questioned excerpts state *“Officials subject by law to the prohibition regime may not practice their profession or professions, **regardless of whether or not they meet the requirements to become entitled to the compensation for this concept**”* (Art. 32 para. 2 *in fine*) and *“**For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice in a private manner, whether remunerated or ad honorem, the profession or professions they hold**”* (Art. 33 *in fine*). Therefore, it is appropriate to examine the criticisms only from the perspective of the “prohibition”.

To examine these claims, it is necessary, again, to refer to conceptual aspects and the reason for and constitutionality of the prohibition regime.

In accordance with the LSAP, the prohibition is defined in the following terms:

"*restriction legally imposed on those who hold certain public positions, with the purpose of ensuring the absolute dedication of such servants to the public duties and responsibilities entrusted to them. Any public official who receives payment for the prohibition shall be unable to practice their profession or professions in any other position, in the public or private sector, whether or not related to their position, whether remunerated by wage, salary, per diems (dietas), fees (honorarios), or any other form, in money or in kind, or even ad honorem.*" "*Officials under the prohibition regime shall obtain economic compensation for the limitation on the liberal practice of their profession or professions in the terms set forth in this law*". (The highlighting does not correspond to the original).

A definition that is replicated in the regulation, when it provides the following:

"***Prohibition**: restriction legally imposed on those who hold certain public positions, with the purpose of ensuring the absolute dedication of such servants to the public duties and responsibilities entrusted to them. Any public official who receives payment for the prohibition shall be unable to practice their profession or professions in any other position, in the public or private sector, whether or not related to their position, whether remunerated by wage, salary, per diems, fees or any other form, in money or in kind, or even ad honorem*".

This Chamber has examined the constitutionality and the origins of the prohibition figure. In judgment no. 3369-1996, the following analysis was conducted:

"*III).- Article one of Law number 5867, questioned here, establishes the payment of economic compensation for the personnel of the Tax Administration who are subject, by reason of their positions, to the prohibition contained in Article 113 -118 according to the current numbering- of the Code of Tax Norms and Procedures, and extends said compensation to a series of officials, among them, the "technicians" and "professional technicians" of the National Budget Office, the National Treasury, the Mechanized Technical Office of the Ministry of Finance, the General Directorate of Industries of the Ministry of Industry, Energy and Mines, and those of the General Forestry Directorate of the Ministry of Agriculture.- The prohibition referred to in Article 118 of the aforementioned legal body is set forth as follows: (...)*" "*The foregoing means that the officials or employees subject to that prohibition are absolutely disabled not only from holding other public positions, but also from performing, in the private sector, activities related to the positions they hold in the State, except, of course, in the exceptions that the norm itself establishes, based either on the nature of the activity -teaching- or when it involves the defense of personal interests or those of their close relatives.- Said limitation is imposed, as recognized by all those involved in this process, when the liberal practice of the profession or activity is incompatible with the public position held, that is, when it could generate serious harm to the interests of the Public Administration, so that the impediment carries with it an additional payment for the official as compensation, in order to avoid not only the flight of personnel, but also an unfair exercise of the function.- It is clear, from what has been said, that only those activities whose private practice is incompatible with the function the servant performs are subject to the prohibition under analysis and therefore, are subject to the compensation established by article one of Law number 5867, whose constitutional validity is in question.- The non-existence of said incompatibility, on the contrary, empowers the public servant to practice their profession or trade privately, subject to the responsibilities of the case if they thereby incur any labor fault*; and therefore, the Administration is also not obliged to grant any economic compensation, as sought in the case file. (...)" "*It must be noted, in the first place, that for this Chamber the payment of the aforementioned compensation does not constitute, under any circumstance, an unwarranted benefit or a privilege for a specific group of servants; rather, it is the just recognition for those who, by reason of the function they perform and for the protection of the highest public interest, have no possibility of practicing their profession or trade beyond the administrative unit in which they work, so the existence of an alleged discrimination must be dismissed from now on, based on the allegation that said payment is a form of privileged treatment for a few public servants.* ***It is a limitation on the private practice of the profession or trade, for whose establishment the State arranged to make an economic recognition on the base salary of its employees***. *It would seem that fundamentally, and in order to obtain a percentage increase in salaries, the desire is to force the State to prohibit public servants from performing any private work, despite there being no incompatibility whatsoever with the public function exercised, a situation which would indeed constitute an unwarranted and therefore illegitimate payment, given that if the servant is free to practice their profession or activity outside office hours, there is no logical, legal, much less constitutional reason to argue that the non-payment of the "professional prohibition" in such cases constitutes unreasonable discrimination. In any case, it is clear that these are not identical situations that require equal treatment in the terms intended: firstly, there are, on the one hand, public servants subject to a legal prohibition on the private practice of a specific profession or activity, and on the other, servants not subject to it; furthermore, there is certainly no identity of functions, even though it may involve the same class of position ("technicians" and "professional technicians")*". (The highlighting does not correspond to the original).

Subsequently, in judgment no. 2008-00591, the indemnifying nature of the prohibition was justified by virtue of the impossibility of engaging in the liberal practice of the profession. In this regard, the following was resolved:

"*Thus, as indicated, the petitioner's assertion that it is some kind of perquisite or privilege of the upper hierarchy of the public sector is patently incorrect. Rather,* ***the act that declares a specific public position subject to the incompatibility regime -understood as prohibition in this case- constitutes a typical act of burden and not -as is often believed- a benefit***. *Indeed, we are not in the presence of acts declaratory of rights, but rather of* ***a determination that reduces, deprives, or extinguishes the right or faculty that, otherwise, the public officials in question would have for the liberal practice of their respective professions. In this way, the compensation provided for by Article 15 of Law 8422 is, in reality, strictly of an indemnifying nature***, *precisely because that limitation imposed on the liberal practice of the profession carries the possibility of generating a harm, which is the opportunity cost that it implies for the affected servant not to be able to practice their profession privately*". (The highlighting does not correspond to the original).

More recently, the Chamber reiterated those considerations in the sense that the prohibition "*is a limitation on the private practice of the profession or trade, for whose establishment the State arranged to make an economic recognition on the base salary of its employees*" and ruled on the constitutionality of Art. 15 of the Law against Corruption and Illicit Enrichment in the Public Function, Law No. 8422, in which the following was resolved:

"*In which case, the petitioner's reproach requires clarifying, preliminarily, that the payment of the economic compensation provided for in Article 15 of Law No. 8422 does not constitute, as the petitioner seems to understand it, a mere additional or accessory payment to the salary to guarantee "economic stability" for the public official, but rather* ***constitutes economic compensation as a specific consequence of the imposition of a prohibition on the practice of a liberal profession***. *Likewise, this Tribunal has indicated that this type of prohibitions or incompatibilities, in the sense of preventing or limiting certain public officials from the private practice of their profession or from carrying out private activities related to the position they hold, aims to guarantee the duty of objectivity and impartiality in the exercise of the public function, that is, to prevent the public servant from being in a situation where there is a conflict or collision between public and private interests and, in such a case, they could act for their own benefit in the exercise of their public powers.* ***Moreover, if there is no norm establishing the respective prohibition or incompatibility, then the public official has the freedom to practice their profession or trade privately once their workday has concluded***. *To which it is added that this Chamber has resolved that it cannot be considered that there exists a sort of general obligation of the State to prohibit its public servants from practicing any particular labor or activity, with the subsequent recognition of economic compensation*". (The highlighting does not correspond to the original. Judgment no. 2018-008127).

This conception, that is, that it is an ***indemnifying economic compensation for the restriction on a personal liberty***, has also been recognized in the jurisprudence of the Second Chamber of the Supreme Court of Justice where the following has been reiterated:

"*II.- A distinction must be made between the economic compensations known as prohibition and exclusive dedication (dedicación exclusiva). The first was formulated as a way to* ***compensate the worker for the impossibility dictated by law of practicing their profession outside the position held, which is why it operates automatically and it is neither within the employee's or official's powers to request it, nor does the employer have discretion to pay it. The mere acceptance of the permanent position implies its payment***. *It began to be granted for the first time in the Public Sector through Law No. 5867 of December 15, 1975, which contemplates additional salary benefits or bonuses (sobresueldos) for Tax Administration officials, who are subject, by reason of their employments, to the prohibition contained in Article 113 of the Code of Tax Norms and Procedures*". (The highlighting does not correspond to the original. See judgments numbers 171-1989, 58-1991, 2019-000293 and 2023-000749, among many others).

Finally, it is worth noting that even the PGR in opinion no. 421 of December 7, 2005, also justified that it is a regime that imposes limitations on the exercise of a liberty.

The following considerations arise from said opinion:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">In any event, it cannot be overlooked that</span><span style="font-style:italic"> </span><span style="font-style:italic">the regime of fundamental rights is characterized by the principle of legal reserve in its regulation,</span><span style="font-style:italic"> as well as by the principle</span><span style="font-style:italic"> </span><span style="font-style:italic">"pro</span><span style="font-style:italic"> </span><span style="font-style:italic">libertatis"</span><span style="font-style:italic"> </span><span style="font-style:italic">that informs its interpretation, the latter determining that every legal</span><span style="font-style:italic"> rule must be interpreted in a way that favors liberty. Under that basic premise, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">it must be understood that the prohibition</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> on the private practice of liberal professions</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">constitutes a regime</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> that imposes limitations on the exercise of a liberty,</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">hence</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> its interpretation</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> must necessarily be restrictive</span><span style="font-style:italic">,</span><span style="font-style:italic"> and consequently, its application cannot be intended to be extended to situations not contemplated in the rule.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:spaces"> </span><span style="font-style:italic">It is for this reason that, referring</span><span style="font-style:italic"> specifically to the prohibition</span><span style="font-style:italic"> on the private practice of the profession</span><span style="font-style:italic">, we have pointed</span><span style="font-style:italic"> out that:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">‘</span><span style="font-style:italic">we must be clear and unanimous in warning that in no way could</span><span style="font-style:italic"> one attempt to broaden by analogy</span><span style="font-style:italic"> the scope of action</span><span style="font-style:italic"> of burdensome or restrictive provisions that impose the prohibition</span><span style="font-style:italic"> under discussion, because we are undoubtedly faced with</span><span style="font-style:italic"> what the doctrine knows as "odious matter," as it restricts the natural faculties or freedom of individuals (BRENES CÓ</span><span style="font-style:italic">RDOBA, Alberto. "Tratado de las personas", Editorial Costa Rica, San José</span><span style="font-style:italic">, 1974,</span><span style="font-style:italic"> </span><span style="font-style:italic">p.</span><span style="font-style:italic"> </span><span style="font-style:italic">44); an</span><span style="font-style:italic"> area that is reserved to l</span><span style="font-style:italic">aw </span><span style="font-style:italic">–</span><span style="font-style:italic">in the formal and material sense- or a norm superior to i</span><span style="font-style:italic">t.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Admitting the contrary would lead us</span><span style="font-style:italic"> to commit a flagrant arbitrary</span><span style="font-style:italic"> action, which would violate not on</span><span style="font-style:italic">ly administrative legality but the very Law of the Constitution</span><span style="font-style:italic">. And for this reason, the Constitutional Chamber itself has determined that if the Law has not es</span><span style="font-style:italic">tablished a prohibition</span><span style="font-style:italic"> on the private exercise of the profession</span><span style="font-style:italic"> or on carrying out</span><span style="font-style:italic"> private activities related to the position held, or no incompatibility exists, the official is free to decide to exercise such profession</span><span style="font-style:italic"> or to carry out such </span><span style="font-style:italic">ac</span><span style="font-style:italic">tivities (See in this regard, resolutions</span><span style="font-style:italic"> </span><span style="font-style:italic">Nos.</span><span style="font-style:italic"> </span><span style="font-style:italic">2312-95 of 4:15 p.m. on May 9, 1995, and 3369-96 of 10:27 a.m. on July 5, 1996); that is, in the absence of a rule referring to a speci</span><span style="font-style:italic">fic profession</span><span style="font-style:italic">, or in the absence of incompatibility,</span><span style="font-style:italic"> it must be understood that the professional is free to work privately.”</span><span style="font-style:italic"> </span><span style="font-style:italic">(legal opinion</span><span style="font-style:italic"> </span><span style="font-style:italic">No.</span><span style="font-style:italic"> </span><span style="font-style:italic">OJ-200-2003 of October 21, 2003)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Therefore, it would be</span><span style="font-style:italic"> openly improper to attempt to subject to the prohibition</span><span style="font-style:italic"> regime</span><span style="font-style:italic"> the generality of the director-level</span><span style="font-style:italic"> positions that exist in the institution</span><span style="font-style:italic">, when it concerns a regime</span><span style="font-style:italic"> that limits the exercise of a fundamental liberty</span><span style="font-style:italic"> and therefore the limits</span><span style="font-style:italic"> established by the law that regulates it must be strictly observed, as</span><span style="font-style:italic"> has been explained.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Likewise, it is important to draw attention</span><span style="font-style:italic"> to the fact that the compensation</span><span style="font-style:italic"> provided for in article</span><span style="font-style:italic"> 15 of Law</span><span style="font-style:italic"> </span><span style="font-style:italic">No.</span><span style="font-style:italic"> </span><span style="font-style:italic">8422,</span><span style="font-style:italic"> </span><span style="font-style:italic; text-decoration:underline">is strictly compensatory in nature</span><span style="font-style:italic">, precisely because that limitation</span><span style="font-style:italic"> imposed on the private practice of the profession</span><span style="font-style:italic"> entails the possibility of generating harm, which is the opportunity cost of not practicing the profession</span><span style="font-style:italic"> privately”</span><span style="font-style:italic">. </span><span>(The highlighting is not from the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In light of such explanations, in the specific case, it is appropriate to declare the unconstitutionality of the challenged provisions. It must be reiterated that the legislator is</span><span> empowered to regulate the aspects related to the public</span><span> function, but always with</span><span>in the boundaries of the Law of the Constitution</span><span> (values, principles, and norms). In the specific case, it is observed that, on one hand, the figure of the prohibition</span><span> is regulated and contemplated as a restriction</span><span> on a liberty so that certain servants</span><span> </span><span>perform</span><span> their profession</span><span> with an </span><span style="font-style:italic">“</span><span style="font-style:italic">absolute dedication (dedicación absoluta)”</span><span> being intrinsic</span><span> to said restriction</span><span> the </span><span style="font-style:italic">“</span><span style="font-style:italic">economic compensation for the limitation</span><span style="font-style:italic"> on the private practice of their profession</span><span style="font-style:italic"> or professions”</span><span style="font-style:italic"> </span><span>(see the legislative definition</span><span> of the figure of the prohibition</span><span>). But, on the other hand, it is intended to include an identical</span><span> restriction</span><span>, but </span><span style="font-style:italic">“</span><span style="font-style:italic">regardless of whether or not they meet the requirements to become eligible for the compensation</span><span style="font-style:italic">”</span><span>. At the very least, the rule is unintelligible, as its wording</span><span> is unclear. But the claimant</span><span> is correct</span><span> in the sense that it imposes an identical</span><span> </span><a name="_Hlk193376085" class=""><span>restriction</span><span> of being subjected to the prohibition</span><span> regime, establishing limitations on professional practice and, on the other hand, seems to ignore the compensation</span><span> corresponding to such restrictions. </span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The terms of the questioned norms lack reasonableness and proportionality because, it is repeated, they cause a situation</span><span> of inequality between servants with identical</span><span> restrictions, but in some cases, they do</span><span> access the compensation</span><span> and in other cases, they</span><span> do not. Therefore, the appropriate course is to declare the unconstitutionality of the following paragraphs:</span><span style="font-style:italic"> “</span><span style="font-style:italic">Officials subject by law to the prohibition</span><span style="font-style:italic"> regime may not</span><span style="font-style:italic"> exercise their profession</span><span style="font-style:italic"> or professions, </span><span style="font-style:italic; text-decoration:underline">regardless of whether or not they meet the requirements</span><span style="font-style:italic; text-decoration:underline"> to become eligible for</span><span style="font-style:italic; text-decoration:underline"> the compensation</span><span style="font-style:italic; text-decoration:underline"> for this concept</span><span style="font-style:italic">”</span><span> (art. 32 para. 2 </span><span style="font-style:italic">in fine</span><span>) and </span><span style="font-style:italic">“</span><span style="font-style:italic">For officials designated</span><span style="font-style:italic"> in the law </span><span style="font-style:italic; text-decoration:underline">as possible beneficiaries of economic compensation</span><span style="font-style:italic; text-decoration:underline"> for prohibition</span><span style="font-style:italic; text-decoration:underline">, they may not</span><span style="font-style:italic; text-decoration:underline"> exercise privately, in a remunerated or ad honorem capacity, the profession</span><span style="font-style:italic; text-decoration:underline"> or professions they hold</span><span>”</span><span> (art. 33 </span><span style="font-style:italic">in fine</span><span>).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>It is appropriate to conclude this section by explaining that here</span><span> there is no contradiction</span><span> between these considerations and those made </span><span style="font-style:italic">supra,</span><span> in relation</span><span> to the general incompatibilities regime on impartiality, avoidance</span><span> of conflicts of interest, and probity. Such qualities are intrinsic</span><span> to all public servants</span><span>. Here</span><span> what is questioned is not the respect for such principles</span><span>, which must always prevail in public service</span><span>; but the prohibition</span><span> on exercising the profession</span><span> in other areas</span><span> where there are</span><span> no conflicts of interest or schedule overlap</span><span>. If the legislator has made the determination</span><span> to indemnify the restriction</span><span> on a professional freedom, it must be done under equivalent conditions for all public servants</span><span> and not merely impose</span><span> the restriction</span><span> without the consequent remuneration</span><span>, as this implies an unreasonable regulation and one harmful to the rights of the servants who have the restriction</span><span> but not the compensation</span><span>. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Consequently, this aspect of the action</span><span> must be declared with merit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Magistrate Rueda Leal issues a dissenting vote and declares the action with merit in relation</span><span> to the paragraphs: “</span><span style="font-style:italic">Officials subject by law to the prohibition</span><span style="font-style:italic"> regime may not</span><span style="font-style:italic"> exercise their profession</span><span style="font-style:italic"> or professions, regardless of whether or not they meet the requirements to become eligible for the compensation</span><span style="font-style:italic"> for this concept</span><span>”</span><span> (art. 32 paragraph 2</span><span> </span><span style="font-style:italic">in fine</span><span>) and “</span><span style="font-style:italic">For officials designated</span><span style="font-style:italic"> in the law as possible beneficiaries of economic compensation</span><span style="font-style:italic"> for prohibition</span><span style="font-style:italic">, they may not</span><span style="font-style:italic"> exercise privately</span><span style="font-style:italic">, in a remunerated or ad honorem capacity, the profession</span><span style="font-style:italic"> or professions they hold</span><span>”</span><span> (art. 33 </span><span style="font-style:italic">in fine</span><span>), both of the Public Administration Salaries Law, added by article 3</span><span> of Title III of the law on "Strengthening of Public Finances (Fortalecimiento de las finanzas públicas)", No. 9635 of December 3, 2018. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445471" class=""><span>XXIV.- ON THE NEW PERCENTAGES FOR EXCLUSIVE DEDICATION (DEDICACIÓN EXCLUSIVA) AND PROHIBITION (PROHIBICIÓN).</span></a><span> </span></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445472" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged norms</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:8pt"><span>The questioned norms are the following: </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 35- Compensation percentages for exclusive dedication (dedicación exclusiva)</span><span style="font-weight:bold; font-style:italic">. </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The following economic compensations are established on the base salary of the position held by professional officials who sign exclusive dedication contracts with the Administration:</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1. Twenty-five percent (25%) for servants with a licentiate degree level or another higher academic degree.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">2. Ten percent (10%) for professionals with a university bachelor's degree level.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus</span><span style="font-style:italic"> added by </span><span style="font-style:italic">article 3</span><span style="font-style:italic"> of</span><span style="font-style:italic"> </span><span style="font-style:italic">Title III of the Law for the Strengthening of Public Finances, No.</span><span style="font-style:italic"> 9635 of December 3, 2018)</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 36- Prohibition (prohibición) and compensation percentages. </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Public officials on whom the restriction on the private practice of their profession, called prohibition (prohibición), has been imposed by law, and who meet the requirements established in article 31 of this law, shall receive economic</span><span style="font-style:italic"> compensation</span><span style="font-style:italic"> calculated on the base salary of the position they hold, in accordance with the following rules:</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1. Thirty percent (30%) for servants at the licentiate degree level or another higher academic degree.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">2. Fifteen percent (15%) for professionals at the university bachelor's degree level.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus </span><span style="font-style:italic">added by article 3</span><span style="font-style:italic"> of</span><span style="font-style:italic"> </span><span style="font-style:italic">Title III of the Law for the Strengthening of Public Finances, No.</span><span style="font-style:italic"> 9635 of December 3, 2018)</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><span style="text-transform:uppercase; -aw-import:ignore"> </span></h3><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445473" class=""><span style="text-transform:uppercase; background-color:#ffffff">Grievances of the claimant</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The claimant alleges that the norms violate the principles of progressivity of rights, equality, efficiency and effectiveness, reasonableness, proportionality, and constitutional articles 7, 33, 50, 56, 57. It is questioned that the new recognition percentages for salary supplements of exclusive dedication (dedicación exclusiva) and prohibition (prohibición), under less beneficial conditions, harm the principle of progressivity of rights, mentioned previously. The approved regulation worsens labor conditions within the public</span><span> sector</span><span>, justified by the poor fiscal situation of the country, which cannot be permanent. However, the approved reforms do not foresee that the workers' situation will change if the economic situation of the country is reestablished, thereby transforming it into a permanent sanction. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The new compensation rules for public officials harm the principles of progressivity of rights and of efficiency and effectiveness in the Public Administration. This will generate, in the short term, a flight of experienced professionals,</span><span> given the lack of attractive salary conditions to keep them within the system. The reduction applied to the salary supplements for exclusive dedication (dedicación exclusiva) and prohibition (prohibición) is irrational and lacks a technical study to support that impairment of labor</span><span> conditions</span><span>, without any certainty that it is the cause of the country's fiscal problem, when it has been noted that the causes of the fiscal deficit derive from more complex problems such as tax evasion and avoidance. In the near future, there will be of</span><span>ficials performing equal or similar functions, but receiving a totally different income. The set of norms challenged in this section makes it clear that the purpose of the law to “</span><span style="font-style:italic">standardize and unify</span><span>”</span><span> public employment regimes is false, and that the State is</span><span> creating gross and unjustified differences between officials of the same category, promoting the violation of the constitutional principle of equality. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The claimant details that the reduction by more than half of the salary supplements for exclusive dedication (dedicación exclusiva) and prohibition (prohibición) to practically half of the amounts that had been paid is irrational, given that there is no technical study to support that impairment of labor conditions, there cannot be full certainty that by worsening the salary conditions of public officials the country's fiscal problem is resolved. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The reduction of percentages, both in exclusive dedication (dedicación exclusiva) and prohibition (prohibición) contracts, generates a clear inequality of conditions among the officials themselves, both those who were hired by the Administration before the entry into force</span><span> of Law 9635, with respect to new hires. That is, officials who would be performing the same functions under equal conditions, are limited in the exercise of their profession, but with completely different salary conditions. This</span><span>, </span><span>in the opinion of the claimant, harms the principle of equality enshrined in article 33 of the Political Constitution by generating odious discrimination. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>It notes a situation of inequality in the law and in the repeals contained in article 57 subsections g), i), l), m), n), o), and p) and article 58 subsection a), specifically on the issue of the recognition percentages for prohibition (prohibición), wherein a serious inequality is c</span><span>reated by having repealed the norms that regulated the compensation payment for prohibition (prohibición) across the entire public sector, except article</span> 1°</span><span> subsection a) of the Law for compensation payment for prohibition (Law 5867), which is applicable only to officials of the Hacienda Regime and a few others, increasing inequalities in the public sector in a disproportionate and unjustified manner because it is the only sector that maintains the prohibition payment at 65% of salary, compared to all other public servants whose corresponding item is reduced. </span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445474\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Report of the PGR</span></a><br data-mce-bogus=\"1\"></h3><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Regarding the new compensation amounts, the PGR reported the following: </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">In relation to that argument, as we indicated in the report rendered in the unconstitutionality action processed under case file No. 19-6416-0007-CO, belonging to the full-time exclusive dedication regime (régimen de dedicación exclusiva) does not constitute a fundamental right, as the petitioner seems to understand. Full-time exclusive dedication is based on an agreement or contract between the public employer and the public servant, such that, if the latter considers that the economic compensation to be granted for refraining from the private practice of their profession is very low, they are able not to sign the respective contract.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">In any case, the Law for the Strengthening of Public Finances respected the acquired rights and consolidated legal situations of officials who already had a signed and effective full-time exclusive dedication contract. This provision occurred in two ways: ensuring that the total salary of active public servants as of December 4 would not be decreased (Transitional Provision XXV of Law No. 9635); and establishing that those with effective full-time exclusive dedication contracts would maintain the percentages granted by the previous regulations (Transitional Provisions XXVI and XXVIII of Law No. 9635).</span><span style=\"font-style:italic; -aw-import:spaces\">&nbsp; </span><span style=\"font-style:italic\">(…)</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Subsequently, through the cited Decree No. 41564, the Executive Branch issued the “Regulation to Title III of the Law for the Strengthening of Public Finances, Law No. 9635 regarding Public Employment” (Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley N° 9635 referente al Empleo Público). Articles 4 and 5 of that regulation also preserved the acquired rights and consolidated legal situations of officials active on the date Law No. 9635 entered into force (…)</span><span style=\"font-style:italic\"> </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Based on the foregoing, this Office of the Attorney General does not consider that the changes introduced by Law No. 9635 regarding full-time exclusive dedication violate the Constitution, especially if it is taken into account that said changes did not affect officials who had entered the regime before the entry into force of that law.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:spaces\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-weight:bold; font-style:italic; text-decoration:underline\">If the petitioning Union estimates that the percentages of economic compensation for full-time exclusive dedication applicable to officials who entered public service after the effectiveness of Law No. 9635 violate the principle of reasonableness, they must have demonstrated it, for as that Chamber has indicated, it is not enough to allege the unreasonableness of a rule, but it is necessary to demonstrate it</span><span style=\"font-style:italic\">. Compliance with this requirement, according to reiterated rulings of that Chamber, is indispensable for examining the validity of the challenged provision (…)</span><span style=\"font-style:italic\"> </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">In this case, the petitioners do not provide technical evidence or solid arguments that would allow it to be accepted as true that the percentages of economic compensation for full-time exclusive dedication established in Article 35 of the Public Administration Salary Law are unreasonable. </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Furthermore, this Advisory Body does not consider that the new regulation on full-time exclusive dedication makes the salary ruinous for professionals who enter to work in the public sector after December 4, 2018, since it involves, as we have already indicated, an accessory compensation to the salary, which is based on a figure that is contractual and, therefore, renounceable by the worker. That is, if the worker considers that the economic compensation is not sufficient to replace the income they could receive from the private practice of their profession, they are able to decline to sign the full-time exclusive dedication contract and procure, in private practice, the respective economic resources.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">From that perspective, it is not possible to support the claim of the petitioning Union to the effect that the amount of economic compensation for full-time exclusive dedication constitutes a human right, nor that its reduction (for persons hired after the entry into force of Law No. 9635) affects the principle of progressivity, given that persons already assigned to the full-time exclusive dedication regime prior to the entry into force of Law No. 9635 maintain the percentages previously provided, and those who entered after that date have the right to decide whether or not to join the regime, in any case increasing their total salary. If they decide not to join, they could in any case practice their profession privately and earn the additional economic compensation for it, which would complement their total income.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Thus, it is not true that Law No. 9635 produced excessive, disproportionate, and unreasonable reductions in professionals' salaries, because as we already indicated, said law took the precaution of not affecting the total salary of officials active as of December 4, 2019; for whom the percentages for full-time exclusive dedication were maintained provided that on that date they had effective full-time exclusive dedication contracts.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">And in any case, we must highlight that the legal regulation of the public service regime is an express power of the legislator (Art. 191 of the Constitution), in relation to which the Legislative Assembly exercises its legislative power at its discretion, which is moreover inexhaustible (Arts. 105 and 121.1 of the Constitution).</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">The alleged unconstitutionality defects are not receivable.”</span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><span style=\"text-transform:uppercase; -aw-import:ignore\">&nbsp;</span></h3><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445475\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Report of the Ministry of Hacienda</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>The Minister, when referring to the percentages in question, states that they may be reviewed and adjusted, as occurred with the enactment of Law No. 9635, and this does not violate the constitutional framework. She affirms that the variants provided in Title III of the LFFP regarding the percentages for the Full-time Exclusive Dedication, in the view of this Ministry, do not conflict with the provisions contained in the Political Constitution. An assessment also applicable to the variants in the percentages for the economic recognition of the prohibition.</span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445476\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Ruling of the Constitutional Chamber</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>What pertains to these points must be rejected. The petitioner affirms that these provisions were adopted in light of a specific fiscal situation, but result in a kind of “</span><span style=\"font-style:italic\">permanent sanction</span><span>”</span><span>. It is generically alleged that the principles of reasonableness, proportionality, progressivity, efficiency, and effectiveness in the Public Administration are violated, and it refers to supposed hypothetical harms: professionals leaving and the impact on the functioning of the Public Administration. It is invoked that the reduction is unreasonable, without there being certainty that the salary issue is the cause of the fiscal problems, and alleged differences between officials of the same category. This Chamber considers that the petitioner's allegations lack adequate substantiation and demonstration of the grievances stated. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>First, it is not observed that this is a kind of sanction, but rather a legal definition of the amounts that may henceforth be recognized for new public servants. This, in view of the serious fiscal situation of our country. An extensive recital was already provided detailing the reasoning for the legislative proposal, which not only contemplates salary aspects, but it was an urgent element to address. The Chamber previously emphasized that compliance with the principle of financial or budgetary balance is an objective and reasonable justification for regulating salary aspects and that </span><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">in the face of a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of services of constitutional relevance, the decision of the competent authorities to define and apply measures capable of alleviating or solving the problem is not only reasonable, but, even more so, is unavoidable”</span><span> (Advisory Opinion No. 2018-18505).</span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>It is true that the salary aspects of public servants should not be frozen indefinitely or result in insufficient salaries to guarantee conditions of dignity and well-being for public servants (see recital VII). However, the petitioner's allegations are based on mere premises and statements lacking adequate substantiation. In this regard, </span><span>it is necessary to reiterate and refer the petitioner to this Chamber’s ruling </span><a href=\"https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193\" style=\"text-decoration:none\"><span style=\"font-weight:bold; text-decoration:underline; color:#000000\">No. 2024-007057</span></a><span>, in the sense that these generic statements without adequate substantiation and without proof of their claims must be rejected. Given their relevance, it is fitting to reiterate:</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">“In this sense, </span><span style=\"font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff\">the Chamber considers that the petitioners' approach is abstract and general, as it is limited to mentioning that a salary detriment to workers occurs which they consider disproportionate and irrational through a rule that, subjectively, is considered not reasonable;</span><span style=\"font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff\">&nbsp;</span><span style=\"font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff\">however, the reasons are not specified, solid data or evidence or elements of judgment are not presented that allow an analysis of the reasonableness of the decision taken by the Executive Branch, as required by the case law of this Chamber</span><span style=\"font-style:italic; background-color:#ffffff\">. </span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">(…)</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-family:Arial; font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">Likewise, regarding the alleged</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">violation of the principle against arbitrariness and the principle against misuse of power, in the initial brief, no adequate substantiation is provided of the reasons, on constitutional grounds, for which the potential violation of these principles is considered, but rather they refer to criteria that must be verified through ordinary legality review.</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">With specific regard to the principle of equality and non-discrimination, simply invoking its violation is not enough. In this regard, it is timely to remind the petitioning party that it has been a jurisprudential line of this Tribunal that, when the violation of the principle of equality or proportionality is alleged, as in this case, the party</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">has a duty to provide a parameter for comparison, along with the corresponding analysis. Hence, anyone invoking this type of infringement</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">is obligated</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">to provide elements that allow a full comparison between the subjects treated differently, which permits checking whether the alleged inequality occurs or not.</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">(…)</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">Consequently, the lack of substantiation of the action regarding these points prevents even assessing the violation of the indicated principles. As already stated, the Chamber’s case law is conclusive in pointing out this duty to substantiate the arguments of unconstitutionality (see also ruling No. 2023-31744, of 9:30 a.m. on December 6, 2023, in this regard).</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">In the case under study, the petitioning party limits itself to pointing out the constitutional principles allegedly affected by the regulations it seeks to challenge, without detailing or weaving together concrete argumentation that allows assessing whether, in effect, the stated defects are present.</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">It is inappropriate, then, for this Chamber to rule on the merits of the rules challenged in an action, when the petitioner does not substantiate the reasons why they contest them, since this would imply carrying out abstract constitutional review as an academic exercise, which is not compatible with the purpose of a process of this nature.”</span><span style=\"background-color:#ffffff\"> (The highlighting is not in the original). </span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span style=\"-aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>These considerations are applicable to the specific case, given that the substantiation provided by the petitioner is insufficient to conduct an examination of the reasonableness of the provisions (alleged unreasonableness of the new amounts, professionals leaving, and potential impact on the functioning of the Public Administration), as well as the alleged violation of the principle of equality. It is insisted, to these effects, that they do not present solid data or evidence or elements of judgment that allow contrasting and conducting an analysis of reasonableness of the decision taken by the Legislative Assembly, and it is not incumbent upon this Chamber to remedy the noted omissions. </span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>Judge Cruz Castro issues a dissenting vote and declares Articles 35 and 36 of the Public Administration Salary Law unconstitutional. </span></p><h2 style=\"margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Hlk193103854\" class=\"\"></a><a name=\"_Toc193445477\" class=\"\"><span style=\"-aw-bookmark-end:_Hlk193103854\"></span><span>XXV.- ON THE PROHIBITION OF ADDITIONAL INCENTIVES</span></a><span> </span></h2><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445478\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Challenged norms</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>The norms being challenged are Article 40 of the LSAP, regulations added by the LFFP, and also Article 16 of the Regulation to Title III of the LFFP, Law No. 9635 regarding Public Employment, No. 41564-MIDEPLAN-H, which state the following: </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-weight:bold; font-style:italic\">Art. 40- Inadmissible additional incentives.

The creation, increase, or payment of compensation for "discretion and confidentiality" (discrecionalidad y confidencialidad) is not allowed, nor is the payment or recognition for biennial bonuses (bienios), quinquennial bonuses (quinquenios), or any other compensation for the accumulation of years of service other than annual bonuses (anualidades), in any of the institutions contemplated in article 26 of this law.

(Thus added by Article 3° of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018).

**Art. 16.- Inadmissible additional incentives.** The payment of benefits for confidentiality and discretion, biennial bonuses, quinquennial bonuses, or any other accumulation of years of service other than annual bonuses, may not be granted in any case to public servants who are appointed for the first time in one of the institutions that recognize such incentives, after the entry into force of Law No. 9635".

**Grievances of the claimant** The norm, in the judgment of the claimant, constitutes an interference by the State that is unconstitutional, as it affects the self-governance possibilities of the Municipal regime. It is a prohibitive norm that eliminates the ability of local governments to determine their own needs and possibilities in salary matters and to establish incentives for work personnel to remain in their jobs. He affirms that it violates the principle of progressivity of labor rights, as it causes regression in some institutions that already pay the quinquennial bonus incentive, whether through legal means (art. 90 subsection c) of the General Police Law, art. 27 of the Legislative Assembly Personnel Law) or regulatory means (arts. 99 and 100 of the Autonomous Regulation of the Costa Rican Tourism Institute) or through collective bargaining (Social Protection Board of San José).

**Report of the PGR** The PGR suggests dismissing the allegations raised. To this effect, it makes the following observations:

*“From the analysis of law No. 9635 and its Regulation (issued by decree No. 41564 of February 11, 2019), it does not follow that the legislator's intention, using the broad configurative powers over the Public Service Statute granted by the Constitution (arts. 105, 121.1, and 191), was to repeal the provisions, of different ranks, that governed the compensation of public servants (except in cases expressly provided for in the law itself) but rather to adapt that regulation to a general and transversal framework applicable to each of the existing salary components, in what is normatively incompatible with it.* *The foregoing is evident, for example, with the provisions of article 54 of the Public Administration Salary Law, according to which, "Any other incentive or compensation* ***existing*** *that upon entry into force of this law is expressed in percentage terms, its future calculation shall be a fixed nominal amount...". This norm does not repeal the incentives or compensations existing before the Public Finance Strengthening Law, but rather establishes the form in which they shall be calculated in the future, no longer as a percentage, but rather through a fixed nominal amount.* *The fact that article 40 of the Public Administration Salary Law, in relation to 16 of the regulation to Title III of law No. 9635, has decided to leave without effect some specific salary supplements such as those for confidentiality and discretion, biennial bonuses, quinquennial bonuses, and any other related to the accumulation of years of service other than the annual bonus, supports the assertion that the salary supplements existing before the entry into force of that law, and which are not those mentioned in the aforementioned article 40, remain in force and are applicable to the personnel of the institutions referred to in article 26 of the Public Administration Salary Law, including personnel appointed in the future, but nominalized.* *On the other hand, with regard to the legal reserve for the creation of new salary supplements, such reserve applies as of the entry into force of law No. 9635 and hereafter. This follows from the express text of article 55 of the Public Administration Salary Law, according to which, "The creation of incentives or compensations, or salary pluses* ***may only be carried out by means of law.**" * (The underlining is ours).* *Although we know that in resolution No. 2018-019511 at 9:45 p.m. on November 23, 2018, the Chamber indicated that the cited article 55, insofar as it imposes the creation of incentives and compensations only through a formal law, is not unconstitutional, as long as it is understood that it does not apply to public employees and workers who can enter into collective bargaining agreements, in accordance with the reform introduced by the Labor Procedural Reform, Law No. 9343, to article 112, subsection 5) of the General Law of Public Administration (LGAP), according to the inverse determination or* *contrario sensu* *that articles 683 and 689 make of these, since those articles rather define who participates in public management; all other public servants, except those stated therein, are then enabled to conclude collective agreements. This is in order not to empty the content of the right to enter into collective bargaining agreements and union action itself.”* **Resolution of the Constitutional Chamber** With respect to the alleged injury to municipal autonomy, the claimant must abide by what has already been resolved by this Chamber in judgment n.° 2019-010635, which partially admitted this action and dismissed the allegations raised regarding a presumed injury to the principle of autonomy:

*“II.- ON THE PARTIAL INADMISSIBILITY OF THE ACTION. Based on the foregoing, the action is not admissible in relation to the violation of the principle of autonomy and, therefore, is rejected outright regarding article 26 of Law No. 2166 and articles 5 and 11 of Law No. 9635.* ***Additionally, the presumed violation of this principle is rejected outright in relation to articles 28, paragraphs 2 and 4, 40, 46, 47, 48, 50, 52, 53, 54, and 55 of Law No. 2166, 17, 23, 24, and 25 of Law No. 9635 and 1 inc) 1°, 6, 15, 16, 17, 21, 22 of Executive Decree No. 41564-MIDEPLAN-H.** *Finally, the violation of articles 169, 170, 188, and 189 of the Political Constitution by articles 26 and 55 of Law No. 2166 and articles 5, 11, and 17 of Law No. 9635 is rejected outright”.* (The highlighting does not correspond to the original).

In which case, only the allegation regarding possible injuries to the constitutional principles of progressivity and non-regressivity subsists because a "regression" is caused in those cases where, through legal, regulatory means or collective bargaining agreements, these pluses are already recognized. Under this panorama, it is observed that in reality we are not facing a duly substantiated conflict of constitutionality, but rather a dispute of ordinary legality regarding the prevalence of general or special norms in those cases where different salary items or incentives are paid. This analysis of eventual antinomies in different specific cases must be carried out, examined, and resolved in the competent legality venues. In this regard, for example, in judgment n.° 2024-009406, the following was resolved:

*“In which case, although an alleged infringement of a constitutional norm is claimed, the truth is that the underlying conflict raised by the claimant constitutes a dispute of ordinary legality, pertaining to the correct interpretation and application of what is provided in articles 333, 339, and 340, subsection 2), of the Labor Code and its eventual confrontation with what is provided in clauses 8 subsections c) and i), 10, 13 subsection b), 15, and 17 of the Statutes of the Union of Health Workers of Public and Private Institutions (SITHOSAJUDI-SINTRASALUD). A conflict that, prima facie, should not be resolved through an unconstitutionality action. Thus, for example, in vote No. 2018-000521 at 9:15 a.m. on January 17, 2018, this Chamber resolved:* *“What the claimant raises, on the contrary, is* ***a discussion on the adequate interpretation and application of various infra-constitutional norms and on an eventual collision between said regulations. This refers to a conflict of ordinary legality that should not be resolved by this Chamber***. *This Tribunal has indicated, firstly, that “the improper application of the law or its erroneous interpretation in the specific case” is not a matter suitable to be known through the unconstitutionality action (judgment No. 5966-94 at 3:54 p.m. on October 11, 1994). To which it is added that it is also not competent to resolve eventual antinomies between norms of legal rank.”* *Meanwhile, in vote no. 2021-020701 at 10:15 a.m. on September 16, 2021, this Chamber also indicated:* *“(...)* ***the argument regarding a collision of laws or infra-constitutional regulations, as well as the erroneous interpretation and improper normative application, is a legality conflict that must be analyzed in the ordinary venue and not as a constitutionality argument in this forum***. *The action process is intended to exercise constitutionality control over norms and not to control the correct application of the law.”* *Therefore, definitively, it is not the competence of this Chamber to elucidate whether what is provided in the cited statutory clauses fully conforms or not to the provisions of the Labor Code. Such points must be resolved in the common venues”.* (The highlighting does not correspond to the original).

In which case, the discussion presented to us by the claimant regarding whether the regulations of the LSAP or special provisions such as the General Police Law, the Legislative Assembly Personnel Law, regulatory law, or collective bargaining agreements prevail, is one of legality and not of constitutionality.

The matter concerning the alleged injury to the principles of efficiency and efficacy, legal certainty, the right to collective bargaining, and the protective principle, must be rejected. In this regard, the statement was made, but it was not substantiated how such constitutional rights and principles are injured. It was already warned supra that it is not the responsibility of this Tribunal to fill in the omissions in the argumentation required from whoever affirms the unconstitutionality of a norm.

**XXVI.- ON THE STEERING ROLE OF MIDEPLAN** **Challenged Norms** The norms questioned are art. 46 of the LSAP, regulation added by the LFFP, and also art. 22 of the Regulation of Title III of the LFFP, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H, which provide the following:

**Art. 46- Steering Role of Public Employment.** All public sector employment matters shall be under the steering role (rectoría) of the Minister of National Planning and Economic Policy, who must establish, direct, and coordinate general policies, coordination, advisory services, and support to all public institutions, and define the guidelines and administrative regulations aimed at the unification, simplification, and coherence of employment in the public sector, ensuring that public sector institutions respond adequately to the defined objectives, goals, and actions.

Furthermore, they must evaluate the public employment system and all its components in terms of efficiency, efficacy, economy, and quality, and propose and promote the necessary adjustments for the better performance of public officials and institutions.

(Thus added by Article 3° of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018) **Art.

22.- Application of provisions of Law No. 9635.

It shall be the responsibility of the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, MIDEPLAN) to advise and provide support to all public institutions that fall within the scope of the provisions of Title III of Law No. 9635, regarding the application of said regulatory body and what is indicated in these regulations.

Likewise, regarding the performance evaluation (evaluación del desempeño) of public servants, said Ministry, in its steering role (rectoría), shall provide the corresponding methodological instruments to coordinate its effective implementation with the different institutions.

It is worth mentioning that the recently cited rule, with that wording, was in force for only a few months, as it was subsequently amended by Article 1 of Executive Decree No. 41729 of May 20, 2019. The rule currently reads as follows:

“**Article 22.- Application of provisions of Law No. 9635 and institutional competences**. It shall be the responsibility of the Ministry of National Planning and Economic Policy, in coordination with the Directorate General of the Civil Service (Dirección General del Servicio Civil) and the Ministry of Labor and Social Security (Ministerio de Trabajo y Seguridad Social), according to their scope of competence and technical expertise, to advise and provide support to all public institutions that fall under the scope of the provisions of Title III of Law No. 9635, with respect to the application of what is indicated in these regulations.

For this purpose, each institution must submit its query accompanied by the legal opinion (criterio legal) of its Legal Advisory Unit (Unidad de Asesoría Jurídica) and the technical opinion of its Human Resources Office (Oficina de Recursos Humanos), when the latter is necessary, in order to resolve it. Queries that are not accompanied by the corresponding legal opinion will not be addressed.

The Directorate General of the Civil Service shall continue issuing technical resolutions on job evaluation (valoración de puestos), in accordance with the provisions of Articles 13 and 48 of the Civil Service Statute (Estatuto de Servicio Civil), as well as Articles 1, 4, and 11 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), being the sole body within the Executive Branch with the authority to evaluate positions within the Civil Service Regime, as well as other resolutions it is responsible for issuing according to its scope of competence.

The Ministry of Finance (Ministerio de Hacienda), in accordance with Article 28, subsection a) of the Law of the Financial Administration of the Republic and Public Budgets No. 8131, is the Governing Body of the Financial Administration System, and therefore is responsible for directing, coordinating, and supervising everything related to the required adjustments and the proper functioning of the INTEGRA 1 and INTEGRA 2 Payment Computer Systems by virtue of the entry into force of Title III of Law No. 9635.

The Ministry of Labor, in accordance with the provisions of the Organic Law of the Ministry of Labor and Security No. 1860, shall address everything related to union matters, collective bargaining agreements (convenciones colectivas), and pensions.

Likewise, regarding the performance evaluation of public servants, the Ministry of National Planning and Economic Policy, in its steering role, shall provide the corresponding methodological instruments to coordinate its effective implementation with the different institutions.” ### Grievances of the Claimant The claimant questions that MIDEPLAN is granted powers to "define the guidelines and administrative regulations aimed at the unification, simplification, and coherence of employment in the public sector, ensuring that public sector institutions adequately respond to the objectives, goals, and actions defined." This constitutes a very clear intrusion into the powers of administration, policy, and organization of decentralized entities, in direct violation of the three degrees of autonomy that the Constitution and the creation laws have granted to each of those administrations, stripping them of their power of self-administration. Each decentralized entity is a distinct legal person, with a specific legal purpose and addressing specific needs established by law. A budget is assigned to them for this purpose, which in many cases is their own because it comes from taxes created for their benefit or from a commercial activity. On the other hand, the Ministry of Planning is alien to the reality of each institution and the community or public interest it serves, despite which it is granted the power to decide on multiple aspects of the public employment regime. A violation of the principle of legal certainty (seguridad jurídica) also occurs, because the duality in regulation (decentralized regime and regulatory powers of the Executive Branch) causes a state of insecurity for the entities and their workers.

### Report of the PGR The Office of the Attorney General (Procuraduría General de la República, PGR) suggests dismissing this part of the claim, based on the following considerations:

“Quite contrary to what the claimant groundlessly accuses, the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas, LFFP), and specifically its Title III, referring to the Amendment of Law No. 2166, Public Administration Salary Law, of October 9, 1957, and its amendments, and other applicable Transitory provisions, did not seek to establish, by way of artificial homogeneity, a unitary public employment statute in formal terms; that is, a single regulatory instrument—but rather it established a series of postulates and rules on remuneration that, in general terms and with a clear claim of generality, tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, independently of the degree of autonomy of each institution, or the type of services provided to the State.

And as the contested numerals 46 of Law 9635 and 22 of its Regulations themselves state, the steering role that the Law grants to MIDEPLAN is to issue general policies and advise public institutions to achieve unification, simplification, and coherence in matters of public employment. The foregoing is based on administrative efficiency and effectiveness policies, following criteria of planning and measurement of public management results; this is in accordance with constitutional subsection 140 (8).

It was not the legislator's intention to repeal the powers granted to other public agencies in their respective creation laws; which is a legally viable option and does not affect the Law of the Constitution in the contested terms.” ### Resolution of the Constitutional Chamber Most of the grievances raised were dismissed ab initio by this Chamber, as everything related to the defense of institutional autonomy was rejected outright due to the lack of standing (legitimación) of the claimant (interlocutory judgment No. 2019-010635).

It should also be remembered that by resolution of this Constitutional Chamber No. 2024-7057 of March 14, 2024, it was resolved to dismiss the accumulated unconstitutionality actions—in which Article 22 of the regulation was included—on the understanding that the rules of the questioned decree must be applied only to the officials of the institutions that are not excluded from the application of the LFFP in salary matters in accordance with the provisions of the advisory opinion (opinión consultiva) No. 2018-1951, of 21:45 hours of November 23, 2018.

By virtue of the foregoing, only the argument remains of an alleged violation of the principle of legal certainty to the detriment of workers, since on one hand the autonomy of decentralized entities is enshrined and, on the other, it grants powers to MIDEPLAN to make decisions and, via decree, issue guidelines, inverting the hierarchy of norms in the event of compliance with said policies, or liability in the event of non-compliance. In summary, he questions MIDEPLAN's steering role due to the legal uncertainty it could entail for workers. In the opinion of this Tribunal, the claimant's argument relates to eventual normative conflicts in the application of infra-constitutional provisions that say nothing about the constitutionality itself of the questioned numerals and a clear injury to the Law of the Constitution or the fundamental rights of public servants. The eventual normative conflicts would correspond to be evaluated and resolved in the first instance by the competent legal authorities, but in the sub lite, the arguments provided are not sufficient to evaluate and determine a direct confrontation of the rules with the Political Constitution and, much less, an injury to the fundamental rights of public officials. It is merely a statement about an eventual situation of insecurity regarding what should prevail in each specific case; regarding which, legal operators must naturally make use of the tools offered by the legal system and particularly the General Law of Public Administration (Ley General de la Administración Pública) to resolve any normative conflicts. However, it is repeated, such conduct inherent to the application of any regulation does not imply its unconstitutionality. Again, the claimant omits to provide solid and sufficient arguments to recriminate the rule in question, and it is not for this Chamber to supply the argumentative deficiencies. Consequently, the reproaches made must be dismissed.

### XXVII.- ON THE MEASUREMENT OF PERFORMANCE EVALUATION ### Contested Rules Article 47 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública, LSAP) is contested, a regulation added by the LFFP, which orders the following:

“**Art. 47- Methodological basis for performance evaluation (evaluación del desempeño).** The performance evaluation of officials shall be based on quantitative indicators of compliance with individual goals for products and services provided, linked to the processes and projects carried out by the unit to which they belong, and that of the managerial body at all levels for the fulfillment of institutional goals and objectives.

It shall be the responsibility of each superior to define the processes and projects of the unit, as well as the products and services provided, in accordance with current regulations and the strategic governmental institutional plans.

The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy (Mideplán), with the objective of homogenizing and standardizing, with the respective exceptions, the evaluation methods and respective information systems.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).” ### Grievances of the Claimant In addition to the alleged injury to the autonomy of decentralized entities, the claimant considers that there is also a violation of the principle of equality and the principle of prohibition of arbitrariness (interdicción de la arbitrariedad), insofar as the Administration can disapply its own evaluation methods whenever it wishes, without objective criteria established by law. The violation of the principle of equality derives—according to the claimant—from paragraph 1 of the rule establishing "quantitative indicators of compliance with individual goals for products and services provided." It is alleged that the services provided by the Public Administration can never be equated to the type of services provided in the private sector, such as to establish quantitative evaluation methods. He considers that MIDEPLAN is unaware of the realities of the different institutions and the diverse workers of the public sector to define standardized and quantitative guidelines for goals and results evaluation. He questions, for example, how to quantify the work of a police officer or a teacher?

### Report of the PGR Insofar as what the claimant accuses seems to refer to an aspect of simple and strict ordinary legality interest, in which no alleged infringements of constitutional norms and principles are accused, in terms of Article 73 subsections a) and b) of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional, LJC), but rather refers to a clear aspect of interpretation and regulatory application of the scope of numeral 47 of the LSAP amended by the cited Law No. 9635, what is thus contested cannot be the object of an unconstitutionality action as intended, because said process is intended to exercise a control of constitutionality of norms and not to control the correct application of the Law; this latter aspect of mere ordinary legality would correspond to the competent ordinary jurisdiction to hear and resolve, which in this case could be the Contentious-Administrative (Contencioso Administrativa) jurisdiction.

### Resolution of the Constitutional Chamber It must be insisted again that the grievances related to the injury to municipal and decentralized entity autonomy were preliminarily rejected.

Subsequently, the claimant alludes to an alleged injury to the principles of equality and prohibition of arbitrariness because "the Administration can disapply its own evaluation methods whenever it wishes." However, from a careful reading of the rule, it is not possible to appreciate on what the claimant bases these assertions. Indeed, from the argumentation made by the claimant, it is not possible to derive an injury to the Law of the Constitution, but mere assumptions about the practical difficulty regarding performance evaluation and, specifically, the measurement of objectives or results for the various ranges of Public Administration servants. In this regard, in the Chamber's opinion, the recriminations of the claimants are nothing more than mere practical or operational difficulties about what should be understood by individual goals for products or services provided; but which, in the terms stated by the claimant, do not reflect a problem of constitutional relevance, but mere assumptions of the supposed difficulty in designing individual goals for products or services provided for public servants that are necessarily linked to the processes and projects carried out by the unit to which each server belongs. In that sense, this Chamber agrees with the opinion provided by the PGR in that this process is not designed to control the correct application of infra-constitutional norms but to assess the confrontation of the provisions with the Law of the Constitution, and that from the arguments raised, such evident confrontation is not deduced or corroborated.

It must be remembered that by imposition of the Political Constitution, the Public Administration and its public servants are subject to a procedure of results evaluation and accountability (rendición de cuentas) with the consequent personal responsibility for all public servants in the fulfillment of their duties. The Constitution also states that it is up to the law to indicate the means so that the control of results and accountability operates as a system that covers all public institutions (Article 11 of the Political Constitution). Justly, this contested regulation intends to establish the general guidelines to comply with the constitutional mandate of subjecting public servants to a continuous process of results evaluation that demonstrates efficiency, without it being apparent that such general provisions injure the fundamental rights of public officials.

This pronouncement refers, of course, to the general provision that is contested here, which does not prevent that, eventually, the specific methodologies for performance evaluation that are issued may be questioned for an alleged injury to the principles of reasonableness or equality of the potentially affected workers.

XXVIII.- ON THE CRITERIA FOR PERFORMANCE EVALUATION **Challenged Norms** The claimant challenges the norm that establishes the general criteria for performance evaluation (evaluación del desempeño). The originally challenged norm read as follows:

***Art. 48- Criteria for performance evaluation***. *Each head of a Public Administration entity, at the beginning of the year, must assign and distribute all officials among the unit's processes, projects, products, and services, establishing delivery deadlines and estimated time for their completion. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; failure to do so shall be considered a serious offense in accordance with applicable regulations.* *For the regular and frequent follow-up of work plan activities, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and compliance with deadlines and times. It shall be the responsibility of each official, including all managerial levels, to update and keep current the information necessary for their performance evaluation, in accordance with the processes, projects, products, and services specifically assigned, their delivery deadlines, and estimated times for their completion, in said computer system that the Administration shall make available to them. Failure to do so shall be considered a serious offense in accordance with applicable regulations.* *The incentive for length of service (anualidad) shall be granted solely through performance evaluation for those servants who have met a minimum rating of "very good" or its numerical equivalent, according to the defined scale. Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter, and twenty percent (20%) shall be the responsibility of the head or superior.* *(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)* It is worth noting that said norm was reformed by the LMEP, so its current wording is as follows:

"*Art. 48- Criteria for performance evaluation. Each head of a Public Administration entity, at the beginning of the year, must assign and distribute all officials among the unit's processes, projects, products, and services, establishing delivery deadlines and estimated time for their completion. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; failure to do so shall be considered a serious offense in accordance with applicable regulations.* *For the regular and frequent follow-up of work plan activities, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and compliance with deadlines and times. It shall be the responsibility of each official, including all executive levels, to update and keep current the information necessary for their performance evaluation, in accordance with the processes, projects, products, and services specifically assigned, their delivery deadlines, and estimated times for their completion, in said computer system that the administration shall make available to them. Failure to do so shall be considered a serious offense in accordance with applicable regulations.* *The incentive for length of service shall be granted solely through performance evaluation for those public servants who work under the composite salary scheme (salario compuesto), who have met a minimum rating of "very good" or its numerical equivalent, according to the defined scale, in accordance with the following rules:* *a) Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter.* *b) Twenty percent (20%) shall be the responsibility of the head or superior, which shall be evaluated according to good performance in accordance with the competencies necessary for the job performance.* *(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)* *(Thus reformed by Article 49, sub-clause a) of the Public Employment Framework Law (Ley Marco de Empleo Público), No. 10159 of March 8, 2022)* **Grievances of the Claimant** The claimant states that, as with Arts. 46, 47, and 48, this numeral constitutes an intrusion by the Central Administration into the administrative competencies of decentralized entities. The norm, viewed in light of the referenced articles, contains arbitrary provisions. It creates a new obligation for public officials at any level, regarding keeping the update and maintenance up-to-date of the information for their performance evaluation in a computer system, under penalty of being charged with committing a serious offense. This is a new obligation that translates into more work and less time to attend to daily obligations, and it also does not clarify to which workers it refers.

On the other hand, it establishes that 80% of the evaluation will be a measurement of goals and 20% “*responsibility of the head*”. Thus, one-fifth of the total percentage of the worker's evaluation is granted to the subjective considerations of each head, understanding that this 20% is the difference between obtaining or not obtaining the length of service incentive for officials, granting power to heads to leave their subordinates, without any visible objective criteria, without the increases for time served for as many periods as they wish.

**PGR Report** The PGR suggests dismissing the grievances of the claimant. In this regard, it makes the following observations:

“*A feature that characterizes the particular legal regime of the public function (rights, duties, and responsibilities), unlike private relationships governed by common law, is that employment conditions are not established by contract or collective agreement, but are determined by objective norms, whether laws or regulations that can be modified unilaterally. Hence, it is rightly affirmed that the relationship is statutory, by way of a specific public employment regime or personnel regulation, founded and governed by principles of Public Law, whose configuration, extension, and content can be variable, according to the bureaucratic model legislatively chosen, according to the conception of the State in force at the time. Therefore, public function reforms are always connected to a preconceived strategy (public policy) of Administration modernization that requires introducing necessary reforms in the organization and operating regime, as well as changing the traditional habits and values of its agents.* *In any case, it must be considered that from the brief but significant references to the legal regime of the public function made by our Political Constitution (Arts. 191 and 192), a series of legal consequences derive, as consubstantial principles. Among them is that the personnel serving the Administration must be regulated by a statute for the purpose of guaranteeing efficiency, which implies: legislative authorization and a reservation of law on the matter; that their recruitment and selection shall be made under criteria of equality, merit, and proven capacity; and that their performance in the exercise of their duties is based on the guarantee of stability and impartiality with full submission to the Law and Justice. All postulates that must be taken into account by any bureaucratic model that is to be developed.* *In that context, directly associated with the length of service incentive is performance evaluation. A system in which a paradigm shift has operated, as it overcomes that subjective criterion of mere assessment of the individual performance of the servant in their work in general, and methodologically transcends to objective criteria based on quantitative indicators of fulfillment of individual goals for products and services rendered, directly linked to processes and projects carried out by the unit to which the servant belongs (Arts. 45 to 50 of the Public Administration Salary Law, introduced by Law No. 9635). And its link to the payment of the length of service incentive is evident, since its payment depends on the result of the performance evaluation.* *Given this special and novel conformation operated in performance evaluation, the accused unconstitutionality defects are unfounded, since the legislator, in exercise of its broad, inexhaustible power to configure the Statute of public officials (Arts. 102, 121.1, and 191 constitutional), sought to clearly establish postulates and norms that in general terms tend towards the unification, simplification, and coherence of the different existing subsystems of human resources management in the Public Sector.* *And even, the determination of administrative offenses accused by the claimant as unconstitutional fully complies with the nuanced postulates of the principle of specificity (principio de tipicidad) in disciplinary matters that the Chamber itself has established in its jurisprudence (Among others, resolution No. 2002-10359 of 14:48 hrs. on October 30, 2002). And in any case, it will be in the competent ordinary jurisdiction, not in this constitutional venue, where the legitimacy or not of the concrete application of the challenged norm can be analyzed”.* **Resolution of the Constitutional Chamber** In the first place, regarding the alleged injury to autonomies, it is necessary to reiterate that the claimant lacks standing to question said alleged affectation. Moreover, this topic was addressed in general terms in judgment No. 2024-007057 where the considerations of advisory opinion No. 2018-19511 were reiterated and it was emphasized that regarding the payment of length of service incentives (a salary matter) and performance evaluation, what is applicable to the Branches –Judicial and Legislative–, the Supreme Electoral Tribunal, and decentralized public entities –municipalities, state universities, and the C.C.S.S.– are their own special laws. Likewise, in said judgment, very similar grievances to those raised in this unconstitutionality action were examined, in the sense that the claimants denounce a supposed subjective measurement by the heads. On this matter, this Chamber resolved the following:

“*On the other hand, the claimants estimate that, to the extent that the granting of incentives such as length of service payments depend on subjective assessments by those who rate them, the right to salary will be violated. However, in the judgment of this Chamber,* ***the questioning of the subjectivity in the rating to which the servant could eventually be subjected, is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the eventual violation of fundamental rights****. And, in any case, the disagreements that officials may have with the result of the examination carried out, is a matter of legality that this Court is not responsible for assessing and that, therefore, must be discussed before the Administration or in the corresponding jurisdictional avenue*.

*Likewise, regarding the accused injury to the principle of prohibition of arbitrariness (principio de interdicción de la arbitrariedad) and the principle of prohibition of misuse of power (principio de interdicción de la desviación de poder), the filing brief does not provide an adequate substantiation of the reasons, on constitutional grounds, for which the eventual violation of these principles is considered, but rather refers to criteria, which must be verified in the legality venue”.* (Judgment No. 2024-007057. The highlighted text does not correspond to the original).

Such considerations must be reiterated in the *sub lite*, since the claimant precisely alludes to an alleged subjectivity of the heads regarding the performance evaluation of subordinates, which would affect obtaining the length of service incentive. In the first place, the fact that the eventual obtaining of length of service incentives is linked to the public servant's performance is consistent with the jurisprudential lines of this Chamber. Let us see, by way of example, what was resolved by this Chamber based on judgment No. 2020-001807 in which the following was considered:

“*In terms of that additional increase established for the case of non-professional workers, certainly a minimum rating is not established to be a beneficiary of the increase. Which means that, even if the rating was 0, an increase of 3% would always be obtained. Thus then, clause a) is evidently unconstitutional. The support for the increase, which is supposedly for the good result of the performance evaluation, would be a contradiction. Although the representative of the Union certifies that only 6 officials were in such a situation, this does not prevent more from resulting in the future, and the impact on public finances being greater. From all of which it is concluded that the norm is disproportionate, contrary to the constitutional principles that promote suitability and good management of public services and funds.* ***As the Attorney General's Office indicates in its report, this situation violates the principles of reasonableness and proportionality, by rewarding insufficient ratings in the public service, which violates the constitutional principles of proven suitability (numeral 192 of the Political Constitution) and continuous evaluation of results (ordinal 11 of the Political Constitution), insofar as the payment of the recognition should not be automatic***”. (The highlighted text does not correspond to the original).

In the second place, the results evaluation processes and the measurements and scores assigned –like any administrative act preceded by a substantiation procedure– must be duly motivated (Title Six, Chapter Three of the LGAP) and, moreover, in the event of disagreement with the results, the ordinary remedies that the legal system provides can be opposed. Therefore, the claimant's suppositions refer to eventual discussions on the correct or incorrect application of the norm, all of which can be controlled in ordinary legality venues.

Neither is any illegitimacy or injury to the Law of the Constitution observed by the fact that the legal norm establishes the responsibility of public servants to record and support the necessary information demonstrating the fulfillment of their performance evaluation goals, given that in the absence of such support, the disciplinary regime can be applied.

Such responsibilities of public servants—in general, demonstrating efficient results in the performance of assigned tasks—derive directly from Constitutional Law, which justly requires the entire Public Administration to **submit to a procedure of evaluation of results and accountability, with the consequent personal responsibility for all servants in fulfilling their duties**. Our Constitution precisely mandates that the law shall establish the means for this control of results and accountability to cover all public institutions. Therefore, far from creating a new unreasonable obligation, the act of submitting to the procedure of evaluation of results and rendering accounts for the fulfillment of assigned goals—supporting, recording, demonstrating compliance with assigned goals—is consistent with the constitutional obligation imposed and derived from Art. 11, but it is also a manifestation of the principle of transparency and of the proven suitability that must characterize the hiring and performance of public servants (Art. 192). Furthermore, as the PGR notes, the determination of administrative offenses accused by the petitioner as unconstitutional fully complies with the nuanced postulates of the principle of legality (principio de tipicidad) in disciplinary matters.

Finally, it is repeated, everything related to its individualized application, namely the results obtained and the eventual commencement of disciplinary proceedings, are aspects that must be assessed and examined through ordinary legality channels; however, regarding the content of the rule and the arguments raised, no violation of Constitutional Law is observed.

XXIX.- ON THE EXCLUSION OF BENEFITS FOR HIERARCHS AND OTHER SERVANTS Challenged Rule Art. 51 of the LSAP, a provision added by the LFFP, is challenged, which orders the following:

"**Art. 51- Exclusion of benefits.** The prohibitions and exclusions established in Articles 691 and 694 of Law No. 2, Labor Code (Código de Trabajo), of August 27, 1943, shall be applicable to hierarchs and officials who negotiate regulations, contracts, statutes, or acts that grant advantages of any nature.

(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), No. 9635 of December 3, 2018)." Grievances of the Petitioner The petitioner questions the rule for an alleged violation of the constitutional principles of reasonableness and proportionality and the rights to collective bargaining (negociación colectiva), union freedom, and the singular non-derogability of regulations. He states that the purpose of the rule is to discourage collective bargaining, by prohibiting the public officials who negotiate collective agreements from benefiting from them. This—in the petitioner's opinion—constitutes a violation of Art. 4 of Convention 98 of the ILO.

Report of the PGR The PGR suggests dismissing the grievance. To this end, it refers to the limitations to which servants are subject regarding the possibility of signing collective agreements in the public sector.

The PGR states the following:

"In the context explained, it is obvious that the petitioner is unaware that very far from what he groundlessly accuses, Article 51 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), amended by the Law for the Strengthening of Public Finances, No. 9635, validly establishes, as necessary content of the Functional Statute (Art. 191 Constitutional), a specific type of incompatibility through which it seeks to avoid a potential conflict of interest, by which **justifiably and reasonably, officials are excluded who, due to their superior hierarchical position, the very nature of their functions, or their participation in negotiations as employer representatives, have the capacity to configure and express the will of the Administration before the other employees, and who could be directly benefited by those negotiations; a highly inconvenient matter.** (Cf. Constitutional Chamber (Sala Constitucional), ruling No. 2531-94 of 3:42 p.m. on May 31, 1994). A functional incompatibility that must be related to Article 48 of the Law against Corruption and Illicit Enrichment in the Public Function - No. 8422 of October 6, 2004-, which not only recognizes and expressly establishes the analyzed incompatibility, but also classifies it as criminal conduct (Opinion C-159-2007 op. cit.)." (The emphasis does not correspond to the original).

Resolution of the Constitutional Chamber Regarding these grievances, this Chamber refers to its own precedents in the sense that, while it is true that a window has been accepted for certain public servants to negotiate aspects pertaining to employment contracts through collective bargaining, that right does not cover all public servants. It was already noted supra that:

"In conclusion, collective agreements are not completely prohibited in the public sector, but rather they are permitted only in the case of workers who do not perform public management (gestión pública), that is, those covered by Articles 3, 111, and 112 of the General Law of Public Administration (Ley General de la Administración Pública). The determination in each specific case of which workers are covered by said rules is a matter outside this constitutional jurisdiction and corresponds to the operators of the law." In that sense, it is also worth recalling that the right to collective bargaining is a fundamental right exercised in accordance with the law, and to that extent, the legislator has chosen to delimit which public servants are excluded from collective bargaining. It should be remembered that the Chamber has affirmed that the right to collective bargaining does exist with respect to certain categories of public servants, but it has also explained that it is not for the Chamber itself to determine to which workers these collective agreements would or would not be applicable, an issue that must be determined in the sphere of legality (see, for example, ruling No. 2013-014499).

In that legitimate exercise of delimiting the servants who can validly benefit from collective bargaining, the legislator enacted the Labor Procedural Reform (Reforma Procesal Laboral), which came to regulate the conditions of legitimacy of collective agreements in the public sector. In this way, the articles to which the challenged rule alludes state the following:

"Art. 691.- Automatically excluded from advantages of any nature that may derive from collective agreements, conciliatory accords, arbitrations, and any agreement for the solution of an economic and social conflict, whether by express or indirect inclusion or reference, are **the public servants indicated in Articles 683 and 689**.

**It is also expressly prohibited to make technical adjustments in application of any collective instrument, for the direct or indirect benefit of the indicated servants**." "Art. 694.- **No person who may actually or potentially receive any benefit from the collective agreement that is signed may be part of the delegations that intervene in representation of the employer**. Likewise, there shall be an impediment if the result could benefit their spouse, companion, or cohabitant, or their relatives, as indicated in the second paragraph of Article 48 of Law No. 8422, Law against Corruption and Illicit Enrichment in the Public Function (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), of October 6, 2004.

(Thus added by Article 2 of Law No. 9343 of January 25, 2016, "Labor Procedural Reform".)" (The emphasis does not correspond to the original).

In Arts. 683 and 689, the corresponding delimitation is made, which is also reflected in the amendment to the LGAP according to which:

"All public servants who do not participate in the administrative public management (gestión pública administrativa) have the right to negotiate collective labor agreements, in accordance with the provisions of Article 62 of the Political Constitution, both in the public enterprises and economic services of the State and in the rest of the Public Administration, according to the determination made of these by Articles 683 and 689 of Law 2, Labor Code (Código de Trabajo), of August 27, 1943." (Art. 112, subsection 5)).

It is thus observed that the legislator chose to enumerate the governing officials and other public servants who participate in "public management" (gestión pública), and who, therefore, are excluded from unionizing and from entering into collective agreements in the Public Sector (see on this matter the opinion of the PGR No. 018 of January 22, 2020).

These restrictions, contrary to what the petitioner claims, do not seek to discourage collective bargaining, but rather ensure that these negotiations are carried out by persons who—due to their hierarchical situation—do not benefit themselves and to avoid a conflict of interest. This type of rule has been examined by the Chamber, and, for example, it has been said that they do not violate the principle of equality. In ruling No. 2531-1994, the following was established:

"Thus, in accordance with the content of the principle of equality indicated by the jurisprudence of this Chamber, it is admissible to establish unequal treatment among those who are unequal, but not among those who are equal, which is why it can be concluded that **it is possible to make restrictions or exclusions among the possible beneficiaries of a collective labor agreement due to the special institutional hierarchical position of the employees, such is the case of trusted workers or employees or those who occupy high-level, management, and very high responsibility positions. This measure is justified by virtue of the conflict of interests that may arise**, since these employees, who participate in the negotiations as employer representatives, or perform a function with close ties to them - in accordance with Article 4 of the quoted Bank's Internal Labor Regulations, which establishes in relevant part: 'Persons who hold Management, Head, or Administration positions are employer representatives...' -, **may be benefited from these negotiations that depend on them directly or indirectly, which is why it is not advisable for them to be covered by collective labor agreements. As observed, this exclusion is objective and sufficiently reasonable**, and therefore does not violate the principle of equality enshrined in Article 33 of the Constitution, as alleged by the petitioner, and it is appropriate to reject the action on the merits on this point, in accordance with the second paragraph of Article 9 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional)." (The emphasis does not correspond to the original).

Additionally, in ruling No. 2000-10358, the following considerations were made:

"[O]n the matter properly concerning the managerial classes of autonomous institutions and public enterprises such as RECOPE, **the Chamber has understood in preceding cases that the placement of a public official at the managerial level has certainly served as a suitable element to justify a rule of differentiated treatment in the matter of Collective Agreements** – as the Attorney General's Office well recalls –:

'It is unnecessary to recall at length here that the collective agreement is the result of a bilateral negotiation that has taken place between the public entity (in this case, JAPDEVA) and its officials. Evidently, the interests of the latter in obtaining certain employment conditions are not necessarily coincident with the institutional ones, and in some cases can even be opposed, taking into account that the public entity, which inscribes its policies or its decisions regarding personnel within the broader framework of government policies or decisions, is the holder of public interests, it is the employer, against which its officials or employees assert their own interests, which being theirs are truly private interests." <span style="font-weight:bold; font-style:italic; text-decoration:underline">The structure of the negotiation—on one end, the hierarchy expressing the will and interests of the employer (the specific Public Administration), and on the other, the union, which upholds those of the employees—explains and justifies the exclusion of some officials from the application of the benefits of the negotiation.</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">This concerns those whose position and functions are such that they are incompatible with the possibility of also having them as beneficiaries of the right to collective bargaining, without risk to the interest of the Administration, to the public interest: since it is in them that the capacity to configure and express the will of the Administration vis-à-vis the other employees truly lies, that is to say, since they are the ones who directly hold or decisively influence the decisions the Administration makes in negotiation with its employees, the exclusion is imposed upon common sense as objective, reasonable, and, therefore, non-discriminatory</span><span style="font-style:italic; text-decoration:underline">.</span><span style="font-style:italic">'</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">From the foregoing, it is deduced that in the case of the petitioner, the principle of equality was not harmed, since the distinction in relation to the other workers of his Department has an objective and reasonable justification; therefore, on this point, the appeal must be declared without merit." (Resolution No. 4325-96 of nine hours twenty-one minutes of the twenty-third of August of nineteen ninety-six)."</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>Consequently, although it is true, as has been developed, that there exists a fundamental right to engage in collective bargaining and that facilities must be granted for such purposes ‒</span><span>with the adequate safeguarding of public funds and the constitutional principles</span><span> of reasonableness, proportionality, and proper use of public funds</span><span> ‒</span><span> it is also</span><span> legitimate to establish certain negotiation guidelines</span><span>, including subjective coverage. In this sense, although it has not been formally incorporated into our legal</span><span> system, one can resort to the </span><span style="font-style:italic">“</span><span style="font-style:italic">Convention concerning Labour Relations in the Public</span><span style="font-style:italic"> Service, 1978 (No.</span><span style="font-style:italic"> 151)”</span><span style="font-style:italic"> </span><span>as a mere hermeneutic criterion or for illustration</span><span>. Said convention urges States to adopt </span><span style="font-style:italic">“</span><span style="font-style:italic">measures appropriate to national conditions to stimulate and encourage the full development and utilisation</span><span style="font-style:italic"> of procedures for negotiation</span><span style="font-style:italic"> between the competent public authorities and public employees' organisations</span><span style="font-style:italic"> in respect of conditions of</span><span style="font-style:italic"> employment, or of any other</span><span style="font-style:italic"> method</span><span style="font-style:italic">s that will allow representatives of public employees</span><span style="font-style:italic"> to participate in the determination</span><span style="font-style:italic"> of such conditions”</span><span style="font-style:italic"> </span><span>(art. 7</span><span>). But beforehand, it makes the warning and recognition that </span><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">national law</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> shall determine the extent</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> to which the guarantees</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> provided for in this Convention apply to high-level employees</span><span style="font-style:italic"> who, by virtue of their functions, are normally considered to have policy-making or managerial</span><span style="font-style:italic"> roles or to employees whose duties are of a highly confidential nature”</span><span> (art. 1</span><span>, paragraph 2</span><span>). This illustrates and corroborates that the legislator could</span><span> legitimately assess and list</span><span> the positions that, due to their high managerial level, may be excluded from the benefits of collective</span><span> bargaining, without this in itself</span><span> being illegitimate or unconstitutional. Note also</span><span> what is provided to that effect by art. 48 of the Law against </span><span>Corruption and Illicit</span><span> Enrichment in the Public</span><span> Service, which criminalizes the conduct of a public official who signs acts or agreements that benefit him or her directly, which clearly illustrates the incompatibility here</span><span> ex</span><span>am</span><span>ined. The rule in question contemplates the following illicit</span><span> conduct: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Art. 48.-Legislation or Administration for Personal Profit.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">Shall be</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> punished with imprisonment from one to eight years</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">, the public official who sanctions, promulgates, authorizes, signs, or participates with a favorable vote in laws, decrees, agreements, administrative acts, and contracts that grant, in a direct form, benef</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">its for him</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">self,</span><span style="font-style:italic"> for their spouse, partner, or cohabitant, their relatives up to the third degree of consanguinity or affinity, or for companies in which the public official, their spouse, partner, or cohabitant, their relatives up to the third degree of consanguinity or affinity hold stock participation, whether directly or through other legal entities in whose share capital they participate or where they are legal representatives or members of any corporate body.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">The same penalty shall apply</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> to whoever favors their spouse, their partner, or cohabitant, or their relatives up to the third degree of consanguinity or affinity, or favors him</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">self, with patrimonial benefits contained in collective</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> agreements, in whose negotiation</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> they participated as a representative of the employer</span><span style="font-style:italic">”.</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Thus, the numeral questioned in the </span><span style="font-style:italic">sub lite </span><span>is no more</span><span> than a replica of other rules in force in the legal system and of the general duty of probity that establish prohibitions for certain senior officials from regulating or agreeing on aspects for their own benefit, without a violation</span><span> of the constitutional principles and rights invoked emerging from the allegations presented.</span><span style="-aw-import:spaces"> </span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445502" class=""><span>XXX.- ON THE PAYMENT MODALITY FOR PUBLIC SERVANTS</span></a><span> </span></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445503" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged Rules</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>Art. 52 of the LSAP, added by the LFFP, No.</span><span>9635, and art. 21 of regulation No.</span><span>41564-MIDEPLAN are challenged. The contested legal rule established</span><span>, in its original wording, the following: </span></p><p style="margin-top:0pt; margin-left:42.55pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic">Art. 52- Payment Modality for Public Servants</span><span style="font-style:italic">. The institutions contemplated in article 26 of this law shall adjust</span><span style="font-style:italic"> the payment frequency of their officials' salaries to the monthly payment modality with a bi-weekly advance.</span></p><p style="margin-top:0pt; margin-left:42.55pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(As</span><span style="font-style:italic"> added by article 3</span><span style="font-style:italic"> of</span><span style="font-style:italic"> </span><span style="font-style:italic">Title III of the Law for Strengthening Public Finances, No.</span><span style="font-style:italic">9635 of December 3, 2018).”</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Subsequently, the rule was amended for the purpose</span><span> of adding the specific</span><span> case of payment in the Costa Rican Social Security Fund (CCSS). Consequently, the current rule reads as follows: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 52- Payment Modality for Public Servants.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The institutions contemplated in article 26 of this law shall adjust the payment frequency of their officials' salaries to the monthly payment modality with a </span><span style="font-style:italic">bi-weekly advance.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Excepted from the provisions of the preceding paragraph is the Costa Rican Social Security Fund (CCSS), which shall maintain</span><span style="font-style:italic"> the payment frequency of its officials' salaries under the bi-weekly modality.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(As</span><span style="font-style:italic"> amended by the sole article of the Law to maintain the bi-weekly payment frequency of the salaries of the workers of the Costa Rican Social Security Fund, No.</span><span style="font-style:italic">10102 of December 8, 2021)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>Meanwhile, the regulatory rule provides the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 21.- Payment Modality for Public Servants</span><span style="font-style:italic">. Payments must be adjusted to the monthly payment modality with a bi-weekly advance, pursuant to</span><span style="font-style:italic"> the provisions of article 52 of Law No.</span><span style="font-style:italic"> 2166, added through article 3 of Law No.</span><span style="font-style:italic"> 9635.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The institutions must</span><span style="font-style:italic"> carry out the corresponding steps to adapt the technological</span><span style="font-style:italic"> payment systems to said provision</span><span style="font-style:italic">, within the period indicated</span><span style="font-style:italic"> in Transitory XXIX of Law No.</span><span style="font-style:italic">9635. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The Administration shall be</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> responsible for ensuring full compliance with the change in payment modality and the corresponding salary recognitions, so that no decrease</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> or increase in the salary of the servants is produced</span><span style="font-style:italic">”.</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The transitory rule that was issued</span><span> to make this modification operational was not challenged by the plaintiff. However, it is necessary to transcribe it in order to carry out an appropriate</span><span> analysis of the issue</span><span>. Transitory XXIX reads as follows: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">TRANSITORY XXIX. The institutions that pay the salaries of their servants with a modality other than that contemplated in article 52 must</span><span style="font-style:italic"> make the corresponding adjustments within three months following the effective date of this law. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The calculations</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> and necessary adjustments shall be made</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> so that the change in payment frequency does not produce a decrease</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> or increase in the salary of the servants</span><span style="font-style:italic">”.</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445504" class=""><span style="text-transform:uppercase; background-color:#ffffff">Grievances of the Plaintiff</span></a><span style="text-transform:uppercase; background-color:#ffffff"> </span></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The plaintiff states that the referenced rules violate the municipal autonomy and that of decentralized entities, and the principles of legality, reasonableness, proportionality, progressivity of labor rights, as well</span><span> as the constitutional right</span><span> of collective bargaining</span><span>. They point</span><span> out that the rule violates the administrative</span><span> autonomy of the decentralized entities insofar as they are ordered how</span><span> to regulate their remuneration system. Although the law provides</span><span> that the salary not be varied, it orders the institutions how to ad</span><span>mi</span><span>nister salaries, thereby committing an abusive </span><span style="font-style:italic">ius variandi</span><span>. There are workers who have planned their obligations according to the bi-weekly frequency, as they have received</span><span> their salary that way for</span><span> years. The mere change of the payment modality can entail a detriment for these officials. The</span><span> fact that the State, through the legislator, orders these institutions to conform to the present article</span><span> and its transitory rule, directly violates the Law of the Constitution and conventional law, by failing to</span><span>recognize these rights of a higher rank than the legal one, causing a regression in labor rights and, therefore, equally violating the principle of progressivity thereof. The norm is neither reasonable nor proportionate, since according to Trans</span><span>itory XXIX there should be no decrease</span><span> or increase; in that sense, there is no reason</span><span> whatsoever to affect the autonomy</span><span> of the entities. In the absence of a palpable purpose, the norm lacks any reason</span><span> or proportion</span><span>.</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445505" class=""><span style="text-transform:uppercase; background-color:#ffffff">Report of the PGR</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The PGR suggests that this Chamber dismiss the grievances raised. For such purposes, the following reflections are made:</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">We cannot lose sight of the general and uniform vocation and character with which</span><span style="font-style:italic"> the Law for Strengthening Public Finances, No. 9635 of December 3, 2018, was issued</span><span style="font-style:italic">, with a clear purpose of </span><span style="font-style:italic">subjecting to uniform criteria all matters concerning the salary</span><span style="font-style:italic"> policy of the Public</span><span style="font-style:italic"> Administration</span><span style="font-style:italic"> (constitutional arts. 105, 121.1, 140 subsections 7) and 191);</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Now then, with regard to the periodicity or frequency of salary payment, as one of </span><span style="font-style:italic">the reorganization measures</span><span style="font-style:italic"> for the containment</span><span style="font-style:italic"> and reduction</span><span style="font-style:italic"> of personnel expenses of Public Administrations, the reform introduced to the Law</span><span style="font-style:italic"> </span><span style="font-style:italic">of Salaries of the Public</span><span style="font-style:italic"> Administration by</span><span style="font-style:italic"> </span><span style="font-style:italic">the Law for Strengthening Public Finances, No. 9635 of December 3, 2018</span><span style="font-style:italic"> </span><span style="font-style:italic">(arts. 26.2 and 52 and Transitory Provisions XXV first</span><span style="font-style:italic"> paragraph and XXIX)</span><span style="font-style:italic"> </span><span style="font-style:italic">and its Regulation</span><span style="font-style:italic"> </span><span style="font-style:italic">–</span><span style="font-style:italic">Executive Decree No. 41564-MIDEPLAN-H- (arts. 2, 3 and 21</span><span style="font-style:italic">), establishes that in the public</span><span style="font-style:italic"> institutions contemplated in article 26</span><span style="font-style:italic"> </span><span style="font-style:italic">–</span><span style="font-style:italic">including Municipalities-</span><span style="font-style:italic"> </span><span style="font-weight:bold; font-style:italic">shall adjust</span><span style="font-weight:bold; font-style:italic"> the payment frequency of the salaries of their officials to the monthly payment modality with a bi-weekly advance</span><span style="font-style:italic"> (art. 52); that is, the salary agreed upon per monthly time unit shall be paid</span><span style="font-style:italic"> in a bi-weekly periodicity or frequency. For which, as</span><span style="font-style:italic"> established in its Transitory XXIX, they must</span><span style="font-style:italic"> make the corresponding adjustments within three months after</span><span style="font-style:italic"> the effective date of that Law</span><span style="font-style:italic"> </span><span style="font-style:italic">-the cited Law No. 9635 was published and entered</span><span style="font-style:italic"> into force on December 4, 2018-</span><span style="font-style:italic">; which</span><span style="font-style:italic"> includes the adaptation</span><span style="font-style:italic"> of the technological</span><span style="font-style:italic"> payment systems available (art. 21 of Executive Decree No. 41564-MIDEPLAN-H), as well</span><span style="font-style:italic"> as carrying out the</span><span style="font-style:italic"> calculations and necessary adjustments in order to ensure that the legally prescribed</span><span style="font-style:italic"> change in payment modality does not produce a decrease</span><span style="font-style:italic"> or increase in the salary of the servants (Transitory XXIX and art. 21 op.

cit.</span><span style="font-style:italic"> </span><span style="font-style:italic">in fine</span><span style="font-style:italic">).</span> It would then be the case, according to such legal norms, of a clearly mandatory, imperative, and absolute character, that all public institutions covered by that legal framework would have to regulate the modality or periodicity of salary payments for their public servants, and no other.

As we were categorical in legal opinions C-060-2019, of March 5, 2019, and C-281-2019, of October 1, 2019, and we reaffirm now, the cited state Law, although supervening, would prevail over the provisions of any other pre-existing legal or lower-ranking provision at a sectoral level, such as previously signed collective bargaining agreements; this by way of tacit repeal – total or partial – due to normative incompatibility of their contents.

Therefore, the alleged defects are not admissible.” **Resolution of the Sala Constitucional** Firstly, like all the previous sections, the issue of municipal autonomy and that of other autonomous entities must be rejected due to the petitioner's lack of standing.

As a second point, it is pertinent to note that what is challenged is a general norm aimed at organizing the Public Administration regarding public employment and specifically adjusting the payment periodicity of public servants' salaries to the modality of monthly payment with a biweekly advance. That is, it has the purpose of standardizing payment periodicity in the public function. The foregoing, with the express exception that under no circumstance – in the event of a change – may a decrease in public servants' salaries occur. In the judgment of this Court, this measure tends to avoid provisions with different periodicities and the consequent impact on public budgets, which in some cases has been considered unreasonable and harmful to the correct disposition of public funds. For example, in judgment no. 2019-016791 already cited previously, this Court examined the regularity of the Collective Bargaining Agreement of the Municipality of Limón, in which the following had been agreed: *“The Municipality shall pay its workers every two weeks the equivalent of what corresponds to fifteen (15) days of total salary.”* In this regard, the Court considered it legitimate to establish a differentiated payment modality since the collective bargaining agreement predated the LFFP, but this Tribunal declared the unconstitutionality of the fictitious creation of an additional working day with the corresponding payment. On that occasion, the following was resolved:

“- The requirement for legality in salary payment. The Municipality of the Canton of Limón and the Union of Municipal Workers of the Province of Limón (SINTRAMUPL), agreed to pay the officials of that corporation on a biweekly system (salary every two weeks), whereby they obtain more than one payment for the fifty-two weeks a year, and not forty-eight weeks, as occurs with the biweekly or monthly payment modality. Precisely, through the challenged norm, the Collective Bargaining Agreement adds one more day to the mentioned biweekly payment. The Procuraduría General de la República argues that this Court has accepted social benefits above the established minimums, but in the case, they miss objective parameters that seek better provision of public service, as well as the principles of reasonableness and proportionality, and technical criteria. Likewise, it indicates that it lacks suitability and necessity, since there is already remuneration for the days worked as compensation for effective work. Also, it brought up several official letters that are important to cite, such as Official Letter DJ-0782-2011 of July 20, 2011, from the Contraloría General de la República, regarding salary adjustments which states: "In that sense, it cannot be overlooked that this type of modification must have adequate motivation: in cases of salary policy. Singularly, it will be necessary not only to have the legal basis for the decision, but also adequate technical justification accrediting the content of the administrative conduct. For the case under analysis, said basis will be determined—essentially—by the technical study demonstrating a substantial increase in the cost of living and/or the need to make a greater increase, which would justify that the salary increase is required and not arbitrary. [...] the text of Article 16 of the Ley General de la Administración Pública must be considered. It is evident then that to effect a salary increase, whether within budget programming, or by salary adjustment, the necessary studies must be available that, from a technical or scientific point of view, demonstrate its necessity and suitability for the (licit) purpose of that administrative conduct. The Court considers that Article 24 of the challenged Collective Bargaining Agreement entails several problems that affect its constitutional legitimacy: first, insofar as it governs a public employment system in a municipal corporation where the principle of legality prevails; and second, because it creates a legal fiction that is contrary to reasonableness and proportionality. The first thing that must be said is that while municipalities can negotiate Collective Bargaining Agreements, the public employment relationship governed by public or statutory law is not thereby lost, where the liberalities that private employers may grant to their workers, typical of common labor law, do not apply. In this sense, it must be emphasized that there is a responsibility of the superior authorities, of the municipal corporations, to maintain the validity of the principle of budgetary and financial legality. In this sense, Collective Bargaining Agreements are instruments that must be renegotiated periodically, and what is agreed upon cannot or should not always be maintained over time, as they must evolve from one era to another, with social benefits keeping pace with the improvements or contractions of the country's economy. In this sense, it can be said that the challenged norm is an old clause that took effect starting in 1994, and which could not respond to current needs. Therefore, its analysis is pertinent. The Procuraduría General de la República, in its report, cites likewise Official Letter No. 003418 of March 27, 1989, which states: "The benefit that a public servant obtains with a weekly or biweekly payment system lies in the fact that they will be compensated for the fifty-two weeks of the year and not only forty-eight as occurs when the payment method is monthly or biweekly. In essence, this payment system (weekly or biweekly) implies, at the time of its implementation, a salary increase for the official (annual or monthly, that is distinct) of 8.33%, given that four more weeks are being remunerated. It starts from the fact that in the Public Sector, a monthly-based salary system is used that the servant earns, which is seen increased by 8.33%. Although this Court considers that the Collective Bargaining Agreement of the Canton of Limón could agree on a better annual salary with the biweekly payment, as part of the agreed socio-economic benefits, the truth is that it is improper for each biweekly payment to have an extra day added to incorporate non-existent workdays in the annual calendar. If the fifty-two weeks of the year are divided by the two weeks of salary payment, twenty-six biweekly salary disbursements are obtained, for which the municipal employee receives an additional day for every fourteen days of payment for their work. As observed, the norm does not remain a simple mathematical equation, but rather obligates the gratuitous addition of one more day, given that: "The Municipality shall pay its workers every two weeks the equivalent of what corresponds to fifteen (15) days of total salary." This means that if twenty-six additional days are added to the twenty-six biweekly payments, on top of the three hundred sixty-five days of the year, a real and effective payment of three hundred ninety-one days is obtained, which the municipal corporation pays its employees annually. Recall that if three hundred sixty-five days of the year are divided by fifty-two weeks of the year, the seven days of the week are obtained. Another way to see it is that they receive approximately fourteen months of salary: the twelve annual months, the aguinaldo, and the remaining twenty-six days. The manner in which salary payment is regulated in the first paragraph of Article 24 of the challenged Collective Bargaining Agreement translates into a transfer of public funds, without an objective justification or reason, that translates into better provision of service in compensation from the workers to the municipality and the inhabitants of the canton. In this sense, these funds do not conform to the principles of morality, legality, efficiency, austerity, and reasonableness in public spending, in which it is imperative not to use public funds as private funds, and the discretionary nature of spending is not free. For this reason, the Court must conclude that the provision, as will be stated below, is unconstitutional. The Court does not observe that the mechanism devised in the Collective Bargaining Agreement seeks a just defense of the indecorous salaries earned by municipal officials, as alleged by the Union of Municipal Workers of Limón; on the contrary, that is not a valid argument, given that it must be demonstrated, at least with information accrediting the case, regarding the liberalities of Public Administrations, in its judgment No. 2012-003267 of 4:01 p.m. on March 7, 2012, which established: "This principle of legality is manifested in the handling, administration, destination, and custody of public resources, for which the legislator, through Law No. 8131 of September 18, 2001, Ley de Administración Financiera y Presupuestos Públicos, indicates, in Article 5, the different principles, among them the principle of financial management. The norm defines it in the following manner: 'For the purposes of the preceding article, the following budgetary principles shall be observed: ... **Principle of financial management.** The administration of the financial resources of the public sector shall be oriented towards the general interests of society, attending to the principles of economy, effectiveness, and efficiency, with full subjection to the law. c) [...]

In this sense, the legislator inserted into the legal system and developed, within the Public Administration, the principle of financial legality fully consistent with Article 140, subsection 7) of the Political Constitution, eliminating an unauthorized use of public resources with the mere discretion of the Public Administration through an Autonomous Regulation or an act of public law not expressly authorized by law. Precisely, the legislator cleared all doubt regarding the scope of the principle by radically indicating full subjection to the law. Similarly, through Article 107, when referring to the principle of legality, it states: "Administrative acts and contracts issued in matters of financial administration must substantially conform to the legal system, according to the hierarchical scale of its sources. The legality of the acts and operations of public bodies and entities subject to this law is presumed, but evidence to the contrary shall be admitted." Consequently, it must substantially conform to the legal system, so there is no total discretion of the Public Administration to create sources of expenditures; on the contrary, legal authorization must exist. It is equally important to note that the economic obligations of the Public Treasury may originate from the Law, likewise, they may originate from jurisdictional resolutions (Articles 122 and 153 of the Political Constitution), and from contracts and administrative acts when some form of obligations based on certain manifestations of the State's will applies. However, it is important to clarify that those manifestations cannot be understood from a private civil or labor standpoint, not only for what was indicated supra, but, on the contrary, given that it refers to contractual forms whose origin is precisely found in the law or that the law indicates the mechanisms to generate these economic obligations." In the case before us, the challenged provision could not be justified in the protection of workers against human rights violations, since it cannot be affirmed that workers receive a ruinous salary from the corporation, and in violation of the minimum wage for workers. Although an improvement could be produced through collective bargaining, the state will must be validly expressed and conformed to the legal system, which in this case, it is not.

- On the violation of the principle of reasonableness and proportionality. The union alleges that the violation of reasonableness and proportionality has not been demonstrated; however, the Court considers that the petitioner provided sufficient elements of judgment on which to base the questioning of the challenged norm, when it claims the lack of justification for an extra payment, as well as the breach of reasonableness and proportionality, given that that part of the salary generates an undue and unjustified use of public resources. As noted in the previous section, the provision openly conflicts with the legal system, in its legality and legitimacy, because, as will be seen, it creates a benefit whose reasonableness is very tenuous, it is a privilege that lacks a valid legal foundation, and a plain and simple transfer of public funds occurs for twenty-six unworked days, nor for being the fruit of work received by the municipal corporation. There is a total absence of consideration, which every employer owes the worker for the work provided.

(…)

[I]n the public sphere, the provisions that are agreed upon would be subject to their legal (analyzed supra) and constitutional validity. Having overcome the foregoing, the examination of weighted reasonableness must be made, as has been cited in the previous judgment; so when there is a given antecedent, a specific consideration is demanded, provided it is equivalent or proportionate. In the case, dealing with a labor or statutory relationship, it follows that for a specific labor consideration by the worker, the corresponding remuneration is received as compensation. But, herein lies the crux of the problem of reasonableness or the test of the challenged provision, which is its absence of equivalence and proportionality. Why?

If, for a given antecedent, such as effective and continuous work for two weeks or fourteen days, payment is received for fifteen days, it is evident that it must be concluded that there is a presumed right that is built on the basis of a fictitious or artificial consideration, which would be contrary to the legality of the wage payment analyzed, to the unequivocal rules of science or technique, or to the elementary principles of justice, logic, or convenience (Article 16.1, of the Ley General de la Administración Pública), since the weeks paid annually are much more with respect to the year than for weekly, biweekly, monthly, or bi-monthly salaries (Article 165, of the Código de Trabajo). And even so, accepting that as a result of collective bargaining it is possible to improve economic conditions, surpassing the payment of forty-eight weeks that corresponds to a bi-monthly or monthly payment, as occurs for many public workers, and a payment of fifty-two weeks is agreed upon, which effectively exist in the calendar, this would not be commensurate with the creation of a fiction without technical or scientific, legal support, or one that was created to solve a superior interest of the legal system. This reality is verified mathematically, without much effort. Thus, the benefit (payment of remuneration for fifteen days) received for the antecedent (workday of fourteen days) under discussion results in a wage mechanism that is fictitious, upon which a benefit or payment obligation for an additional day is created that compromises public resources, a source of expenditure is created without a well-defined legal budget, and hardly without the technical justification to demonstrate that it is the appropriate means for the solution of ruinous wages. In this sense, there is an obligation on the part of the state apparatus to ensure that if a collective bargaining agreement materializes in a Collective Bargaining Agreement, as has been reasoned, it must not openly infringe the legal system, since "the ends do not justify the means." (The highlighting does not correspond to the original).

From the preceding precedent, it follows that, although it was eventually legitimate to establish a different payment periodicity, these modalities must be duly justified and not create additional days of payment in a fictitious manner. All of the foregoing, to the detriment of public finances.

In light of such considerations, it is legitimate that—in order to avoid measures such as these where days are fictitiously added to the detriment of public finances—the legislator establishes general rules of recognition in the payment periodicity for the Public Administration. In this regard, it should be recalled—as analyzed supra—that the reform to the LSAP had as its guiding purpose to aspire for the remunerations of the public function to be governed by a scheme of efficiency and quality in public spending—that is, measures of uniformity. The standardization in the payment schedule can perfectly be considered a measure so that the Administration is more efficient regarding payroll payments.

Now, detailing the aspects questioned by the plaintiff, in the opinion of this Chamber, the mere affirmation that it is an abusive ius variandi because the workers could suffer harm from the change in modality is nothing more than a mere subjective assessment lacking motivation or objective proof that reliably proves an injury or regression in the fundamental rights of public servants. To the extent that there can be no pecuniary harm to the workers as expressly established by the legislator, the plaintiff's affirmations to the effect that this constitutes a regression in labor rights or that the principle of progressivity is injured are not understood. Likewise, the allegations regarding the supposed injury to the principles of reasonableness or proportionality lack adequate and sufficient motivation. It is not for this Court to supply argumentative deficiencies and try to supply or understand the eventual harm due to the alleged unreasonableness of the norm.

Finally, as has already been noted, it is not for the Chamber, through an acción de inconstitucionalidad, to evaluate specific situations of workers or the prevalence between this norm and the current collective bargaining agreements, as this refers to discussions of ordinary legality.

Consequently, the reproaches raised must be dismissed.

XXXI.- REGARDING THE PROFESSIONAL CAREER INCENTIVE Preliminary Clarification Regarding this section, and given that it is a cross-cutting theme in the acciones de inconstitucionalidad that were consolidated, the allegations will be addressed by identifying in each case the respective grievances and the response given by the PGR, MIDEPLAN, DGSC, and the Ministry of Finance.

Challenged Norms Article 53 of LSAP, added by LFFP No. 9635, and Article 15 of regulation No. 41564-MIDEPLAN are questioned:

"Art. 53- Professional career incentive. The professional career incentive shall not be recognized for those academic titles or degrees that are a requirement for the position.

Training activities shall be recognized for public servants provided these have not been paid for by public institutions.

New professional career points shall only be recognized salary-wise for a maximum period of five years.

(As added by Article 3 of Title III of the Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 of December 3, 2018) Art. 15.- Professional career. The professional career incentive shall be granted under the following conditions:

• a)It shall be recognized for those academic titles or degrees that are not requirements for the position.
• b)Recognition of professional career shall proceed when training activities are paid for by the interested servant, whether during working hours or outside of them, provided they are relevant to the position held. For those training activities not paid for by public institutions, leave with pay may be granted, with justification, to receive the training.
• c)New professional career points shall be recognized salary-wise for a period of 5 years.
• d)Professional career points may be recognized, according to the parameters prior to the entry into force of Law No. 9635, only and exclusively in the cases of those applications submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that have not been processed by the Administration." Furthermore, in a related manner, reference is made to Articles 1 and 4 of resolution DG-139-2019 of 3:00 p.m. on July 24, 2019, from the DGSC, which state the following:

"Article 1. Modify Articles 1, 2, 4, 5, 6, 9, and 18 of Resolution DG-064-2008 of February 28, 2008, so that they respectively read as follows:

(...)

"Article 9: Each point considered in any Professional Career factor shall have a unique and independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Offices must establish the corresponding controls so that when said period expires, the respective scores are expired and the inherent payments cease.

Said Offices must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates, presented by each servant, are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." "Article 4. Modify Articles 1, 2, 3, 7, 8, 9, 10, 18, 20, and 21 of Resolution DG-333-2005 of November 30, 2005, so that they respectively read as follows:

(...)

"Article 10.- Each point considered in any Teaching Professional Career factor shall have a unique and independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Office of the Ministry of Public Education must establish the corresponding controls so that when said period expires, the respective scores are expired and the inherent payments cease.

Said office must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates, presented by each servant, are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." Grievances of the Plaintiff Party (acción No. 19-004931-0007-CO) The plaintiff highlights that the challenged norm represents a regression in relation to the purpose of hiring suitable officials, by providing that professional career points will only be recognized when they cover the training they receive. This constitutes a serious disincentive for State professionals to improve their academic and training conditions. Additionally, the norm creates two types of officials: those who can invest in their training and those who depend on the Administration investing in it. Both would perform the same functions, but the training assumption would cause them to receive different incomes, which injures the principle of equality. The training incentive could be provided in a collective bargaining agreement, in which case, the norm would also injure the right to collective bargaining.

Finally, the wording of the norm creates legal uncertainty, as it is ambiguous and makes it impossible to determine with any certainty the spirit of the legislator: whether to recognize up to five years of training or to pay only for five years.

### Grievances of the Claimant (action No. 19-023575-0007-CO) The President of the APSE also questioned the provisions of Art. 53, paragraph 3, Art. 15 of the decree, and by extension refers to the content of the resolution of the DGSC, which is limited to reiterating what is provided in the law, namely that "*New professional career points will only be recognized for salary purposes for a maximum period of five years*". On this point, this Chamber clarifies that, given that the provisions of said resolution are a mere reiteration of what is stated in the law, this Chamber will limit itself to evaluating the content provided in the legal norm, noting that its content is otherwise repeated in the regulation and in the resolution that complies with what the legislator ordered.

The arguments regarding this provision revolve around an alleged violation of Articles 34, 45, and 74 of the Political Constitution by introducing a temporal limitation on the recognition of professional career points, since it punishes professionals who are recognized for professional career points in a confiscatory manner, given that after five years the incentive ceases to be paid, damaging subjective rights and the inalienability of the right.

The contested norm violates the fundamental right to a salary (enshrined in Art. 57 of the Constitution and Articles 23 of the Universal Declaration of Human Rights, 7 of the International Covenant on Economic, Social and Cultural Rights, and 7 of the Protocol of San Salvador), insofar as the official's subjective right to continue earning the professional career compensation is nullified, once the aforementioned five years have elapsed after its respective recognition, despite it having been granted because they fulfilled the requirements established in the legal system and, therefore, constitutes an acquired right. The contested regulations violate Art. 34 of the Constitution since they eliminate—arbitrarily—the corresponding recognition and cause a cessation of remuneration without a legitimate reason justifying the interdiction of that right. The contested regulations remove from the worker's assets, after five years, an economic benefit, of a salary nature, which was recognized because they fulfilled the established requirements; a suppression that implies a manifest violation of an acquired right. Such regulations discourage the professional development of public officials, to the detriment of efficiency in the provision of public service and to the impairment of the consolidated rights of the professional officials responsible for providing the service. The contested regulations also violate the principle of the intangibility of the worker's assets and, consequently, become a confiscatory or expropriatory provision, in breach of articles 34, 40, and 45 of the Political Constitution. The contested regulations violate the principle of the intangibility of assets, since when an unjustified reduction of the worker's salary occurs, a detriment to their assets is produced without granting any compensation for such effect. It is not justified that if the corresponding economic incentive was recognized because the professional servant fulfilled the requirements established by the regulations and continues to fulfill them, the law should come to suppress that recognition after five years have elapsed. Article 74 of the Constitution is violated, which declares the inalienable nature of the rights and benefits contained in the Single Chapter of Title V of the Political Constitution and any other deriving from the Christian principle of social justice. Such principle binds the ordinary legislator, who cannot dispose of a fundamental right at their discretion, restricting its essential content, limiting its scope, or extinguishing a subjective right. The deprivation of the remuneration of the economic incentive for professional career implies abusive regulation, which renders a fundamental right nugatory, a treatment incompatible with Art. 74 of the Constitution.

In summary, the disagreement is based on the fact that these legal norms establish that the recognition, and subsequent payment, of new points under the so-called professional career system in the public employment regime, after the reform introduced by Title III of the LFFP No. 9635, will have a unique and independent validity for a period of five years; which in the claimant's opinion is contrary to the fundamental right to a salary, violates the principles of non-retroactivity to the detriment, asset intangibility, and non-confiscation, as well as the inalienability of social rights.

### Report of the PGR First, the PGR proposes a doctrinal approach to the concept of the professional career incentive and then requests that the objections be dismissed. The foregoing, according to the following reflections:

"*As is obvious, the recognition of the professional career has the ultimate objective of ensuring that the Administration has the highly trained personnel it needs for an adequate performance of the public function. But the effective achievement of this and other objectives of the professional career depends on its regulatory scheme; that is, on the career scheme that is provided for and regulated by norms (C-099-2008 of April 3, 2008; C-184-2013 of September 5, 2013 and C-315-2018, of December 14, 2018).* &nbsp; *It is important to reaffirm then that the regime of rights of public officials is not a static regime, but variable by essence, especially regarding rights of economic content, whose amount can even be modified within the limits of the Constitution (Art. 34 constitutional), since the servant does not have an acquired right against the legislator, and even against the same regulatory power of the employing Administration, to maintain a specific regulation of their rights, when experience shows that it must be subjected, in accordance with the Law, to a more or less continuous process of adjustments and reforms for reasons of general interest (Resolution No. 10340 of 12:47 hrs of June 11, 2010, Constitutional Chamber).* &nbsp; *And the legal change operated by Law No. 9635 on the matter, which is of general application in the Public Sector, does not seek to create an odious differentiation or a salary detriment as is groundlessly accused, but rather* ***it is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified****; a need that goes beyond overcoming a temporary or circumstantial economic crisis, as it constitutes an economic objective that it is desirable to maintain over time. Without thereby actually appreciating any violation of the right to equality under the Law, as is groundlessly accused.* &nbsp; *It should be remembered that the State has the obligation to promote efficiency in the provision of public services, for which it is fundamental to foster the efficiency of public employment. In fact, part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenditures generated by the State payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation, and to the availability of resources*". (The highlighting does not correspond to the original).

&nbsp; ### Second Report of the PGR In the report requested from the PGR —in relation to the grievances of expediente No. 19-023575-0007-CO— it was explained that there is no injury to Art. 34 of the Political Constitution because the reform safeguards the acquired rights of public servants who enjoyed that incentive.

Then, regarding the recognition period for new professional career points, it is alleged that it is not true that the new regulation on the professional career, which introduces a five-year validity —for points acquired and paid for that concept after December 4, 2018— is contrary to the principle of non-confiscation, since it is an economic compensation that is quantitatively insignificant, accessory, complementary, and optional to the total salary, which in terms of the Chamber itself does not affect the essential core of the minimum salary constitutionally protected —Art. 57 constitutional—. Therefore, it cannot be affirmed that it is confiscatory in the terms accused, especially when the claimant does not base or develop any technical, precise, and solidly supported argument in this regard.

Nor is any violation of the principle of the inalienability of social rights —Art. 74 constitutional— observed, since as there is no right to the immutability of the legal system, the matter of salary supplements for those still under the composite salary scheme is tangible matter available to the legislator, as it is not part of the constitutional labor regime.

### Report of Mideplan It is reported that from the application of Art. 56 in concordance with the provisions of Transitory Provision XXV of Title III of Law No. 9635, the State (as sole employer, as long as labor continuity subsists) is compelled to safeguard salary amounts as a manifestation of the principle of salary indemnity, the acquired rights, and the consolidated legal situations of the public servants covered by the scope of application of the law, such that the amounts that had already entered the asset sphere of the public servants at the time of approval of said law cannot be reduced or applied retroactively in an undue manner. However, the acquired rights and consolidated legal situations regarding the amounts recognized for professional career prior to the entry into force of the LFFP cannot be equated with the expectations of right that public servants may have regarding the recognition of new points, nor can they aspire to recognition that exceeds the maximum limit set by law, as this would indisputably incur a flagrant violation of the principle of legality.

### Report of the DGSC Said directorate rejects the arguments of unconstitutionality.

It affirms that salary supplements that depend on some condition to be granted —as is the case here— do not constitute an acquired right, as this cannot be considered part of the salary proper, since its granting depends on the objective conditions for which it was recognized. Regarding the professional career incentive, it is the case that, in accordance with the legal reform introduced by Law No. 9635, it is widely known from its granting that said bonus will be recognized and remunerated on a temporary basis.

When referring to the granting of salary incentives, such as the recognition of points for professional career, we are not in the presence of an administrative act generating acquired rights as the claimant erroneously claims; on the contrary, it is a benefit granted and conditioned not only on the fulfillment of certain assumptions and requirements, but also that its enjoyment is legally conditioned to a previously established period, so that its suppression cannot be considered as an abusive ius variandi by the Administration, upon fulfillment of the temporal condition —five years— of enjoyment of said salary bonus.

It refers to the background of the reform's approval to conclude that the legislator not only could, but had to introduce changes in the legal regulations in force regarding the remunerations of public servants, without this implying a violation of the principle of non-retroactivity and asset intangibility, since what is constitutionally prohibited is suppressing a legally granted benefit, not the Administration's ability to regulate future situations, as occurs in this case when the legislator regulates new conditions, requirements, and deadlines for the granting of the salary incentive for professional career. In this section, it should be considered that the deputies, upon enacting Law 9635, respected the aforementioned principles, which can be verified from a reading of Article 56 and Transitory Provision XXV of that legal body.

Consistent with this legal stance and the legal change introduced in our field, this Dirección General issued resolution No. DG-139-2019 of July 24, 2019, which modified resolutions numbers DG-064-2008 of February 28, 2008, and DG-333-2005 of November 30, 2005, for the purpose of adjusting these regulations to the precepts established in Law 9635 and its regulation.

The actions carried out by this Dirección General were not only timely and diligent, but also conformed to the norms in force, and were developed in adherence to the principle of legality.

The cessation of the recognition of points for the professional career incentive, as it is not an acquired right but rather a salary bonus granted by the Administration for a determined period, in no way transgresses the principle of the inalienability of the labor rights of public servants.

### Report of the Ministry of Finance In application of the principle of salary indemnity, the servants who had the professional career points recognized before December 4, 2018, will retain—without temporal limitation and as long as the labor relationship is maintained—the quantity of points accumulated and recognized before that date, and based on which they receive the respective economic compensation; but points obtained after the entry into force of Law 9635 and other regulated aspects regarding the professional career will be subject to the normative modifications introduced by the cited law. The violation of salary indicated does not occur, since rights of economic content can be modified within the limits of the Constitution (Art. 34 constitutional).

The purpose of Law 9635 is not to seek a differentiation or salary detriment, but rather it was proposed for the purpose of obeying budgetary and financial limitations, with the clear objective of seeking to maintain a balance in public finances and for this economic objective to be maintained over time and not only be applicable to a fiscal crisis. In this sense, it is the State's obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet the employer obligations towards public officials and the expenditures for payroll payments that it must make, adjusted to the reality that the country's finances are going through. The payment of salary bonuses or incentives must be related to the balance of public finances. Said reform introduced by Law No. 9536 seeks to promote this balance without thereby meaning that it has violated constitutional norms and/or principles. It is important to point out that, to safeguard salaries, and because Transitory Provision XXV of the LFFP so provides, the total salary of the servants who were active on December 4, 2018 —the date on which that law entered into force— cannot be reduced.

Finally, it refers to the state of public finances, to conclude that it is clear that the State is obliged to guarantee the principle of efficiency by ensuring the necessary resources to meet obligations, adjusted to the reality that the country's finances are going through, so the payment of salary bonuses or incentives must be related to the balance of public finances.

### Resolution of the Constitutional Chamber #### Generalities on Professional Career Points Historically, it has been recognized that the so-called "*professional career*" corresponds to an economic incentive applicable to professional-level officials in the service of the Public Administration, through which they are pecuniarily recognized for academic advancement and training. This remuneration also sought to contribute to the recruitment and retention of the best-qualified professionals in each area of activity, for an adequate performance of the public function, as well as to increase the productivity of professionals.

The definition of "*professional career*" can currently be found in the Regulation of Title III of the LFFP, Executive Decree No. 41564 of February 11, 2019:

"*Article 1.- Definitions.* For the purposes of these regulations, it shall be understood as follows:</span><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(…</span><span style="font-style:italic">) </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">b) Professional career (carrera profesional): salary incentive recognized for those academic degrees or titles that are not a requirement for the position, as well as for those training activities (actividades de capacitación) that have not been paid for by public institutions."</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Also in the "Standards for the application of the professional career for public entities covered by the scope of the Budgetary Authority" (Normas para la aplicación de la carrera profesional para las entidades públicas cubiertas por el ámbito de la Autoridad Presupuestaria), No. 42945-H, where it is defined as follows:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"Article 1</span><span style="font-style:italic">-The Professional Career is hereby designated as the regime that recognizes, through a complementary and optional economic incentive, the merit of the professional official, who provides services in the public entities covered by the scope of the Budgetary Authority, achieved through their optimal performance and permanent involvement in activities in at least one of the following areas:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1.1 Academic education (Formación académica) at the level of university degrees and postgraduate degrees, additional to the requirements of the position.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1.2 Education in professional training activities."</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The Second Chamber of the Court has defined this salary supplement in the following terms:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal"><span style="font-size:12pt; font-style:italic">"III.- REGARDING THE INCENTIVE FOR PROFESSIONAL CAREER RECOGNITION: From its origins, the recognition for professional career was conceived as an economic incentive whose fundamental objective is to stimulate the academic and professional advancement of professionals in the service of the Public Administration; and to contribute to the recruitment and retention of the best-qualified professionals in each area of activity, all with a view to a better and more adequate fulfillment of the purposes of the public function, within which is, undoubtedly, efficiency in service (Article 4 of the General Law of Public Administration). Like any salary benefit that compromises public finances, its recognition and granting can never be an arbitrary or indiscriminate act. On the contrary, as the Public Administration is subject to the principle of budgetary legality, it must also in this case, guarantee the fulfillment of the legally established requirements without, on the other hand, being able to fail to recognize, when appropriate, the right of the official."</span><span style="font-size:12pt"> (Judgment No. <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0034-390251" style="text-decoration:none">2007-000721</a>. The highlighted text does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Being a salary benefit or an incentive, it is necessary to reiterate what was mentioned </span><span style="font-style:italic">supra </span><span>regarding other types of incentives —like the recognition of seniority bonuses (anualidades)— in the sense that no one has the right to the immutability of the legal system, that is, that the rules never change. Therefore, while it is true that the ultimate objective of recognizing the professional career is to ensure that the Administration has the highly trained personnel it needs for an adequate performance of the public function, it is also true that for the effective achievement of this and other objectives of the professional career, its recognition and payment conditions depend on what is provided and regulated by the legislator. </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>In the </span><span style="font-style:italic">sub lite</span><span>, it has been amply established that our country was going through a fiscal situation that implied the commitment and sacrifice of all Costa Ricans in many matters. Among them, the budgetary limitations for the recognition of salary supplements and incentives, with the purpose of achieving a balance in public finances. In this regard, we agree with the PGR in the sense that it is the State's obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet employer obligations to public officials and the expenditures for payroll payments that it must make, adjusted to the reality that the country's finances are going through. Therefore, the legislator can make changes to the conditions under which services are provided to the State. That is, it has the competence to dictate the general guidelines for regulating remunerations and, in that sense, it is worth establishing that there is no fundamental right to have a specific regulatory mechanism maintained. The foregoing, provided that the acquired rights and consolidated legal situations of the persons who maintained a service relationship before those changes were made are respected, and, in addition, constitutional principles such as reasonableness and non-discrimination are respected.</span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445519" class=""><span>Regarding an alleged disincentive and setback in relation to proven suitability (idoneidad comprobada)</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Such arguments are not sufficiently developed by the claimant as would have been required and, therefore, the appropriate course is to dismiss them. All personnel of the Public Administration must be hired based on proven suitability, both personally and professionally speaking, and, in that sense, it must be taken for granted that the servants must fulfill the qualities for the position to which they are appointed. Therefore, no logical relationship is found in the claimant's affirmation that the rule represents a setback regarding the hiring of suitable officials, when this is the basic premise of all hiring in the Public Administration. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445520" class=""><span>On the reasonableness of recognizing the incentive to servants who paid for their own training</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>The fact that incentives are recognized to those persons who pay for the corresponding training from their own resources (peculio) is reasonable. If the servant invested their own time and money in the training, it is reasonable that the Administration pays this person the corresponding incentive. Conversely, as a matter of principle and with the arguments provided by the claimant, it appears reasonable that, if it was the public institution itself that invested in the servant's training and the latter did not have to pay for their studies, in contrast, they do not receive an additional pecuniary amount for the incentive under analysis. In the context of the approval of the regulations under analysis, it seems reasonable that the one who paid for their own studies receives a stipend, but not the one whose corresponding studies were paid for with public funds. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445521" class=""><span>On the alleged violation of the principle of equality</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Furthermore, the construction made by the claimant regarding a presumed violation of the principle of equality is artificial. He alludes that there will be two types of public servants: those who can invest in their education and those who cannot, which would eventually cause different incomes. In this regard, the claimant errs in his assessment because he constructs a false hypothesis. In reality, any public servant could invest time and resources in training activities (actividades de capacitación), but only those who truly procure the means for their professional and personal improvement will receive the corresponding incentive. It would be unequal for a servant who received training at the expense of public funds to receive, additionally, a stipend as an incentive, unlike that servant who made an effort to pay for their own training. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Consequently, the grievances are rejected in the terms they were presented by the claimant. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445522" class=""><span>On collective bargaining (negociación colectiva)</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:8pt"><span>The claimant merely states that the training incentive could be part of a collective bargaining agreement and therefore the rule would violate that right. As for this aspect, it is appropriate to refer the parties to what was previously resolved. Restrictions on collective bargaining agreements are not absolute and, in the cases of public servants who can agree to them, it is perfectly possible to negotiate this type of salary improvements that respond to the training needs of the respective workplace. However, this does not prevent that, as a general criterion, the legislator establishes the conditions for the recognition of this type of salary incentives. Consequently, the grievances raised must be dismissed. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445523" class=""><span>On the correct interpretation of the regulations</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:8pt"><span>The plaintiff alleges a supposed threat to the principle of legal certainty because the regulation is not clear in its wording. Said argument, only stated as such, is not sufficient to decree the unconstitutionality of the regulation. It has already been amply insisted that, when questioning the content of a provision for supposedly violating the Law of the Constitution, the party must raise solid and duly substantiated arguments. Here the argument is not properly developed, being that, moreover, the aspects related to the correct interpretation and application of ordinary legal norms correspond to the operators of the corresponding pathways and not to this Constitutional Court. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445524" class=""><span>On the alleged violation of acquired rights and the inalienability of rights</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>In Action No. 19-023575-0007-CO, the party insists on a presumed violation of acquired rights (derechos adquiridos), enunciating the violation of Articles 34, 45, and 74 of the Political Constitution. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding these points, it is convenient to distinguish between professional career points obtained prior to the approval of the LFFP and those that will be and have been recognized subsequently. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding the former, that is, the officials who have had professional career points recognized prior to the approval of the LFFP, it is imperative to recall what is established in Article 56 of the LSAP and Transitory Provision XXV of the LFFP regarding Public Employment. Said norms provide, as pertinent, the following: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Art. 56- Application of incentives, caps, and compensations. The incentives, compensations, caps, or seniority bonuses remunerated as of the date of entry into force of the law shall be applied prospectively and may not be applied retroactively to the detriment of the official or their patrimonial rights.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">TRANSITORY PROVISION XXV. The total salary of the servants who are active in the institutions contemplated in Article 26 upon the entry into force of this law may not be decreased and the acquired rights they hold shall be respected. (…)".</span><span> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>As can be seen, the new provisions on the recognition of salary incentives —such as professional career points— safeguard and protect the acquired patrimonial rights of public servants who enjoyed the incentive under the originally agreed conditions. In no way can the already consolidated salary amount of public servants be affected. In that line of thought, there is no affectation of salary or acquired rights, much less a waiver of salary aspects. The reporting authorities are correct in the sense that the State is compelled to safeguard salary amounts as a manifestation of the principle of salary indemnity (principio de indemnidad salarial), the acquired rights and the consolidated legal situations of the public servant persons covered by the scope of application of the law, so that the amounts that had already entered the patrimonial sphere of the public servant persons at the time of approval of said law, cannot be reduced or applied retroactively in an undue manner. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Now then, as already noted, the situation of servants with such incentives already incorporated into their salary differs from the situation of those expectations of right of those servants who seek the recognition of new professional career points by virtue of subsequent training. In such cases, public servants inevitably must adjust to the new conditions defined by the legislator by virtue of the state of public finances. It is not, as the claimant affirms, a sanction, but rather that the future incentive is subject to the fulfillment of the applicable provisions for its recognition and payment —it is, we repeat, a mere expectation— and, in such a case, its authorization and payment will be made according to the new imposed legal conditions, with the public servant knowing in advance that the recognition and payment of the incentive will be made for a specific term and not for life. The reporting authorities are correct in the sense that with the legal reform introduced by Law No. 9635, from its granting it is widely known that the cited supplement will be recognized and remunerated on a temporary basis. Consequently, at this point it is appropriate to reiterate what was said regarding the future recognition of seniority bonuses and to allude to the considerations made in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193" style="text-decoration:none">No. 2024-007057</a>:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"In the sub examine, it must be noted that the future payment of a seniority bonus is not an automatic effect incorporated into every official's salary, but rather, as recognized by the Office of the Attorney General of the Republic (Procuraduría General de la República), it constitutes an expectation of right if certain conditions are met, for instance, reaching the annual period and also qualifying within the evaluation parameters. Should such conditions not be met, the recognition in question would not be made. In that sense, one cannot seek to establish as an acquired right the way in which these will come to be paid or the assumptions under which it must be done, since there is no right to the immutability of the legal system (inmutabilidad del ordenamiento jurídico), according to the precedent cited supra.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(…)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Neither does it imply a retroactive application of the law, as it concerns the future payments of seniority bonuses, not those whose amounts have already entered the official's wealth (peculio), whose amount remains intact (…)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Thus, that which was already acquired and contemplated in the salary that the worker received prior to the effectiveness of Law No. 9635, as explained, is maintained, with the officials preserving their acquired rights and without any affectation to the salary that corresponds to them."</span><span> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In which case, it is necessary to insist that there is no right to the immutability of the legal system and one cannot claim that there is an acquired right to a specific regulation on the recognition of salary incentives. The fiscal situation prompted the legislator to establish the recognition of this salary supplement for a limited term and the public servant knows in advance that the new incentive is not permanent, but that its payment will be for a specific period, which in the opinion of this Chamber does not violate the right to salary or Articles 34 and 74 of the Political Constitution, nor the principles of intangibility of assets or non-confiscation. The public servant is not renouncing their rights, nor is the legislator violating an acquired right, because the latter has provided within the framework of legislative discretion that the new professional career incentives may only be recognized for a single, specific term, with the prior knowledge and acceptance of the respective servant.</span></p> The Chamber does not overlook the importance of these bonuses and, of course, advocates for the training and retention of the best human capital that the Administration has available. All of this contributes to the promotion of general well-being through the provision of an effective and efficient public service. However, once again, from the perspective in which this action is brought, no violation of the Law of the Constitution is observed because the bonuses that had entered the assets of the public servants prior to the reform remain absolutely untouched according to the current legal provisions themselves. Whereas, the expectation of new bonuses, that is, in the future or thereafter, may be recognized when the legal and regulatory conditions established for such cases are met; however, such recognition shall be only for five years, with the prior knowledge and acceptance of the servant who processes the salary bonus.

There is no such thing as a subjective right of the official to continue earning the professional career remuneration, once the five years following its respective recognition have elapsed. Nor is there an injury to the hard core of the salary, since this is not subject to variation, but rather the bonus recognized and payable for a temporary period.

It is true that the State as an employer must promote policies to incentivize the continuous education of its servants so that personnel continue to be trained and, ultimately, so that the entire Public Administration aspires to have and retain the best officials for the benefit of the general interest and the services that must be provided to all users and administered parties. In this sense, it is desirable that the State promotes decent and competitive salaries to retain personnel. But with the elements provided so far in this proceeding, no injury to the invoked rights is perceived as such. Therefore, this aspect of the action is dismissed without prejudice to the debate being reopened or reframed in other terms if it is determined that the provisions cause an impoverishment of the salaries of professionals or it is verified that this aspirational measure for the retention of the most suitable public servants is being harmed by the flight of trained personnel.

Finally, and if there were eventually an illegitimate application of the norm, that would have to be examined in each specific case through the ordinary channels of legality, but the objections raised do not prove an injury to the Law of the Constitution.

Conclusions

As a corollary to the considerations made in light of the arguments raised by the plaintiffs, the injury to the invoked constitutional rights and principles is not proven.

Judge Cruz Castro issues a dissenting vote and declares unconstitutional Article 53 of the LSAP, added by the LFFP No. 9635, Article 15 of Regulation No. 41564-MIDEPLAN, and Resolution No. DG-139-2019 of the DGSC.

XXXII.- CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS Challenged Norms Article 54 of the LSAP added by the LFFP No. 9635 and Article 17 of Regulation No. 41564-MIDEPLAN are challenged.

The original version of Article 54 literally provided the following:

"Art. 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation that, upon the entry into force of this law, is expressed in percentage terms, its future calculation shall be a fixed nominal amount, resulting from applying the percentage to the base salary as of January 2018.

(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)".

This numeral was subsequently reformed by the sole article of the Law to prevent the reduction of the salaries of Costa Rican educators, No. 10137 of February 17, 2022. The current norm provides the following:

"Article 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation, that upon the entry into force of this law is expressed in percentage terms, its future calculation shall be a nominal amount, resulting from applying the percentage to the base salary as of July 2018.

In the specific case of the salary component called "Incentive for the Development of Teaching", which is received by the teaching staff of the second title of the Civil Service Statute, it must be calculated as a fixed nominal amount, resulting from applying eight point thirty-three percent (8.33%) to the total salary, this being understood as the sum of the base salary plus its respective salary components, which the servant earns at the time the work is performed, with reference to the salary scale in force as of July 2018.

At all times, the incentive for the development of teaching shall be calculated proportionally according to the number of lessons, the workday, and other salary components that the public servant holds.

TRANSITORY- The amounts received by the personnel of the Ministry of Public Education corresponding to the Incentive for the Development of Teaching, which were calculated as a percentage from the entry into force of Law 9635, Law for the Strengthening of Public Finances, of December 4, 2018, and until February 17, 2022, shall be considered as an item properly paid by the Administration and received in good faith by the personnel of Title II of the Civil Service Statute (teaching, administrative, and technical-docente staff of the Ministry of Public Education), who are released from the obligation to repay them. In accordance with the foregoing, the Ministry of Public Education is exempted from the obligation to claim their payment. Likewise, the sums received by the personnel of the Ministry of Public Education, for the Incentive for the Development of Teaching, from February 17, 2022, and until its effective nominalization in the corresponding payment systems, shall be considered as properly paid, for which reason they do not generate overpaid sums and therefore the Ministry of Public Education is exempted from the obligation to claim their payment.

(Thus the previous transitory added by the sole article of Law No. 10423 of November 20, 2023) (Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018) (Thus reformed by the sole article of the Law to prevent the reduction of the salaries of Costa Rican educators, No. 10137 of February 17, 2022)".

Similarly, the original version of the decree stated the following:

Art. 17.- Conversion of incentives to fixed nominal amounts. In accordance with the provisions of Article 54 of Law No. 2166, added by Article 3 of Law No. 9635, any other existing incentive or compensation that upon the entry into force of Law No. 9635 is expressed in percentage terms, must be calculated by means of a fixed nominal amount, resulting from applying the percentage to the base salary as of January 2018.

Said provision was reformed, so that the current version orders the following:

"Article 17.- Conversion of incentives to fixed nominal amounts. The amounts for incentives or compensations already received prior to the entry into force of Law No. 9635, are preserved and maintained over time as fixed nominal amounts, a product of the way they were revalued before December 4, 2018, this in accordance with the provisions of Articles 54 and 56 of Law No. 2166, added by Article 3 of Law No. 9635, and Transitory XXV of Law No. 9635.

In accordance with the provisions of Article 54 of Law No. 2166, added by Article 3 of Law No. 9635 and the transitory provisions XXV and XXXI of the third title of Law No. 9635 and in concordance with the Resolution of the General Directorate of the Civil Service DG-087-2018 of nine o'clock on July 2, 2018, any other existing incentive or compensation that upon the entry into force of Law No. 9635 is expressed in percentage terms, must be calculated by means of a fixed nominal amount, resulting from applying the percentage to the base salary as of July 2018.

(Thus reformed by Article 1 of Executive Decree No. 41729 of May 20, 2019)".

Grievances of the Plaintiff The plaintiff argues that, like the challenged Article 50, this norm empties the content of any future existing incentive provided by legal, conventional, or regulatory norm, by decreeing it nominally, subjecting it to the loss of the purchasing power of the currency. He considers that it is a very poor legislative technique that harms the progressiveness of rights and the autonomy of decentralized entities and that directly affects the purchasing power of public officials, whose salary would be confiscated. The unreasonable and disproportionate relationship of what the legislator seeks is clear: higher consumption taxes and a reduction of labor rights. The harm is not only for the professional class, but also for municipal laborers, administrative police officers, etc. The legislator intends to refinance the State at the expense of the rights of Costa Ricans, above all, of public officials, regardless of their salary level.

Allegations of the Active Co-adjuvant (SINAME) It argues that Article 17 of Executive Decree No. 41564-MIDEPLAN-H must be declared unconstitutional because it violates the acquired rights and consolidated legal situations (situaciones jurídicas consolidadas) of public officials, since the norm is being given a retroactive effect, to the detriment of the administered parties, in complete disregard of Article 34 of the Constitution. What is established in that numeral of the regulation of Law No. 9635 is contrary to the Political Constitution because it nominalizes all seniority bonuses (anualidades) and salary bonuses even though those amounts were established as percentages since their creation, and this creates an affectation of the economic rights of the administered parties, leaving them completely unprotected and without legal certainty despite the fact that those are rights that come from collective bargaining. In accordance with the principle of non-retroactivity, it cannot be admitted that a later law influences this type of relations forged under the protection of the law. The legal system must protect the intangibility of these acquired rights and consolidated legal situations that are being threatened by the challenged norms.

Report of the PGR The PGR suggests declaring the unconstitutionality action without merit based on the following reasoning:

"Just as we indicated in the original report of last March 18, within this case file, in the opinion of this Attorney General's Office, the legislator is the one called to establish the incentives and the amount of the economic benefits granted to its servants; this as part of the so-called "Statute of public officials" (Article 191 of the Constitution).

And based on the foregoing, it must be understood that the economic amount granted for incentives or bonuses depends on the intensity with which the legislator wishes to incentivize the permanence in the position of public officials, and on the economic possibility of paying the sums derived from that incentive.

Note that keeping the pre-existing salary components as percentages implies a greater expenditure of resources that is not consistent with the intention of balancing public finances that currently prevails, out of necessity. Faced with this situation, it corresponds to the legislator to decide —as he already did— to effectuate said conversion by nominalizing them and thus promote the balance of public finances, without opting for one or another decision implying any violation of constitutional norms or principles, since those alternatives are constitutionally valid in view of the basic regulation of the constitutional regime of public employment (Article 191 of the Constitution), which it is incumbent upon the legislator to configure (Articles 105 and 121.1 Ibidem).

Thus, the permanent nature implicit in granting these salary components a nominal value that is stable over time is not intended to worsen the situation of public employees, but rather is validly justified by the real need to achieve a situation of balance in public finances; a need that goes beyond overcoming a temporary or conjunctural economic crisis, as it constitutes an economic objective that it is desirable to maintain over time.

As we reaffirm, the State has the obligation to promote efficiency in the provision of public services, for which it is fundamental to foster the efficiency of public employment. In fact, part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenditures generated by the State payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation and the availability of resources.

In any case, we must insist that this rule (art. 54) does not repeal the incentives or compensations existing prior to the Law for the Strengthening of Public Finances, but rather establishes the form in which they are to be calculated in the future, no longer as a percentage, but by means of a fixed nominal amount. (Opinion C-153-2018, of June 6, 2019). Which means that, by express legal mandate, all salary components that before December 4, 2018, were calculated as a percentage, must without exception be nominalized in accordance with the provisions. A position we reaffirmed in pronouncements OJ-041-2019, of May 29, 2019, in the case of the Caja Costarricense de Seguro Social; OJ-068-2019, of June 20, 2019, in the case of the Poder Judicial; opinions C-166-2019, of June 13, 2019, in the case of the Tribunal Supremo de Elecciones; C-194-2019, of July 8, 2019, in the case of the Municipalities; C-281-2019, of October 1, 2019, in which it was determined that, given its general scope of application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option to regulate the remunerative conditions of employment in the entire public sector (art. 192 of the Constitution), the provisions on public employment contemplated in the Public Administration Salary Law related, among other topics, to the form in which salaries and their components must be calculated in the Public Sector, prevail over any other provision of legal or lower rank pre-existing at the sectoral level; this by way of tacit repeal – total or partial – due to normative incompatibility of their contents.

It should be remembered that the regime of rights of public officials is not a static regime, but variable by essence, especially with regard to rights of economic content, the amount of which may even be modified within the limits of the Constitution (art. 34 of the Constitution), since the servant does not have a vested right against the legislator, and even against the same normative power of the employing Administration, for a specific regulation of their rights to be maintained, when experience demonstrates that it must be subjected, in accordance with the Law, to a more or less continuous process of adjustments and reforms for reasons of general interest (Resolution No. 10340 of 12:47 hrs on June 11, 2010, Sala Constitucional).

And since the employment relationship is framed in an objective regime, defined legally or by regulation, as was explained, it is also modifiable by one or another normative instrument, without, consequently, being able to claim that this statutory situation is frozen in time, because "no one has the right to the immutability of the legal order, that is, that the rules never change, therefore the principle of non-retroactivity does not prevent that once the rule that connects the fact with the effect has come into legal existence, it cannot be modified, and even suppressed by a subsequent norm" (Resolution No. 6134-98 of 17:24 hours on August 26, 1998, Sala Constitucional).

In this way, the consolidated criterion has been that the official lacks a general vested right to the maintenance of a specific regulation of their working conditions or to prevent its modification, clarifying that the mere conditions objectively provided for in the norms or the advantageous situations or mere expectations that could potentially derive from them are not vested rights, if they are not accompanied by a singular legal act that confers a subjective right to an individualized legal situation arising from facts protected by the expressed objective norm, and always born during the validity of the same. (See in this regard, among others, judgment No. 84-2014-I of 11:30 hrs. on November 28, 2014, from the Tribunal Contencioso Administrativo y Civil de Hacienda, Section I).

And in this case, it must not be lost sight of the fact that in the face of the nominalization of the pre-existing percentage incentives and bonuses, ordered by the legislative provisions of the Law for the Strengthening of Public Finances, No. 9635, those salary components are preserved but under a fixed economic value; that is, they are not repealed, but are preserved in the future under a fixed amount resulting from the application of the percentage to the base salary as of July 2018; this to safeguard the "vested rights", because Transitory Provision XXV of the Law itself so arranged, in the sense that the total salary of the servers who were active as of December 4, 2018, the date on which that Law entered into force, cannot be diminished.

Finally, regarding the accusation that the nominalization of salary components ordered in Law No. 9635 negatively affects the right of negotiation that contains provisions on the payment of incentives or compensations in percentage form, thus addressing that alleged reason for unconstitutionality, those objections revolve around the theme of the prevalence or not of a subsequent law (the Law for the Strengthening of Public Finances) over current collective bargaining agreements. And in this regard, we must reiterate that the institutional position of this advisory body on that topic was expressed in our opinion C-060-2019, of March 5, just recently passed. In that pronouncement, the conclusion was reached that collective bargaining agreements are subject to the law, even when the latter is subsequent, especially when that law is expressly directed to repeal (with effect towards the future, consequently respecting vested rights and consolidated legal situations) the conventional norms that have a specific content.

For the reasons stated, the alleged defects are not admissible." ### Ministry of Finance Report The minister requests that the grievances raised be dismissed and states the following:

"[T]he treatment given to the annuities, the nominalizing of the bonuses are not compensatory measures, nor arbitrary, nor do they violate vested rights, but rather their orientation is to standardize the public employment regime." ### Resolution of the Constitutional Chamber Regarding these grievances, it is necessary to reiterate what was resolved in the previous items. In the first place, the claimants lack standing to question the alleged injury to the autonomies of the municipalities or decentralized entities.

Secondly, regarding labor rights, it is necessary to insist that the legislator provided that these types of general rules take effect towards the future, safeguarding in any case the salary status of public servants. In this regard, it is necessary to reiterate what was established in art. 56 of the LSAP in the sense that "the incentives, compensations, caps, or annuities remunerated on the date of entry into force of the law will be applied in the future and may not be applied retroactively to the detriment of the official or their proprietary rights." So the legislator's will in any case was to safeguard the salary and vested rights of public servants. However, as has been developed throughout this resolution, the fiscal background prompted the legislator to adopt measures with the purpose of stopping the imbalance in public finances through provisions of containment in public spending and standardization in the payment of public servants' salaries. All of which is legitimate within the framework of Constitutional Law, since there is no fundamental right to the immutability of the legal order and that the rules on the recognition of salary bonuses and incentives do not vary over time. Therefore, this Chamber noted that this type of provisions are legitimate provided that the possibility is safeguarded for those public servants who do not participate in public management to negotiate salary improvements within the margins of reasonableness, proportionality, and correct disposition of public funds in times of economic contraction. In which case, the prospective nominalization of salary incentives ‒and with the arguments raised by the claimants‒ does not appear as an emptying of the fundamental rights of public officials.

Now, regarding the claim that a hollowing out of the salary is occurring, generated by the loss of purchasing power, salary progressivity, and supposedly confiscatory and unreasonable conditions, the grievances must be dismissed due to insufficient reasoning and demonstration of the grievances. It has been insisted upon in this resolution ‒based on the LJC itself and on constitutional jurisprudence‒ that whoever alleges injury to Constitutional Law or argues the unreasonableness of a norm must provide solid arguments and demonstrate the supposed pernicious effects of the provision. In the specific case, identical defects and deficiencies are noted, as the claimants limit themselves to predicting negative salary aspects, without providing greater elements of judgment to this Chamber to carry out an appropriate analysis of a true impact on the generality of public servants.

Finally, regarding eventual antinomies or the prevalence of other special norms, it is reiterated that this must be assessed and resolved in the ordinary instances of legality.

## XXXIII.- ON THE REFORMS TO ART. 57 OF THE PUBLIC ADMINISTRATION SALARY LAW ### Challenged Norms The claimant questions several subsections of art. 57 of the LSAP. The challenged provisions regulate the following:

Article 57- Reforms. The following laws are modified, in the manner described below:

(…)

• f)The first paragraph of article 47 of Law No. 1581, Civil Service Statute, of May 30, 1953, is reformed. The text is as follows:

Article 47- Notwithstanding the provisions of article 43, the minister may terminate the employment contracts of the servants, upon prior payment of the benefits that may correspond to them, provided that the Tribunal de Servicio Civil, upon resolving the consultation that will be made to it in advance, deems that the case falls under one of the following very qualified exceptions.

• g)Article 15 of Law No. 8422, Law against Corruption and Illicit Enrichment in the Public Function, of October 6, 2004, is reformed. The text is as follows:

Article 15- Economic retribution for the prohibition from exercising liberal professions. The economic compensation for the application of the preceding article shall be equivalent to a payment of fifteen percent (15%) for bachelors and thirty percent (30%) for licentiates or postgraduates on the base salary set for the category of the respective position.

• h)Subsection b) of article 1 of Law No. 5867, Law of Compensation for Prohibition Payment, of December 15, 1975, is reformed. The text is as follows:

Article 1- [.]

• b)Fifteen percent (15%) for those who are university bachelors.
• i)Article 5 of Law No. 5867, Law of Compensation for Prohibition Payment, of December 15, 1975, is reformed.

Article 5 – Unless a special remuneration regime exists for the public official, the benefits set forth in subsections a) and b) of article 1 of this law shall apply to employees of the Executive Branch, Judicial Branch, Supreme Electoral Tribunal, Civil Registry, Office of the Comptroller General of the Republic, Office of the Attorney General of the Republic, and municipalities, referred to in article 244 of Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937. Such compensation shall be calculated based on the lowest salary indicated in the Public Administration salary scale issued by the Dirección General del Servicio Civil.

(…)

• m)The penultimate paragraph of article 9 of Law No. 7319, Law of the Office of the Ombudsman of the Republic, of December 10, 1992, is amended. The text is as follows:

[.]

The prohibition set forth in subsection 4) of this article extends only to professional employees occupying professional positions in the Office of the Ombudsman of the Republic (Defensoría de los Habitantes). These officials shall be economically compensated on a percentage basis over their base salary. The percentages to be paid to compensate the prohibition are: thirty percent (30%) for those holding a licentiate degree or a higher degree, and fifteen percent (15%) for university baccalaureate holders.

[.].

• n)Articles 1 and 2 of Law No. 6451, Authorizing the Judicial Branch to Recognize Benefits, of August 1, 1980, are amended. The texts are as follows:

Article 1- The Supreme Court of Justice is authorized to recognize the benefit on the basis of prohibition (prohibición) to professional personnel whom it considers, due to the functions inherent to the position held, are prevented from practicing their liberal profession or professions on a private basis, or from holding positions in private enterprise, the Public Administration, and autonomous or semi-autonomous institutions.

Article 2- An official granted the benefit established in the preceding article shall receive financial compensation (compensación económica) of a percentage over their base salary. Fifteen percent (15%) for those possessing the academic degree of university baccalaureate (bachiller universitario), and thirty percent (30%) for those holding a licentiate degree or a higher degree.

(…)

• o)Article 23 of Law No. 6934, Reform of the National Registry Law, of November 28, 1983, is amended. The text is as follows:

Article 23- As financial compensation on the basis of prohibition, the professional personnel paid from the budget of the Administrative Board (Junta Administrativa) shall be recognized, on a percentage basis over their base salary, fifteen percent (15%) for those possessing the academic degree of university baccalaureate, and thirty percent (30%) for those holding a licentiate degree or a higher degree.

• p)An article 48 bis is added to Law No. 7428, Organic Law of the Office of the Comptroller General of the Republic, of November 7, 1994. The text is as follows:

Article 48 bis- Financial Compensation. As financial compensation for the prohibition contained in article 48, subsection a), the officials to whom it applies shall receive, on a percentage basis over their base salary, fifteen percent (15%) for those possessing the academic degree of university baccalaureate, and thirty percent (30%) for those holding a licentiate degree or a higher degree”.

Allegations of the Complaining Party The complainant challenges subsection f) for violating art. 192 of the Constitution regarding the suitability and inamovability of public officials, as well as their labor stability. He affirms that the legislator's intention is to repeal the state obligation to indemnify a worker included in the Civil Service Statute (Estatuto de Servicio Civil). To which is added the repeal of subsection f) of art. 37 of law No. 1581, Civil Service Statute, of May 30, 1953, which provided as follows:

“f) If they cease in their functions due to job suppression (supresión del empleo), they shall have the right to severance pay (indemnización) of one month for each year or fraction of six or more months of service rendered. It is understood that if, by reason of the preferential right granted by article 47, in its penultimate paragraph, the laid-off employee returns to occupy a position in the administration before having received the totality of the monthly payments to which they are entitled by concept of severance pay for dismissal, the payment of the same shall cease immediately. In the event of a new dismissal due to job suppression, to determine the severance pay to which they are entitled, the amount of the unpaid monthly payments based on the first dismissal for job suppression to which they were subject shall be added to the time served in the new position.

For the payment of the monthly payments referred to in this subsection, the funds from the Ordinary Budget corresponding to the suppressed position shall be used, and for this purpose the budget item shall be maintained until the obligation is fully canceled.

(The preceding subsection as amended by article 1 of Law No. 4906 of November 29, 1971, an amendment that in turn was AUTHENTICALLY INTERPRETED by Law No. 5173 of May 10, 1992, article 1, in the sense that "workers who avail themselves - even voluntarily - of retirement, old-age pension, death or withdrawal pension, granted by the Caja Costarricense de Seguro Social or by the various pension systems of the State Branches, by the Tribunal Supremo de Elecciones, by the Autonomous, semi-autonomous, and municipal Institutions, have the right for the employer to pay them the unemployment assistance (auxilio de cesantía).") (Text modified by Resolution of the Constitutional Chamber No. 8232-00 of 15:04 hours of September 19, 2000).” The complainant states that these norms being repealed have a reason for being. The constituent considered it necessary to include the public employment regime within our highest normative body to guarantee suitability and stability, and based on this latter, the severance pay that art. 37 contained was foreseen, which somehow guaranteed that the governor or administrative heads could not apply the cases of exception (such as reorganization) indiscriminately in order to dismiss officials. An equalization with the private worker is produced, with only minimum rights assisting them.

The rest, for violation of the principles of equality, salary equality, and subsection i) for violation of the principles of reasonability, proportionality, and legal certainty. Regarding subsections g), h), i), m), n), o), and p), it was indicated that there is evident inequality promoted by the legislator without any justification, by determining that some officials will receive a prohibition payment (pago de prohibición) percentage of 65% of the base salary, while others, under equal conditions with respect to academic level and functions, will be compensated with only 30%.

Subsection i) is an ambiguous provision, contrary to the principle of legal certainty, since it amends art. 5 of law No. 5867, Law of Compensation for Prohibition Payment of December 15, 1975. The amended norm indicates that the compensation shall be calculated based on the lowest salary indicated in the Public Administration salary scale issued by the DGSC. The original norm provided that such compensation would be calculated based on the base salary corresponding to each institution. The objective of paying the prohibition percentages to professionals, using the lowest salary on the scale, violates the principles of reasonability and proportionality, to the extent that the professional is compensated for the limitation on practicing their profession with an amount that does not correspond to what said professional could obtain if not legally limited.

Report of the PGR The PGR requests that the grievances raised be dismissed, based on the following considerations:

“Let us begin by clarifying that, recently, through opinion C-281-2019, of October 1, 2019, in the face of any contradiction between the general rule for the payment of the financial compensation for prohibition provided in article 36 of the Law of Salaries of the Public Administration (which contemplates the payment of 30% for licentiate or higher), and the provisions, for example, in subsection a) of article 1° of law No. 5867 (which establishes, for this same situation, the payment of 65% compensation), or any other prior law on the same matter, the claim of generality and uniformity that inspired the amendment to the Law of Salaries of the Public Administration, carried out through the Law for Strengthening Public Finances, must prevail.

Hence, the antinomy existing between article 36 of the Law of Salaries of the Public Administration which establishes as a parameter for calculating the financial compensation for prohibition the base salary of each employee, and article 5 of the “Law of Compensation for the Payment of Prohibition” which provides that the payment of the compensation for the prohibition referred to in article 244 of the Organic Law of the Judicial Branch must be calculated based on the lowest salary indicated in the salary scale of the Public Administration, always following the claim of generality and uniformity that inspired the amendment to the Law of Salaries of the Public Administration, must be resolved in favor of the general and uniform rule established as a unifying parameter; that is, the parameter for calculating the aforementioned financial compensation must be the base salary of each employee.

Below, the PGR transcribes its own opinion C-281-2019, of October 1, 2019, which, as relevant, clarifies the normative situation resulting from the amendment and clarifies how the antinomy and the situation of the employees of the State Tax Administration should be interpreted:

With the aim of applying the general rule referred to in the recently transcribed norm, article 57 of the Law of Salaries of the Public Administration ordered a series of amendments to pre-existing laws that regulated the payment of financial compensation for prohibition. Among the provisions that were expressly amended by means of that norm is article 1° of law No. 5867 of December 15, 1975, called “Law of Financial Compensation for the Payment of Prohibition”.

That article established, before the entry into force of the Public Finance Strengthening Law (Ley de Fortalecimiento de las Finanzas Públicas), that officials subject to any prohibition on the liberal practice of their profession would receive an economic compensation of 65% in the case of professionals with a licentiate degree or higher (subsection a), 45% in the case of graduates of licentiate or master's programs (subsection b), and 30% in the case of university bachelor's degree holders (subsection c).

(...)

With the aforementioned changes, subsection a) of Article 1 of Law No. 5867 remained in force, a subsection which establishes —as we have already indicated— that in the case of professionals with a licentiate degree or higher, the economic compensation would be 65% of the base salary, which contradicts the general rule established in Article 36 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) in the sense that the economic compensation for this type of official must be 30% of the base salary.

The current text of Article 1 of Law No. 5867, including the reforms and derogations to which reference has been made, is as follows:

"Article 1.- For the personnel of the Tax Administration who, by reason of their positions, are subject to the prohibition contained in Article 118 of the Code of Tax Rules and Procedures (Código de Normas y Procedimientos Tributarios), except for the members of the Fiscal Administrative Tribunal (Tribunal Fiscal Administrativo), the following economic compensation is established over the base salary of the salary scale of the Public Administration Salary Law:

• a)Sixty-five percent (65%) for professionals at the licentiate level or other higher academic degree.
• b)Fifteen percent (15%) for those who are university bachelor's degree holders.
• c)…" .

From the foregoing, it is evident that there is a contradiction between the general rule for the payment of economic compensation for prohibition provided in Article 36 of the Public Administration Salary Law (which contemplates a payment of 30% for licentiate or higher), and the provision in subsection a) of Article 1 of Law No. 5867 (which establishes, for that same case, a payment of 65% compensation). Such a contradiction is nothing other than an antinomy, which implies the tacit derogation of one of the two precepts. In view of this, this Attorney General's Office (Procuraduría) considers that the provision in Article 36 of the Public Administration Salary Law must prevail, not only because it is the most recent rule, but also because it reflects the aim for generality and uniformity that inspired the reform in public employment matters implemented through the Public Finance Strengthening Law.

(...)

Although it could be affirmed that the Law on Compensation for Payment of Prohibition (Ley de Compensación por Pago de Prohibición) is a special law in relation to the Public Administration Salary Law, as it regulates a specific aspect of service relationships applicable to a specific group of servants (those subject to a prohibition on the liberal practice of their profession), the truth is that, in these cases, the aim for generality and uniformity of the Public Administration Salary Law must prevail over the prior law that regulates the payment of economic compensation for prohibition.

Following another criterion, in this case, would imply deviating from the purpose of the reform to the Public Administration Salary Law, consisting of establishing general guidelines on the manner in which incentives and economic compensations derived from employment relationships must be recognized throughout the public sector.

Furthermore, this Attorney General's Office does not find any particularity that justifies paying the officials to whom subsection a) of Article 1 of Law No. 5867 applies an economic compensation of 65% of their base salary for prohibition, while the rest of the public officials are paid, for that same restriction, 30%. That is to say, there is no distinguishable, verifiable feature that supports that differentiated treatment, and therefore, what is appropriate, under the protection of the constitutional principles of equality and reasonableness, is to apply the general rule contained in Article 36 of the Public Administration Salary Law.

Apart from the above, the disproportion between the economic compensation that would be recognized to an official with a licentiate academic degree (65% of the salary) and that which would be recognized to one with a university bachelor's academic degree (15%) would be unreasonable, which ratifies the validity of the thesis presented.

Additionally, the PGR acknowledges that there is certainly a contradiction regarding the calculation basis from which the payment of the compensation for the prohibition on the liberal practice of the profession is made, and in such case, it considers that prevalence must be given to the regulation with a vocation for uniformity:

"In this case, following the aim for generality and uniformity that inspired the reform to the Public Administration Salary Law, we estimate that the method of calculating the economic compensation that must be applied is the one provided in Article 36 of the Public Administration Salary Law (over the base salary of each official) and not the one provided in Article 5 of Law No. 5867 (over the lowest salary indicated in the salary scale of the Public Administration).

Such an interpretation, apart from maintaining the uniformity sought by the Public Administration Salary Law, is consistent with the constitutional principles of equality and reasonableness, since there is no objective and reasonable justification for the economic compensation for the prohibition referred to in Article 244 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) to be different (lower) than that applicable to other professionals for similar restrictions on professional practice." Finally, regarding the claim that the special indemnities for the suppression of positions were allegedly illegitimately derogated, the PGR stated the following:

"It is also untrue that the reform introduced by Law 9635 to paragraph 1 of Article 47 and subsection f) of section 37 of the Civil Service Statute (Estatuto de Servicio Civil) has violated the guarantee of employment stability (Art. 192 of the Constitution), and authorizes without further ado the principle of free dismissal without indemnity in public employment, as is unfoundedly accused.

According to our explanation in our opinion C-086-2019, of April 3, 2019, in use of its power to configure public employment (Art. 191 of the Constitution), in use of the inexhaustible legislative power (Arts. 105 and 121.1 Ibid.), reforms were introduced to the Civil Service Statute regarding unemployment benefits (auxilio de cesantía) and indemnities of a similar nature in cases of reorganizations or restructurings.

And specifically, taking into consideration the express derogation of subsection f) of Article 37 of the Civil Service Statute, and the modification introduced to Article 47 of that same legal body, by Articles 58 subsection b) and 57 subsection f), respectively, introduced to the Public Administration Salary Law by Law No. 9635 –of Public Finance Strengthening–, as well as the application of its transitional regime (Transitory XXVII and Art. 13 subsection a) in fine of the Executive Decree No. 41564-MIDEPLAN-H), and especially due to the non-existence of identity between the indemnities normatively provided for the purpose, according to section 111 subsection d) of the Regulation to the Civil Service Statute (Reglamento del Estatuto de Servicio Civil), we concluded:

• a)If the reorganization carried out implies the need to dispense with the services of some employees covered by collective bargaining instruments, either because they are not required within the new organic structure, or because they do not accept the subsequent reduction of their salaries, after December 4, 2018, the applicable indemnity for those covered by Collective Agreements would be that corresponding to the payment of benefits, specifically for unemployment benefits, but in no case may said indemnity be greater than twelve years while such collective instruments remain in force (Opinion C-060-2018, of March 5, 2019).
• b)For those other employees excluded from the application of those collective instruments, who could also be dismissed due to reorganization, the normative precept contained in Article 39 of the cited Law No. 9635 would be directly applicable; that is, a maximum limit of 8 years of unemployment benefits; a rule which for these cases has immediate effectiveness –as of its publication date– and which, by its normative rank, prevails over section 27 subsection c) of the Regulation to the Civil Service Statute.
• c)While, in the case of the aforementioned salary reduction or decrease, the special indemnity provided by regulation, as a general rule, by the cited section 111 subsection d) of the Regulation to the Civil Service Statute must continue to be applied, until the derogatory or regulatory reform power held by the Executive Branch (Art. 140.3 of the Political Constitution) is exercised with respect to it.

That is to say, the guarantee of stability in the public post or position continues to exist at the legal level, and as a consequence thereof, any unjustified dismissal entails the recognition of legal benefits. There exists, therefore, no contrived or forced comparison to the private labor regime, as is unfoundedly accused.

The alleged defects are dismissible, as they are unfounded." Resolution of the Constitutional Chamber (Sala Constitucional) Regarding Art. 57 subsection f) In relation to this specific numeral, it is questioned that it harms the immovability of public servants and it is reproached that the state obligation to indemnify the worker included in the Civil Service Statute has been derogated. To better clarify what is denounced by the plaintiffs, it is necessary to compare the different versions of the rule under analysis, that is, Art.

47 of the Civil Service Statute:

The challenge to said norm is linked to the derogations made by virtue of Art. 58 of the LSAP added by the LFFP. Subsection b) of said numeral ordered the derogation of subsection f) of Art. 37 of Law No. 1581, Civil Service Statute, of May 30, 1953, which provided the following:

<span style="font-style:italic">“</span><span style="font-style:italic">Article 37.- The servants of the Executive Branch protected by this law shall enjoy the following rights:</span> <span style="font-style:italic">(…</span><span style="font-style:italic">)</span> <span style="font-style:italic">f) </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">If they cease their functions due to suppression of the position, they shall be entitled to severance pay of one month for each year or fraction of six or more months of services rendered</span><span style="font-style:italic">. It is understood that if, by reason of the preferential right granted by Article 47, in its penultimate paragraph, the laid-off employee were to again occupy a position in the administration, before having received the entirety of the monthly payments to which they are entitled as severance for dismissal, the payment of the same shall cease immediately. In the event of a new dismissal due to suppression of the position, to determine the severance to which they are entitled, the amount of unpaid monthly payments arising from the first dismissal due to suppression of the position to which they were subjected shall be added to the time served in the new position.</span> <span style="font-style:italic">For the payment of the monthly payments referred to in this subsection, the funds from the Ordinary Budget corresponding to the suppressed position shall be used, and for this purpose the budget item shall be maintained until the obligation is fully settled”.</span> In accordance with this overview, it is clear that the claimant's argument is not correct, because he alleges that this set of provisions harms the guarantee of job stability (inamovilidad) of public servants. According to the claimant, from these norms arose the obligation for the heads to not apply exceptional dismissals indiscriminately ‒for example, due to reorganization of services‒, with the result that public servants are now equated to any private worker.

Firstly, it must be remembered that Art. 192 of the Political Constitution categorically establishes that “<span style="font-style:italic">public servants shall be appointed based on proven suitability and may only be removed for the causes of justified dismissal expressed in labor legislation, or in the case of forced reduction of services, whether due to lack of funds or to achieve a better organization of the same</span>”. Furthermore, from a careful review of the regulatory situation, it follows that the job stability regime for public servants remains intact and that the exceptional dismissal regime also remains in force with identical requirements. This is easily observed from the mere comparison of the norms in the inserted table. What occurred is that the legislator eliminated a specific norm for the regulation and payment of legal benefits in the event that a “forced reduction of services” occurs, but if the norm is examined in detail, <span style="font-weight:bold; text-decoration:underline">it still orders that the termination of the contract will occur </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">upon prior payment of the benefits that may correspond to them”</span>, that is, the payment of the corresponding benefits remains in force and its illegitimate suppression could indeed contravene the Law of the Constitution. Therefore, this Chamber agrees with the explanations provided by the reporting authorities in the sense that the guarantee of stability in the public position continues to exist at the legal level as a derivation of the Political Constitution, and as a consequence of this, any cessation due to forced reduction of services entails the recognition of legal benefits and there is no equation with the private labor regime, as artificially alleged by the claimant. This Chamber has recognized the payment of legal benefits in the case of forced reduction of services because it is equated to a dismissal with employer liability. As an example, see judgment [n.° 2020-021330](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1026561) in which the following considerations were made:

<span style="font-style:italic">“</span><span style="font-style:italic; background-color:#ffffff">The numeral under analysis indicates that</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">“</span><span style="font-style:italic; background-color:#ffffff">If the Municipality were to terminate the Employment Contracts with its employees, in accordance with the previous article (Article 19), or when the worker accepts it”.</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">In the opinion of this Tribunal, the recognition of the payment of the</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">severance pay (cesantía)</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">in the first scenario is not unconstitutional because its payment is due to the employer's will to terminate the employment contract due to a restructuring process, a scenario that has been assimilated by this Chamber to a dismissal with employer liability. This has been resolved by this Chamber when hearing claims similar to the one raised in the</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">sub lite. For example, in judgment n.°</span><span style="font-style:italic; background-color:#ffffff">2019-008679 in which it was considered</span><span style="font-style:italic; background-color:#ffffff">, as relevant, the following:</span> <span style="font-style:italic; background-color:#ffffff">“The general rule, in the Political Constitution, is to recognize the stability of the public official, but this can be altered in very special situations by authorizing removal in cases of a</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">forced reduction</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">of services caused by lack of funds or by reorganization. The cited precedent is clear on the need to establish a limit of years for the payment of the severance assistance, for these cases, as well as recognizing that in the suppression of positions, there is no will or fault whatsoever on the part of the worker, which would precipitate the termination of the official's service relationship. Quite the contrary, the suppression of the position is nothing other than human resource restructuring processes, which normally require diagnoses and studies that are later materialized in duly motivated and reasoned administrative acts, and which, if it is concluded that positions need to be suppressed, the workers must receive similar treatment, as a natural consequence, to the same order and category of causes for dismissals with employer liability. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">In this sense, the payment of the severance assistance</span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">is legitimate with the payment of the legal minimum established by the corresponding labor legislation, or when this is displaced by collective bargaining, under the parameters mentioned for the appropriateness of the payment, provided that the reasons of constitutionality that validate this type of cause prevail</span><span style="font-style:italic; background-color:#ffffff">.</span> <span style="font-style:italic; background-color:#ffffff">Regarding the suppression of the position, the payment to be made, in accordance with the new jurisprudential criterion of the Chamber, must not exceed the twelve years already cited. As the scenario of position suppression in the Collective Bargaining Agreement is a constitutionally valid cause (Art. 192), the appropriate course is to declare the action without merit on this point, provided that the severance granted does not exceed twelve years”. </span> <span style="font-style:italic; background-color:#ffffff">For this reason, in such a scenario, the reason for the severance for restructuring under the exclusive will of the employer to terminate the employment contract is not in itself unconstitutional”.</span><span style="background-color:#ffffff"> (The highlighted text does not correspond to the original).</span> Therefore, according to the precedent, the suppression of the position as a result of a human resource restructuring process normally requires diagnoses and studies that are later materialized in duly motivated and reasoned administrative acts, and if it is concluded that positions need to be suppressed, the workers must receive treatment similar to a dismissal with employer liability and, therefore, may require the benefits that correspond to them.

What is under discussion following the derogations in question is not related to the constitutional guarantees of suitability or job stability, but rather to the determination of the amount that would eventually need to be recognized to public servants whose position is suppressed. Evidently, the decision on this matter requires a task of integration and interpretation by the different legal operators, taking into account the specific qualities of the institution in question and whether the servants are or are not covered by other special provisions, such as the respective collective bargaining agreements. Said interpretative task ‒in order to determine in each specific case the amount of severance‒ is a matter of legality and not of constitutionality and, as is evident, says nothing about the supposed unconstitutionality of the provisions challenged. Therefore, these objections must be dismissed.

## <a name="_Toc193445539" class="">Regarding Art. 57, subsections g), h), m), n), o), and p)</a> In relation to this numeral, the claimant raises discussions typical of ordinary legality and not of constitutionality regarding which norms should prevail for the purposes of recognizing payment for the prohibition (pago de la prohibición). The foregoing is ratified by the explanation provided by the PGR in its report regarding which norms should or should not prevail in each specific case. Such objections do not correspond to being resolved by this Chamber, but rather before ordinary instances. In this regard, it is appropriate to remember and reiterate what was resolved by this Chamber in judgment [n.° 2023-010798](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1170977) in which the following was stated:

<span style="font-style:italic">“</span><span style="font-style:italic; background-color:#ffffff">With a brief argument, the claimant refers to the reduction that operated in the payment percentages of the prohibition fee (pago de prohibición) that the Public Administration pays to</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">its officials, which was reformed in the Law for the Strengthening of Public Finances. He notes the change from 65% to 30%, and from 45% to 30%, and the derogation of the other subsections of the conventional norm. The Union maintains that the percentages safeguard municipal interests, by having a prohibition payment for personnel in charge of municipal taxes, and not entering into conflicts with hours outside their workday. They maintain that due to the constitutional autonomy of the municipality, the</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">Law for the Strengthening of Public Finances</span><span style="font-style:italic; background-color:#ffffff"> does not apply to the personnel, and if that were the case, it would be for those who joined after December 2018.</span> <span style="font-style:italic; background-color:#ffffff">As the Procuraduría General de la República indeed explains, it is clear that the discussion presented in this numeral is one of ordinary legality, since it involves a conflict of norms applicable over time; that is, of legal antinomies. What is under discussion</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">is whether some of the provisions that support the percentages regulated conventionally and established by law have been derogated, thereby discussing whether a presumed tacit derogation occurs for several provisions of the Public Administration Salary Law, the Law of Economic Compensation for Payment of Prohibition, with the reforms introduced in the Law for the Strengthening of Public Finances.</span> As is evident, it must be defined whether subsection a) of Article 1 of the Law of Economic Compensation for the payment of Prohibition survives the legal reforms, and in this type of circumstance, the integration and interpretation of infra-constitutional norms is required, which does not fall to the Constitutional Chamber (Sala Constitucional), but rather to the administrative and judicial authorities, as appropriate.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Consequently, on this point, the action must be dismissed."</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Likewise, it is not appropriate for the Chamber, in this specific case, to assess the entire legal framework with the purpose of defining which special provisions apply to each employee depending on the legal situation in which they find themselves, or which parameter must be adopted to perform the corresponding calculation.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Finally, this Court observes that the supposed injury to the principles of equality, reasonableness, proportionality, and legal certainty was barely enunciated without the arguments put forward by the claimant allowing an appropriate analysis of the issue. That is, these allegations are merely expressed and are not duly substantiated. Therefore, these grievances must be rejected.</span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445540" class=""><span>XXXIV.- GENERAL CONCLUSIONS</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Based on the analysis carried out </span><span>‒</span><span>in light of the allegations raised by the claimants</span><span>‒</span><span> this action must be declared partially with merit, in accordance with the following arguments:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Aspects that must be dismissed by virtue of the claimants' standing (legitimación)</span><span style="font-weight:bold; text-decoration:underline">:</span><span>: Articles 3, 4, 9, and 14 of Executive Decree No.</span><span> 41564-MIDEPLAN-H, Title IX of the LFFP, and matters concerning the destination of free surpluses (superávits libres).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and also admits the claimants' standing regarding the defense of institutional autonomies, fiscal responsibility, and the destination of free surpluses.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the annual increments (anualidades)</span><span>: </span><span>the action must be declared partially with merit solely due to the unreasonableness of recognizing the annual increment incentive in the month of June of each year and for breaking labor continuity. This is according to what is regulated in Article 12 of the LSAP in its version amended by the LFFP and during the period in which it was in force. In all other respects, the grievances are declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the alleged injuries to acquired rights</span><span>: as no retroactive effect on the patrimonial rights of public employees was proven, </span><span>it is necessary to declare the allegations related to the presumed violation of the principle of non-retroactivity and Article 34 of the Political Constitution without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the fundamental right to collective bargaining</span><span>: </span><span>Article 55 </span><span>‒</span><span>and, therefore, all provisions related to the questioned bonuses, namely Articles 39, </span><span>50, 54 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP</span><span>‒</span><span> must be deemed constitutional under the understanding that the restriction on bargaining does not apply to Public Sector employees who can validly enter into collective bargaining agreements in accordance with the Constitution and the law. All of the foregoing</span><span>, without prejudice to the legality and constitutionality controls over the result of the negotiation, in accordance with the constitutional principles of reasonableness, proportionality, and the proper use and handling of public funds.</span><span> Finally, the unconstitutionality of the provision in Transitory Provision XXXVI, paragraph 1</span><span> of the LFFP ‒</span><span>a transitory provision to Title III of the Amendment to Law No.</span><span> 2166, LSAP</span><span>‒</span><span> is declared, </span><span>since said provision disregards the free and voluntary nature of collective bargaining and, quite to the contrary, establishes the obligation for all heads of public entities to terminate (denunciar) the collective bargaining agreements once their expiration date arrives. Regarding the</span><span> second paragraph of that transitory provision, the action must be declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the exclusive dedication contracts:</span><span> </span><span>there is, in the opinion of this Chamber, no injury to the principle of legal certainty, as the aspects concerning the renewal procedure</span><span> or the term of the contracts are not matters of constitutional relevance, but rather fall within the aspects of opportunity and convenience that the legislator can define. In this respect, no injury to the Law of the Constitution was proven.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the imposition of the "prohibition (prohibición)" regime</span><span style="font-weight:bold; text-decoration:underline"> without the corresponding compensation</span><span>: the Chamber considers that the unconstitutionality must be declared </span><span>of the following phrases: </span><span style="font-style:italic">"</span><span style="font-style:italic">Public employees (funcionarios) subject by law to the prohibition regime may not practice their profession or professions, </span><span style="font-style:italic; text-decoration:underline">regardless of whether or not they meet the requirements to become eligible for the compensation for this concept</span><span style="font-style:italic">"</span><span> (Art. 32 paragraph 2 </span><span style="font-style:italic">in fine</span><span>) and </span><span style="font-style:italic">"</span><span style="font-style:italic">For employees (funcionarios) designated in the law </span><span style="font-style:italic; text-decoration:underline">as possible beneficiaries of economic compensation for prohibition, they may not practice, privately, in a remunerated or ad honorem manner, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>). The foregoing, by virtue of the fact that </span><span>they attempt to impose the restriction or limitation on the professional practice, despite there being no remuneration whatsoever, injuring the principles of reasonableness, proportionality, and non-discrimination.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the new percentages defined by the legislator for the payment of exclusive dedication contracts or prohibition</span><span>: the claims must be dismissed by virtue of insufficient substantiation</span><span> proving their unreasonableness, salary impact, discrimination, or impact on the public service.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the prohibition of additional incentives</span><span>: the arguments must be rejected due to insufficient substantiation</span><span> by the claimant and because what is proposed refers to the resolution of legal antinomies that must be resolved through ordinary legality channels.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the governing authority (rectoría) of MIDEPLAN and its impact on the rights of public employees (servidores públicos)</span><span>: </span><span>the claimant's argument relates to potential normative conflicts in the application of infra-constitutional provisions that say nothing about the constitutionality itself</span><span> of the questioned provisions and of a certain injury to the fundamental rights of public employees.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the performance evaluation goals</span><span>: it is concluded that the claimant's allegations refer to eventual practical difficulties that do not prove an injury to the Law of the Constitution.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the criteria for performance evaluation</span><span>: the criteria of this Chamber are reiterated in the sense that the questioning of the potential subjectivity in the evaluation to which the employee could eventually be subjected is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the eventual violation of fundamental rights. And, in any case, any disagreements that the employees may have with the result of the examination conducted is a matter of legality that </span><span>this Court is not responsible for assessing and which, therefore, must</span><span> be discussed before the Administration or in the competent jurisdictional venue.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the exclusion of high-level officials (jerarcas) from participating in collective bargaining</span><span>: this Chamber considers that </span><span>it does not seek to discourage collective bargaining, but rather that these negotiations be carried out by </span><span>persons who, due to their hierarchical situation, do not benefit themselves and, therefore, avoid a conflict of interest. In this sense, the legislator could legitimately assess and list the positions that, due to their high managerial level, can be excluded from the benefits of collective bargaining, without this in itself being illegitimate or unconstitutional.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the change in the payment modality</span><span>: no particular injury to the fundamental rights of public employees was proven.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the grievances related to the form of recognition and payment of career development points</span><span>: no injury </span><span>‒</span><span>in the terms formulated by the claimants‒</span><span> to the invoked constitutional rights and principles was proven.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the nominalization of salary bonuses</span><span>: this Chamber ruled out </span><span>‒</span><span>with the arguments presented‒</span><span> the finding of any unconstitutionality.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding Article 57 of the LSAP</span><span>: this Court ruled out </span><span>that there is an authorization to carry out reorganizations that are divorced from the respective payment of employment benefits and that issues relating to the appropriate interpretation of which amount should prevail for the corresponding payment of the prohibition amount is a discussion of legality and not of constitutionality.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records a general note.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Rueda Leal issues a dissenting vote, in the following terms:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>1) declares the action with merit regarding the phrase "</span><span>The annual increment incentive shall be recognized in the first half of the month of June of each year"</span><span> contained in the challenged Article 12 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) amended by law No. 9635 "</span><span>Strengthening of Public Finances"</span><span> during its period of validity;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:spaces"> </span><span>2) declares the action with merit in relation to the paragraphs: "</span><span style="font-style:italic">Public employees (funcionarios) subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become eligible for the compensation for this concept</span><span>"</span><span> (Art. 32 paragraph 2</span><span> </span><span style="font-style:italic">in fine</span><span>) and "</span><span style="font-style:italic">For employees (funcionarios) designated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice, privately, in a remunerated or ad honorem manner, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>), both from the Public Administration Salary Law, added by Article 3</span><span> of Title III of the law on "Strengthening of Public Finances," No. 9635 of December 3, 2018;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>3) in all other respects, declares the actions without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Lara Gamboa declares the action with merit only regarding the phrase "</span><span style="font-style:italic">The annual increment incentive shall be recognized in the first half of the month of June of each year</span><span>"</span><span> contained in the challenged Article 12 of the Public Administration Salary Law amended by law No. 9635 "Strengthening of Public Finances" during its period of validity. In all other respects, declares the actions without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">XXXV.- DOCUMENTATION SUBMITTED TO THE FILE</span><span style="font-weight:bold">.</span><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The parties are warned that if they have submitted 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</span><span> 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, according to the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Plenary Court in session No. 27-11 of August 22, 2011, Article XXVI and published in the Judicial Bulletin number 19 of January 26, 2012, as well as in the agreement approved by the Superior Council of the Judiciary, in session No. 43-12 held on May 3, 2012, Article LXXXI.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center"><span style="font-weight:bold">THEREFORE (POR TANTO):</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The accumulated unconstitutionality actions are declared partially with merit, following this order of </span><span>considerations:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">First:</span><span> By majority, the claimants' standing (legitimación) is partially admitted.</span><span style="-aw-import:spaces"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and also admits the claimants' standing regarding the defense of institutional autonomies, fiscal responsibility, and the destination of free surpluses.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Second:</span><span> The active joinder (coadyuvancia activa) of [Name 002]<span data-mce-type="bookmark" id="mce_6_start" data-mce-style="overflow:hidden;line-height:0px" style="overflow: hidden; line-height: 0px;"></span></span><span> is admitted.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Third:</span><span> The joinders (coadyuvancias) of [Name 003]<span data-mce-type="bookmark" id="mce_8_start" data-mce-style="overflow:hidden;line-height:0px" style="overflow: hidden; line-height: 0px;"></span></span><span> and of [Name 004]</span><span> are rejected for being untimely.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Fourth:</span><span> The majority of the grievances are dismissed under the understanding that the challenged norms must be applied only to the employees of the institutions that are not excluded from the application of the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) in </span><span>salary matters in accordance with the provisions of consultative opinion No.</span><span> 2018-19511 at 21:45 hrs. on November 23, 2018.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Fifth:</span><span> The unconstitutionality action is declared partially with merit regarding Article 12 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) in its version amended by the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) and during the period in which it wa</span><span>s in force. The foregoing, due to the unreasonableness of recognizing the annual increment incentive in the month of June of each year and for breaking labor continuity.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and declares the action with merit regarding the annual increments, particularly concerning Article 50 and Transitory Provision XXXI.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Sixth:</span><span> By majority, it is declared that Article 55 </span><span>–</span><span>and, therefore, all the provisions related to the questioned bonuses, namely Articles 39, 50, 54 of the Public Administration Salary Law and Transitory Provisions XXVII and XXXI of the Law for Strengthening Public Finances</span><span>–</span><span> must be interpreted as constitutional under the understanding that the restriction on bargaining does not apply to Public Sector employees who can validly enter into collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law. All of the foregoing, without prejudice to the legality and constitutionality controls over the result of the negotiation, in accordance with the constitutional principles of reasonableness, proportionality, and the proper use of public </span><span>funds.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro partially dissents and declares Articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Seventh:</span><span> By majority, the unconstitutionality of the provision in Transitory Provision XXXVI, first paragraph of the Law for Strengthening Public Finances, is declared.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records additional reasons.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Eighth:</span><span> The unconstitutionality of the following paragraphs is declared: </span><span style="font-style:italic">"</span><span style="font-style:italic">Public employees (funcionarios) subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become eligible for the compensation for this concept"</span><span> (Art. 32 paragraph 2</span><span> </span><span style="font-style:italic">in fine</span><span>) and "</span><span style="font-style:italic">For employees (funcionarios) designated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice, privately, in a remunerated or ad honorem manner, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>), both from the Public Administration Salary Law, added by Article 3</span><span> of Title III of the Law for Strengthening Public Finances, No.</span><span> 9635 of December 3, 2018.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Ninth:</span><span> In all other respects, by majority, the accumulated actions are declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records a note regarding the exclusive dedication contract (Article 28 of the Public Administration Salary Law).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and declares Articles 35 and 36 of the Public Administration Salary Law unconstitutional.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and declares Article 53 of the Public Administration Salary Law, Article 15 of Regulation No.</span><span> 41564-MIDEPLAN, as well as Resolution No.</span><span> DG-139-2019 of the Civil Service Directorate General (Dirección General de Servicio Civil) unconstitutional.</span><span style="-aw-import:spaces"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records a general note.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Rueda Leal issues a dissenting vote, in the following terms:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>1) declares the action with merit regarding the phrase "</span><span>The annual increment incentive shall be recognized in the first half of the month of June of each year"</span><span> contained in the challenged Article 12 of the Public Administration Salary Law amended by law No. 9635 "</span><span>Strengthening of Public Finances"</span><span> during its period of validity;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:spaces"> </span><span>2) declares the action with merit in relation to the paragraphs: "</span><span style="font-style:italic">Public employees (funcionarios) subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become eligible for the compensation for this concept</span><span>"</span><span> (Art. 32 paragraph 2</span><span> </span><span style="font-style:italic">in fine</span><span>) and "</span><span style="font-style:italic">For employees (funcionarios) designated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice, privately, in a remunerated or ad honorem manner, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>), both from the Public Administration Salary Law, added by Article 3</span><span> of Title III of the law on "Strengthening of Public Finances," No. 9635 of December 3, 2018;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>3) in all other respects, declares the actions without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Lara Gamboa declares the action with merit only regarding the phrase "</span><span style="font-style:italic">The annual increment incentive shall be recognized in the first half of the month of June of each year</span><span>"</span><span> contained in the challenged Article 12 of the Public Administration Salary Law amended by law No. 9635 "Strengthening of Public Finances" during its period of validity. In all other respects, declares the actions without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">XXXV.- DOCUMENTATION SUBMITTED TO THE FILE</span><span style="font-weight:bold">.</span><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The parties are warned that if they have submitted 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</span><span> 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, according to the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Plenary Court in session No. 27-11 of August 22, 2011, Article XXVI and published in the Judicial Bulletin number 19 of January 26, 2012, as well as in the agreement approved by the Superior Council of the Judiciary, in session No. 43-12 held on May 3, 2012, Article LXXXI.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center"><span style="font-weight:bold">THEREFORE (POR TANTO):</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The accumulated unconstitutionality actions are declared partially with merit, following this order of </span><span>considerations:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">First:</span><span> By majority, the claimants' standing (legitimación) is partially admitted.</span><span style="-aw-import:spaces"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and also admits the claimants' standing regarding the defense of institutional autonomies, fiscal responsibility, and the destination of free surpluses.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Second:</span><span> The active joinder (coadyuvancia activa) of [Name 002]<span data-mce-type="bookmark" id="mce_6_start" data-mce-style="overflow:hidden;line-height:0px" style="overflow: hidden; line-height: 0px;"></span></span><span> is admitted.</span></p> 9635 "Strengthening of public finances" during its period of validity; 2) declares the action partially with merit in relation to the paragraphs: "_Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether they meet the requirements to become entitled to compensation for this concept_" (art. 32 paragraph 2 _in fine_) and "_For officials indicated in the law as potential beneficiaries of economic compensation for prohibition, they may not practice, in a private, remunerated or ad honorem capacity, the profession or professions they hold_" (art. 33 _in fine_), both of the Public Administration Salaries Law, added by article 3 of title III of the law on "Strengthening of public finances", no. 9635 of December 3, 2018; 3) in the remaining aspects, declares the actions without merit.

Magistrate Lara Gamboa declares the action with merit solely regarding the phrase "_The longevity incentive (incentivo por anualidad) shall be recognized in the first half of the month of June of each year_" contained in the challenged article 12 of the Public Administration Salaries Law, as amended by law no. 9635 "Strengthening of public finances" during its period of validity. In all other aspects, he declares the actions without merit.

This judgment has declaratory and retroactive effects to the date of validity of the annulled norms, without prejudice to rights acquired in good faith.

Notify this ruling to the appearing parties and to the Procuraduría General de la República, the Ministerio de Hacienda, the Ministerio de Planificación y Política Económica, and the Dirección General de Servicio Civil.

Publish this ruling in the Official Gazette La Gaceta and publish it in its entirety in the Judicial Bulletin. Notify.

**Fernando Castillo V.** **Fernando Cruz C.** **Paul Rueda L.** **Aracelly Pacheco S.** **Alejandro Delgado F.** **Jorge Isaac Solano A.** **Fernando Lara G.** **Exp:** **19-002620-0007-CO** **Res. no.** **2025-008201** **Dissenting vote of Magistrate Lara Gamboa.** Magistrate Lara Gamboa declares the action with merit solely regarding the phrase "_The longevity incentive (incentivo por anualidad) shall be recognized in the first half of the month of June of each year_" contained in the challenged article 12 of the Public Administration Salaries Law as amended by law no. 9635 'Strengthening of public finances' during its period of validity. In all other aspects, he declares the actions without merit.

Respectfully, I allow myself to provide a brief and concise justification of my reasons for separating from the majority vote regarding what was declared with merit, and on some other specific aspects.

• A)With respect to article 12 of the Public Administration Salaries Law in its version amended by the Law for Strengthening Public Finances, I deem it unconstitutional, not only because it is irrational, as decided by the majority; but also because the recognition of the longevity incentive until the month of June of each year is discriminatory, instead of recognizing it to everyone equally, in the month in which each official has completed their work anniversary.
• B)Regarding art. 55 (legal reserve in the creation of salary incentives and compensations), it is the opinion of the undersigned that the legal reserve for the creation of incentives and compensations is not only constitutional, because the legislator can establish general regulations for the public sector, but also that it is essential to have express legal authorization, in accordance with the Political Constitution and the demands of the principle of legality. Only in this way could public funds be disposed of and negotiated in a collective bargaining agreement, converting them into private funds in the form of bonuses, vacations, years of severance assistance (auxilio de cesantía), longevity incentive (incentivo por anualidades), leave with pay, scholarships, or any other type of incentive or compensation. Without this express legal authorization, the heads would not be acting under the law, and therefore such norms would become unconstitutional. Our Political Constitution establishes in its article 11 the Principle of Legality applied to public officials: "_Public officials are mere depositaries of authority. They are obliged to fulfill the duties that the law imposes on them and cannot arrogate faculties not granted to them…_" (the emphasis is not from the original), which must be applied to collective bargaining agreements in the public sector. (see regarding this, the dissenting vote of the undersigned in Resolution No. 16981-2022, File: 16-013968-0007-CO, Sala Constitucional) C) Regarding Transitory Provision XXXVI paragraph 1 of the LFFP, the undersigned considers that the legislator can establish, by law, the obligation to denounce collective bargaining agreements for all heads of public entities, once their expiration date arrives; since collective bargaining agreements are a meeting of wills and the Legislative Assembly has the legitimacy so that, by law, it may express the will of the State in this type of situation. Likewise, the Legislative Branch may approve a law, changing said provision, at the moment it deems appropriate.
• D)Finally, the undersigned considers that there is freedom for whoever wishes to accept a position in the Public Administration, if they deem it well remunerated, which may or may not have conditions or restrictions regarding exclusive dedication, which do not necessarily have to be compensated. The State can also offer work, with restrictions of exclusive dedication, without it being mandatory to provide consideration in exchange for said limitation. It is for this reason that, as long as they are general rules that apply equally to all those who find themselves in the same conditions, they are deemed constitutional, this being the case of the second paragraph of article 32, and article 33 of the Public Administration Salaries Law, added by article 3 of title III of the law on 'Strengthening of public finances', no. 9635 of December 3, 2018.

**Fernando Lara G.** **Exp. 19-002620-0007-CO** **Res. 2025008201** **Separate opinion of Magistrate Rueda Leal.** For the purposes of the _sub examine_, I must mention that, regarding the joinders, admissibility, and standing of the acting parties, I share what is set out in the majority vote.

Regarding the context of approval of the challenged regulations and the reasoning developed in the sections from which I do not separate myself from the judgment, I clarify that the fiscal situation of the country must be understood within the framework of the year in which the challenged regulations were approved. Consequently, with respect to my position, I adhere solely to what was developed in resolution no. 2018019511 of 21:45 hours on November 23, 2018, since this action was filed in February 2019; that is, less than three months later.

Furthermore, I note that with respect to recitals VII, VIII, IX, X, XI, and XII I do not issue any pronouncement, since these are arguments developed in the abstract and general jurisprudence that, in my opinion, are not essential for the resolution of this matter. Precisely, in each section of grievances I will note the cases in which I share the cited jurisprudence, or, I will set forth the thesis I deem correct.

* **On recital XIII "Change in regulation regarding longevity incentives (anualidades)".** In this regard, I share the view that article 50 of the Public Administration Salaries Law and transitory provision XXXI of the law on 'Strengthening of public finances' are not unconstitutional for the reasons indicated by the majority, since they are covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. It should be clarified that, in my opinion, this type of legislator's decisions is fully susceptible to constitutional control, but for this there must be adequate substantiation by the acting parties that allows the Chamber to carry out the respective balancing of legal interests. Now, I observe that both norms provide for the future regulation of the longevity incentive (incentivo por anualidad), so _prima facie_ I rule out any impact on the salary of public servants that could be declared by the Chamber. However, I clarify that not in all cases should acquired rights and consolidated legal situations be recognized _per se_. Regarding these last two categories, the Chamber, in judgment no. 1997002765 of 15:03 hours on May 20, 1997, stated:

"_The concepts of 'acquired rights' and 'consolidated legal situations' appear closely related in constitutional doctrine. It is feasible to affirm that, in general terms, the former denotes that consummated circumstance in which a thing –material or immaterial, whether it be a previously foreign asset or a previously non-existent right– has entered (or affected) the patrimonial sphere of the person, so that the latter experiences a verifiable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial surplus, but a state of affairs fully defined in terms of its legal characteristics and its effects, even if these are not yet extinguished. What is relevant about the consolidated legal situation, precisely, is not whether those effects still persist or not, but that –by virtue of a legal mandate or a judgment that so declared– a rule, clear and defined, has already emerged into legal life, connecting a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then...M', that is: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that, necessarily, the conditioned effect must also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects –making it intangible– the situation of whoever obtained the right or enjoys the situation, for reasons of equity and legal certainty._" However, both acquired rights and consolidated legal situations are conditioned on not deriving from grotesque, aberrant, and glaring inequities. That is, that prior state of affairs that one seeks to protect, stems from a minimum of constitutional sanity. Precisely, I have maintained that when norms exist that violate the constitutional order with such overwhelming magnitude that they are impossible to justify, what I call "_a non-existent legal norm_" is configured from its very genesis for reasons of unconstitutionality, in _mutatis mutandis_ application of the doctrine of the legally non-existent act for reasons of legality, a position sustained by a relevant sector of legal science. The non-existence designates a profoundly gross unconstitutionality of the challenged norm (even, in another process, it could refer to an act), an extreme degree of nullity for reasons of unconstitutionality from which the absence of an essential element is noted at the very moment the norm subject to the action arose. Due to that extreme defect in the very genesis of the norm, preserving the effects derived from manifestly unconstitutional, unreasonable, and completely unjustified legal provisions is improper. These are clearly unconstitutional provisions at their base, by virtue of which acquired rights "_in good faith_" cannot be recognized.

In this case, I do not consider that we are facing any scenario of such nature, therefore it is constitutionally valid for the challenged norms to regulate this incentive prospectively and to respect the amounts previously received in good faith by the servants.

Now, at this point, the majority cites judgment 8254-2020 of 17:15 hours on April 30, 2020; however, on that occasion I stated regarding the recognition of the longevity incentive and the performance evaluation process:

"_Dissenting vote of Magistrate Rueda Leal, with regard to transitory provision I, which establishes a longevity incentive for seniority (anualidad por antigüedad). In the case at hand, I establish that the norm does not require any type of performance evaluation mechanism. I emphasize that the existence of such an evaluation mechanism cannot be inferred from the word 'efficient service'. Furthermore, the concept of 'efficient service' does not establish a threshold for granting this incentive, so that the fulfillment of minimum service could also lead to its application. In that regard, I consider applicable – mutatis mutandis – the arguments I set forth in judgment no. 2014-001227 of 16:21 hours on January 29, 2014:_ "_The undersigned Magistrate records this dissenting vote for the reasons set forth below. I consider that the unconstitutionality action should have been partially declared with merit against articles 156 of the RECOPE Collective Bargaining Agreement 2011-2012 (but for reasons different from the majority's) and 13 of the Performance Evaluation Standards of that same institution. I.- On the constitutional relevance of performance evaluation during the exercise of public function. Performance evaluation consists of those procedures, methods, or strategies commonly used to evaluate or measure the human resources of a given workplace. According to the Dictionary of the Real Academia de la Lengua Española, the term 'evaluate' means: 'determine the value or importance of a thing or of the aptitudes, conduct, etc., of a person'._" That is, the performance evaluation (evaluación del desempeño) of a person means estimating the value that a person has in productive terms as well as appreciating the individual's performance in their position or functions. These procedures tend to measure and rate an employee's performance based on previously defined parameters. This examination of an individual's labor quality must respect one of the most important constitutional principles for the exercise of public function: proven suitability (idoneidad comprobada). This requirement—of constitutional rank—for holding public office has been strengthened by the jurisprudence of this Chamber over the years. For example, recently, in judgment number 2013-013202 of 9:05 a.m. on October 4, 2013, this Court indicated that Article 192 of the Political Constitution guarantees access to and appointment of public servants based on proven suitability. In accordance with Article 191 of the Constitution, every public employment regime has the purpose or goal of guaranteeing the efficiency of the Administration, which can be achieved, among other ways, through a performance evaluation procedure carried out periodically for each public servant. This principle of proven suitability was also developed in judgment number 1696-92 of 3:30 p.m. on August 23, 1992, which stated: "(...) In those times, many public servants were removed from their positions to make way for supporters of the new government, damaging the functioning of the public administration. Precisely to attack this evil, a group of constituents advocated for the creation of that legal instrument in order to endow the Public Administration with greater administrative and functional efficiency." Likewise, in judgment number 0140-93 of 4:05 p.m. on January 12, 1993, the foregoing concepts were expanded: "(...) From a historical-legal perspective, the two articles transcribed above are the product of an intense debate within the Constituent Assembly of 1949, which aimed to: -Eliminate the 'spoils' ('botín') practice—as it was called—, alluding to the behavior that politicians had traditionally had, consisting of the fact that with each new Government or Administration, public servants were dismissed to replace them with followers of the winning political party; and, -Form a Public Administration with human resources of the best quality and condition (morally, technically, and scientifically speaking), in order to make it efficient for fulfilling its objectives." Proven suitability means that it is a necessary condition for the appointment and retention of public servants to have or meet the characteristics and conditions that enable them to perform optimally in the work, post, or public office; that is, to possess the merits that the function demands. In judgment number 1696-92, it was stated: "(...) the suitability of public servants should not only be understood in a specific sense, 'academic' or 'physical' for example, but should rather be assumed as a conjunction of elements or factors of diverse nature that, assessed as a whole, result in a person being the most suitable for the position." The State must implement policies in state institutions to establish the appropriate requirements for holding a post, which must also be based on parameters of reasonableness and proportionality. Precisely, the importance of the performance evaluation of public officials lies in constantly reexamining whether the requirements and merits that allowed a person to enter the public employment regime are maintained over time, in order to guarantee efficiency in the provision of public services inherent to the State. These constitutional principles have, in turn, been incorporated into the Carta Iberoamericana de la Función Pública, approved at the V Conferencia Iberoamericana de Ministros de Administración Pública y Reforma del Estado, held in Santa Cruz de la Sierra, Bolivia, from June 26 to 27, 2003. In that instrument, it was established, among other guiding principles of the entire public function system, that merit, performance, and capacity are guiding criteria for access, career, and other human resources policies, which evidently includes public employment management (Article 8). As the precedents of this Chamber have indicated, the fulfillment of these basic elements of public function can only be achieved if the Public Administration itself establishes adequate means that enable the hiring of duly qualified personnel with an appropriate ethical framework, since the public employee is the one who ultimately executes the public service and, consequently, the one who defines, with their daily actions, the course and manner in which the State fulfills its tasks (see judgment number 2010-021051). Furthermore, in legal doctrine it has been said that performance evaluation systems must adhere to the criteria of transparency, objectivity, impartiality, and non-discrimination. Each Administration will determine the periodicity of the evaluations, the bodies responsible for conducting them, as well as the applicable procedures that must respect the aforementioned principles. Thus, the success of the system depends on the ability to combine evaluation methods that guarantee objectivity and respect for the principles of merit and capacity. Among the factors that can be evaluated are professional conduct as well as performance or achievement of results. Not only are the aspects to be assessed relevant (i.e., what to assess), but so too, equally, are the evaluation methods (how to assess). The embodiment of the principles of merit, capacity, and suitability in the Constitutional Text does not determine their application exclusively in the procedure for entering public function (which is the area where this Chamber has had the most opportunity to strengthen them), but rather they extend their validity throughout the working life of the public official, so that they are equally enforceable during membership in and permanence within the public employment regime. The legal rationale (ratio iuris) of performance evaluation in public function precisely seeks to examine the validity of merits, capacities, aptitudes, and suitability during a person's tenure in the state apparatus. Performance evaluation not only entails benefits for the employer (e.g., taking measures to improve workers' behavior, achieving better communication, planning and organizing work more adequately, identifying individuals who require improvement in a specific area, etc.), but also provides them for the workers themselves, by allowing them to know the behavioral and performance aspects that their employer most values in its collaborators, revealing the expectations of their superior and, furthermore, providing the opportunity for self-evaluation and self-criticism in their professional development. The mechanisms for controlling a public servant's performance in their daily functions also allow the Administration to verify if those persons who have improved themselves and obtained new knowledge and skills in their field are applying them during the exercise of their position and, with this, to evaluate if the public service provided is benefiting from this type of qualified personnel. This guarantees that those persons, whose contribution in the labor field is highly positive, remain in public function. It is impossible to aspire to the good functioning of public services if the human resources of the Administration do not possess the command of the required scientific field and the level of reasoning necessary for the optimal performance of their functions, and if these requirements are not constantly reevaluated. As stated in judgment number 2012-07163 of 4:00 p.m. on May 29, 2012, in which I served as Presiding Magistrate, a fundamental pillar of the democratic system is the citizenry's trust in its institutions, which demands, among other requirements, that the administered party trust the correct functioning of the Administration; this inevitably implies, apart from ethical and personality issues, that the official master the subject matter in which they work and have an appropriate level of reasoning, on which public employment management must be based. These qualities and aptitudes must not only be evaluated by the Administration at the time of entering the public employment regime, but must be constantly reexamined in order to maintain the citizenry's trust in the quality of its institutions. Likewise, it must be highlighted that the performance evaluation of public officials is of such high value that through the reform of the year 2000, the Derived Constituent Power sought to grant it constitutional roots. Specifically, it is Article 11, paragraph 2, of the Political Charter that recognizes the importance of evaluating the results of the Public Administration, by stating the following: "(...) The Public Administration, in a broad sense, shall be subject to a procedure of results evaluation and accountability, with the consequent personal responsibility for officials in fulfilling their duties. The law shall indicate the means for this results control and accountability to operate as a system covering all public institutions." Consequently, in this state of things, the performance evaluation of public officials is no longer just a legal or regulatory requirement (as will be seen below), but a constitutional one, intended to achieve good and efficient public management. In conclusion, the importance of using various instruments that tend to evaluate performance in public function finds its rationale in high constitutional principles repeatedly strengthened by the jurisprudence of this Chamber, mainly the proven suitability of Article 192 of the Constitution and the text of Article 11 also of the Constitution. II.- On the unconstitutionality of Article 156 of the Collective Bargaining Agreement (Convención Colectiva de Trabajo) of RECOPE 2011-2012. Firstly, it is necessary to rule on the issue of the double payment for annuities (anualidades) that RECOPE workers receive, by virtue of the benefits obtained through their collective bargaining agreement and those also recognized to them by the Ley de Salarios de la Administración Pública (Law No. 2166 and its reforms). As the plaintiff states, the generality of the servants that make up the public sector is recognized with a single economic incentive according to their years of service with the Public Administration. Such benefit or salary supplement is commonly called annuities, which were devised as recognition by the Administration to reward, apparently, the experience acquired by officials who have continuously provided their services, although, as will be seen below, it is actually conditioned on the servant's performance. This figure finds its normative basis precisely in the Ley de Salarios de la Administración Pública, which recognizes this incentive in favor of all officials who provide their services to the Public Administration, among which are the RECOPE servants. However, Article 155 of the RECOPE Collective Bargaining Agreement refers to the salary scale of the Ley de Salarios de la Administración Pública, in the following terms: "Article 155.- The salary scale established in the Ley de Salarios de la Administración Pública shall be applied to the workers to whom this Agreement refers. Each of the following steps of said scale shall continue to be recognized, as the workers acquire their right to the enjoyment of vacations." However, in Article 156 of the Agreement, another payment for the same concept of annuities is again recognized in favor of RECOPE workers: "Article 156. Workers shall maintain and receive an increase in the annuity percentage from four percent to five percent of the base salary for each year worked, which they have been receiving by virtue of previous negotiations." Faced with this panorama, we have two norms of the collective bargaining agreement that recognize in favor of RECOPE workers two different amounts for a single concept: annuities or years of service. This, in my consideration, is openly unconstitutional. I do not share the thesis that this double payment for the category of annuities is adequately founded on the objective of reducing the salary gap between a certain group of RECOPE workers and the other officials of the Public Administration. Such an end must be achieved through natural and direct mechanisms, such as increasing the base salary, and not through means that imply disproportionate benefits, as occurs in this case, where RECOPE workers receive double pay for the same concept: the annuity. Faced with such a situation, I opt to preserve the constitutionality of Article 155 of the cited Agreement, not only because it has not been the object of the action, but also because said norm is limited to assigning the annuity benefit previously recognized in Law No. 2166 and which extends to RECOPE workers. However, since the annuity I deem constitutional is the one recognized in the Ley de Salarios de la Administración Pública, it is necessary to make some observations regarding this incentive. In the first place, Article 5 of this Salary Law requires a merit evaluation for proceeding with the payment of annuities in the public sector.

Thus</span> reads the legal text: "(…) The annual increases shall be granted on merit to those public servants who have received a performance evaluation of at least 'good', in the previous year, granting them an additional step, within the same category, until reaching the maximum salary" (the underlining does not correspond to the original). In practice, this payment has been granted automatically, that is, without first verifying whether the performance evaluation of the benefited public servant has been "good". Pursuant to this mentioned Article 5, as well as in accordance with the constitutional principles of proven competence (numeral 192 of the Constitución Política) and evaluation of results (ordinal 11 of the Constitución Política), the payment of the longevity pay (anualidad) must not be automatic, as it has operated to date, but rather must be attributed only to those public servants who excel in the performance of their public duties. That is, in truth, the longevity pay (anualidad) is not a salary bonus established as recognition of the public servant's experience in an institution, but rather a reward for the "good experience" that has been had with such an official, or better said, for their "good performance". As seen previously, Article 11, paragraph 2, of the Constitución establishes the imperative need to evaluate the results of public management. It is true that to date there is no regulatory law in the country that seeks to standardize the effective application of performance evaluations in the scope of the public function; however, this does not detract from the relevance of evaluation as a constitutional principle that must guide the management of the Administración Pública. In my view, the text of Article 11, paragraph 2, of the Constitución establishes a clear and unequivocal mandate: results in public management must be evaluated. Thus, in this context where, on the one hand, the cited constitutional norm imposes the evaluation of the results of public management, and, on the other, ordinal 5 of the Ley de Salarios requires a merit evaluation prior to the payment of longevity pays (anualidades), the need for a regulatory law on performance evaluation in the Administración becomes more meaningful, because this would facilitate the payment of longevity pays (anualidades) based on merit. As a corollary of the foregoing, I deem it pertinent to declare the unconstitutionality of Article 156 of the Convención Colectiva de Trabajo of RECOPE 2011-2012, for causing an intolerable privilege and, furthermore, I take this opportunity to point out that the payment of longevity pays (anualidades) established in the Ley de Salarios de la Administración Pública (No. 2166), specifically in its numeral 5, requires that a performance evaluation be carried out prior to its recognition, since such payment only proceeds when the public servant is rated at least with a "good". Ergo, the longevity pays (anualidades) established in Law No. 2166 are, in no way, automatic, by virtue of which neither are those granted pursuant to Article 155 of the cited Convención Colectiva.

III.- Regarding the unconstitutionality of numeral 13 of the Normas para la Evaluación del Desempeño of RECOPE and the reward for minimum effort. On the other hand, I consider that Article 13 of the Normas para la Evaluación del Desempeño of RECOPE recognizes the payment of a salary incentive to officials who do not precisely stand out for their excellence. This provision prohibits accrediting said salary incentive to those RECOPE public servants who obtain a rating lower than 70 in the corresponding performance evaluation; a contrario sensu, employees who exceed 70 (even if it is a minimum rating), do receive said incentive. This means, no more and no less, that an official who obtains a rating of 70 in their performance evaluation will receive the same salary incentive as one whose efficiency and quality in the exercise of the public function is outstanding and, therefore, has received a grade of 90 or higher. Upon reviewing the Normas para la Evaluación del Desempeño of RECOPE, it was not found that there was any provision aimed at recognizing a scale that would allow for grading the amount of payment of such benefit based on the rating obtained, when it was higher than 70. This inexorably means that Article 13 of the Normas para la Evaluación del Desempeño of RECOPE rewards the minimum effort of some and, consequently, devalues the quality of others, by treating workers in evidently different situations equally. I underline that the performance evaluation of officials must be the key point for the granting or non-granting of this salary incentive. Properly applied, it is extremely beneficial for the sake of efficient public service, as it allows maintaining in the exercise of the public function those persons who not only demonstrated ab initio that they were suitable to hold the position, but also continue to demonstrate those qualities of competence and efficiency in the performance of their duties over time. Now, to evaluate the adequate exercise of a public servant's public duties, it is obvious to think that the expectations, goals, and objectives intended to be met in the corresponding work group must have been defined beforehand. To the extent that these purposes of public management are duly pre-established and known by all, it will be more transparent to specify which were achieved and who played a fundamental role in achieving them. In the specific case, Article 13 of the Normas para la Evaluación del Desempeño of RECOPE comes to reward those officials who, after the corresponding performance evaluation, pass it without greater merits. As the norm is drafted, the regulated salary incentive is not only directed at those officials who excel due to their achievements, but also at those who make the minimum effort. Hence, such a complacent provision contravenes the spirit of performance evaluation in the public function that was intended to be safeguarded in ordinal 11 of the Constitución Política, as well as the principle of proven competence developed in the constitutional Article 192, for which reason I declare such norm frankly unconstitutional. Independently of the foregoing, Article 13 of the Normas para la Evaluación del Desempeño of RECOPE is also unconstitutional, because if we start from the assumption that the benefit of the longevity pay (anualidad) of ordinal 155 of the Convención Colectiva of RECOPE 2011-2012 refers to the longevity pay (anualidad) as regulated in ordinal 5 of the Ley de Salarios de la Administración Pública (which requires that it only be recognized for the official whose performance has been rated at least as "good"), then we easily arrive at the conclusion that in both cases the salary benefit depends on the performance level of the official, so we would again be facing the double payment of a salary bonus arising from the same cause.

In addition, I share the dismissal of the action regarding the arguments that were not sufficiently substantiated. Indeed, it is not enough to superficially allege violations of constitutional numerals or principles. Now, I clarify that I did not hear on the merits the claims dismissed in judgment No. 2024007057 at 10:10 hours on March 14, 2024 (since I granted the action for violation of the fundamental right to citizen participation); however, I concur that, in principle, generic statements raised in an unconstitutionality action without substantiation or evidence must be rejected.

Regarding the challenge of the contested Article 12 of the Ley de Salarios de la Administración Pública, I partially concur with the unconstitutionality referred to by the majority, but only insofar as the payment computed in June of each year (regardless of the date of entry) constitutes an unreasonable situation. There is no justification whatsoever for making public servants who acquired the right to payment of longevity pays (anualidades) and met the corresponding legal requirements wait. This is a situation evidently contrary to the Derecho de la Constitución.

However, I do not deem unconstitutional the elimination of the recognition or counting of longevity pays (anualidades) in other dependencies of the public sector, because, as the Procuraduría General de la República indicates, its creation had a legal origin, so the legislator, in principle, has the power to vary it to ensure sound management of public finances. Note that even that numeral was reformed by the 'Ley Marco de Empleo Público' which recognizes the time served in other entities of the public sector for the purposes of computing the longevity pays (anualidades).

On the other hand, I concur with the considerations regarding the discussions of interpretation and normative integration of the contested ordinal 12 regarding the recognition of longevity pays (anualidades) in promotions being matters of legality that do not present, in the terms raised, any situation of constitutional relevance.

With respect to the alleged violation of the principle of reasonableness for the establishment of the percentages of longevity pays (anualidades) in transitory norms, I concur with the vote and with the position of the Procuraduría General de la República regarding the fact that it constitutes a problem of legislative technique, but not of constitutionality.

Likewise, the possible conflicts (antinomias) between the provisions of the Ley de Salarios de Administración Pública and the personnel statutes constitute matters of legality properly addressed in common legal channels.

* **Regarding considering XIV "ON THE ALLEGED Violation OF THE principle of non-retroactivity of the law and disrespect for consolidated legal situations".** In the first place, I agree with the majority vote regarding the fact that all arguments referring to municipal autonomy or that of decentralized entities must be dismissed, since the claimants are not legitimated for such purposes.

In addition, I concur with the dismissal of arguments for lack of substantiation when no transgressions to the Derecho de la Constitución were justified or demonstrated.

With respect to the fact that the amounts of the longevity pays (anualidades) and other bonuses (Articles 50, 54, and transitory XXXI) disregard what is established in other legal instruments, I must point out that, as I indicated, acquired rights and consolidated legal situations start from a minimum of constitutional reasonableness that does not imply their recognition in all cases (for example, when aberrant and grossly unconstitutional situations exist); however, both the longevity pays (anualidades) and the bonuses can be validly regulated for the future, so that prima facie I rule out any violation of numeral 34 of the Constitución Política. Consequently, I share the reasoning set forth once this precision is made.

Similarly, I agree that, in principle, it is not the Chamber's responsibility to resolve problems of application or interpretation of norms of an infra-constitutional rank to determine the prevalence of some over others for the resolution of labor-related conflicts.

I reiterate that the recognition of longevity pays (anualidades) is covered by the principle of free configuration of the legislator (within the limits permitted by the Derecho de la Constitución) and there is no right to the immutability of the legal system. Likewise, in my view, these types of legislator decisions are fully susceptible to constitutionality control, but for this there must be adequate substantiation by the claimants that allows the Chamber to carry out the respective weighing of legal assets. Consequently, the Asamblea Legislativa can, in principle, regulate the requirements, amounts, and terms of salary incentives for the future.

Regarding transitory XXVII, I agree that, according to the precedents cited in this section, it is constitutionally legitimate to impose a maximum limit of 12 years for the concept of severance pay (cesantía). Thus, I concur with the terms of the dismissal of these claims.

* **Regarding considering XV "Violation of the principle of free collective bargaining".** In this regard, the claims referring to municipal autonomy or that of decentralized entities, as well as those related to minor entities, must be dismissed, since the claimants are not legitimated for such purposes.

In the same sense, I reiterate that the arguments related to possible conflicts (antinomias) between the contested norms, the collective bargaining agreements (convenciones colectivas), and internal labor statutes must be declared without merit because they do not involve, in the terms raised, any claim of constitutional relevance, but rather a question of mere legality.

Likewise, the claims relating to the limit on severance pay (cesantía) and acquired rights are dismissed for the same reasons set forth ut supra in this individual opinion.

Now, regarding Article 55 of the Ley de Salarios de la Administración Pública (added by the law of 'Fortalecimiento de las finanzas públicas') and collective bargaining, I did not share what was ordered by the majority in the advisory opinion No. 2018019511 at 21:45 hours on November 23, 2018. On that occasion, I noted:

"VIII.- Different reasons of Judge Rueda Leal, with respect to numeral 3 of Title III "Amendment to the Ley de Salarios de la Administración Pública" of the project, which adds Article 55 of Chapter VII "Disposiciones Generales".

The consultants question the constitutionality of numeral 3 of Title III "Amendment to the Ley de Salarios de la Administración Pública" of the project, which adds ordinal 55 of Chapter VII "Disposiciones Generales", of legislative project 20.580. This norm establishes:

"Article 55- Legal Reserve in the creation of salary incentives and compensations The creation of incentives or compensations, or salary bonuses may only be done through law." They base their claim on numeral 4 of the Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, 1949 (No. 98) of the International Labour Organization (ILO), which states:

"Article 4 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements." They consider that the State has the commitment to respect, promote, and make a reality, in good faith and in accordance with the Constitución, the principles relating to freedom of association and trade union freedom, as well as the effective recognition of the right to collective bargaining.

After analyzing the claims, I consider that the starting point of the constitutionality analysis must be, precisely, our Constitución Política.

Regarding collective bargaining, Article 62 of the Constitution reads:

“ARTICLE 62.- Collective labor agreements (convenciones colectivas de trabajo) that, in accordance with the law, are concluded between employers or employer unions and legally organized worker unions shall have the force of law.” Taking as a basis the claims expressed and the transcribed norms, I note that the task of the constitutional judge is to examine whether the three transcribed texts are reconcilable. Only in the event that a constitutional reading of Article 55 is unfeasible would its declaration of unconstitutionality proceed.

The first thing I observe is that Article 4 of the Convention imposes the obligation to adopt “…measures appropriate to national conditions, where necessary, to stimulate and promote…” (emphasis added) collective bargaining.

Two points stand out from its literal wording. On one hand, these are measures to stimulate and promote collective bargaining. That is, the regulation does not delegate the definition of all elements of the labor contract to collective bargaining; nor is it observed that it limits the legislative power of configuration on the matter, already guaranteed by Article 62 of the Constitution, as will be seen below.

Even more important is the second point. The aforementioned Article 4 refers to “national conditions,” in order to determine the measures to be taken by the State. A basic element of such requirements is the domestic legal system and, unavoidably, the Political Constitution. This reference obliges a review of the text of Article 62 of our Magna Carta, transcribed above. Among its regulations, the force of law it grants to collective labor agreements and the definition of the parties to collective bargaining are noted. For the purposes of the sub examine, it must be emphasized that our Constitution expressly rests the regulation of collective bargaining on a legal norm, since the force of law of the collective agreement is conditioned upon it being concluded “…in accordance with the law…”. This precept not only establishes the obligation to obey the law when negotiating a collective agreement, but also institutes the duty to legislate on the matter, in order to establish a legal framework that regulates collective bargaining.

This first approximation to our Constitution allows us to infer the compatibility of the challenged precept with its text, since the cited Article 55 requires that the regulation of incentives, compensations, or salary pluses (incentivos, compensaciones o pluses salariales) in the public sector be carried out through a law. In other words, both the Constitution and the questioned norm impose a legal regulation of the matter. In the case of the latter, its wording is specifically focused on the topic of incentives, compensations, or salary pluses. Thus, if the Constitution requires legal regulation on the matter, an article that advocates the same requirement cannot be challenged as unconstitutional.

If one continues examining the “…national conditions…” established by our Magna Carta, the previous result is reinforced. A first point, specifically applicable to public officials, is the principle of legality, central to any Rule of Law. This principle subjects the actions of such public servants to the guidelines of the law. As Article 11 of the Constitution literally states, public officials “…cannot arrogate powers not granted…” in law, a norm that is developed by Article 11 of the Ley General de la Administración Pública, by stating that “…The Public Administration shall act subject to the legal system and may only carry out those acts or provide those public services authorized by said system, according to the hierarchical scale of its sources…” In this vein, it cannot be deemed unconstitutional for the consulted provision to require an enabling norm to regulate the powers of authorities acting as employers in collective bargaining, especially when it concerns the handling of public funds, as is the matter of incentives, compensations, or salary pluses. Quite the contrary, such a requirement is a patent manifestation of the principle of legality.

The notion that public officials are subject to the law, basic to the Rule of Law, has been established in the jurisprudence of the Chamber (Sala) on matters of collective bargaining. Thus, in judgment No. 2000-004453 of 2:56 p.m. on May 24, 2000, this Court held:

“Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector where the application of the institution of collective labor agreements is constitutionally possible, that is to say, in the so-called companies or economic services of the State and in those personnel groups of public institutions and entities in which the nature of the services provided do not participate in public management, under the terms of subsection 2 of Article 112 of the Ley General de la Administración Pública, the Chamber reiterates and confirms its jurisprudence that the authorization to negotiate cannot be unrestricted, i.e., comparable to the situation in which any private employer would find themselves, since by that route, laws, regulations, or current government directives cannot be dispensed with or excepted, nor can laws that grant or regulate competencies of public entities, attributed by reason of normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion that is inferred from Article 112, subsection 3) of the Ley General de la Administración Pública and from Considerando XI of judgment No. 1696-92 of this Chamber.” (The highlighting does not correspond to the original; see in the same sense judgments Nos. 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261, and 2006-17436).

Finally, emphasis must be placed on the fact that the contested provision is closely related to the use of public funds destined for “incentives or compensations, or salary pluses.” Precisely, insofar as public funds are involved, the State is obligated to ensure their sound management. Likewise, the criterion for assigning them must be subject to the principle of reasonability, on the understanding that officials must seek to satisfy “…primarily the public interest…” (Article 113 of the Ley General de la Administración Pública). One way to ensure their correct administration is to avoid the casuistic, arbitrary, or disproportionate creation of such incentives, seeking to provide a regulatory framework through a law. Concerning the stated approach, when studying the constitutionality of collective labor agreements, the Chamber has stated:

“After all, as the doctrine recognizes, the Public Administration is not a private estate and therefore the money that is committed, as it is not its own, must be administered within the framework of the law, which necessarily includes the mentioned test of reasonability and proportionality. It is clear that financial activity presupposes the fulfillment of criteria of economy and efficiency, that is, of rationalization of financial activity that legally and morally prevents waste and gives the community the right to demand not only effectiveness but also to prevent such waste; after all, it is the monies of that community that are being administered. These duties are imposed on the Administration in general, which undoubtedly includes the public enterprise, and perhaps with even greater rigor, especially if they are public funds used for the benefit of employees subject to a private regime. That is why the jurisprudence of this Chamber has concluded that although arbitration awards (laudos) and collective labor agreements are permitted in State enterprises, the possibility of negotiation cannot be unrestricted, and that, among other things, the limitations required to harmonize public spending with budgetary availability must be respected, as well as the fact that laws, regulations, or current government directives cannot be dispensed with or excepted as a consequence of the negotiation process.” (Judgment No. 2006-7261 of 2:45 p.m. on May 23, 2006. The highlighting does not correspond to the original).

Note that the obligation to ensure the sound management of public funds by the servants of the Public Administration derives not only from the obligation to render accounts and act in accordance with the law, as regulated in Article 11 of the Constitution, but also from other norms of the Fundamental Law that explicitly impose such a duty:

“Article 24.- (…)

The law shall establish the cases in which the competent officials of the Ministry of Finance and the Comptroller General of the Republic may review the accounting books and their annexes for tax purposes and to supervise the correct use of public funds.

Article 184.- The duties and attributions of the Comptroller are:

* To supervise the execution and settlement of the ordinary and extraordinary budgets of the Republic. No payment order shall be issued against State funds unless the respective expenditure has been approved (visado) by the Comptroller; nor shall any obligation arise for the State that has not been countersigned (refrendada) by it. * To examine, approve, or disapprove the budgets of the Municipalities and autonomous institutions, and supervise their execution and settlement. * To send annually to the Legislative Assembly, at its first ordinary session, a report on the activity corresponding to the previous economic year, detailing the Comptroller's work and presenting the opinions and suggestions deemed necessary for the better management of public funds. * To examine, review, and close the accounts of State institutions and public officials. * Others assigned by this Constitution or the laws.

Article 193.- The President of the Republic, the Government Ministers, and the officials who manage public funds, are obligated to declare their assets, which must be valued, all in accordance with the law.” (The highlighting does not correspond to the original).

As can be inferred from the logical structure in this type of classic legal relationship, opposite the referred obligation of the public servant stands the correlative right of the inhabitants to the correct administration of public funds.

The analysis carried out herein allows the conclusion that the Constitution delegated to the ordinary legislator the duty to regulate collective bargaining by means of law. Now, since this involves public workers (that is, the public servants who can validly sign a collective agreement) and the sound use of public funds, it is not unconstitutional to require that the creation of incentives, compensations, or salary pluses be effected through a law. Such a regulatory body would correspond not only to the legal development of Article 62 of the Magna Carta, but also of Articles 11, 24, 184 subsection 3), and 193 of the Constitution, by subjecting the public servants who exercise employer roles to the principle of legality and the sound management of public funds.

Evidently, the development of that legal framework will be subject to the limits imposed by the Constitution and the instruments of International Human Rights Law, which include the conventions of the International Labour Organization. Therefore, through a law that regulates the creation of incentives, compensations, or salary pluses, no precept could be established that would empty the content of the labor and union rights contemplated in the cited conventions and the Fundamental Law. In other words, the healthy purpose of ensuring the correct administration of public funds could not be the excuse to unreasonably limit the right to collective bargaining. However, the mere general provision for such matter to be regulated by law (without its concrete content being in view) does not imply per se a current and immediate violation of union freedom, since the right of citizens to the sound management of public funds and respect for the principle of legality undoubtedly justify it.

However, I also consider that the approval of Article 55 entails the duty of the Legislative Assembly to enact, within a reasonable period, the legal framework that would serve as the basis for the collective bargaining of the indicated items. In other words, if an unreasonable period were to elapse without such a norm being enacted, the situation would materially become a hollowing out of collective bargaining concerning such items, a situation that would contravene Article 62 of the Political Constitution.

Thus, I estimate that Article 62 (by referring to the law), Article 11 (which imposes the principle of legality), and this latter precept together with Articles 24, 184 subsection 3), and 193 (which support the right of citizens to the sound management of public funds), all of the Political Constitution, empower the legislator to regulate the creation of incentives, compensations, or salary pluses through the law, provided that by this means the right to collective bargaining is not emptied of its content.” Consequently, in accordance with what has been transcribed, Article 62 of the Constitution empowers the legislator to regulate the creation of incentives, compensations, or salary pluses through the law, provided that by this means the right to collective bargaining is not emptied of its content. Precisely, the scope of application of the latter includes a variety of topics that go beyond the limits, the negotiation of which remains unchanged, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining not only agrees with the Constitution but is prescribed by it.

Additionally, with respect to this section and collective bargaining, the majority of the Chamber cites resolution No. 2021017098 of 11:15 p.m. on July 31, 2021; however, on that occasion I gave the following dissenting reasons:

“a) Dissenting reasons of Judge Rueda Leal regarding Article 43 and Transitory Provision XV of the project.

Concerning Article 43, and on the basis that it deals with the public sector that can validly conduct collective bargaining, I estimate that there are no constitutional conflicts, because it only establishes partial limits to collective bargaining, which are intimately linked to the principle of budgetary balance. In my opinion, the scope of application of collective bargaining includes a variety of topics that go beyond the limits of that article, the negotiation of which would remain unchanged with the eventual entry into force of this bill, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining is not only in accordance with the Constitution, but prescribed by it, as I explained in my dissenting reasons set forth in judgment No. 2018-019511:

“After analyzing the claims, I consider that the starting point of the constitutionality analysis must be, precisely, our Political Constitution. Regarding collective bargaining, its Article 62 reads:

“ARTICLE 62.- Collective labor agreements that, in accordance with the law, are concluded between employers or employer unions and legally organized worker unions shall have the force of law.” Taking as a basis the claims expressed and the transcribed norms, I note that the task of the constitutional judge is to examine whether the three transcribed texts are reconcilable. Only in the event that a constitutional reading of Article 55 is unfeasible would its declaration of unconstitutionality proceed.

The first thing I observe is that Article 4 of the Convention imposes the obligation to adopt “…measures appropriate to national conditions, where necessary, to stimulate and promote…” (emphasis added) collective bargaining.

Two points stand out from its literal wording. On one hand, these are measures to stimulate and promote collective bargaining. That is, the regulation does not delegate the definition of all elements of the labor contract to collective bargaining; nor is it observed that it limits the legislative power of configuration on the matter, already guaranteed by Article 62 of the Constitution, as will be seen below.

Even more important is the second point. The aforementioned Article 4 refers to “national conditions,” in order to determine the measures to be taken by the State. A basic element of such requirements is the domestic legal system and, unavoidably, the Political Constitution. This reference obliges a review of the text of Article 62 of our Magna Carta, transcribed above. Among its regulations, the force of law it grants to collective labor agreements and the definition of the parties to collective bargaining are noted. For the purposes of the sub examine, it must be emphasized that our Constitution expressly rests the regulation of collective bargaining on a legal norm, since the force of law of the collective agreement is conditioned upon it being concluded “…in accordance with the law…”. This precept not only establishes the obligation to obey the law when negotiating a collective agreement, but also institutes the duty to legislate on the matter, in order to establish a legal framework that regulates collective bargaining.” With respect to Transitory Provision XV, given its wording, the considerations I expressed in the cited vote No. 2018-019511, when analyzing an identical transitory provision, are applicable:

“The petitioners challenge the constitutionality of Transitory Provision L of Bill 20.580, which states:

“TRANSITORY PROVISION L - From the entry into force of this law, the heads of public entities are obligated to denounce collective labor agreements upon their expiration.

In the event that it is decided to renegotiate the agreement, it must be adapted in all its aspects to what is established in this Law and other regulations issued by the Executive Branch." They consider that such an obligation limits the right to renegotiation or to automatic renewal under the conditions stipulated in subsection e) of Article 58 of the Labor Code (Código de Trabajo).

After analyzing the filing brief, I observe that the reasoning provided by the party refers only to the apparent opposition of the contested provision with the cited article of the Labor Code. Such a normative conflict is a question of mere legality, outside the competencies of this Chamber.

On the other hand, I dismiss that the mere mention of an alleged violation of Article 62 of the Constitution is sufficient to satisfy the requirements of a legislative consultation. As Article 99 of the Ley de la Jurisdicción Constitucional requires, the optional consultation must be made in a “reasoned memorial,” a situation that differentiates it from the mandatory consultation. Thus, the petitioners have the duty to clearly state the reasons for the alleged constitutional violation, as the Chamber has indicated on other occasions:

“In this regard, the Constitutional Chamber, in developing the scope of that norm, through judgment No. 5544-95 of 3:00 p.m.

of October 11, 1995, stated:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt; background-color:#ffffff"><span style="font-style:italic; background-color:#ffffff">"Insofar as the consultation refers to Article 28 of the Bill, since it was not formulated with reasons, 'with an expression of the aspects of the bill that are questioned, as well as the reasons for which there are doubts or objections regarding its constitutionality' (Art. 99 of the Ley de la Jurisdicción Constitucional), given that the consultants merely indicate the topic consulted, failing to make any kind of constitutional argument, it is not appropriate to process the consultation. The constitutional jurisprudence has so held repeatedly, and for that reason, insofar as this aspect is concerned, the consultation formulated is dismissed (See Advisory Opinion No. 5399-95, related to Consultation No. 4773-95 and the subsequent interlocutory resolution, No. 501-I-95)."</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt; background-color:#ffffff"><span style="font-style:italic; background-color:#ffffff">Independently of the foregoing, a prima facie analysis of the rule – a limit imposed given the lack of substantiation in the filing brief – does not permit its unconstitutionality to be visualized. I emphasize that this is a transitory regulation, of limited application to collective bargaining agreements (convenciones colectivas) where the State is the employer. I stress this fact since I consider that the obligation imposed by said provision has the purpose of adjusting the collective bargaining agreements to the legal framework that would come into force with the challenged bill. Hence, the possible renegotiation of the agreement entails that it be adapted "…in all its aspects to what is established in this Law and other regulations issued by the Executive Branch." Likewise, I clarify and underscore that such article does not mean the suspension, derogation, or annulment of collective bargaining agreements or their provisions, nor does it impose a restriction on their effects that is different from the term of validity that had been previously agreed upon by the parties.</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt; background-color:#ffffff"><span style="font-style:italic; background-color:#ffffff">Now, it must be remembered that the Political Constitution establishes a basic requirement for collective bargaining agreements, which is that they be concluded "…in accordance with the law…". Thus, it is clear that the content and form of a collective bargaining agreement are subject to the law, by constitutional mandate. Ergo, it is not unconstitutional for a rule – like the challenged one – to seek that collective bargaining agreements respect the law. Note also that it does not derogate or empty the content of subsection e) of Article 58 of the Labor Code (Código de Trabajo), leaving intact the possibility of renegotiating the collective bargaining agreement</span><span style="font-style:italic">."</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><a name="_Hlk195181214" class=""><span>Based on the foregoing, in a specific context of severe fiscal deficit (</span><span>dé</span><span>ficit fiscal), legislative measures taken that are aimed at the sound management of public finances and the principle of budgetary balance can only be overturned by more serious violations of other fundamental rights, which is not verified in the </span><span style="font-style:italic">sub examine</span><span> case.</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt"><span>Furthermore, in advisory opinion no. 2018019511 of 9:45 p.m. on November 23, 2018, I set forth the following individual reasons regarding Transitory Provision L:</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"</span><span style="font-weight:bold; font-style:italic">IX.- Individual reasons of Judge Rueda Leal regarding Transitory Provision L of Title V "</span><span style="font-weight:bold; font-style:italic">Transitory Provisions" (Disposiciones Transitorias)</span><span style="font-style:italic">.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">The consultants question the constitutionality of Transitory Provision L of Bill 20.580, which indicates:</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"</span><span style="font-style:italic">TRANSITORY PROVISION L - Upon the entry into force of this law, the heads of public entities are under the obligation to terminate (denunciar) collective bargaining agreements upon their expiration.</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">In the event that a decision is made to renegotiate the agreement, it must be adapted in all its aspects to what is established in this Law and other regulations issued by the Executive Branch."</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">They consider that such obligation limits the right to renegotiation or to automatic extension under the conditions stipulated in subsection e) of Article 58 of the Labor Code.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">After analyzing the filing brief, I observe that the substantiation provided by the party refers solely to the apparent opposition of the questioned provision to the cited numeral of the Labor Code. Such normative conflict is a question of mere legality, outside the competencies of this Chamber.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">On the other hand, I rule out that the simple mention of an alleged violation of Article 62 of the Constitution is sufficient to satisfy the requirements of a legislative consultation. As required by numeral 99 of the Ley de la Jurisdicción Constitucional, the optional consultation must be made in a "reasoned brief" ("memorial razonado"), a situation that differentiates it from the mandatory consultation. Thus, the petitioners have the duty to clearly state the reasons for the alleged constitutional violation, as the Chamber has indicated on other occasions:</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"</span><span style="font-style:italic">In this regard, the Constitutional Chamber, in developing the scope of that rule, through judgment No. 5544-95 of 3:00 p.m. on October 11, 1995, expressed:</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"</span><span style="font-style:italic">Insofar as the consultation refers to Article 28 of the Bill, since it was not formulated with reasons, 'with an expression of the aspects of the bill that are questioned, as well as the reasons for which there are doubts or objections regarding its constitutionality' (Art. 99 of the Ley de la Jurisdicción Constitucional), given that the consultants merely indicate the topic consulted, failing to make any kind of constitutional argument, it is not appropriate to process the consultation. The constitutional jurisprudence has so held repeatedly, and for that reason, insofar as this aspect is concerned, the consultation formulated is dismissed (See Advisory Opinion No. 5399-95, related to Consultation No. 4773-95 and the subsequent interlocutory resolution, No. 501-I-95)."</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">Independently of the foregoing, a prima facie analysis of the rule – a limit imposed given the lack of substantiation in the filing brief – does not permit its unconstitutionality to be visualized. I emphasize that this is a transitory regulation, of limited application to collective bargaining agreements where the State is the employer. I stress this fact since I consider that the obligation imposed by said provision has the purpose of adjusting the collective bargaining agreements to the legal framework that would come into force with the challenged bill. Hence, the possible renegotiation of the agreement entails that it be adapted "…in all its aspects to what is established in this Law and other regulations issued by the Executive Branch." Likewise, I clarify and underscore that such article does not mean the suspension, derogation, or annulment of collective bargaining agreements or their provisions, nor does it impose a restriction on their effects that is different from the term of validity that had been previously agreed upon by the parties.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">Now, it must be remembered that the Political Constitution establishes a basic requirement for collective bargaining agreements, which is that they be concluded "…in accordance with the law…". Thus, it is clear that the content and form of a collective bargaining agreement are subject to the law, by constitutional mandate. Ergo, it is not unconstitutional for a rule – like the challenged one – to seek that collective bargaining agreements respect the law. Note also that it does not derogate or empty the content of subsection e) of Article 58 of the Labor Code, leaving intact the possibility of renegotiating the collective bargaining agreement."</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>By virtue of the considerations set forth, I rule out any unconstitutionality in the terms raised in the </span><span style="font-style:italic">sub lite</span><span>, insofar as collective bargaining agreements are subject to the law by constitutional mandate.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>With respect to the alleged violation of the principle of equality in relation to solidarity associations (asociaciones solidaristas), I share the arguments put forth in the majority vote and the cited jurisprudence.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Regarding the alleged unconstitutionality of Transitory Provision XXXVI, the comments made </span><span style="font-style:italic">ut supra </span><span>regarding collective bargaining apply. Likewise, the general subjection of collective bargaining agreements to provisions of the Executive Branch is not unconstitutional </span><span style="font-style:italic">per se, </span><span>because, for example, the Labor Code itself provides for the consideration of regulatory provisions in this matter, which are subject to constitutional review. However, no arguments were developed that demonstrated any violation susceptible to being declared.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><a name="_Hlk195181246" class=""><span>Based on the foregoing, I consider that the challenged Article 55 (and the other provisions related to the questioned bonuses, namely, numerals 39, 50, 54 of the Ley de Salario de la Administración Pública and Transitory Provisions XXVII and XXXI of the 'Public Finance Strengthening' law) are not unconstitutional. Similarly, I consider that Transitory Provision XXXVI is not contrary to the Constitution by establishing the obligation of the heads of entities to terminate collective bargaining agreements upon their expiration date, nor by contemplating the general subjection to regulatory provisions.</span></a><br data-mce-bogus="1"></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital (considerando) XVI </span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">"</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">Art. 3 of Decreto Ejecutivo n.° 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 referring to Public Employment (Empleo Público)</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Although I did not vote on resolution no. 2019010635 of 9:20 a.m. on June 12, 2019, I share the dismissal of these points for lack of substantiation and because the petitioner's standing (legitimación) regarding the alleged violation of the principle of autonomy was rejected.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XVII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">Arts. 4, 9 and 14 of Decreto Ejecutivo n.° 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 referring to Public Employment</span><span style="font-family:'Times New Roman'; font-weight:bold">"</span><span style="font-family:'Times New Roman'; font-weight:bold">. </span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>I reiterate that I did not vote on resolution no. 2019010635 of 9:20 a.m. on June 12, 2019; however, I agree with the dismissal regarding these norms as they were not expressly challenged.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recitals XVIII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">FISCAL RESPONSIBILITY RULES. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">"</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic"> and XIX "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">FISCAL RESPONSIBILITY. DESTINATION OF FREE SURPLUSES</span><span style="font-family:'Times New Roman'; font-weight:bold">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to these points, I concur with the reasoning provided by the majority regarding the lack of standing of the petitioner.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XX "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">EXCLUSIVE DEDICATION CONTRACTS</span><span style="font-family:'Times New Roman'">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Although I did not vote on resolution no. 2019010635 of 9:20 a.m. on June 12, 2019, I agree that the petitioner does not have standing to bring an action in defense of the autonomy of municipal or autonomous entities. Likewise, I share the dismissal of the remaining allegations for lack of substantiation.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXI "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">EXTENSION OF EXCLUSIVE DEDICATION CONTRACTS</span><span style="font-family:'Times New Roman'; font-weight:bold">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In this regard, I clarify that the norms challenged here are not unconstitutional, since the legislator, in principle, is free to regulate the renewal conditions and the terms of exclusive dedication contracts without any situation of constitutional relevance being observed, in the terms presented.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Regarding the alleged violation of Article 34 of the Constitution and the other arguments, I concur with the dismissal developed in the majority vote.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">PUBLIC SERVANTS TO WHOM EXCLUSIVE DEDICATION OR PROHIBITION MAY BE RECOGNIZED</span><span style="font-family:'Times New Roman'; font-weight:bold">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to this section, I concur with the reasoning for the dismissal provided by the majority.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXIII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION CONTRACT AND THE PROHIBITION</span><span style="font-family:'Times New Roman'; font-weight:bold">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>With respect to this point, I agree with both the reasoning provided by the majority and the declaration of unconstitutionality (estimatoria). Ergo, I declare that the action is with merit (con lugar) in relation to the paragraphs: "</span><span style="font-style:italic">Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to be entitled to the compensation for this concept</span><span>"</span><span> (Art. 32, paragraph 2, </span><span style="font-style:italic">in fine</span><span>) and "</span><span style="font-style:italic">For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>), both from the Ley de Salarios de la Administración Pública, added by Article 3 of Title III of the "Public Finance Strengthening" law, No. 9635 of December 3, 2018;</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXIV "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">NEW PERCENTAGES FOR EXCLUSIVE DEDICATION AND PROHIBITION</span><span style="font-family:'Times New Roman'; font-weight:bold">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to this recital, I agree with the reasoning provided by the majority, with the exception of the referral to recital VII. Likewise, I did not hear the merits of the points dismissed in judgment No. 2024007057 of 10:10 a.m. on March 14, 2024 (as I declared the action with merit for violation of the fundamental right to citizen participation); however, I agree that, in principle, generic statements raised in an unconstitutionality action without substantiation or evidence must be rejected.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXV "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">PROHIBITION OF ADDITIONAL INCENTIVES</span><span style="font-family:'Times New Roman'; font-weight:bold">."</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to this point, I concur with both the reasoning provided by the majority and the ordered dismissal.</span></p> Regarding this considerando, I agree with the reasoning provided by the majority, with the following exceptions.

Even though I did not rule on the merits regarding the points dismissed in judgment no. 2024007057 of 10:10 a.m. on March 14, 2024 (as I granted the action due to a violation of the fundamental right to citizen participation), I did vote on advisory opinion no. 2018-19511 of 9:45 p.m. on November 23, 2018. Now, in this latter vote, the general scope of the stewardship (rectoría) of Mideplan was explained, so, in principle, it is up to the ordinary operator of the law to analyze the rules they must apply in accordance with the constitutionality criteria established therein. It is worth noting that this Court took into consideration that there were exceptions and exclusions provided for in special legal rules that had not been repealed by the ‘Public Finance Strengthening’ ('Fortalecimiento de las finanzas públicas') law; however, I believe that, for the purposes of this constitutional review process, what was stated in resolution no. 2018-19511 of 9:45 p.m. on November 23, 2018, is sufficient (that is, I refrain from ruling on what was decided in judgment no. 2024007057 of 10:10 a.m. on March 14, 2024). Precisely, in advisory opinion no. 2018-19511 of 9:45 p.m. on November 23, 2018, it was stated:

“**a) Regarding MIDEPLAN’s stewardship (rectoría) in public employment matters and compliance with the guidelines of the Dirección General de Servicio Civil.** The first two objections mentioned are:

“2.) In accordance with the previous report, it is determined that the project does affect the organization and functioning of the Judicial Branch, and that there is opposition to it, provided that the following is not eliminated:

a.- The provisions established in the reform of Articles 46 and 47 of the Public Administration Salaries Law (Ley de Salarios de la Administración Pública), No. 2166 of October 9, 1957, regarding MIDEPLAN’s stewardship (rectoría) of public employment for the Judicial Branch.

b.- The provisions established in the reform adding Article 49 in fine to the Public Administration Salaries Law (Ley de Salarios de la Administración Pública), No. 2166 of October 9, 1957, regarding the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil for the Judicial Branch.” In order to clearly understand these points, the corresponding rules are transcribed:

“Article 46- Public Employment Stewardship (Rectoría de Empleo Público) All Public Sector employment matters shall be under the stewardship (rectoría) of the Minister of National Planning and Economic Policy, who must establish, direct, and coordinate general policies, coordination, advisory services, and support to all public institutions, and define the administrative guidelines and regulations aimed at the unification, simplification, and coherence of employment in the public sector; ensuring that public sector institutions respond adequately to the defined objectives, goals, and actions.

Furthermore, the Minister must evaluate the public employment system and all its components, in terms of efficiency, effectiveness, economy, and quality; and propose and promote the necessary adjustments for the better performance of public officials and institutions.

Article 47- Methodological basis for performance evaluation The performance evaluation of officials shall be based on quantitative indicators of compliance with individual goals for products and services provided, linked to the processes and projects carried out by the unit to which they belong; and that of the managerial staff at all levels for compliance with institutional goals and objectives.

It shall be the responsibility of each superior to define the processes and projects of the unit, as well as the products and services provided; in accordance with the regulations in force and the institutional governmental strategic plans.

The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy, with the objective of homogenizing and standardizing, with the respective exceptions (salvedades), the evaluation methods and the respective information systems.

(…)

Article 49.- Effects of the annual evaluation The result of the annual evaluation shall be the sole parameter for granting the seniority bonus (anualidad) incentive to each official.

The annual ratings shall constitute a background for granting the incentives established by law and for suggesting recommendations related to the improvement and development of human resources. It shall be considered for promotions, advancements, recognitions, training, and development, and shall be determined by the official's performance evaluation history. Likewise, the evaluation process must be considered to implement actions for improvement and strengthening of human potential.

Annually, the Dirección General de Servicio Civil shall issue the technical and methodological guidelines for the application of performance evaluation instruments, which shall be of mandatory compliance.” As can be seen from the literal wording of the agreement, the first two precepts are objected to because they provide for a “… MIDEPLAN’s stewardship (rectoría) of public employment …”, while the third speaks of “… the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil for the Judicial Branch.” To specify the concrete implications of this regulation with respect to the Judicial Branch, both an internal examination of its articles must be carried out and its interaction with the rest of the legal system must be verified. In other words, the literal wording of the project's rules must be assessed, as well as their hypothetical systematic interpretation should they become part of our legislation.

Regarding the first level of analysis, numerals 46 and 47 grant and detail the issue of public employment stewardship (rectoría) under the responsibility of the Minister of National Planning and Economic Policy.

On this matter, the consulting deputies state that “… Article 46 and 47 (sic) do not interfere with the organization or functioning of the Judicial Branch since an interpretation consistent with constitutional limits necessarily limits its application to those entities over which there is effective intersubjective direction, respecting the principle of Separation of Powers and judicial independence. Provided that the aforementioned rule is interpreted this way, as indeed it must be according to the spirit of the legislator, it will be in accordance with the law of the Constitution, without in any way disrupting the jurisdictional function of the Judicial Branch or those administrative tasks essential for its fulfillment.” The Chamber also highlights that the Minister of Finance explained the following to the Supreme Court of Justice: “… regarding MIDEPLAN’s stewardship (rectoría) in matters of public employment evaluation, the project is clear in stating that this stewardship (rectoría) is exercised with the respective exceptions. In that sense, I know there is a will on the part of the deputies to present an authentic interpretation that guarantees the absolute independence of the Judicial Branch in matters of performance evaluation…” (Official note no. DM-2362-2018 of October 16, 2018. The underlining is added).

It is extracted from the foregoing that the stewardship (rectoría) of the Minister of National Planning and Economic Policy in public employment matters has exceptions in the bill. The Chamber verifies the truth of this argument, since the questioned clause 47 establishes in fine:

“The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy, with the objective of homogenizing and standardizing, with the respective exceptions (salvedades), the evaluation methods and the respective information systems.” (The underlining is added).

The Chamber notes that the aforementioned Articles 46, 47, and 49 are found in Chapter VI, titled “STEWARDSHIP AND PERFORMANCE EVALUATION OF PUBLIC SERVANTS (RECTORÍA Y EVALUACIÓN DEL DESEMPEÑO DE LOS SERVIDORES PÚBLICOS)”.

The application of this chapter to the Judicial Branch is assumed in the proposed reform to the Public Administration Salaries Law (Ley de Salarios de la Administración Pública), which introduces a numeral 26 with the following wording:

“Article 26- Application The provisions of this chapter and the following ones shall apply to:

1. The Central Administration, understood as the Executive Branch and its dependencies, as well as all deconcentrated bodies attached to the different ministries, the Legislative Branch, the Judicial Branch, the Supreme Electoral Tribunal, as well as the dependencies and auxiliary bodies of these. (…)” The Chamber draws attention to the fact that almost all the chapters of the amendment to the Public Administration Salaries Law (Ley de Salarios de la Administración Pública) refer, in at least one of their articles, to the cited clause 26. Thus, Chapter III is the one that precisely contains numeral 26, while Chapter IV cites it in its precepts 39 and 40:

“Article 39- Severance pay assistance (Auxilio de cesantía) The compensation for severance pay assistance (auxilio de cesantía) for all officials of the institutions contemplated in Article 26 of this law shall be regulated according to the provisions of the Labor Code, and may not exceed 8 years.

Article 40- Inadmissible additional incentives The creation, increase, or payment of remuneration for the concept of “discretion and confidentiality” is not permissible, nor is the payment or recognition for the concept of biennia (bienios), quinquennia (quinquenios), or any other remuneration for the accumulation of years of service other than the seniority bonuses (anualidades), in any of the institutions contemplated in Article 26 of this law.” (The underlining is added).

For its part, Chapter V refers to that rule in its clause 42:

“Article 42- Limit on total remuneration in the public function The total remuneration of those servants whose appointment is by popular election, as well as the heads (jerarcas), subordinate titleholders, and any other official within the institutional scope of application contemplated in Article 26 of this law, may not exceed per month the equivalent of twenty monthly base salaries of the lowest category of the Public Administration salary scale, except as indicated in Article 41 regarding the remuneration of the President.” (…)</span><span style="font-style:italic">”</span><span style="font-style:italic"> (Emphasis added).</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Whereas Chapter VII does so in its Article 52:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">Article 52- Payment method for public servants</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">The institutions </span><span style="font-style:italic; text-decoration:underline">contemplated in Article 26 of this law</span><span style="font-style:italic"> shall adjust the payment frequency of their officials' salaries, using the monthly payment with a biweekly advance method.”</span><span style="font-style:italic"> (Emphasis added).</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Thus, it is verified that the only chapters that do not refer to the cited Article 26 are VIII – related to the reform and repeal of other regulations – and the questioned Chapter VI, which is, indeed, the one that speaks of “exceptions (salvedades).”</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">The relevance of this fact lies in the interpretation derived from the conjunction of both assumptions. If, on the one hand, the general rule contemplated in Article 26 is not mentioned or brought up in Chapter VI and, on the other, that chapter is the one that speaks of “exceptions (salvedades),” then the inescapable need to carry out a systematic interpretation is revealed, in order to establish such exceptions with clarity. It is evident that if the legislator literally refers to exceptions, the task of the legal operator is precisely to determine those exceptions.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Following this line, the extension of these “exceptions (salvedades)” to the Judicial Branch is verified and better understood when the second level of analysis is carried out, which implies a systematic reading of the legal system.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">The principles governing systematic interpretation allow for solving problems of (apparent) conflicts of norms. For the purposes of the sub lite, it must be recognized that the Constitution has a direct influence on the exegesis of the entire legal system. The Constitution is a living text, whose provisions imbue the rest of the infra-constitutional regulations with meaning.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">In addition to the foregoing, the solution to a conflict of norms presupposes the application of other interpretive principles, such as the prevalence of special norms over general ones.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">These basic elements of legal hermeneutics guide the study of the norms in question.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">The reading of the constitutional framework begins with the recognition of the independence of the Judicial Branch, one of the cardinal foundations of our Rule of Law:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">ARTICLE 9.- The Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and independent Powers among themselves. The Legislative, the Executive, and the Judicial.</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">None of the Powers may delegate the exercise of functions that are proper to them. (…)</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">ARTICLE 154.- The Judicial Branch is only subject to the Constitution and the law, and the resolutions it issues in matters within its competence do not impose upon it other responsibilities than those expressly indicated by legislative precepts.”</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">ARTICLE 156.- The Supreme Court of Justice is the superior court of the Judicial Branch, and upon it depend the courts, officials, and employees in the judicial branch, without prejudice to what this Constitution provides regarding the civil service.”</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">These constitutional provisions have given rise to the development of a profuse regulatory framework, specifically designed to regulate the Judicial Branch. Among the norms of this framework are the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), the Organic Law of the Public Ministry (Ley Orgánica del Ministerio Público), the Organic Law of the Judicial Investigation Agency (Ley Orgánica del Organismo de Investigación Judicial), the Judicial Branch Salary Law (Ley de Salarios del Poder Judicial), the Judicial Service Statute (Estatuto de Servicio Judicial) (including its reform by the Judicial Career Law (Ley de Carrera Judicial)), etc.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Clearly, the norms stated above intend to concretely regulate the Judicial Branch, ensuring that its independence from the other Powers of the Republic is guaranteed.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">The fact that the Judicial Branch enjoys particular regulation brings to the forefront the second point of analysis of systematic interpretation. In this sense, it must be studied whether there are particular norms for the Judicial Branch and verify their relationship with the questioned articles.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Regardless of the fact that Article 47 of the bill speaks of “exceptions (salvedades),” it is observed that the evaluation of performance and competence in decision-making in labor matters, whether general or specific, are already regulated by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external body to assume the “leadership (rectoría)” or impose criteria on that Branch. Moreover, said regulatory framework </span><span style="font-style:italic; text-decoration:underline">is designed to guarantee the efficiency of the judicial function and to protect judicial servants</span><span style="font-style:italic"> from external interference, as indicated in Article 1 of the Judicial Service Statute (Estatuto de Servicio Judicial):</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">Article 1.- This Statute and its regulations shall govern the relations between the Judicial Branch and its servants, with the purpose of guaranteeing the efficiency of the judicial function and protecting those servants.”</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">It should be noted that the norm determines that the employment relations between the Judicial Branch and its servants are regulated by the Statute and its regulations. The systematic interpretation mandated by that article prevents indirect regulation of the judicial service through directives or guidelines coming from other bodies. This is verified because the issuance of the regulation referred to in the norm is, in turn, the exclusive competence of the Court, as indicated in the same Statute:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">Article 5.- Before issuing an internal labor regulation, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective project known to those servants, by the most appropriate means, so that they may make their observations in writing, within a period of fifteen days.</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">The Court shall take those observations into account to resolve as appropriate, and the regulation it issues shall be mandatory without further procedure, eight days after its publication in the "Judicial Bulletin (Boletín Judicial)".”</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Another guarantee of the independence of the Judicial Branch in the matter of employment is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external bodies:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">Article 6.- The Personnel Department of the Judicial Branch shall operate under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court.”</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Then, the detail of the regulations of the Judicial Service Statute (Estatuto de Servicio Judicial) distinguishes the different competencies in matters of performance evaluation, which corroborates the existence of special regulations for that Branch. Thus, for example, Articles 8 and 10 of the Judicial Service Statute (Estatuto de Servicio Judicial) state:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“</span><span style="font-style:italic">Article 8.- The Head of the Personnel Department is responsible for:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">c) Establishing the necessary technical procedures and instruments for greater personnel efficiency, including them the periodic service rating (calificación periódica de servicios), the file and record of each servant, and the forms that are of technical utility; (…)</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Article 10.- The periodic service rating (calificación periódica de servicios) shall be done annually by the Head of each judicial office with respect to the subordinates who work in it, using special forms that the Head of the Personnel Department shall send to the different offices in the months that he determines. (…)”</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">That is, the periodic ratings (calificaciones periódicas) of judicial personnel, such as the annual evaluation, are carried out through the procedures established by the Head of the Personnel Department of the Judicial Branch. These are special norms, concerning exclusively the Judicial Branch, which would prevail over the general norms of the bill, should they enter into force.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic; text-decoration:underline">The Chamber emphasizes that the bill does not repeal or modify in any way the provisions transcribed above, nor any other of the Judicial Service Statute (Estatuto de Servicio Judicial)</span><span style="font-style:italic">. This Statute governs the matter of employment in the Judicial Branch and represents a guarantee for judicial servants, in accordance with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor come from a mere inference, as that would denote ignorance of the hermeneutical rules.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">On the other hand, regarding the questioning that Article 49 of the bill orders the Judicial Branch to mandatory compliance with the guidelines of the General Directorate of Civil Service (Dirección General de Servicio Civil), the truth is that the relationship between said Directorate and the Judicial Branch is governed by a specific norm, as follows from the cited Article 8:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">“(…) The Head of the Personnel Department may make the necessary consultations to the General Directorate of Civil Service (Dirección General de Servicio Civil) and request from this Directorate the corresponding advice, for the better performance of his functions. (…)”</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">That is, the legal framework of the Judicial Branch provides for the power of the Head of its Personnel Department (now called Human Resources Management (Gestión Humana)) to consult the General Directorate of Civil Service (Dirección General de Servicio Civil) and request its advice for the performance of its functions. Said functions include, as seen, the obligation to determine the technical procedures and instruments for the periodic rating (calificación periódica) of personnel (Article 8 cited above). Such provision of a special law renders the questioned norms of bill no. 20.580 inapplicable to the Judicial Branch.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">Again, it is recalled that this is a special norm that takes precedence over the general provision. Furthermore, it is highlighted that the norms of the Judicial Service Statute (Estatuto de Servicio Judicial) would remain intact after the reform proposed through bill no. 20.580, as it does not modify or repeal them.</span></p><p style="margin-top:14pt; margin-left:35.4pt; margin-bottom:14pt; text-indent:35.4pt"><span style="font-style:italic">In conclusion, seeing that Chapter VI of the intended modification to the Public Administration Salary Law (Ley de Salarios de la Administración Pública) contemplates an exception for the Judicial Branch, coupled with the fact that the latter has special legal-rank regulations related to the performance evaluation of its officials, it is not observed that the consulted bill really affects the organization or functioning of the Judicial Branch.”</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Regarding the other arguments, I share the dismissal developed by the majority of the Chamber.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXVII “</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">MEASUREMENT OF THE PERFORMANCE EVALUATION (MEDICIÓN DE LA EVALUACIÓN DEL DESEMPEÑO)</span><span style="font-family:'Times New Roman'; font-weight:bold">”.</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Regarding this point, I concur with both the reasoning made by the majority and the ordered dismissal.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXVIII “</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">CRITERIA OF THE PERFORMANCE EVALUATION (CRITERIOS DE LA EVALUACIÓN DEL DESEMPEÑO)</span><span style="font-family:'Times New Roman'; font-weight:bold">”.</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Regarding this recital, I agree with the reasoning made by the majority, with the following exceptions (salvedades).</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Even though I did not rule on the merits of the points dismissed in judgment no. 2024007057 of 10:10 a.m. on March 14, 2024 (as I granted the action due to a violation of the fundamental right to citizen participation), I did vote on advisory opinion no. 2018-19511 of 9:45 p.m. on November 23, 2018.</span><span> Now, in this latter opinion, the general scopes of the ‘Public Finance Strengthening (Fortalecimiento de las finanzas públicas)’ law in salary and performance evaluation matters were explained, so, in principle, it is for the ordinary legal operator to analyze the norms they must apply according to the constitutionality criteria established therein. It is worth noting that this Court took into consideration that there were exceptions (salvedades) and exclusions provided for in special legal norms that had not been repealed by the ‘Public Finance Strengthening (Fortalecimiento de las finanzas públicas)’ law; however, I consider that, for the purposes of this constitutional review process, what is stated in resolution no. 2018-19511 of 9:45 p.m. on November 23, 2018, is sufficient (that is, I refrain from ruling on what was decided in judgment no. 2024007057 of 10:10 a.m. on March 14, 2024). Indeed, in advisory opinion no.

2018-19511 of 9:45 p.m. on November 23, 2018, in addition to what was cited *ut supra* regarding the performance evaluation, also indicated:

***"c.- Regarding salary matters.*** *On this point, the aforementioned agreement states:* ***" 2.)** In accordance with the previous report, it is determined that the project does affect the organization and functioning of the Judicial Branch, and that there is opposition to it, as long as the following is not eliminated:* *(…)* ***d.-** The restrictions established in the bill on salary matters and their respective components for officials of the Judicial Branch."* *After analyzing the articles of bill No. 20.580, concerning the amendments to the Public Administration Salary Law, the Chamber recalls that the impact on the salary of judicial officials can affect judicial independence. As was briefly expressed in the aforementioned opinion (voto) No. 2018-5758 of 3:40 p.m. on April 12, 2018:* *"(…) What is part of judicial independence is that judges have a dignified economic sufficiency, both while active and inactive, (…)"* *Now, it should be noted that the questioned regulations are not particular to judicial officials, but rather encompass the Public Administration in a generalized manner. The importance of this point lies in the fact that the Chamber has sustained a solid criterion regarding the inadmissibility of mandatory institutional consultations (such as those provided for in articles 167 and 190 of the Political Constitution), when a project is of a national or general nature:* *"(…) Now, properly regarding the consultation to the Caja Costarricense de Seguro Social, as provided by Article 190 of the Constitution ("For the discussion and approval of projects relating to an autonomous institution, the Legislative Assembly shall first hear the opinion of that institution.") and the reiterated jurisprudence of this Chamber (see rulings numbers Sentencia 2012-02675 and 2008-004569) before the legislative approval of a bill relating to an autonomous institution, the Legislative Assembly must hear the opinion of that institution. This, of course, does not mean that every bill or any amendment related to an autonomous institution through a bill must be consulted with it, but rather, only those aspects referring to its constitution or organic structure, or those relating to the essential scope of the competencies of the involved institutions. In this case, the bill that gave rise to the questioned law has no relation to the organic structure of the Caja Costarricense de Seguro Social, nor to its competencies, but rather refers to the establishment of a salary scale for all public and private institutions that hire doctors, not just for the Caja. While it is true it could have a relationship with its finances, the ordinary legislator is competent and sovereign to establish salary criteria for a specific professional sector. Therefore, in this case, the mandatory consultation to the Caja Costarricense de Seguro Social, as part of the parliamentary procedure, was not applicable. In the same sense that this Chamber considered that the mandatory consultation to public universities was not appropriate, opinion (voto) 1602-98 stated:* *"II. OF THE NON-COMPLIANCE WITH THE LEGISLATIVE PROCESS (MANDATORY CONSULTATION TO THE UNIVERSITY OF COSTA RICA). However, previously, this Chamber in ruling number 3530-97, of three o'clock and fifty-seven minutes on June twenty-fourth, nineteen ninety-seven, heard the constitutionality of the challenged regulations and for the same reasons indicated in this action, concluded, decisively, their conformity with the constitutional order, under the following considerations:* *" I.- Unconstitutionality due to omissions in the legislative process: In the first instance, the plaintiff considers that the entirety of law 6836 and article 61 of law 7064 are unconstitutional due to defects in the approval procedure, because by their content, in accordance with the provisions of article 88 of the Constitution and 126 and 157 of the Regulations of the Legislative Assembly, they are laws of mandatory consultation to the Universities, as they directly affect matters placed under their competence. Regarding the cited article 88, it was established in ruling number 1313-93 of one o'clock and fifty-four minutes on March twenty-sixth, nineteen ninety-three, that the specific functional competence of the Universities, called ‘organic specialty’ refers to ‘providing higher education in various university careers, and other related activities’ and this is what the constitutional consultation tends to guarantee. The norms challenged in this action refer to the setting of salaries and incentives for professionals in medical sciences and have no direct relationship with the functional competence of the University and therefore, on this point, the action must be dismissed on the merits.* *By virtue of the foregoing, it is appropriate to dismiss the challenge to the Law of Incentives for Professionals in Medical Sciences, number 6836, of December twenty-second, nineteen eighty-two, regarding the non-compliance with substantial legislative procedures." (Sentencia No. 2013-014736 of 3:45 p.m. on November 6, 2013)* *In a similar sense, the Chamber indicated:* ***"V.- Dismissal of the action regarding the real estate tax and the real estate transfer tax.-** As explained above, the plaintiff comes in his capacity as Mayor of the Municipality of Belén and instructed by the Municipal Council of that canton in order to defend the interests of his community against legislative norms that are said to affect them in the specific terms indicated above, that is, insofar as it is a matter of imposing extensions to municipal tax exemptions without complying with the consultation process of Article 190 of the Constitution.- Now, the standing granted by the second paragraph of article 75 of the Law of Constitutional Jurisdiction on which the plaintiff relies is not sufficient to challenge all the taxes exempted by law number 7210 on Free Zones, but only to defend his interests regarding municipal taxes, that is, those that have come into legal existence through municipal initiative in the terms of article 121 subsection 13) of the Political Constitution. Thus, the objection for lack of consultation must first be dismissed insofar as it is directed against the real estate tax established in law number 7509 of May 9, 1995 and its reforms, which -as the Attorney General's Office indicates- has a national character having been issued through an ordinary law, even though the tax competence for its administration and the definition of the destination of the funds corresponds to the municipal corporations.- This point was clarified with precision by this Chamber in ruling number 2011-003075 which indicated:* ***A.- On the jurisprudence related to the real estate tax.** One of the aspects that this Chamber must resolve is settled in the Chamber's jurisprudence, having determined the nature of the tax, that is, whether it is a municipal or national levy. The foregoing has consequences for the approach to the claims raised by the Municipality of Escazú. The precedents of this Chamber have reiterated that it is a national tax destined for municipal purposes, and that, although the tax initiative of municipalities is recognized, it is not possible to understand exclusivity in this matter that limits the freedom of configuration when the initiative is exercised by the legislator. In this sense, the State can, through national taxes, provide extraordinary resources to the Municipalities of the country with the important objective of financing them. (…)* *It is concluded that the plaintiff could not come to claim the defense of municipal competencies of participation in the configuration of taxes, regarding a tax of unquestionable national character such as the cited real estate tax.- The same reasoning applies in relation to what the plaintiff identifies as a real estate transfer tax and which, as the advisory body also specifies, seems to refer rather to the municipal stamp that must be paid as part of the tax burden of some registrable operations in the Public Registry and which is regulated in article 84 of the Municipal Code, for which it also has an undeniable national character.- In summary, regarding these two recently cited taxes, the action filed must be flatly rejected." (Sentencia No. 2015-7688 of 9:00 a.m. on May 27, 2015).* *In the case at hand, the norms of the project related to salary matters have general application, without this Court having elements to consider that these will affect the financial sustenance of the officials dedicated to the administration of justice to such a degree that at least "a dignified economic sufficiency" is not ensured.* *The Chamber does not omit underlining that the norms of the Organic Law of the Judicial Branch, the Salary Law of the Judicial Branch, and the Judicial Service Statute are not affected by the proposed reform. These norms enable the autonomy of the Judicial Branch regarding changing its salary scale or varying base salaries. In that sense, note what was stated by the Minister of Finance to the Corte Plena:* *"Regarding the possibility that the project affects the independence of the Judicial Branch by regulating the application of certain bonuses, I would like to respectfully point out that the project does not affect or eliminate the power of the Judicial Branch to modify its salary scale or modify base salaries. So, if the Judicial Branch considers it necessary to increase the salary of any official, it has full power and autonomy to do so. Particularly, if the Judicial Branch considers that, given the regulation of exclusive dedication or annual step increases, it is necessary to increase the salary of any official, it may do so under the protection of its independence in salary matters."* *This observation is not only shared by the Chamber, but also determines with indisputable clarity that the consulted project does not affect the organization or functioning of the Judicial Branch in salary matters.* *Based on what was explained above, the Chamber determines that the questioned regulations of legislative bill 20.580 do not affect, in the stated sense, the organization or functioning of the Judicial Branch.* ***d)** Finally, the Chamber observes that the consulted project is being processed through the special procedure established in article 208 bis of the Regulations of the Legislative Assembly. Said article reads:* *"Article 208 bis.- Special Procedures* *By a motion for order, approved by two-thirds of its votes, the Legislative Assembly may establish special procedures to process amendments to its Regulations and bills whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions regardless of the voting required for their approval. All special procedures shall respect the democratic principle and safeguard the right of amendment." (Emphasis added).* *The transcribed norm provides that the special procedure of 208 bis must be used only for projects whose approval requires an absolute majority. Furthermore, to establish such a procedure, the deputies must reach an agreement by two-thirds of the votes. In other words, to apply a procedure under article 208 bis, there must be the consensus of a qualified majority of the deputies that the project intended to be processed by that means is one that can be approved by an absolute majority.* *On the other hand, this Court also notes that the Legislative Assembly based the consultation made to the Corte Plena on article 157 of the Regulations of the Legislative Assembly, a norm that lists the institutional consultations of a constitutional nature. Said article is complemented by article 126 of the same Regulations, since both differ only by the stage of the procedure in which the consultation is made. Thus, the consultations of article 126 are carried out in committee, while those of article 157 correspond to the plenary:* *"ARTICLE 126.- Mandatory constitutional consultations* *When a project is being discussed within a committee or a motion is approved that, in accordance with articles 88, 97, 167, and 190 of the Political Constitution, must be consulted, the respective consultation shall be made by the President. The consultations of the committees shall be considered as made by the Assembly itself and, as pertinent, the provisions of article 157 of these Regulations shall apply.* *(…)* *ARTICLE 157.- Institutional consultations* *When during the discussion of a project the Assembly determines that the Tribunal Supremo de Elecciones, the University of Costa Rica, the Judicial Branch or an autonomous institution must be consulted, and the Committee has not done so, the consideration of the project shall be suspended, proceeding to make the corresponding consultation.* If eight business days elapse without a response to the consultation referred to in this article, it shall be understood that the consulted body has no objection to the project. In the event that the consulted body, within the stated term, makes observations on the project, it shall automatically pass to the respective committee, if the Assembly accepts said observations. If the latter rejects them, respecting what the Political Constitution determines, the matter shall continue its ordinary procedure.” Returning to the specific case, it is observed that, effectively, the Legislative Assembly resorted to the application of Article 157 by directing the institutional consultation to the Judicial Branch:

“Subject: Institutional consultation pursuant to Article 157 of the Regulations of the Legislative Assembly, regarding the updated text of Legislative File No. 20580, LAW FOR THE STRENGTHENING OF PUBLIC FINANCES.

Dear Sirs:

With superior instructions and in accordance with the provisions of Article 157 of the Regulations of the Legislative Assembly, the updated text of Legislative File No. 20,580, LAW FOR THE STRENGTHENING OF PUBLIC FINANCE, which is attached to this communication, is consulted.

Pursuant to Article 157 of the Regulations of the Legislative Assembly, the stipulated term to comment on the project is eight business days counted from the date of receipt of this official communication; if no response is received from the consulted person or entity, it will be assumed that there is no objection to the matter. (…)” (Official Communication No. AL-DSDI-OFI-0329-2018 of October 5, 2018, visible on folio No. 19390 of the legislative file).

The Chamber is not unaware that the procedure for approving laws requires a certain flexibility – indeed, one speaks of the principle of parliamentary flexibility –; however, such ductility of forms should not be confused with a lack of congruence or inconsistency in parliamentary action.

Returning to the case at hand, if the Legislative Assembly opted for a procedure based on Article 208 bis, due to the existence of consensus regarding the approval of the project by absolute majority, then it becomes incongruent to initiate, within that procedure, a process of constitutional consultations, in order to determine if the project requires a qualified majority, as occurred in this case.

It is not, let it be well understood, that the Legislative Assembly cannot consult the instances it deems pertinent. Such a conclusion would be erroneous, since the parliamentary procedure must be enriched with inputs from diverse sectors, which is characteristic of the democratic system. What is indeed improper is to dedicate public resources of all kinds in a procedure processed under the uncertainty of whether its vote corresponds to an absolute majority, when the rule (208 bis) expressly requires certainty in that regard. If there was doubt as to the type of vote required for the approval of the project, then ab initio a procedure based on Article 208 bis should not have been chosen. Such action opposes the efficiency and reasonableness that must prevail in the actions of the Administration.

In the specific case of file No. 20,580 and according to what was previously expressed, the Chamber verified that it bears no relation to the organization or functioning of the Judicial Branch, so the noted uncertainty disappears. However, this Court does determine that the consultation made was improper due to incongruence, based on the reasoning carried out supra.

Corollary to the foregoing, points c) and d) are resolved, in the sense that the consultation made by the Legislative Assembly to the Supreme Court of Justice is improper, since in light of Article 167 of the Political Constitution, said project does not affect the organization or functioning of the Judicial Branch, as it maintains its own constitutional competencies specifically in relation to the consulted extremes. Consequently, the approval of the project in question does not require the qualified vote stipulated in numeral 167 of the Political Constitution”.

Regarding the other arguments, I share the criterion of the majority of the Chamber and the cited jurisprudential precedents.

- **Regarding recital XXIX "EXCLUSIÓN DE BENEFICIOS PARA JERARCAS Y OTROS SERVIDORES" (EXCLUSION OF BENEFITS FOR HIGH-RANKING OFFICIALS AND OTHER SERVANTS (EXCLUSIÓN DE BENEFICIOS PARA JERARCAS Y OTROS SERVIDORES)).** In relation to this recital, I agree both with the reasoning provided by the majority and with the dismissal ordered.

- **Regarding recital XXX "MODALIDAD DE PAGO PARA LOS SERVIDORES PÚBLICOS" (PAYMENT MODALITY FOR PUBLIC SERVANTS (MODALIDAD DE PAGO PARA LOS SERVIDORES PÚBLICOS)).** With respect to this section, I concur both with the reasoning provided by the majority and with the declared dismissal.

- **Regarding recital XXXI "INCENTIVO POR CARRERA PROFESIONAL" (PROFESSIONAL CAREER INCENTIVE (INCENTIVO POR CARRERA PROFESIONAL)).** In relation to this recital, I agree with the reasoning provided by the majority and the ordered dismissal, with the following exceptions.

I clarify that I have not issued any pronouncement regarding the principles of reasonableness and non-discrimination, since no claim linked to these was substantively developed.

Regarding collective bargaining (negociación colectiva), I maintain that, in application of numeral 62 of the Political Constitution, collective agreements (convenciones colectivas) can be validly subject to legal provisions. For further elaboration, I refer to the arguments set forth ut supra regarding collective bargaining (negociación colectiva); however, specifically, I consider that the aforementioned constitutional article empowers the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that this avenue does not empty the right to collective bargaining (negociación colectiva) of its content. Precisely, the scope of application of the latter includes a variety of topics that go beyond the limits, whose negotiation remains invariable, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining (negociación colectiva) not only agrees with the Constitution, but is prescribed by it. From the foregoing, in a specific context of severe fiscal deficit, the legislative measures taken aimed at the sound management of public finances and the principle of budgetary balance can only be overturned by more serious transgressions of other fundamental rights, which is not verified in the sub examine.

Furthermore, regarding salary incentives, I must point out that, as I have indicated, acquired rights and consolidated legal situations are based on a minimum of constitutional reasonableness that does not imply their recognition in all cases (for example, when there are aberrant and grossly unconstitutional situations); however, in principle, they can be validly regulated prospectively, which is why I prima facie dismiss any injury to numeral 34 of the Political Constitution. Consequently, I share the exposed reasonings once this precision has been made. I reiterate that this aspect is covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. Likewise, in my opinion, this type of decision by the legislator is fully susceptible to constitutional review (control de constitucionalidad), but for this there must be adequate substantiation by the claimants that allows the Chamber to carry out the respective weighing of legal interests. Consequently, the Legislative Assembly may regulate prospectively the requirements, amounts, and terms of salary incentives. Ergo, I do not observe any injury to constitutional ordinal 74 either.

Finally, I do not issue any pronouncement regarding the scenarios raised by the majority with respect to staff retention and their training, nor regarding the arguments related to such topics, since I consider that, at this time, it is not up to the Court to take a position in this regard, because the challenged provisions are within the free configuration of the legislator and no unconstitutionality susceptible of being declared at this time was developed.

- **Regarding recital XXXII "CONVERSIÓN DE INCENTIVOS A MONTOS NOMINALES FIJOS" (CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS (CONVERSIÓN DE INCENTIVOS A MONTOS NOMINALES FIJOS)).** In relation to this recital, I agree with the reasoning provided by the majority and the ordered dismissal, with the following exceptions.

In the first place, regarding collective bargaining (negociación colectiva), I maintain that, in application of numeral 62 of the Political Constitution, collective agreements (convenciones colectivas) can be validly subject to legal provisions. For further elaboration, I refer to the arguments set forth ut supra regarding collective bargaining (negociación colectiva); however, specifically, I consider that the aforementioned constitutional article empowers the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that this avenue does not empty the right to collective bargaining (negociación colectiva) of its content. Precisely, the scope of application of the latter includes a variety of topics that go beyond the limits, whose negotiation remains invariable, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining (negociación colectiva) not only agrees with the Constitution, but is prescribed by it. From the foregoing, in a specific context of severe fiscal deficit, the legislative measures taken aimed at the sound management of public finances and the principle of budgetary balance can only be overturned by more serious transgressions of other fundamental rights, which is not verified in the sub examine.

Furthermore, regarding salary incentives, I must point out that, as I have indicated, they are covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. Likewise, in my opinion, this type of decision by the legislator is fully susceptible to constitutional review (control de constitucionalidad), but for this there must be adequate substantiation by the claimants that allows the Chamber to carry out the respective weighing of legal interests. Consequently, the Legislative Assembly may regulate prospectively the requirements, amounts, and terms of salary incentives.

For its part, I share the dismissals for insufficient reasoning and demonstration of grievances, as well as the alluded legality problems susceptible to being evaluated in the ordinary instances.

- **Regarding recital XXXIII "REFORMAS AL ART. 57 DE LA LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA" (REFORMS TO ART. 57 OF THE PUBLIC ADMINISTRATION SALARY LAW (REFORMAS AL ART. 57 DE LA LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA)).** In relation to this recital, I agree both with the reasoning provided by the majority and with the ordered dismissal.

&nbsp; &nbsp; &nbsp; **Paul Rueda L.** &nbsp; **Exp:**&nbsp;**19-002620-0007-CO** **Res. N°****2025-008201** &nbsp; **1\. Dissenting vote (Voto salvado) of Magistrate Cruz Castro regarding the standing (legitimación) of the claimants for the defense of institutional autonomies (autonomías institucionales), fiscal responsibility, and the destination of free surpluses (superávits libres).-** &nbsp; In addition to what was indicated by the majority, I consider that the claimants also have sufficient standing (legitimación) for the defense of institutional autonomies (autonomías institucionales), fiscal responsibility, and the destination of free surpluses (superávits libres), as all of these are—in my opinion—categories included within diffuse interests (intereses difusos). As I have indicated in previous votes (judgment number 2015-19623 of eleven hours fifty minutes on the sixteenth of December two thousand fifteen and judgment number 2016-01669 of nine hours and thirty minutes on the third of February two thousand sixteen), I apply a broader criterion in the admission of the action in defense of the autonomy (autonomía) of decentralized institutions. In this case, I apply the same criterion, as these are interests of such relevance that their defense cannot be limited to the legal representatives or agents of a specific institution.

I consider that in the defense of institutional interests and/or the autonomy (autonomía) of decentralized institutions there exists an interest of social and political relevance that should not remain under the exclusive control of the institution's representatives. I cannot ignore that the political conditioning factors that determine the actions of the high-ranking officials and representatives of the institutions require, as a counterweight, that the citizenry itself be able to point out the defects or acts that harm institutional interests. Thus, from a political and constitutional point of view, it is not admissible that only the agents of the institution are the ones who defend its interests. They often cannot do so because their appointment has a powerful political link with the Executive Branch. The values and principles that sustain the autonomy (autonomía) of autonomous entities have greater relevance than the commitment of the agents who transiently represent the institution. In that defense there is an interest that affects the balance of powers, citizen participation, and transparency. Institutional autonomy (autonomía institucional) has special relevance based on the principle of balance of powers and the strengthening of democracy. The defense of the institution and its autonomy (autonomía) are values of greater relevance than the institution itself; for this reason, I dissent from the majority criterion in the sense that only institutional representatives are the ones who can defend interests of constitutional relevance before this body.

Transparency, the balance of powers, and citizen participation require broader criteria for the admissibility of the action, which is why I depart from the majority opinion and incline toward dissenting on this aspect. Citizens who are not institutional representatives in the strict sense must have greater prominence, because the autonomy and interests of autonomous entities are not of concern only to their leaders. Democracy is strengthened through the discussion of these constitutional issues. It is a relevant matter for the balance of powers and transparency. By virtue of the foregoing, I also consider that the plaintiffs have standing (legitimación) to defend diffuse interests related to fiscal responsibility and the destination of free surpluses (superávits libres). The plaintiffs, as citizens, are entitled to raise their constitutional objection in those terms. This openness fosters citizen control and participation in matters as relevant to democracy as fiscal matters.

**2. Dissenting vote of Judge Cruz Castro regarding annual increments (art. 50 and transitory provision XXXI)** The majority opinion states that “*since granting or recognizing annual increments (anualidades) responds to criteria of opportunity and convenience that the legislator must establish, it is not considered that the established regulatory mechanism is openly unreasonable or disproportionate.*” Concluding that bonuses and their growth are matters available to the legislator. Now, in a dissenting vote (voto salvado) to vote no. 2024-07057 at 10:10 a.m. on March 14, 2024, I have stated the following: While it is true that there is no right to the immutability of norms, and this allows the method of calculating FUTURE annual increments (anualidades) to be changed. It is true that the annual increments (anualidades) already accounted for had a calculation method that must continue to be respected in the future, under penalty of being considered a violation of acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas). I also considered that, in application of constitutional norms and principles, it must be recognized that there is a consolidated legal situation (situación jurídica consolidada) in favor of public workers, which consists of the right to continue receiving—in the future—the effective payment of annual increments (anualidades) earned before the law came into effect, but also, that such payment be calculated according to the method (percentage calculation) that governed at the time and that must be maintained, not only because the law so ordered, but because Article 34 of the Constitution itself so establishes. It should only be appropriate to leave the payment in nominal form solely for annual increments (anualidades) earned in the future. This protects the legal effects of a consolidated legal situation (situación jurídica consolidada), which is directly related to the right to a salary. The amount of the annual increments (anualidades) has already been defined; it cannot be varied retroactively; it is an acquired right (derecho adquirido). If one wishes to vary what was defined before the law came into effect, a specific amount of compensation (indemnización) must be recognized.

For the rest, although annual increments (anualidades) are considered a salary bonus, it is true that their protection falls within the right to a salary. In general, regarding the right to a salary, constitutional jurisprudence has indicated that: “*The salary as remuneration owed to the servant by virtue of a statutory relationship, for the services they have rendered, is not only an obligation of the employer, but a constitutionally protected right.*” (see vote no. 2015-009504). A fundamental right that, moreover, is inalienable (art. 74 of the Constitution). This link between the right to a salary and human dignity is found not only in the Political Constitution, but also in instruments of International Law. Thus, Article 23.3 of the Universal Declaration of Human Rights establishes: “*3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection*”. Human dignity is the guiding criterion in the development of the essential content of the right to a salary and its limits, since what is sought is that the worker has an adequate standard of living, in accordance with their basic needs. Minimum wages (salarios mínimos) seek to enable public servants and their families to lead a dignified life; however, this salary base does not guarantee, in itself, that the established levels truly meet this condition. Faced with this situation, the Law provides for salary increases. In this sense, it would be unconstitutional to freeze salaries, but also to reduce salaries by changing the method of calculating annual increments (anualidades), as is the case here. This is a retroactive variation. If work is conceived as a right of the individual whose exercise benefits society, and the State as an employer in a statutory relationship has the obligation to periodically pay the salary, which is a constitutionally protected right (see judgment No. 2009-008062 at 9:35 p.m. on May 13, 2009), a norm that has the effect of reducing it is not constitutionally acceptable. In this sense, economic crises should never justify the reduction or regression in the protection of social rights, as is the case here with the right to a salary. It is not just any right; it is one of the core elements of the right to a salary.

By virtue of the foregoing, I have considered, under these same reasonings, to dissent, deeming that Articles 50 and transitory provision XXXI of the challenged law, by establishing a different method for calculating annual increments (anualidades) already accounted for, do so in violation of acquired rights (derechos adquiridos), consolidated legal situations (situaciones jurídicas consolidadas), and the right to a salary and human dignity of the public worker.

**3. Partial dissenting vote of Judge Cruz Castro regarding the unconstitutionality of Articles 54, 55, and transitory provisions XXVII and XXXI.-** In this section, I have considered Articles 54, 55, and transitory provisions XXVII and XXXI unconstitutional, as I indicate below.

-The challenged art. 54 refers to the “*conversion of incentives to fixed nominal amounts*”, without considering the existence of collective bargaining agreements (convenciones colectivas) with other types of provisions.

-Art. 55 refers to the creation of salary incentives and compensations only through law, disregarding other normative provisions such as collective bargaining agreements (convenciones colectivas). In this sense, I share and bring up in this case what this Chamber indicated in advisory opinion no. 2018-019511, where it concluded that it is contrary to the Law of the Constitution—specifically to union freedom and the right to collective bargaining (negociación colectiva)—for the legislator to prevent the ends related to salary components from being agreed upon within a collective bargaining process and to reserve them only to formal law. On that occasion, the Chamber determined that art. 55 should not be perceived as unconstitutional, under the understanding that it does not apply to those public sector workers who can indeed enter into collective bargaining agreements (convenciones colectivas de trabajo). However, my position goes even further, as I consider that the entire content of art. 55 is unconstitutional, for disregarding the right to collective bargaining (negociación colectiva) enshrined in Article 62 of the Constitution.

-Transitory Provision XXVII refers to the application of severance pay (auxilio de cesantía), limiting its payment in cases exceeding twelve years.

-Transitory provision XXXI, as stated, establishes a different method for calculating annual increments (anualidades) already accounted for.

All these norms are violative of our Law of the Constitution, due to several reasons. In the first place, they imply a derogation of collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions regarding the payment of incentives or compensations in percentage form; or that have created salary incentives and compensations through that means. Therefore, this constitutes a violation of the right to collective bargaining (negociación colectiva). All of this, furthermore, in violation of acquired rights (derechos adquiridos), consolidated legal situations (situaciones jurídicas consolidadas), and the right to a salary and human dignity of the public worker.

Likewise, regarding the cap on severance pay (auxilio de cesantía), I reiterate what I have indicated in previous dissenting votes:

“*Severance pay (cesantía), an expression of the solidary social right and unemployment insurance. In the same sense that I have expressed in previous votes, I do not consider that the norms of Collective Bargaining Agreements that establish the payment of severance pay (auxilio de cesantía) in cases of resignation of the worker are unconstitutional, but quite the opposite. Under a thesis similar to that expressed by this Chamber in vote number 2000-00643, I consider that Article 63 of the Constitution does not prohibit granting the so-called severance pay (auxilio de cesantía) even in the hypothesis where there is no dismissal "without just cause." What it does mandate, with supreme character, as it were, is that whenever the dismissal is without cause, compensation (indemnización) is appropriate. But it does not prohibit that a type of severance pay (auxilio de cesantía) can be granted and legally recognized in any other case. Furthermore, Article 74 of the Political Constitution is clear in stating that the rights and benefits contained in its Title on Social Rights and Guarantees do not exclude others derived from the Christian principle of social justice and indicated by law. Moreover, as I indicated in the dissenting vote (voto salvado) to vote number 2008-001739, in relation to Article 72 of the Constitution and unemployment insurance, public authorities have incurred an omission of the mandate established by Article 72 of the Political Constitution in the sense that: “*while there is no unemployment insurance*”, which is even reinforced by another tacit mandate possessing the same content (namely Article 63 ibidem), which establishes: “*Article 63.- Workers dismissed without just cause shall have the right to compensation (indemnización) when they are not covered by unemployment insurance.*” None of the public authorities with normative power have taken the necessary measures to provide full enforceability to the implicit mandates established by Articles 63 and 72 of the Constitution regarding unemployment insurance (despite the fact that this has been required since the moment the Constitution was promulgated, that is, November 8, 1949), all of which undoubtedly constitutes an unjustified omission that clearly violates the Law of the Constitution. It is clear that the configuration of severance pay (auxilio de cesantía) in the terms in which it has been designed by the Worker Protection Law (‘Ley de Protección al Trabajador’), unlike what the Advisory Body and the President of the Legislative Assembly maintain, in no way exempts the State from its obligation to ensure that unemployed workers fully enjoy their fundamental rights, among them their right to unemployment insurance, due to the lack of infra-constitutional development that allows the full enforceability of this constitutional clause of deferred execution, all of which undoubtedly affects the notion of the Constitution as a Legal Norm endowed with coerciveness. Article 63 of the Constitution is an essentially transitory provision, in which it is assumed that a progressive development of the legal system and state policies must occur in order to establish unemployment insurance, since workers dismissed with just cause do not find a solidary response that allows them to survive with dignity while they manage to find another job; on the other hand, in many cases, severance pay (indemnización por cesantía) only temporarily covers the expenses demanded by the worker and their family, without ignoring, moreover, that the litigiousness of this economic compensation (compensación económica) prevents the salaried worker dismissed with just cause from receiving, belatedly, the compensation (indemnización) to which they are entitled. The deadline for the progressive development of a normative framework and a policy that ensures the dignified existence of unemployed citizens has exceeded parameters of reasonableness, as it is a mandate that remains unfulfilled after fifty-nine years of having been enacted.* This omission is deepened in a political environment in which a restriction of the rights of all citizens who depend on a salary is promoted, even if that salary is very high. The omission of the authorities responsible for defining solidarity and social development policies, according to the provisions of Articles 50 and 74 of the fundamental norm, has resulted in a failure to develop a comprehensive and solidary policy that translates into a system providing a specific response to the involuntarily unemployed, a concept that includes, from the perspective of developing personal dignity, under-employment or informal employment. The complexity of the unemployment phenomenon demands a regulatory framework and a state policy that makes visible, in all its extension, a phenomenon that affects the dignity of the unemployed person and that is a fundamental component of the solidarity foreseen in Article 74 of the constitution. Work, the right to life, and liberty are an essential part of dignity; their absence directly harms the dignity of the person. As the social doctrine of the Church, which is an ideological reference that Article 74 of the constitution, well establishes: “…Whoever is unemployed or underemployed suffers, in effect, the profoundly negative consequences that this condition produces in the personality and runs the risk of being marginalized from society and becoming a victim of social exclusion. In addition to young people, this drama generally affects women, less specialized workers, the disabled, immigrants, ex-convicts, the illiterate, all people who find greater difficulties in seeking placement in the world of work…” (See “Compendio de la Doctrina Social de la Iglesia” Celam. 2005- p. 208) The constitutional norm on unemployment insurance was presented by the social democratic group; one of its representatives, Lic. Rodrigo Facio, expressed some comments that remain current and that explain the need to convert this norm into living law. Constituent Facio pointed out that “… the general formula that has been submitted to the knowledge of the Chamber does not refer to the type of assistance that the State will provide to the unemployed, a matter that will be resolved according to the circumstances and economic conditions of the Treasury, and especially according to the nature of the unemployment phenomenon that arises. The assistance may be minimal or be sufficiently broad so that the unemployed person and their family do not suffer the lack of the former’s salary. He added that the principle must be established, since it is one of the few social guarantees whose nature is not class-based. All the social guarantees of our Constitution are provisions related to worker-employer conflicts. In contrast, the proposed principle is situated outside these class conflicts, and contemplates the worker precisely when they most need the help of the State, when they lose their job, upon becoming unemployed. The most tragic moment for the worker is when they are left without occupation. The Constitution must necessarily pay attention to that problem. It is true that in cases of economic crisis, both assistance and the reintegration of the worker into their work will be very difficult, but the difficulty is not an obstacle to not leaving in the Constitution a general formula that records the State’s interest in the problem of unemployment. He referred to the methods employed by the late President Roosevelt to solve the grave problem of unemployment that was presented to the United States during the global economic crisis that began in the year 29. Roosevelt solved the grave problem by resorting to a series of resources that raised much criticism, but that served to begin attacking the problem: he initiated public works and a broad subsidy policy, financed with budget deficits….”, subsequently, in the face of objections from some constituents, Facio argued that “.. everyone agreed that the phenomenon of unemployment is one of the most serious and difficult in the contemporary world. Not because our country is on the sidelines of that problem as a normal problem of the industrial world, should we disregard it. He added that he agreed with Mr. Arias that the adequate and reasonable formula to solve the problem of unemployment lay in unemployment insurance. For that reason, his faction presented in one of the previous sessions the formula - which was approved - that the worker unjustly dismissed from their job will receive compensation, provided that unemployment insurance is not established. However, I understand that unemployment insurance is difficult to establish, especially in an environment like ours, which cannot be created suddenly. Therefore, while its establishment is not achieved, the State, by the most adequate means, must address the problem of unemployment. Even in the most organized and economically powerful countries like the United States, where insurance has reached great extension and great efficiency, in the budget when unemployment grows, there is an important line item of many millions of dollars to address unemployment. Why? Because the Insurance cannot cope on its own. In Costa Rica, a country that is little organized and economically weak, the establishment of unemployment insurance would be difficult to achieve. The Caja de Seguro Social itself encounters a series of difficulties with the insurances established so far. He added that the problem of unemployment aid is very difficult. Practically only two solutions exist for it -as Licenciado Don Hernán Bejarano has demonstrated in several articles recently published- which are: unemployment aid in the established form and unemployment insurance. The ideal would be to arrive at unemployment insurance. However, while that desideratum is not achieved, an institution must be established that takes charge of those services of protection and reintegration of the unemployed person into work…” These words of Rodrigo Facio acquire greater relevance despite the time elapsed; they are the visions that acquire permanence in the imaginary of justice that must guide society in its human and equitable development. After so many decades, it is reasonable that unemployment insurance become a tangible claim, the ideal situation to which Rodrigo Facio referred. It is logical to admit that unemployment insurance could have seemed a distant goal in 1949, but such distance and postponement is not justifiable given the current economic and social development that the country has. Involuntary unemployment is a theme that affects the development of human dignity and that demands a specific response, in accordance with the aspirations and characteristics that define the solidary or welfare state. It is clear that by reason of the normative force of the Constitution, all of it is demandable from the actions of the public powers, “in all its integrity, in all its parts, in all its contents, also in its implications.” Thus then, in the face of the fact that the Constitución Política is a constitution of minimums, and that there has been an omission on the part of the Public Authorities in establishing unemployment insurance, it is reasonable that, through other figures available to the worker, such as Collective Bargaining Agreements, scenarios can be established that favor the worker who becomes unemployed, for whatever reasons. Which is also in line with considering unemployment aid (auxilio de cesantía) as an institute that has evolved, to be able to become a true real right, just as it is established, for example, in the Ley de Asociaciones Solidaristas. On the other hand, I also do not consider unconstitutional those clauses of collective bargaining agreements that break the new limit established by this Chamber of twelve years. Although I had previously agreed with the establishment of the twenty-year limit, I do not believe there are reasons to reduce it on this occasion to twelve years, and to consider it unconstitutional when the twelve years are exceeded. This constitutional instance cannot be the way to relatively easily reduce guarantees and benefits for workers. The jurisprudence of this Chamber has been reiterated, in which the existence of higher limits set by collective bargaining agreements, than those established in the Código de Trabajo, has been accepted, since it has been understood that said code establishes minimum rules that can be exceeded, of course, provided it is done within parameters of reasonableness and proportionality. I do not consider that exceeding a maximum of twelve years, in comparison with the eight established by the Código de Trabajo, is unconstitutional.

Note also the following variations in criteria that this Chamber has had regarding these themes:

• a)UNEMPLOYMENT AID (CESANTÍA) CAN BE PAID IN ANY CASE, INCLUDING IN CASE OF RESIGNATION, IN PARTICULAR FOR SOLIDARISTAS OF THE PUBLIC OR PRIVATE SECTOR, BUT NOT IF THIS IS ESTABLISHED THROUGH A COLLECTIVE BARGAINING AGREEMENT IN NEGOTIATION WITH UNIONS.- When the reform to the unemployment aid (cesantía) of the Ley de Protección al Trabajador was consulted to the Constitutional Chamber, it was said that the Constitución Política does not prevent the unemployment aid (auxilio de cesantía) from being paid in cases other than unjustified dismissal. Thus, in Vote 2000-643 it was noted that it is possible to pay unemployment aid (cesantía) in case of resignation from employment or justified dismissal, but that what the Constitution requires is that in case of unjustified dismissal it always be paid:

“In contrast to the criterion that has been prevailing in the discussion of the consulted project, for this tribunal, Article 63 of the constitution does not prohibit granting the so-called unemployment aid (auxilio de cesantía) even in hypotheses where there is no dismissal 'without just cause.' What it does mandate, with supreme character, one might say, is that whenever the dismissal is without cause, compensation is appropriate.” (Constitutional Chamber, Vote no. 2000-00643, Considerando III).

In such a way, the Chamber established that unemployment aid (cesantía) can be transformed into an acquired right, which can even be paid in case of dismissal without just cause. Following this idea, the Ley de Asociaciones Solidaristas had established since 1984 that the unemployment aid (cesantía) accumulated in the unemployment aid fund (fondo de cesantía) would be received by the worker in any case. The same had been done by collective bargaining agreements. However, in a recent ruling (7690-2018, reiterated by others) on the collective bargaining agreement of the Sistema Nacional de Radio y Televisión (SINART), the payment of unemployment aid (cesantía) in case of resignation was declared unconstitutional. Thus, we can synthesize the jurisprudence of the Constitutional Chamber in that unemployment aid (cesantía) can be paid in any case, including in case of resignation, in the public and private sector, especially if one is a solidarista, but not if one is a union member, that is, if it is negotiated through a collective bargaining agreement. It remains paradoxical that it is admitted in one scenario and suppressed if it involves a collective bargaining agreement.

b. UNEMPLOYMENT AID (CESANTÍA) CAN BE PAID WITHOUT A LIMIT OF YEARS, IN THE PUBLIC SECTOR AND IN THE PRIVATE SECTOR, IF ONE IS A SOLIDARISTA OR IF IT IS ESTABLISHED BY LAW, BUT NEVER IF IT IS DONE THROUGH A COLLECTIVE BARGAINING AGREEMENT. ALSO, UNEMPLOYMENT AID (CESANTÍA) CAN BE PAID THAT TOTALLY IGNORES THE CRITERIA OF SENIORITY (ANTIGÜEDAD) AND EARNED SALARY BY THE WORKERS, IF THE UNEMPLOYMENT AID (CESANTÍA) IS ESTABLISHED TO PRIVATIZE A PUBLIC INSTITUTION.- The limit of 8 years of unemployment aid (cesantía) was modified in Costa Rica by various mechanisms, achieving higher limits ranging from 9 years to payment with no limit of years.

This has been done through various mechanisms. Let us look at some:

• The solidarist associations law (art. 18 inc. B) establishes the payment of severance pay (auxilio de cesantía) without a limit of years, meaning that if a person works 40 years for a public institution or a private employer, they are entitled to 40 years of severance pay.

• The Civil Service Statute (Estatuto de servicio civil) (art. 37 inc. f and 47) establishes that, if a worker is dismissed due to institutional restructuring, they are entitled to severance pay (cesantía) for all years worked, that is, without a limit of years.

• The same Worker Protection Law (Ley de Protección al Trabajador) that transformed a part of the severance pay into the Labor Capitalization Fund (Fondo de Capitalización Laboral), which is deposited month after month by the employer without a limit of years into an account in the name of the worker.

• The Labor Procedural Reform (Reforma Procesal Laboral) (Labor Code reformed by the RPL, art. 576) establishes that if a worker protected by a special immunity (fuero especial) obtains a ruling that annuls the dismissal and orders their reinstatement in employment, the worker may substitute their reinstatement with the payment of severance pay (auxilio de cesantía) without a limit of years.

• Through collective bargaining agreements (convenciones colectivas), the severance pay cap has been broken, establishing caps greater than 8 years, even establishing severance pay without a limit of years, that is, for all the time actually worked.

In all these cases, the severance pay (auxilio de cesantía) is calculated based on the criteria defined by the Labor Code (Código de Trabajo): seniority and salary earned by the worker. However, in the early 2000s, the collective bargaining agreement (convención colectiva) of INCOP established a very special rule, since it not only broke the severance pay (cesantía) cap by setting it at 12 years, but also established that, if the employment relationship ended due to the privatization of INCOP (which ultimately happened), the workers would receive an ADDITIONAL severance pay (auxilio de cesantía) on top of the 12 years, established in a table that went from US$6,000 for one year of seniority up to an ADDITIONAL severance pay (cesantía) of US$50,000 for thirty years of seniority. In this regard, the Constitutional Chamber (Sala Constitucional) resolved the inquiry as follows:

“V.- COLLECTIVE BARGAINING AGREEMENT (CONVENCIÓN COLECTIVA) AND BASIS OF THE TRANSFER. In the opinion of the inquirers, the conclusion of an agreement among the various sectors involved in the strengthening and modernization of INCOP and the subsequent addendum to the collective bargaining agreement (convención colectiva) to add the consulted indemnity (indemnización) for the dismissed workers of that entity, are not sufficient to give support to such an extraordinary benefit or gratuity. Regarding this point, in considerando IV the reasons were already set forth for which this Tribunal does not understand that the indemnity (indemnización) added to the collective bargaining agreement (convención colectiva) is a sort of singular gift or liberality and, therefore, unconstitutional. The consulted budgetary rule is not atypical, since the indemnity (indemnización) is found added to the collective bargaining agreement (convención colectiva) of the institution for the benefit of the workers, and this agreement has, according to the provisions of numeral 62 of the Political Constitution, the force of law.” That is to say, the Constitutional Chamber (Sala Constitucional) on that occasion indicated that it was sufficient for such additional severance pay (cesantía) to be included in a collective labor agreement (convención colectiva de trabajo) for it to be constitutional. A short time later, the Constitutional Chamber (Sala Constitucional) declared unconstitutional a rule of the Collective Labor Agreement (Convención Colectiva de Trabajo) of the Social Protection Board (Junta de Protección Social, JPS), which copied almost literally the rule of the Civil Service Statute (Estatuto de Servicio Civil), meaning it stated that if the institution were restructured, the workers would receive severance pay (auxilio de cesantía) without a limit of years, that is, it would be paid recognizing all the years actually worked by the workers. In this case, the Constitutional Chamber (Sala Constitucional) declared the rule of the collective bargaining agreement (convención colectiva) unconstitutional for being unreasonable and disproportionate (06727-2006). Finally, for many years, the Constitutional Chamber (Sala Constitucional) established a new severance pay (cesantía) cap at 20 years, maintaining that this was a reasonable cap. In the current situation where the political winds blow against the public sector and in particular against public servants, the Constitutional Chamber (Sala Constitucional) says that it finds the severance pay (cesantía) cap at 12 years and no longer at 20. The political visions have changed, orienting towards a restrictive vision, in contradiction with what was the original vision that inspired the spirit of the social guarantees introduced with great optimism in 1943. In short, according to the current jurisprudence of the Constitutional Chamber (Sala Constitucional):

• it does not matter to grant exaggerated severance pay (cesantías) without any relation to any type of criterion if it is to allow the privatization of a public institution; • it is constitutional to pay severance pay (cesantía) in the event of resignation in the public sector through solidarist associations, but never through collective bargaining agreements (convenciones colectivas) negotiated with unions; • it is constitutional to pay severance pay (cesantía) without a limit of years in the public sector through solidarist associations, but never through collective bargaining agreements (convenciones colectivas) negotiated with unions.

Thus, I consider disproportionality beyond twenty years, but I do not deem the recognition of severance pay (cesantía) for periods greater than twelve and less than twenty years to be disproportionate. The improvement of workers' conditions, through mechanisms that exceed the minimums established in the Labor Code (Código de Trabajo), does not seem unconstitutional to me, as long as they are not disproportionate and irrational. The Chamber has become an arbiter of reasonableness and proportionality regarding the benefits granted to workers, but that evaluation, for various reasons, is not applied to other social and economic sectors. The worker depends on salary and social benefits; that does not happen with other sectors of the labor economy. There is a structural vulnerability of the majority of public and private workers. That condition must not be lost sight of in a society guided by the principle of solidarity. For this reason, exceeding the payment of severance pay (cesantía), for this type of state enterprises, beyond twelve years, as long as it is not greater than twenty years, is not unreasonable, but is justified, for example, as incentives for the institution to try to retain its most experienced employees and thereby benefit the exercise of the public function and public services. It is justified, furthermore, because the worker has no source of income other than the benefits received for their work; in this situation, they have no alternative.” Finally, regarding the different method of calculating the seniority bonuses (anualidades) already accounted for, I reiterate what was indicated in the dissenting vote to vote No. 2024-07057:

“Dissenting Vote of Magistrate Cruz Castro.- The change in the payment of seniority bonuses (anualidades) and salary supplements (pluses salariales) earned prior to the law (so that they are now paid in a nominal and not a percentage form) is unconstitutional because it is a reduction of the right to salary and a retroactive application of the law (...)

-While it is true that there is no right to the immutability of norms, and this allows the method of calculation of FUTURE seniority bonuses (anualidades) to be changed. It is true that the seniority bonuses (anualidades) already accounted for had a method of calculation that must continue to be respected in the future, under penalty of being considered a violation of acquired rights and consolidated legal situations.

-Violation of the principle of non-retroactivity: clearly from art. 34 of the Constitution it follows that laws cannot have retroactive effect, to the detriment of acquired patrimonial rights. In this case, it involves a regulatory norm with retroactive effect, to the detriment of the right to salary. Furthermore, there is clearly an excess of regulatory authority, by going beyond what is indicated in the law when it is observed that the cited law is clear in providing, in its Transitory XXV, that "The total salary of the servers who are active in the institutions contemplated in article 26 upon the entry into force of this law may not be decreased and the acquired rights they hold shall be respected", while article 3 of the aforementioned regulation provides that: "Acquired rights correspond to the incentives, additional payments (sobresueldos), supplements (pluses), additional remunerations or any other of an equivalent nature, which prior to the entry into force of Law No. 9635 made up the total salary of the public servant, whether permanent or interim".

The Chamber, in application of constitutional norms and principles, must recognize that there is a consolidated legal situation in favor of public workers, which consists of the right to continue receiving—in the future—the effective payment of seniority bonuses (anualidades) earned before the entry into force of the law, but also, that said payment be calculated according to the method (percentage calculation) that was in force at the time and that must be maintained, not only because the law so ordered, but because Article 34 of the Constitution itself so establishes. Corresponding only to leave the payment in nominal form solely for the seniority bonuses (anualidades) that are earned in the future. Thereby protecting the legal effects of a consolidated legal situation, which is directly related to the right to salary.

-Violation of the principle of legal reserve: according to reiterated jurisprudence of this Chamber, the restriction of fundamental rights is reserved to the law. The right to salary is a fundamental right, and any restriction established by regulation, to change the method of calculating the payment of previous seniority bonuses (anualidades) (consolidated legal situation) constitutes a violation of the principle of legal reserve. As was stated in the vote cited by the majority, "(...) The principle of legal reserve implies, for what matters here, that executive regulations can develop legal precepts but cannot increase the established restrictions nor create those that were not foreseen by the legislator, and must rigorously respect their 'essential content'." (Judgment No. 2001-05916 of 3:28 p.m. on July 3, 2001).

In this case, restrictions are being EXPANDED because the challenged regulation is changing the method of calculation for prior annuities.

--- -*Regarding the violation of the right to a salary and the dignity of the worker.*- In general, regarding the right to a salary, constitutional jurisprudence has indicated that: “*The salary as remuneration owed to the servant by virtue of a statutory relationship, for the services they have provided, is not only an obligation of the employer, but a constitutionally protected right.*” (see vote no. 2015-009504). A fundamental right that, moreover, is inalienable (Art. 74 of the Constitution). This link between the right to a salary and human dignity is found not only in the Political Constitution but also in instruments of International Law. Thus, Article 23.3 of the Universal Declaration of Human Rights establishes: “*3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.*” Human dignity is the guiding criterion in the development of the essential content of the right to a salary and its limits, since what is sought is for the worker to have an adequate standard of living, in accordance with their basic needs. Minimum salaries seek to ensure that public servants and their families lead a dignified life; however, this salary base does not guarantee, by itself, that the established levels truly meet that condition. Faced with this situation, the Law provides for salary increases. In this sense, it would be unconstitutional to freeze salaries, but also to reduce salaries by changing the method of calculating annuities, as is the case here. Therefore, if work is conceived as a right of the individual whose exercise benefits society, and the State as an employer in a statutory relationship has the obligation to periodically pay the salary, which is a constitutionally protected right (see judgment No. 2009-008062 of 9:35 p.m. on May 13, 2009), a regulatory norm that has the effect of reducing salaries is not constitutionally acceptable. In this sense, economic crises must never justify the decrease or regression in the protection of social rights, as is the case here, the right to a salary.” **4. Additional reasons of Justice Cruz Castro regarding the unconstitutionality of Transitory Provision XXXVI.-**

Transitory Provision XXXVI states the following:

“*TRANSITORY PROVISION XXXVI. As of the entry into force of this law, the heads of public entities are obligated to denounce collective bargaining agreements upon their expiration.* *In the event that it is decided to renegotiate the agreement, it must be adapted in all its aspects to the provisions established in this law and other regulations issued by the Executive Branch*.” Among the arguments of the plaintiffs, it is indicated that obliging the heads to denounce collective bargaining agreements upon their expiration, together with other provisions, implies emptying the right to collective bargaining of its content. It is also indicated that this transitory provision is an intrusion by the Public Power into the right to collective bargaining, since it obliges the heads of public entities to denounce the collective bargaining agreements upon their expiration, thereby suppressing the content of Art. 62 of the Political Constitution and of ILO Conventions 87 and 98, together with Arts. 26 of the ACHR and 8(a) of the Protocol of San Salvador, for which reason it is considered contrary to the Law of the Constitution; this regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements are negotiated, they must be adapted to the provisions of Law No. 9635, which means that working conditions that worsen previous ones will have to be inserted, without respect for consolidated legal situations. Furthermore, the norm allows the Executive Branch to establish any content for those agreements, all of which is also introduced in a norm of a transitory nature, causing permanent and definitive effects.

In this judgment, the Chamber declares the unconstitutionality of the provisions in the first paragraph of Transitory Provision XXXVI of the Law for the Strengthening of Public Finances, based on the fact that the mandatory nature of the denunciation is contrary to the principle of free and voluntary bargaining. To this end, this Tribunal reiterates what was indicated in votes no. 2018-019511 and no. 2021-17098, where it relied on ILO criteria stating that “*Collective bargaining, to be effective, must be voluntary in nature and does not imply recourse to measures of coercion that would alter the voluntary nature of said bargaining.*” Due to the foregoing, the Chamber concluded that “*a legal provision that obligated one party to conclude a collective agreement with another would be contrary to the principle of free and voluntary bargaining*”. Thus, said numeral is unconstitutional by setting aside the free and voluntary nature of collective bargaining, since, quite to the contrary, it establishes the obligation for all heads of public entities to denounce the collective bargaining agreements once the expiration date arrives. Therefore, it declares the unconstitutionality of the provision contained therein in the sense of subjecting the heads to the obligation to denounce collective bargaining agreements to the detriment of the fundamental rights examined herein.

In this regard, in addition to sharing the reasons given for this declaration of unconstitutionality, I state the following additional reasons:

-The first paragraph is unconstitutional, not only for setting aside the free and voluntary nature of collective bargaining, but for emptying it of all content and thereby fostering an absolute regression in the right to collective bargaining. Clearly, the legislator committed an unconstitutional excess by obliging all heads of public entities to denounce all collective bargaining agreements, simply because a transitory provision so provides, disregarding the entire negotiation process that preceded the collective bargaining agreement. As I have indicated in other dissenting votes, I consider that collective bargaining agreements are part of that social vision that turns the Constitution into something more than individual rights. The incorporation of this chapter into our Magna Carta occurred in 1943, which reformed the 1871 Constitution, and this in turn was included in our current constitution. One of these rights, pertinent to the subject under study, is the free unionization, regardless of the labor sector to which the worker belongs (whether public or private), enshrined in Article 60. On the other hand, Article 61 establishes the right to strike as an exercise of union freedom, which, although it is limited to certain regulations in the public sector (according to the same constitutional article), the truth is that it is admissible for said sector and this Tribunal so established in judgment No. 1998-1317, stating:

“*The right to unionization therefore has constitutional rank in Costa Rica and is regulated internally through norms of a legal nature, specifically the Labor Code, which regulates in its Article 332 and following – located in Title Five “Of Social Organizations” – everything related to the operation and dissolution of unions and defines the rules for protecting union rights. Article 332 of the Labor Code also declares the legal constitution of unions to be of public interest, which are distinguished “(…) as one of the most effective means of contributing to the sustainability and development of popular culture and Costa Rican democracy”. The foregoing reference allows concluding at this stage that the fundamental right to unionization is recognized without distinction of the public or private nature of the labor sectors; that is, to an equal magnitude. In relation to the content of union action, specifically regarding the right to strike, Article 61 of the Political Constitution establishes that the regulation of the cited right of collective action is a matter reserved to law, and any restriction of the cited right must occur by law and in no way may favor acts of coercion or violence. It is also the result of the attribution conferred by means of the cited constitutional numeral 61, that it is the legislator's responsibility to define in which cases of public activity the exercise of the right to strike is restricted or excluded; a mandate that is satisfied through Article 375 (formerly 368) of the Labor Code, which must comply with the criteria of reasonableness and proportionality to be congruent with the democratic principle on which the national legal system rests, embodied in Article 1 of the Political Constitution and which is a supreme value of the Constitutional Rule of Law...*” Collective bargaining represents a basic element in the content of union freedom, precisely because through the Unions it is possible to promote a negotiation that leads to resolving the labor situations of workers. Union freedom itself implies negotiating collectively to obtain the economic, social, and professional benefits enshrined in our Fundamental Charter. Bargaining also arises as a peacemaking instrument in the face of collective conflicts, such as the right to strike, which is recognized in the public sector and can be embodied in the agreements of a collective bargaining agreement. Our Political Constitution established this in Article 62 within the chapter regulating social rights and guarantees, recognizing that collective bargaining agreements concluded between employers or employers' unions and legally organized workers' unions, in accordance with the law, shall have the force of law, without making any distinction between public or private workers. The correct dimension that this constitutional right to collective bargaining, enshrined in the chapter on social guarantees, must acquire in the case of the public sector, is not that of a total curtailment for the servant, but rather understanding that its exercise is subject to certain limitations in view of observance of the legal system, the limits of public spending, and the corresponding regulations that exist in this matter.

-The second paragraph, where it is established that if it is decided to renegotiate a collective bargaining agreement, it must be adapted in all its aspects to the provisions established in the law and “*other regulations issued by the Executive Branch*”. Thus, I consider that the plaintiffs are correct and that said norm “*leaves the door open*” for the Executive Branch to establish any content for those regulations. Then, collective bargaining agreements must no longer only submit to legal provisions, but to any other regulation of the Executive Branch, which I consider openly unconstitutional. While it is true I share the thesis that the capacity for collective bargaining cannot be unrestricted, as I have indicated in a previous dissenting vote, I do not consider admissible the interference of the Executive Branch in the exercise of a fundamental right, such as collective bargaining. Clearly, this is also contrary to the principle of legal reserve, according to which the regulation of fundamental rights (as is the case here with the right to collective bargaining) is a matter of legal reserve. The legal reserve also protects social rights; there cannot be a restrictive vision of such an important guarantee as the legal reserve.

This guarantee also protects social rights.

I consider that the mere fact of allowing the Executive Branch to issue guidelines regarding the exercise of a fundamental right is, per se, unconstitutional. It is like a kind of control and supervision over the rights of workers, who do not require any tutelage. The right to unionization, collective bargaining, and the effective resolution of collective conflicts are a trilogy of fundamental rights that give effectiveness and response to the need of workers to group together, compensating for their real inferiority vis-à-vis employers. Mechanisms are required that compensate for the asymmetry that characterizes the worker-employer relationship. The Fundamental Charter itself recognizes the right to collective bargaining, along with various international instruments (International Labour Organization Conventions numbers 87, 98, 135, and 151). Certainly, in the public sector, the employing entity is not entirely free, since the State is subject to the principle of legality or juridicity. However, accepting that limitation is very different from subjecting the collective agreement to guidelines issued by the Executive Branch, ignoring that they must be defined through a legislative act. It is undeniable that the right to collective bargaining is a fundamental right that can be limited, but only through legal means, and not through regulatory norms, as this norm allows. The dreams of the 1940s with the social reform remain unfulfilled. It was thought that the Collective Agreement would be the horizon of social progress for workers, but that has not been possible. There are constant attempts to legislatively limit unions and Collective Agreements. Those aspirations remain on the paper of the Constitution, because those negotiations are an exception for the vast majority of workers, and that is why they are seen as a privilege. The aspirations of the Constitution have been truncated; political reality imposes a stringent restriction on union rights and collective bargaining. There are several pending matters regarding the full effectiveness of the Constitution, especially in social matters. I believe that the aspiration is to have union rights and collective bargaining on paper—to have them there, to talk about them—to maintain our good international image, but in reality, those rights are exercised, in part, by a unionized minority; the rest of the workers understand that it is better not to unionize, nor to seek to negotiate their working conditions. They would be unrealistic pretensions, because in the current landscape, it is enough to have a job; the economic and political reality does not allow for more. Sad reality; the social Constitution has a long wait to have a more just, more equitable, more decent society. It is an issue that transcends my role as a Constitutional judge.

**5. Note from Magistrate Cruz Castro regarding the exclusive dedication contract (Article 28 of the Public Administration Salary Law).** While it is true that regarding the challenges to the provisions of the exclusive dedication contract, I have subscribed to the majority opinion, I do consider it necessary to record this note to indicate the following:

While the regime of exclusive dedication is a matter of legal regulation, it is a constitutional matter to verify compliance with the principle of progressivity and non-regression, particularly in this case when it concerns labor rights and conditions. In this case, the Chamber indicates that "*the petitioner accuses that the principles of progressivity of labor rights and the protective principle are violated. However, in the judgment of this Chamber, that mere statement, without an adequate analysis of the norms and the impact that these may have on the labor rights of workers, prevents an appropriate constitutional analysis. Such statements must be dismissed due to an improper and insufficient substantiation by the petitioner.*" For this reason, the insufficient substantiation prevented this Chamber from carrying out the constitutional review and examining the respect or lack thereof for the principles of progressivity and non-regression. But said examination remains a pending task; this Chamber, in judgment No. 2011-016153 of 9:30 hrs. on November 25, 2011, stated: "*(…) Social or welfare rights must be, according to the imperatives of Public International Law of Human Rights, the object of progressive development, so that the national authorities or public powers must adopt all necessary measures, to the maximum extent permitted by their resources, possibilities, and capacities, to guarantee their effective enjoyment and exercise.*" In this sense, I consider that the examination of the progressive development of fundamental rights is also applicable regarding labor rights. Thus, the Social Constitution ceases to be a mere statement on paper to evaluate its realization.

Work, the right to life, and freedom are essential parts of dignity; their absence directly harms the dignity of the person. As well established by the social doctrine of the Church, which is an ideological reference that Article 74 of the Constitution [refers to], "*…Whoever is unemployed or underemployed suffers, in effect, the deeply negative consequences that this condition produces on the personality and runs the risk of being marginalized from society and becoming a victim of social exclusion. In addition to young people, this drama generally affects women, less specialized workers, the disabled, immigrants, ex-convicts, the illiterate, all people who encounter greater difficulties in finding a placement in the world of work…*" (See “Compendio de la Doctrina Social de la Iglesia” Celam. 2005- p. 208). It is clear that by reason of the normative force of the Constitution, all of it is demandable from the action of public powers, "*in all its integrity, in all its parts, in all its contents, also in its implicitudes*". So then, given the fact that the Political Constitution is a constitution of minimums, the progressivity of fundamental rights must move from being an ideal to a constitutional demand. This constitutional instance cannot be the path for guarantees and benefits to be relatively easily reduced for workers; even though those benefits may have been established by law, it does not mean that they can be regressive at any time. In this sense, it remains pending in this constitutional venue to examine, when reasonably raised, whether the changes in the regulations governing exclusive dedication contracts in the public sector are progressive, or on the contrary, are regressive, without any basis.

**6. Dissenting vote of Magistrate Cruz Castro regarding the unconstitutionality of Articles 35 and 36 of the Public Administration Salary Law.** I have decided to dissent on these issues and consider that the changes made to Articles 35 and 36 of the Public Administration Salary Law are unconstitutional. Such norms, after the reform made by the Law for Strengthening Public Finances, No. 9635, establish the following:

"*Art. 35- Percentage of compensation for exclusive dedication.* *The following economic compensations are established on the base salary of the position held by professional officials who sign exclusive dedication contracts with the Administration:* &nbsp; *1. Twenty-five percent (25%) for employees at the licentiate level or another higher academic degree.* &nbsp; *2. Ten percent (10%) for professionals at the university bachelor's level.* &nbsp; *(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)* &nbsp; &nbsp; *Art. 36- Prohibition and compensation percentages.* *Public officials who, by legal means, have been imposed the restriction for the liberal practice of their profession, called prohibition, and who meet the requirements established in Article 31 of this law, shall receive an economic compensation calculated on the base salary of the position they hold, in accordance with the following rules:* &nbsp; *1. Thirty percent (30%) for employees at the licentiate level or another higher academic degree.* &nbsp; *2. Fifteen percent (15%) for professionals at the university bachelor's level.* &nbsp; *(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)*" It is questioned that the new recognition percentages for additional salary supplements for exclusive dedication and prohibition, under less beneficial conditions, violate the principle of progressivity of rights. Furthermore, there is a lack of a technical study that could support that impairment of labor conditions, without there being certainty that it is the cause of the country's fiscal problem, when it has been pointed out that the causes of the fiscal deficit derive from more complex problems such as tax evasion and elusion.

Likewise, it is questioned that the reduction of percentages, both in exclusive dedication contracts and in prohibition contracts, generates a clear inequality of conditions among the officials themselves, both those who were hired by the Administration before the entry into force of Ley 9635, and those under new hiring.

In this regard, the majority of the Chamber considered that compliance with the principle of financial or budgetary balance is an objective and reasonable justification for regulating salary aspects and that "faced with a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of services of constitutional relevance, the decision of the competent authorities to define and apply measures suitable for alleviating or solving the problem is not only reasonable, but, even more, is unavoidable" (advisory opinion No. 2018-18505).

Regarding this argument, I have considered dissenting from the majority opinion (salvar el voto), as I believe the claimants are correct. The variations set forth in Title III of the LFFP regarding the percentages of Exclusive Dedication (Dedicación Exclusiva) and Prohibition (Prohibición) clash with the provisions contained in the Political Constitution. Not only is it an attack against the principles of progressivity and non-regression (no regresión) of fundamental rights, but also against legal certainty (seguridad jurídica), the principle of technical reasonableness, and the principle of equality. Note the clear deterioration in the established percentages, which represent a total regression (regresión) to previous labor conditions; and note also the creation of a differentiation between officials hired before and after the entry into force of these rules. All of this without mentioning the lack of technical support, which cannot be supplied by a generic substantiation of the critical situation of public finances, because if we start to scrutinize, problems with public finances are alleged at all times and in every moment. Thus, this argument cannot be used as a generic foundation for any regression (regresión) of labor rights. Even legal certainty (seguridad jurídica) is affected because, although there is no right to the immutability of the legal system, there is indeed a right to progressivity. It is not admissible for the Constitution to endorse changes and more changes that direct labor rights toward a regression (regresión). Instead of increasing salaries, a political will to reduce them is observed, a decision that clearly demonstrates, without the slightest doubt, the regression (regresión) in the well-being of a sector of workers.

**7. Dissenting vote of Magistrate Cruz Castro regarding the unconstitutionality of Article 53 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), Article 15 of Regulation No. 41564-MIDEPLAN, as well as Resolution No. DG-139-2019 of the Directorate General of Civil Service.** Art. 53 of the LSAP, added by LFFP No. 9635, and Art. 15 of Regulation No. 41564-MIDEPLAN are questioned:

"Art. 53- Incentive for professional career (carrera profesional). The incentive for professional career (carrera profesional) shall not be recognized for those academic degrees or titles that are a requirement for the position.

Training activities shall be recognized for public servants provided that these have not been financed by public institutions.

New points for professional career (carrera profesional) shall only be salary-recognized for a maximum period of five years.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), No. 9635 of December 3, 2018) Art. 15.- Professional career (carrera profesional). The incentive for professional career (carrera profesional) shall be granted under the following conditions:

* It shall be recognized for those academic degrees or titles that are not requirements for the position.

• E)The recognition of professional career (carrera profesional) shall proceed when the training activities are financed by the interested servant, whether during working hours or outside of them, provided they are pertinent to the position held. In those training activities that are not financed by public institutions, leave with pay may be granted on a reasoned basis to receive the training.

* The new points for professional career (carrera profesional) shall be salary-recognized for a period of 5 years.

• d)The points for professional career (carrera profesional) may be recognized, according to the parameters prior to the entry into force of Law No. 9635, only and exclusively in those cases where applications were filed with the Institutional Human Resources Management Offices prior to the publication of said law and which have not been processed by the Administration." Furthermore, Resolution DG-139-2019 of 3:00 p.m. on July 24, 2019, from the DGSC states the following:

"Article 1. Modify Articles 1, 2, 4, 5, 6, 9 and 18 of Resolution DG-064-2008 of February 28, 2008, so that they respectively read as follows:

(…)

"Article 9: Each point considered in any Professional Career (Carrera Profesional) factor shall have a single and independent validity, and salary remuneration, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Offices must establish the corresponding controls, so that upon completion of said term, the respective points expire and the inherent payments cease.

Said Offices must also establish the necessary control mechanisms, so that the academic degrees and professional-level training certificates submitted by each servant are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." "Article 4. Modify Articles 1, 2, 3, 7, 8, 9, 10, 18, 20 and 21 of Resolution DG-333-2005 of November 30, 2005, so that they respectively read as follows:

(…)

"Article 10.- Each point considered in any Teaching Professional Career (Carrera Profesional Docente) factor shall have a single and independent validity, and salary remuneration, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Office of the Ministry of Public Education must establish the corresponding controls, so that upon completion of said term, the respective points expire and the inherent payments cease.

Said office must also establish the necessary control mechanisms, so that the academic degrees and professional-level training certificates submitted by each servant are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." These rules were challenged on the grounds that they represent a setback in relation to the purpose of hiring the most suitable officials, because a temporal limitation is introduced on the recognition of points for professional career (carrera profesional), given that after five years the incentive is no longer paid, harming subjective rights and the inalienability (irrenunciabilidad) of the right. Furthermore, it is indicated that the drafting of the rule causes legal uncertainty (inseguridad jurídica), as it is ambiguous and does not allow for certainty in determining what the spirit of the legislator was: whether to recognize up to five years of training or to pay only for five years.

In this regard, the majority of this Chamber considered dismissing this part of the action without prejudice to the debate being reopened or reframed in other terms if it is determined that the provisions cause an impoverishment of the salaries of professionals or if it is confirmed that this aspirational measure for the retention of the most suitable public servants is being harmed by the flight of trained personnel.

However, I believe that the questioned regulations are indeed unconstitutional, since, as the claimants indicate, the fundamental right to a salary is infringed (enshrined in Article 57 of the Constitution and Articles 23 of the Universal Declaration of Human Rights, 7 of the International Covenant on Economic, Social and Cultural Rights, and 7 of the Protocol of San Salvador), in that the subjective right of the official to continue earning the remuneration for professional career (carrera profesional) is vitiated, once the referenced five years have elapsed after its respective recognition. The corresponding recognition is also arbitrarily eliminated and causes a cessation of the remuneration without a legitimate reason that justifies the interdiction of that right. The challenged regulation removes from the worker's assets, at the end of five years, an economic benefit, of a salary nature, that was recognized because he or she met the established requirements.

A component that forms part of the salary is eliminated, without any major support. The ultimate objective of recognizing the professional career is to ensure that the Administration has the highly trained personnel it needs for the proper performance of the public function. This remuneration has also been intended to assist in the recruitment and retention of the best-qualified professionals in each area of activity, for the proper performance of the public function, as well as to increase the productivity of professionals. That said, a regression in the regulation of this matter constitutes an unreasonable disincentive for personnel who seek to be increasingly better trained and, thereby, a disincentive to the professionalization of the public sector is configured.

I must emphasize that, while it is true that it is indicated that there is no injury to Article 34 of the Political Constitution because the reform preserves the acquired rights of the public servants who enjoyed that incentive. The truth is that, regarding the timeframe for recognizing new professional career points, the legislator committed an excess that resulted not only in the violation of the block of fundamental labor rights—for being regressive—but also of the block of principles that operate in the public sphere—for eliminating the incentive that stimulates the advancement of public officials.

Although there is no right to the immutability of the legal system, as the majority vote states, the truth is that the legal system must be progressive and not regressive. The legal system can change, but not to worsen the conditions of fundamental rights associated with labor rights. The fiscal situation cannot serve as a generic excuse for the legislator to minimize the recognition of labor incentives to the bare minimum. Legislative discretion is also subject to limits, and with the challenged provisions, I consider that such limits have been transgressed because they violate the constitutional block.

It is not that there is no subjective right of the official to continue receiving the remuneration for professional career, once the five years following its respective recognition have elapsed. Rather, the regulation that recognizes certain rights and labor incentives cannot be degraded, as that would be contrary to the constitutional principle of progressivity of fundamental rights. Especially in this case, since said incentives are associated with promoting the continuous training of public servants and, thereby, the provision of public services. There is no reason to devalue or distort the salary of a worker, considering that there are incentives that can be eliminated after a certain period. The questioned legislative act disregards the constitutional transcendence of the salary and the limits that exist for its modification or elimination.

**8. General note by Judge Cruz Castro.** I have considered it necessary to record this general note to refer to several aspects, particularly those that the majority of the Chamber sets out in the preceding recitals, with arguments I do not share.

It has been said that the Law for Strengthening Public Finances (LFFP) was given as a response to the critical Costa Rican fiscal situation and in an effort to seek uniformity and expenditure containment regarding the payroll of public servants. However, this argument becomes a fallacy if it is not accompanied by technical support. There is no study that indicates what percentage of the fiscal crisis is a direct cause of remunerations in the public sector, whether that percentage is determinant with respect to the fiscal deficit. Nor is there a study that conclusively finds that the cause of the fiscal crisis is said remunerations in the public sector; rather, experts in the matter cite multiple causes, the majority of them based on problems of tax evasion, inefficiency in collection, the growing payment of debt interest, and, in general, the deficient legal and institutional framework of the tax burden. The considerations indicated in the majority vote, made by the Office of the Comptroller General of the Republic, refer to the need to contain salary expenditures, but no concrete data is presented to affirm either that salary expenditure is the main cause of the fiscal deficit, much less how much of said deficit would be solved with all the cuts and regressions that the regulation intended. All of which constitutes an insufficient argument and a mirage, which made it seem that the solution to the fiscal deficit lay in weakening the labor rights of public servants. I transcribe below what an expert economist tells us:

*“The fiscal crisis in simple terms* *agosto 14, 2024 editor1850* *Luis Paulino Vargas Solís.* *(…)* *Where is the problem?* *No, not in the salaries. That discourse is untenable today, when it must rather be recognized that salaries have been brutally compressed. That not only entails a serious deterioration in people’s living conditions, but it is also making it difficult to retain highly qualified personnel.* *A part of the problem lies in the strong growth of interest payments, which makes it mandatory to recognize that the policies intended to reduce them have failed. Do not misunderstand me: I am not saying, and not even insinuating, that they should stop being paid. But I am warning that a rethinking is necessary and that new options must be sought to reduce the hemorrhage that this signifies.* *But the main problem lies in the revenues. They are clearly insufficient, which demonstrates that the fiscal plan of Carlos Alvarado, followed and applied to the letter by Chaves, is also a failure. The problem should be obvious for anyone who wishes to see it: expenditures have been compressed to a brutal degree, public salaries thrown into a hole, and, meanwhile, fiscal revenues stall and we must continue taking on debt.* *The situation is worrying, and threatens to become unsustainable. And that could happen sooner than we would like.* *We have very serious problems of fiscal fraud, but, furthermore, it is undeniable that the very rich in Costa Rica only pay a small fraction of what they should contribute.”* The majority vote indicates that “it was unavoidable that the Costa Rican State adopt measures to guarantee the qualities and principles of our Social and Democratic Rule of Law. The foregoing, under a harmonious interpretation of the principle of budgetary equilibrium and the Social Rule of Law.” However, I have held the criterion that the Social Rule of Law can never be subordinated to economic or financial reasons. Even worse, when it is assumed that economic science is a supposedly exact science, insensitive to moral issues and fundamental rights. Furthermore, the principle of budgetary equilibrium, in its true constitutional scope, cannot be interpreted as the principle that sustains the degradation in the fulfillment and efficacy of fundamental rights. The economy, finances, refer to people, subjects of rights, who must be ensured the fulfillment of conditions so that they achieve their dignity. The so-called balance between salary policies and the rights of public servants cannot be an equation that is always resolved to the detriment of the rights of the latter. Thus, I have maintained a dissenting position regarding the limit on the right to severance aid (auxilio de cesantía), so that, contrary to what the majority indicates, I consider that the financial and fiscal situation of the Costa Rican State should not be the justification for the elimination of labor rights and improvements. Indeed, I do not deny the existence of a public interest in reducing public expenditure, but said reduction of expenditure cannot weigh on the backs of the workers, those who depend on a salary. I underscore what the Chamber itself indicates: “the emptying of the fundamental rights of workers in the public sector is not valid in the eagerness to solve the problems of public finances.” Furthermore, when it indicates that: “these regulations should not remain frozen in time to the detriment of public servants, to the point that salaries are not attractive ‒ which could impact the efficiency of the Public Administration ‒ or do not guarantee minimum conditions of dignity and well-being for the workers.” As I have indicated in the note to vote No. 2016-12803, social rights are not second-order aspirations:

*“VII.- Note of Judge Cruz Castro. Economic and social rights are not second-order aspirations. In this action, questions arise about the condition of social and economic rights. They are not simple aspirations; they are subjective rights that are not left to the discretion of the legislator; they are authentic rights, they are integrated into the requirements of a constitutional rule of law. There cannot be a full exercise of individual and political rights if the effective validity of welfare rights (derechos prestacionales) is not guaranteed.* *The existence of a fundamental right presupposes its validity without intermediations or conditions. The dignity of the human being as the central axis of a constitutional democracy requires the effective validity of welfare rights. There is no human progress, there is no social equity if education is an aspiration without budgetary support and without effective validity in the lives of citizens. The constitutional minimum requires that the guarantee of education and of rights that, by being social, are no less than individual ones. A dignified and just existence requires the recognition of economic and social rights. It is the challenge of an authentic constitutional rule of law.* *Socially-oriented rights must define the horizon of human progress required by a society that gives effective validity to the dignity of the person. As has been well said, the essential content of the Social Rule of Law and of democratic constitutionalism must ensure just and dignified human development.* *In the Latin American community, it is recognized that Article 26 of the American Convention on Human Rights makes it possible to submit individual petitions in relation to economic, social, and cultural rights, a topic on which the Inter-American Court of Human Rights has ruled in the case "Five Pensioners v. Peru" in its judgment of February 28, 2003. Other precedents can be cited.* *Economic, social, and cultural rights are rights taken seriously, as defined by the United Nations International Covenant on Economic, Social and Cultural Rights, as well as the Protocol of San Salvador on Economic, Social and Cultural Rights of the American Convention on Human Rights approved in San Salvador and in force in America.”* That they are programmatic rights does not weaken their enforceability and their validity.

*All rights, both individual and social, generate positive and negative obligations for the State. It is not possible to define a first-order line for individual rights and leave programmatic rights in second place, weakened. There are unavoidable obligations for the state and society, such as the environment, access to education, the right to strike, the formation of unions, and the unjustified irreversibility of programmatic rights.* I believe that the legislator did not have total discretion to have drawn up a law like the LFFP; rather, it had to conform to the constitutional framework, particularly to our entire Social Political Constitution. In this sense, the remuneration and other working conditions of workers, which are elevated to the category of fundamental rights, should have been the insurmountable limits for the legislator. In another era, José Figueres spoke very clearly of increasing wages. That has been forgotten; decreasing wages now prevail for everyone, because the globalized economy does not allow for the recognition of a fair and dignified wage for workers. Although it is said and reiterated in the majority vote that no one has a *“right to the immutability of the legal order”* (a right that the rules never change), the truth is that the principle of progressivity and the principle of non-regression require that said legal order be reformed to improve, to advance, to progress, and not to regress in the recognition of workers' labor rights. Thus, the mutability of the legal order in this matter must be directed at satisfying the interest of the community and the progression in the protection of fundamental rights, particularly social ones, which have diminished in the last twenty years. It seems that for those of the South, those with dependent economies, it is not very realistic to speak of a welfare state. Thus, we go on capitulating in our dreams of an economic, social, and political democracy.

It seems to me that I hold a broader view of the principle of progressivity and non-regression than that set forth in the majority vote. I begin by citing Considerando 11 of judgment 275/2016 of the Italian Constitutional Court:

*"The guarantee of irreducible human rights binds the Budget, and the balance of the latter cannot condition their complete satisfaction."* Furthermore, the discussion regarding the Colombian case (judgment SU-140/19) where it must be clear that no public authority may invoke fiscal sustainability to undermine fundamental rights, restrict their scope, or deny their effective protection. An important priority is defined in that criterion. The principle of progressivity of human rights must be given sufficient normative force so that any regression is presumed unconstitutional.

Unlike what the Chamber indicates in the majority vote, I consider that the State's financial sustainability and availability of economic resources should not be the filter for measuring compliance with these principles. On the contrary, in the same sense as indicated in the dissenting vote of the 2008 Mexico judgment (see Silva and Rosales, 2009), it is said:

*"even in situations of scarce resources, or a poor functioning of social security institutions, the State must make efforts, including through international cooperation, to advance —and not repeal or diminish as occurs in this case— the enjoyment of rights such as retirement and old-age pensions, (...)* *(...) once a certain level of constitutional and legal protection has been reached... the legislator's freedom of configuration in matters of social rights is restricted."* I also cite what was indicated by the Constitutional Court of Colombia (judgment C 272 of 2009), when it has pointed out that a social state of law implies that *"the authorities are obligated to correct visible social inequalities, to facilitate the inclusion and participation of the most marginalized and vulnerable sectors of the population in the economic and social life of the nation, and to stimulate a progressive improvement of the material conditions of existence of the most depressed sectors of society."* Likewise, judgment C-1064 of 2002 and C-931 of 2004 (see also judgment T-025 of 2004), where the justification that the State must give to apply a regressive measure is specified:

*"As this Court has already explained, when a regressive measure is subjected to constitutional judgment, it shall be incumbent upon the State to demonstrate, with sufficient and pertinent data, (1) that the measure seeks to satisfy an imperative constitutional purpose; (2) that, after a judicious evaluation, it is demonstrated that the measure is effectively conducive to achieving the pursued purpose; (3) that after an analysis of the different alternatives, the measure appears necessary to achieve the proposed end; (4) that it does not affect the non-disposable minimum content of the compromised social right; (5) that the benefit it achieves is clearly superior to the cost it entails."* Thus, it is not a matter of the legislator proceeding, without more, with insensitive superficiality, to issue regressive norms, as it has done in this case of the LFFP, and the various provisions that are challenged here and that I have considered unconstitutional. This law defines an orientation that weakens the essence of the social state, sacrificing the social rights of the majority in favor of an economism that, in fact, ignores the social rights of citizens who depend on a salary. It is sad to hear that the collapse of the State's finances originates in an excessive and unjustified salary allocation. With few exceptions, the parliament reached an overwhelming consensus to weaken the welfare state, impacting one of its most sensitive components: salaries. I cannot fail to mention that without good salaries, the Public Administration cannot be efficient in the provision of its services. Globalization imposes decreasing wages upon us, which also means that the services provided by public officials have little significance. What remains of a welfare state that has always had so many adversaries, despite the aspirations contained in the Constitution. In this so burgeoning globalization, there is no space for the progress and social mobility that the social state fosters. I perceive this very clearly in this economism that inspires this Law for the Strengthening of Public Finances. The political priority is the accounting of public finances; the welfare state is weakened, cornered, postponed. This is the reality of economic development in the era of globality, of free trade.

The foregoing, due to the unreasonableness of recognizing the incentive of the annuity in the month of June of each year and for breaking labor continuity. <br> Judge Cruz Castro issues a dissenting vote and grants the action with respect to the annuities, particularly regarding Article 50 and Transitory Provision XXXI.<br> Sixth: By majority vote, it is declared that Article 55 —and, therefore, all provisions related to the questioned bonuses, namely Articles 39, 50, 54 of the Public Administration Salaries Law and Transitory Provisions XXVII and XXXI of the Public Finance Strengthening Law— must be interpreted as constitutional under the understanding that the restriction on negotiating does not apply to Public Sector employees who may validly enter into collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law. All the foregoing, without prejudice to the legality and constitutionality controls over the outcome of the negotiation, in consideration of the constitutional principles of reasonableness, proportionality, and the proper use of public funds.<br> Judge Cruz Castro issues a partially dissenting vote and declares Articles 54, 55, and Transitory Provisions XXVII and XXXI unconstitutional.<br> Seventh: By majority vote, the unconstitutionality of the provision in the first paragraph of Transitory Provision XXXVI of the Public Finance Strengthening Law is declared.<br> Judge Cruz Castro records additional reasons.<br> Eighth: The unconstitutionality of the following paragraphs is declared: "Officials subject by law to the prohibition regime (régimen de prohibición) may not practice their profession or professions, regardless of whether or not they meet the requirements to become entitled to the compensation for this concept" (Art. 32, paragraph 2 in fine) and "For the officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice, in a private capacity, for remuneration or ad honorem, the profession or professions they hold" (Art. 33 in fine), both of the Public Administration Salaries Law, added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018.<br> Ninth: In all other respects, by majority vote, the accumulated actions are dismissed.<br> Judge Cruz Castro records a note regarding the exclusive dedication contract (contrato de dedicación exclusiva) (Article 28 of the Public Administration Salaries Law).<br> Judge Cruz Castro issues a dissenting vote and declares Articles 35 and 36 of the Public Administration Salaries Law unconstitutional.<br> Judge Cruz Castro issues a dissenting vote and declares Article 53 of the Public Administration Salaries Law, Article 15 of Regulation No. 41564-MIDEPLAN, as well as Resolution No. DG-139-2019 of the Dirección General de Servicio Civil unconstitutional.&nbsp;&nbsp;<br> Judge Cruz Castro records a general note.<br> Judge Rueda Leal issues a separate opinion, in the following terms:<br> 1) grants the action regarding the phrase "The annuity incentive (incentivo por anualidad) shall be recognized in the first half of the month of June of each year" contained in challenged Article 12 of the Public Administration Salaries Law, as amended by Law No. 9635 "Public Finance Strengthening," during its period of validity;<br> &nbsp;2) grants the action in relation to the paragraphs: "Officials subject by law to the prohibition regime (régimen de prohibición) may not practice their profession or professions, regardless of whether or not they meet the requirements to become entitled to the compensation for this concept" (Art. 32, paragraph 2 in fine) and "For the officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice, in a private capacity, for remuneration or ad honorem, the profession or professions they hold" (Art. 33 in fine), both of the Public Administration Salaries Law, added by Article 3 of Title III of the "Public Finance Strengthening" Law, No. 9635 of December 3, 2018;<br> 3) on the remaining points, dismisses the actions.<br> Judge Lara Gamboa grants the action solely regarding the phrase "The annuity incentive (incentivo por anualidad) shall be recognized in the first half of the month of June of each year" contained in challenged Article 12 of the Public Administration Salaries Law, as amended by Law No. 9635 "Public Finance Strengthening," during its period of validity. On all other points, dismisses the actions.<br> This judgment has declaratory and retroactive effects to the effective date of the annulled norms, without prejudice to rights acquired in good faith.<br> Let this ruling be notified to the appearing parties and to the Procuraduría General de la República, the Ministerio de Hacienda, the Ministerio de Planificación y Política Económica, and the Dirección General de Servicio Civil.<br> Let this ruling be summarized in the Diario Oficial La Gaceta and published in its entirety in the Boletín Judicial. Notify.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><span style="font-size:10.0pt;font-family: &quot;Times New Roman&quot;,serif;mso-fareast-font-family:&quot;Times New Roman&quot;;color:black; mso-font-kerning:0pt;mso-ligatures:none;mso-fareast-language:ES-CR"><br></span></p><p class="MsoNormal" style="margin-bottom:0cm;line-height:normal"><font color="#000000" face="Times New Roman, serif"><span style="font-size: 13.3333px;">CO08/25</span></font></p> The foregoing, of course, provided that acquired rights of the employees are not harmed or unreasonable rules are established that somehow harm constitutional principles such as reasonableness, proportionality, and equality and non-discrimination lacking legal basis…” CO01/26 **IMMUTABILITY OF THE LEGAL SYSTEM.** “…As a general premise, no one has a *“right to the immutability of the legal system” (derecho a la inmutabilidad del ordenamiento jurídico)*, that is, a right that the rules never change and, to that extent, the legislator has the power to vary the conditions or requirements under which various salary bonuses are granted to public servants…” CO01/26 **PRINCIPLE OF PROGRESSIVITY AND NON-REGRESSIVITY (PRINCIPIO DE PROGRESIVIDAD Y NO REGRESIVIDAD).** “…the Sala Constitucional ruled regarding the protection of welfare rights and the principles of progressivity and non-regressivity, endorsing that the protection and realization of these rights can be impacted by contingent aspects that require an adjustment in the level of protection. All of the foregoing under the proper justification of the measures that must be adopted…” CO01/26 **PRINCIPLE OF FINANCIAL EQUILIBRIUM (PRINCIPIO DE EQULIBRIO FINANCIERO).** “…, this Sala verified that there is indeed a legitimate motivation, which is precisely to address the fiscal crisis caused, among various reasons, by the lack of uniformity of salary remunerations in the public sector. It is necessary to emphasize that ***the fulfillment of the principle of financial or budgetary equilibrium in this case is an objective and reasonable justification to conclude that the legislator's motivation is in accordance with the Law of the Constitution***, especially considering the severely deteriorated fiscal situation of the central Government, which endangers the viability of the Social State of Law and the Costa Rican economy as a whole…” CO01/26 **“UNEMPLOYMENT ASSISTANCE OR SEVERANCE INSURANCE (AUXILIO DE CESANTÍA O SEGURO DE DESOCUPACIÓN).** “…the recognition of unemployment assistance (auxilio de la cesantía), since it has already been established that it is not an unlimited right. By reason of the foregoing, the fact that the LSAP introduces a provision with an identical meaning to that established in the Labor Code with a specific cap does not appear illegitimate nor harmful to the acquired rights of the workers. As can be seen, this Sala had to reconsider its jurisprudential lines in the sense that it is not valid or legitimate to pay severance indemnities without a cap or a reasonable parameter, as that would be contrary to the principle of equality and the sound management of public finances. In this order of ideas and in the context of the approval of the LFFP, the questioned provision is understood as reasonable, which does not affect the acquired rights of the workers because if the necessary condition to aspire to the indemnity in question has not been met, what is maintained is a mere expectation of a right and not an acquired right…” CO01/26 **ARTICLE 34 OF THE POLITICAL CONSTITUTION (ARTÍCULO 34 DE LA CONSTITUCIÓN POLÍTICA).** “… For a retroactive effect of a law to exist and for this effect to be unconstitutional, it is necessary that the right considered harmed was acquired before the enactment of the law. In the *sub lite*, it speaks of the mere expectation of acquiring the indemnity without the caps introduced by the legislator, with which no harm to Art. 34 of the Political Constitution is verified…” CO01/26 **ARTICLE 62 OF THE POLITICAL CONSTITUTION (ARTÍCULO 62 DE LA CONSTITUCIÓN POLÍTICA)**. “…the Sala referred to the limits of collective bargaining (negociación colectiva). In this regard, it cannot be overlooked that, although it is a fundamental right, the constitutional text itself provides that these negotiations must be arranged *“in accordance with the law”*. To the foregoing, it must be added that this Sala, through its jurisprudence, has delimited that collective agreements (convenciones colectivas) must also be subject to the values and principles emanating from the Constitution itself. Now, the limitations imposed on the possibility of making collective agreements and on their content must also be delimited and respect the Law of the Constitution, as it is also not lawful to empty the fundamental right under analysis of its content...” CO01/26 **PRINCIPLE OF EFFICIENCY (PRINCIPIO DE EFICIENCIA)**. “…to conclude that it is clear that the State is obliged to guarantee the principle of efficiency by ensuring the necessary resources to meet obligations, adjusted to the reality that the country's finances are going through, so the payment of salary bonuses (pluses salariales) or incentives must be related to the equilibrium of public finances…” CO01/26 **ACQUIRED RIGHTS (DERECHOS ADQUIRIDOS)**. “…it is necessary to insist that there is no right to the immutability of the legal system and it cannot be argued that there is an acquired right to a specific regulation on the granting of salary incentives. The fiscal situation prompted the legislator to establish the granting of this salary bonus for a limited period and the public servant knows in advance that the new incentive is not permanent, but that its payment will be for a determined period, which in the judgment of this Sala does not violate the right to salary or Arts. 34 and 74 of the Political Constitution, nor the principles of intangibility of patrimony (intangibilidad del patrimonio) or non-confiscation. …” CO01/26 Context and approval of the challenged regulation.

VII.- ON A NECESSARY BALANCE BETWEEN SALARY POLICIES AND THE SAFEGUARDING OF THE FUNDAMENTAL RIGHTS OF PUBLIC SERVANTS VIII.- ON THE MUTABILITY OF THE LEGAL SYSTEM IX.- On the principle of progressivity and non-regressivity.

X.- ON VESTED RIGHTS XI.- PRELIMINARY CLARIFICATION. APPLICATION OF THE QUESTIONED REGULATIONS TO THE INSTITUTIONS COVERED BY THE LFFP XII.- ON THE NECESSARY SUBSTANTIATION OF THE GRIEVANCES Grievances of action No. 19-2620-0007-CO XIII.- Change of regulation regarding annual salary increments (anualidades) Challenged norms Grievances of the plaintiff (action No. 19-2620-0007-CO) Grievances of the plaintiff (consolidated action No. 19-004931-0007-CO) Allegations of the plaintiff (consolidated action No. 19-022051-0007-CO) Report of the PGR Allegations of the co-adjuvants Resolution of the Constitutional Chamber (Sala Constitucional) General aspects of annual salary increments (anualidades) On the constitutionality of art. 50 of the LSAP and Transitory Provision XXXI (reasonableness) On the recognition of annual salary increments (anualidades) in the month of June, employment continuity, and revaluation On the alleged injury to the principle of reasonableness because the percentages of annual salary increments (anualidades) are established in transitory provisions On possible normative antinomies

Conclusions

XIV.- ON THE ALLEGED VIOLATION OF THE PRINCIPLE OF NON-RETROACTIVITY OF THE LAW AND DISREGARD FOR CONSOLIDATED LEGAL SITUATIONS Preliminary clarification Challenged norms Grievances of the plaintiff (action No. 19-002620-007-CO) Grievances of the plaintiff (action No. 19-004931-0007-CO) Grievances of the plaintiff (action No. 19-022051-0007-CO) Report of the PGR (action No. 19-002620-0007-CO) Report of the PGR (action No. 19-004931-0007-CO).

Allegations of the co-adjuvants Resolution of the Constitutional Chamber (Sala Constitucional) As a preliminary matter Amounts of annual salary increments (anualidades) and other bonuses that disregard what is established in other legal instruments On Transitory Provision XXVII, which refers to the application of the unemployment assistance benefit (auxilio de cesantía)

Conclusion

XV.- Violation of the principle of free collective bargaining Preliminary clarification Challenged norms Grievances of the plaintiff (action file No. 19-2620-0007-CO) Grievances of the plaintiff (action No. 19-004931-0007-CO) Grievances of the plaintiff (action file No. 19-022051-0007-CO) Report of the PGR (action No. 19-2620-0007-CO) Report of the PGR (action No. 19-004931-0007-CO) Report of the Ministry of Finance Allegations of the co-adjuvants Resolution of the Constitutional Chamber (Sala Constitucional) As a preliminary matter The opinion issued by this Court in advisory opinions No. 2018-019511 and No. 2021-017098 On the alleged injury to the principle of equality by distinguishing with respect to solidarity associations (asociaciones solidaristas) On the constitutionality of the second paragraph of Transitory Provision XXXVI

Conclusions

Grievances of action No. 19-004931-0007-CO GRIEVANCES THAT PRIMA FACIE MUST BE DISMISSED XVI.- Art. 3 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 concerning Public Employment XVII.- Arts. 4, 9 and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 concerning Public Employment XVIII.- ON THE FISCAL RESPONSIBILITY RULES. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC Challenged norms Allegations of the plaintiff Resolution of the Constitutional Chamber (Sala Constitucional) XIX.- FISCAL RESPONSIBILITY.

ALLOCATION OF FREE SURPLUSES</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445443" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provision</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445444" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievance of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445445" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445446" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445447" style="text-decoration:none"><span style="font-size:12pt; color:#000000">ANALYSIS OF PROVISIONS REGARDING PUBLIC EMPLOYMENT REVIEWED BY THE FUND</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445448" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XX.- CONTRACTS FOR EXCLUSIVE DEDICATION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445449" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445450" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445451" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445452" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445453" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445454" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXI.- THE EXTENSION OF EXCLUSIVE DEDICATION CONTRACTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445455" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445456" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445457" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445458" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445459" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXII.- SERVANTS TO WHOM EXCLUSIVE DEDICATION OR PROHIBITION MAY BE GRANTED</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445460" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445461" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445462" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445463" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445464" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445465" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXIII.- OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION AND PROHIBITION CONTRACT</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445466" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445467" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445468" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445469" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445470" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445471" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXIV.- THE NEW PERCENTAGES FOR EXCLUSIVE DEDICATION AND PROHIBITION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445472" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445473" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445474" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445475" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445476" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445477" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXV.- THE PROHIBITION OF ADDITIONAL INCENTIVES</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445478" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445479" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445480" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445481" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445482" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXVI.- THE STEERING ROLE OF MIDEPLAN</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445483" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445484" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445485" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445486" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445487" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXVII.- MEASUREMENT OF PERFORMANCE EVALUATION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445488" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445489" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445490" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445491" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445492" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXVIII.- CRITERIA FOR PERFORMANCE EVALUATION</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445493" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445494" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445495" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445496" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445497" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXIX.- EXCLUSION OF BENEFITS FOR SENIOR OFFICIALS AND OTHER SERVANTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445498" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provision</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445499" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445500" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445501" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445502" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXX.- PAYMENT METHOD FOR PUBLIC SERVANTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445503" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445504" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445505" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445506" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445507" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXI.- THE PROFESSIONAL CAREER INCENTIVE</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445508" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Preliminary clarification</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445509" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445510" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff (action no. 19-004931-0007-CO)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445511" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff (action no. 19-023575-0007-CO)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445512" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445513" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Second PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445514" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Mideplan Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445515" style="text-decoration:none"><span style="font-size:12pt; color:#000000">DGSC Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445516" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445517" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445518" style="text-decoration:none"><span style="font-size:12pt; color:#000000">General aspects of professional career points</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445519" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding an alleged disincentive and regression in matters of proven suitability</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445520" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the reasonableness of granting the incentive to servants who paid for their own training</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445521" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the alleged violation of the principle of equality</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445522" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding collective bargaining</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445523" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the correct interpretation of the regulations</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445524" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding the alleged violation of vested rights and the inalienability of rights</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445525" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Conclusions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445526" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXII.- CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445527" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445528" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Grievances of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445529" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Arguments of the active coadjuvant (SINAME)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445530" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445531" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ministry of Finance Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445532" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445533" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXIII.- REFORMS TO ART. 57 OF THE PUBLIC ADMINISTRATION SALARY LAW</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445534" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Challenged provisions</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445535" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Arguments of the plaintiff</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445536" style="text-decoration:none"><span style="font-size:12pt; color:#000000">PGR Report</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:28pt; margin-bottom:0pt"><a href="h#_Toc193445537" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Ruling of the Constitutional Chamber</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445538" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding art. 57 subsection f)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445539" style="text-decoration:none"><span style="font-size:12pt; color:#000000">Regarding art. 57 subsections g), h), m), n), o) and p)</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-left:14pt; margin-bottom:0pt"><a href="h#_Toc193445540" style="text-decoration:none"><span style="font-size:12pt; color:#000000">XXXIV.- GENERAL CONCLUSIONS</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:12pt"></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:left"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Exp: 19-002620-0007-CO</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Res. No. 2025-008201</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">San José</span><span style="font-weight:bold">, at thirteen hours on the seventeenth of March, two thousand twenty-five. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Action of unconstitutionality brought by </span><span style="font-weight:bold; text-transform:uppercase"></span>[Name 001]<span>, ID number [Value 001]<span data-mce-type="bookmark" id="mce_1_start" data-mce-style="overflow:hidden;line-height:0px" style="overflow: hidden; line-height: 0px;"></span>, in his capacity as </span><span style="font-weight:bold; text-transform:uppercase">General Secretary of the Union of Employees of the Banco Nacional de Costa Rica</span><span style="font-weight:bold"> (SEBANA)</span><span>, to have declared unconstitutional </span><span style="font-weight:bold">arts.</span><span> </span><span style="font-weight:bold">39, 50, 54, 55, 56, 57 subsection I) of the Public Administration Salary Law No. 2166</span><span>, as well as</span><span> transitory provisions</span><span style="font-weight:bold"> XXVII, XXXI and XXXVI of the Public Finance Strengthening Law No. 9635</span><span>. Subsequently, this action</span><span> was expanded (file no. 19-0</span><span>04931-0007-CO) to examine the constitutionality of </span><a name="_Hlk190327011" class=""><span>arts. </span><span style="font-weight:bold">28, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o) and p) of Law No. 2166, arts. 15, 17, 23, 24, 25, of Title IV of Law No. 9635 and arts.</span></a> 1, subsection a), 3, 6, 7, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H. Likewise, actions numbers 19-022051-0007-CO and 19-023575-0007-CO were consolidated. The representatives of the Attorney General's Office (Procuraduría General de la República), Ministry of Finance (Ministerio de Hacienda), Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica) and the Civil Service Directorate General (Dirección General de Servicio Civil) participated in the proceedings.

**Resultando:** **1.-** By a filing received in the Secretariat of the Chamber at 10:16 hrs. on February 15, 2019, the petitioner **[Name 001]**, in his capacity as **general secretary of the Union of Employees of the Banco Nacional de Costa Rica (SEBANA)**, requests, in summary, that the unconstitutionality of Articles 39, 50, 54, 55, 56, 57 subsection I) of the Law on Public Administration Salaries (hereinafter, LSAP) No. 2166 of October 9, 1957, as well as Transitory Provisions XXVII, XXXI and XXXVI of the Law for Strengthening Public Finances (hereinafter, LFFP) No. 9635 of December 3, 2018, be declared. The foregoing is based on considering them contrary to the principles of reasonableness, non-retroactivity of the law and free collective bargaining, to Articles 11, 33, 34, 39, 41, 50, 60, 62, 74, 191 and 192 of the Political Constitution, to Conventions numbers 87, 98 and 135 of the International Labour Organization (ILO), as well as to Article 26 of the American Convention on Human Rights (ACHR) and Article 8, subsection a) of the Protocol of San Salvador.

The petitioner raises three main grounds of unconstitutionality:

**a)** violation of substantive due process; **b)** violation of the principle of non-retroactivity of the law and disrespect for consolidated legal situations; **c)** violation of the principle of free collective bargaining.

**First ground of unconstitutionality. Violation of substantive due process** Regarding this point, it is said that a violation of substantive due process exists in relation to Articles 50, 57 subsection l) insofar as it reforms Article 12, all of the LSAP, and Transitory Provision XXXI of Law No. 9635. Provisions which, in turn, must be related to other rules of the LSAP that were also modified by Law No. 9635, such as, for example, Article 58 subsection c) which repeals Article 5 and provisions 48 and 49 referring to performance evaluation and which have in common the correlation between the payment of service increments (anualidades) and the existence of a merit system. Article 5 referred to the principle of efficiency of the Administration by stating that annual increases would be granted based on merit; whereas now with the new regulations, it is indicated that the result of the annual evaluation will be the only parameter for granting the service increment incentive (incentivo por anualidad) for each official, by which, in both cases, they start from the same programmatic axis or teleological sense, which is to comply with the merit regime and the principle of efficiency contained in the Political Constitution.

The reform to Article 50 and the provisions of Transitory Provision XXXI must be subjected to a reasonableness test to assess their necessity, suitability, and proportionality, as constitutional parameters in consideration of what is established by the principle of due process.

Regarding the necessity of the new regulations on the payment of service increments, the legislator's intention in converting the percentage of the service increment into a fixed and permanent amount is not clear, nor is the reason why the percentage of the service increment contemplated in Transitory Provision XXXI is specifically fixed, making the separation between professional classes and non-professional classes clear.

What the rules establish is a percentage anchored to the salaries earned in January 2018, from which a nominal amount is derived, which does not vary over time, regardless of the years a public servant works in the public sector. By the time the law was approved, this reference salary used by the legislator had already been modified by the statutory salary adjustments.

With this mechanism introduced into the law, a future increase in the payment of service increments is avoided, which would lead—hypothetically—to a reduction in public spending on salaries; however, that argument lacks internal logic because if the necessity of reducing the payment of service increments and salaries in the public sector obeys an economic criterion, it cannot be intended to regulate the salary reduction once and for all, as if the country's economic conditions were to last *sine die*.

The challenged regulations are also not suitable, because if the amount of the service increments is anchored to the salaries that corresponded to each salary scale for the month of January 2018, such amounts will not only not grow over time, but will come to have a value very close to zero due to the effect of monetary devaluation and inflation, without there being a logical or reasonable relationship between the objective of the service increment—as an economic incentive that allows improving the efficiency of public sector employees—or between the service increment as a formula to reward those who are evaluated annually with the aim of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning.

Article 50 and Transitory Provision XXXI are also not proportionate to the end they propose, since the payment of service increments is eliminated for the future and that is the true implicit purpose. The sacrifice that these rules impose on employees who earn a composite salary is totally radical and confiscatory given that, in the future, earning a composite salary with service increment payments will have no real meaning for such employees because those are eliminated for the future, rendering them insubsistent, without any real economic content and converted into a symbolic payment, such that as the working life time passes, the servant will earn less for the concept of service increment, which implies an involutive condition of their salary. If what the legislator wanted was to maintain a performance evaluation system linked to the payment of service increments, the approval of the payment of these stopped in time and calculated based on a fixed amount is not suitable and affects the entire merit system of Articles 191 and 192 of the Political Constitution. That implicit purpose—eliminating service increments—was never openly raised in the statement of legislative intent or in the legislative discussion.

**Unconstitutionality of Article 57 subsection 1) insofar as it reforms Article 12 of the LSAP** Regarding what refers to Article 12 reformed by the challenged Article 57 subsection l), the payment of the service increment previously had to be made on the first day of the month closest to the date of the official's entry or re-entry into the position, but, with the reform, the service increment payments will be made in the first fortnight of June of each year, which is considered openly unconstitutional, since in addition to creating a disproportionate and unjustified sacrifice against persons who have a right to seniority when their date of entry or re-entry is before the month of June, this contradicts the very nature of the service increment, whose purpose is to remunerate an annual period of work and not just any period constructed arbitrarily or artificially by the legislator, so the rule is not suitable, is not logical nor reasonable, but rather is an arbitrary provision that rides roughshod over the nature of the service increment and turns it into something else.

Article 12 subsection c) of the LSAP established that if the previous position occupied by a promoted person had entitled them to one or more annual increases, upon moving to a higher position they would have the right to have the service increments previously received revalued, according to the new category to which they were promoted; a rule that was now modified to state that *"under no circumstances shall the incentives already recognized be revalued"*. The previous rule made sense and complied with the principle of proportionality, since it intended that a promotion would positively affect the person opting for a superior position, encouraging public sector employees to opt for higher positions, but the reform discourages people from occupying positions of greater responsibility, by freezing their previous service increments and not allowing them to opt for a revaluation of these.

Furthermore, Article 12 subsection d)—which allowed for the consideration of time accumulated in other public sector entities for purposes of service increment payments—was eliminated, which is unreasonable and discriminatory, as well as detrimental to the principle of proportionality because people who have worked in other public sector entities would be forced to start the count from zero in each entity where they work, injuring the doctrine of the State as a single employer which, as a legal concept, has been taking shape in the jurisprudence of the Second Chamber and the Constitutional Chamber. The rule is also not suitable because it discourages the transfer or re-entry of public employees and officials to different State entities, contributing to hindering the constitutional system of access to public function through merit. Finally, it is discriminatory because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely over those who aspire to improve their condition or provide better public service elsewhere in the public sector and, secondly, because it creates discrimination among all persons who, prior to Law No. 9635, managed to count years worked in other public sector entities for service increment purposes, with respect to those who wished to transfer or re-enter it after the approval of Law No. 9635.

It summarizes that Articles 50, 57 subsection l) and Transitory Provision XXXI, by lacking reasonableness, suitability, and proportionality, violate substantive due process and with this the provisions contained in Articles 9, 11 and 121 of the Political Constitution, but also an indirect violation of constitutional Articles 191 and 192 by creating a service increment payment system that violates the merit system and the principle of efficiency.

It argues injury to the principle of reasonableness because a Transitory Provision was the one that established the percentage of the service increment with which the calculation of what will later be the nominal and unmodifiable amount of the service increment must start, as well as the date from which that calculation will begin, which, in its opinion, should have been included in a substantive rule to be part of the permanent legal body.

**Second ground of unconstitutionality: Violation of the principle of non-retroactivity of the law and disrespect for consolidated legal situations** The articles challenged in this section are added or reformed, emptying them of their original content, without consideration for acquired rights or consolidated legal situations as provided by Article 34 of the Political Constitution.

It is argued that these rules violate the principle of non-retroactivity of the law as well as respect for consolidated legal situations, affirming that, in any case, when it comes to topics related to supplementary salaries (sobresueldos), it is a general defect of Law No. 9635 not to respect the consolidated legal situations of workers who acquired rights under the previous regulations that governed them.

Article 50 of the LSAP and Transitory Provision XXXI impose a service increment at a fixed nominal amount that overrides what has been established in some institutions through collective bargaining agreements (convenciones colectivas) or other normative instruments that usually grant a higher and different service increment amount through a percentage payment calculated on the employee's base salary, whereby those rules impose techniques for calculating service increments that directly clash with the collective bargaining agreements and the regulations that exist in the public sector on this matter. The legislator exceeded their powers and with this, consolidated legal situations are violated by not establishing, as they did with the exclusive dedication salary component—in Transitory Provision XXVI of Law No. 9635—or defectively in the matter of severance pay, provisions to mitigate the effect on consolidated legal situations; cases in which the impact of the new regulations on the subjective legal situations of each employee was indeed considered.

A collective bargaining agreement is an agreement in the form of a contract that constitutes subjective legal situations that are integrated into the patrimony of rights of each worker covered by the agreement and, while it is in force, the workers to whom it applies have a right and not a mere expectation of a right that the terms thereof be respected. Therefore, Law No. 9635 could not ignore the subjective legal situations born of a collective bargaining agreement as if they did not exist. It is contradictory that, according to Transitory Provision XXXVI of Law No. 9635, the legislator did take into account the existence of collective bargaining agreements in the public sector, but that, at the same time, did not consider them when imposing a total and absolute change not only in the amounts, but also in the nature of the service increments.

The normative provision must be interpreted and applied in the way most favorable to the human being or under the principle *pro homine* or pro citizen, and therefore, it considers that the questioned rule must be interpreted in clear safeguarding and protection of the consolidated legal situations of the affiliates of his represented party, in such a way that from the moment the workers began to work in a particular public entity where said regulations apply, subjective situations were created in their favor that form part of their salary, so the State cannot expropriate or confiscate those rights without compensation, such that if the service increments were predefined in a regulation or statute, this is equivalent to a declaratory act of rights in their favor, by which the employees have a consolidated subjective legal situation that that payment system be respected, unless they are compensated in accordance with Article 155 of the General Law of Public Administration (LGAP).

The challenged Article 54, which refers to the *"conversion of incentives to fixed nominal amounts"*, implies a direct and heteronomous intrusion into existing collective bargaining agreements and future ones that may be negotiated, which seriously injures the principle of non-retroactivity of legal norms, for two reasons: first, because the salary corresponding to the month of January 2018 that the law uses as a reference to determine the nominal amount to be paid for service increment concept had already been modified by the time the law was approved as a consequence of the salary adjustment that is applied semi-annually, so the legislator disregarded the principle of non-retroactivity in drafting the rule by using a parameter delimiting the article's content that was by then outdated in time; the second reason is that the rule's provision ignores that there are collective bargaining agreements and regulations or statutes that already contain provisions on the payment of incentives or compensations in percentage form, such as the collective bargaining agreement of the Banco Nacional, signed by his represented party, where percentages have been fixed for productivity incentive payments in Article 63, called since several bargaining agreements ago as an incentive for results, so for the persons to whom this collective bargaining agreement applies, there exists a right and not a mere expectation of a right, that during all the time the collective bargaining agreement is in force, that subjective right be respected since, otherwise, there is a violation of Article 34 of the Political Constitution.

Regarding the challenged Article 56 relating to the *"application of incentives, caps and compensations"*, it is a rule that has an intelligibility problem, which is confusing despite regulating a topic of great interest such as acquired rights and consolidated legal situations. If the legislator intended to refer to a future regulation, they could not state that what applies in the future are the previous incentives, compensations, caps or service increments, and interprets that perhaps what the legislator intended to say was that the new regulations on incentives, compensations, caps or service increments govern for the future and not retroactively. The rule is contrary to the principle of reasonableness and, therefore, to substantive due process, as well as violative of Article 34 of the Political Constitution, since the patrimonial rights acquired before the effectiveness of the new law are not respected, insofar as it omitted to recognize the consolidated legal situations that arise from collective bargaining agreements, regulations or statutes that have declared rights in favor of workers before the promulgation of the law.

Regarding Article 57 subsection l) that reformed provision 12 of the LSAP, it affirms that the provisions contained in collective bargaining agreements or other legal instruments creating subjective rights on topics such as when the payment of each service increment proceeds, the way it is calculated when there are promotions, the recognition of those rights to those who come from other public sector institutions or when they return to it, were also not respected, so there is no certainty about what happens with persons who were transferring from one company or institution within the public sector prior to the publication of Law No. 9635 but whose years worked in other public sector dependencies have not yet been counted, nor whether the consolidated legal situation that the time previously worked be registered should be disregarded. On this point, it is alleged that the law was silent in resolving conflicts of laws over time and that silence is visible throughout all its provisions, except in relation to exclusive dedication where the exclusive dedication contracts signed before the law's entry into force are indeed respected, and also, less rigorously, in the matter of severance pay, since in this case the law imposes a cap in years that did not respect the accounting of time served that had been incorporated into the patrimony of rights of public sector employees based on rules from collective bargaining agreements that were in force when the legal reform came into effect, so the legislator disrespected the content of the subjective legal situations of the affiliates of his represented party.

Regarding Transitory Provision XXVII, which refers to the application of severance pay assistance, it is a rule containing two defects of unconstitutionality: the first is the violation of the right to collective bargaining and the second is the disrespect for the principle of non-retroactivity of the law and disregard for consolidated legal situations. The rule limits the payment for severance pay concept with caps greater than twelve years, without considering that many collective bargaining agreements in force—when Law No. 9635 came into effect—established rules with higher caps, such as the one signed between his represented party and the Banco Nacional that established that it was a real right in favor of the institution's employees that is paid with a cap of twenty years and that was not considered unconstitutional when it was analyzed in an action that challenged it. The limitation introduced by this Transitory Provision extends to other legal instruments different from collective bargaining agreements in which the payment of severance pay is regulated under more beneficial conditions than those stipulated in the Article.

of the Labor Code, in which case the twelve-year limit is also imposed. The defect of unconstitutionality of the Transitory Provision lies in the omission of dimensioning the scope of its effects, so that the consolidated legal situations in favor of public employees who, under the protection of current collective bargaining agreements or other legal instruments, and at the time the legal reform entered into force, had already accumulated a length of service that granted them the right to earn a severance pay (auxilio de cesantía) benefit greater than eight or twelve years, would have been duly safeguarded and not affected.

It concludes that the legal technique used by the legislator in articles 50, 54, 56, and 57(l) in relation to article 12 of the reformed LSAP and Transitory Provisions XXVII and XXXI of Law No. 9635, is unconstitutional as it ignores that, in accordance with article 34 of the Political Constitution, there are consolidated legal situations born from instruments such as collective bargaining agreements, regulations, and personnel statutes, which should have been respected.

**Third ground of unconstitutionality. Violation of the principle of free collective bargaining** It challenges articles 39, 50, 54, 55, 57(l) in so far as it reforms article 12, all of the LSAP, and Transitory Provisions XXVII, XXXI, and XXXVI of Law No. 9635 related to the indicated Salary Law, as, in the opinion of the plaintiff, they are harmful to the principle of free collective bargaining.

It is reproached that the regulation established by Law No. 9635 leaves no space for these matters to be regulated through collective bargaining and thereby exceed the minimums contemplated by ordinary legislation. The foregoing, despite the fact that these are essential labor matters and that the Labor Procedural Reform, approved by Law No. 9343, in its article 690(i), established the possibility for unions and employer representatives to negotiate clauses of salary content.

The articles of the LSAP—introduced or reformed by the challenged Law No. 9635—absolutely exclude all negotiation of salary components or bonuses, as well as prohibit negotiation on the right to severance pay, all of which is observed in the insurmountable cap of eight years on the dismissal payment of the severance pay (article 39), or with the establishment of a single annual bonus payment (anualidad) that has a single method of calculation through an inelastic division between professional and non-professional classes and an invariable amount that remains anchored in time based on the salaries earned in January 2018 (articles 50 and 57(l)), or imposing a prohibition on establishing incentives or compensations in percentage terms (article 54), or establishing a legal reserve (reserva de ley) for the creation of all types of incentives, economic compensations, or salary bonuses (article 55), and, in addition, obligating senior officials to denounce collective bargaining agreements upon their expiration (Transitory Provision XXXVI). The right to collective bargaining of incentives and components of a salary nature contemplated in subsections h) and i) of article 690 of the Labor Code, whose legal framework derives from ILO Convention No. 98 and article 62 of the Political Constitution, has been emptied of all economic content. The intention of the legislator who enacted Law No. 9635 was to create a kind of legal reserve in matters of supplementary salaries (sobresueldos) and annual bonuses, supplanting the constitutional legislator in clear violation of articles 60 and 62 of the Political Constitution, but articles 26 of the ACHR and 8(a) of the Protocol of San Salvador are also transgressed.

The Labor Procedural Reform opened space for the right to collective bargaining in the public sector of Costa Rica, but Law No. 9635 is a counter-reform that attempts against the principle of progressivity of the social and economic rights of the inhabitants of this country. Based on ILO Convention No. 135 and Convention No. 98, approved by Costa Rica by Law No. 2561 of May 11, 1960, the full development and use of voluntary negotiation procedures must be promoted with the objective of issuing collective contracts to regulate employment conditions; freedom of collective bargaining which, in Costa Rica, in the case of collective bargaining agreements, was elevated to the rank of a constitutional right in article 62 of the Political Constitution. In this regard, the Constitutional Chamber ruled in Judgment No. 2018-019511, when it referred to the introduction of article 55 within the LSAP, in the legislative project of what is now Law No. 9635. Thus, when ruling on legislative file No. 20.580, the Constitutional Chamber was clear that it was not possible to establish a total interdiction on the creation of supplementary salaries via collective bargaining agreement; notwithstanding the foregoing, the rules challenged here establish that type of interdiction, despite the warning made by the Chamber, so that Law No. 9635 was approved according to the text decreed in the first debate that the Chamber reviewed, and this confirms the unconstitutionality requested.

For that reason, the challenged rules violate the principle of free collective bargaining, which implies the violation of ILO Convention No. 98, article 8(a) of the Protocol of San Salvador, and article 62 of the Political Constitution.

Article 39 of Law No. 2166, reformed by Law No. 9635, by imposing an eight-year cap for the payment of severance pay, imposes very serious limitations that impact the constitutional order of collective bargaining, since even the Constitutional Chamber—on repeated occasions, albeit with restrictive criteria—has endorsed clauses of collective bargaining agreements signed in the public sector in which severance pay caps higher than eight years are established, understanding that breaking the legal cap is constitutionally valid and conforms to parameters of reasonableness and proportionality.

The defect of unconstitutionality alleged is magnified by the existence of Transitory Provisions XXVII and XXXVI of Law No. 9635, from which it follows that the purpose of the legislator has been none other than to establish an absolute prohibition so that, via collective bargaining agreement, rules on severance pay benefits different from those established in articles 39 of the LSAP under study, reformed by Law No. 9635, and 29 of the Labor Code can be negotiated, without considering that in Costa Rica, the payment of severance pay with caps higher than those established by the Labor Code has been accepted for more than thirty years when the Solidarist Associations Law No. 6970 of November 7, 1980 was approved, which establishes the payment of severance pay at the expense of the employer—public or private—without any type of year cap and as a real right, that is, its recognition proceeds under any circumstance regardless of the cause that extinguishes the employment relationship. From the above, an unequal and unjustified treatment is also created to the detriment of the union organization compared to the solidarist organization, given that the latter can do so by special law, while the union cannot, which generates a disparity of conditions in the legal treatment that the legal system offers to one and the other organization. It adds that the ILO Direct Contacts Mission that visited the country verified the differentiation of rules for the payment of severance pay that exists as a result of the Solidarist Associations Law, which constitutes discriminatory treatment between the workers associated with these and those affiliated with a union.

Transitory Provision XXVII supposes a clear intrusion and imposition by the legislator on the content of the collective labor agreements that were in force when the reform contained in Law No. 9635 came into effect, since that transitory rule limits the payment for severance pay to a maximum of twelve years, despite the existence of conventional rules that provided for higher limits.

Those articles are unconstitutional because they ignore the legal nature that the Political Constitution grants to collective bargaining agreements, but also because they violate the right to free collective bargaining, by supplanting the negotiating will of the signing parties of those normative instruments.

Article 50 of the LSAP, together with Transitory Provision XXXI contained in Law No. 9635, by imposing an annual bonus at a fixed nominal amount, entails an unreasonable and disproportionate limit on free collective bargaining, but also a total prohibition on negotiating the payment of annual bonuses in collective labor agreements as had been negotiated before the entry into force of Law No. 9635, thus constituting an arbitrary retroactivity of the rule and an emptying of the content of the right to collective bargaining.

Article 54 of the LSAP is unconstitutional because it denies any possibility of negotiating a different amount for incentives or compensations, which have now been transformed into a fixed percentage, anchored in the month of January 2018, without any possibility of future improvement, in contrast to the provisions of article 690(h) of the Labor Code, which contemplates the possibility of negotiating salary incentives; a provision that is now left without legal effect, thus presenting a true labor counter-reform whose true aims were never explained to the citizenry. This article 54 harms the principle of non-retroactivity, the principle of free collective bargaining, and the principle of reasonableness, as it freezes, without term or date, the payment of supplementary salaries and thereby forces their disappearance in the future, given that it sets a permanent salary condition over time without considering that the labor market, salary policies, and the fiscal condition of governments modify over time, so that although the appearance of respect for the payment of supplementary salaries is intended, at heart it is not so, and they are condemned to disappear with the passage of time because a moment will come when their economic value will be negligible.

With the reform made in Law No. 9635 to article 55 of the LSAP, the legislator intended to create a legal reserve so that any incentive, compensation, or salary bonus had to be created by law; however, this is unconstitutional because article 62 of the Political Constitution and ILO Convention No. 98, duly approved by Costa Rica, prevent establishing a limitation of such nature, but also because this provision injures the principle of free collective bargaining, as it claims an exclusivity in the generation of a normative source of working conditions that supposes emptying the constitutional right to collective bargaining of its content.

Transitory Provision XXXVI is one of the most accused intrusions of the Public Power into the right to collective bargaining, since it obliges the senior officials of public entities to denounce the collective bargaining agreements upon their expiration, thereby suppressing the content of article 62 of the Political Constitution and of ILO Conventions 87 and 98, jointly with articles 26 of the ACHR and 8(a) of the Protocol of San Salvador, for which reason it considers it contrary to the Law of the Constitution.

The progressive development of social rights contemplated in article 26 of the ACHR is completely curtailed by this Transitory Provision, which rather enshrines regression and a step backward in the development of collective labor law in Costa Rica, which had been achieved with the so-called Labor Procedural Reform. This regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements are negotiated, they must be adapted to the provisions of Law No. 9635, which means that working conditions that worsen the previous ones will have to be inserted, without respect for consolidated legal situations. The freedom of union association and the right to collective bargaining, in the terms envisioned by the Inter-American Court of Human Rights (IACHR) in the case of Lagos del Campo v. Peru of August 31, 2017, cannot fully develop if the State predefines, as occurs in Transitory Provision XXXVI of Law No. 9635, the content that a collective bargaining agreement must have, which is furthermore intended to be done with norms of legal rank but also with secondary norms, because this Transitory Provision does not indicate which norms it refers to when it says "the other regulations issued by the Executive Branch", with which it could be any according to what the Government in power determines, which, in this way, would have the door open to interfere in an unlimited manner, contrary to the limits that, by its nature, public power must have in a Social State of Law. The Constitutional Chamber, in advisory opinion No. 2018-019511, upon reviewing the project of what is now Law No. 9635, made the observation that each senior official of the public entities has the power to decide whether or not to denounce the collective bargaining agreements; an observation that was not heeded when Law No. 9635 was approved.

In relation to Transitory Provision XXXVI, regardless of the moment in which the denouncement of a collective bargaining agreement is made, the truth is that future agreements are being forced to maintain a regulated content that will depend not only on what a law that worsens the working conditions already obtained in collective bargaining instruments, previous statutes and regulations says, but also, it leaves the door open for the Executive Branch to establish any content for those agreements, all of which is also introduced in a transitory rule but which causes permanent and definitive effects.

It concludes by requesting that the unconstitutionality of the rules challenged herein be declared.

**2.-** In order to substantiate the standing it holds to promote this action of unconstitutionality, the plaintiff points out that it comes from article 75, second paragraph, of the Law of Constitutional Jurisdiction (LJC), since it appears in defense of collective interests held by its represented party. The union representatives claim that the questioned rules contravene not only free collective bargaining and with it the collective bargaining agreement of the Banco Nacional, but also lead to a harmful regression of fundamental rights (salary, working conditions, and free collective bargaining) and contradict the principle of collective labor law that establishes the possibility of negotiating in collective bargaining agreements more favorable conditions for calculation and payment of severance pay and bonuses for the workers.

**3.-** By resolution of the Presidency of the Constitutional Chamber at 9:46 a.m. on February 22, 2019, the action was given course, granting a hearing to the Office of the Attorney General of the Republic (Procuraduría General de la República, PGR).

Regarding standing, the following was resolved:

*“The petitioner's standing derives from Article 75, second paragraph, of the Law of Constitutional Jurisdiction, since he exercises the direct action, without prior trial to that effect, in order to protect and preserve the coinciding interests of SEBANA's members, based on its articles of incorporation, which enables the defense of collective interests.”* **4.-** In a brief filed with the Secretariat of the Chamber on March 7, 2019, **Juan Carlos Chaves Araya, in his capacity as General Secretary of the Union of Workers of the Banco Popular y de Desarrollo Comunal (SIBANPO)**, appeared to request that his represented party be considered an active coadjuvant given that it shares the legal theses expressed by the petitioner and because the challenged rules may affect the workers of the Banco Popular y de Desarrollo Comunal (BPDC).

**5.-** The **Office of the Attorney General of the Republic** submitted its report through **Julio Alberto Jurado Fernández** by means of a document delivered to the Secretariat of the Chamber on March 18, 2019.

The petitioner raises three grounds of unconstitutionality against the reform to the LSAP No. 2166 carried out through the LFFP No. 9635, and in each one, it indicates the rules that, in its opinion, should be annulled.

**The first ground of unconstitutionality** raised by the petitioner refers to a possible violation of substantive due process in relation to Articles 50, 57 subsection l) of the LSAP as amended by the LFFP and Transitory Provision XXXI of this Law No. 9635.

The legislature is the entity called upon to establish the incentives and the amount of the economic benefits granted to its public servants; therefore, it must be understood that the economic amount granted as service bonuses (anualidades) is a function of the intensity with which the legislature wishes to incentivize the permanence in the position of public officials and the economic capacity to pay the sums derived from that incentive. The legislature could even eliminate the payment of service bonuses (anualidades) and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, since the obligation to recognize service bonuses (anualidades) is not stipulated in constitutional-level rules, but rather in legal ones.

The permanent nature implicit in granting the service bonus (anualidad) a nominal value that is stable over time is justified by the need to achieve a situation of balance in public finances, which goes beyond overcoming a temporary economic crisis, as it constitutes an economic objective that it is desirable to maintain over time. If it is established that, after a certain period, the changes made to the legal rules regulating public sector remuneration must be reversed, it is possible that states of economic instability, which are undesirable in the short, medium, and long term, may be reached again. The State has the obligation to promote efficiency in the provision of public services and must therefore promote the efficiency of public employment, which does not mean that this objective can only be achieved through the payment of service bonuses (anualidades). It adds that part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenditures generated by the State's payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation and resource availability.

Its represented party does agree with the petitioner in that there is no logical reason for the payment of the service bonus (anualidad) to be made, in all cases, as of the first half of June each year, and there is no justification for persons who complete their service bonus (anualidad) immediately after that date having to wait periods that could be nearly a year to receive the respective compensation; a situation that is unreasonable and discriminatory, since those who complete the service bonus (anualidad) in May or June, for example, would receive their compensation under temporally more favorable conditions than those who complete it in July or August of each year. Therefore, the Office of the Attorney General considers that the system should allow that, once the performance evaluation has been completed and the level of efficiency required by the current regulations has been demonstrated, the economic incentive can be recognized no later than the month following the date on which the official completes his or her service bonus (anualidad).

On the other hand, regarding the claim that service bonuses (anualidades) should not be revalued according to the higher-category position that employees may come to hold, it insists that it is the legislature that has the power to decide which aspects of the service relationship should be incentivized through the payment of service bonuses (anualidades), or through the revaluation of that benefit, all in accordance with the prevailing economic possibilities. It considers it evident that revaluing the economic incentives already acquired in the event that the official is promoted to a higher position could be an important incentive to promote the administrative career; however, it argues that this implies an expenditure of resources that might not be consistent with the intention of balancing public finances and, faced with that situation, it is up to the legislature to decide—as it has already done—whether to incentivize the administrative career or to promote the balance of public finances, without opting for one decision or the other implying any violation of constitutional rules or principles.

In another vein, it points out that the suppression of the phrase in Article 12 of the LSAP that stated that public sector servants would be credited with time served in other public sector entities for purposes of annual increases is contrary to the doctrine of the State as Sole Employer, which emerged as a way to ensure workers who move from one State institution to another the continuity in the enjoyment of rights recognized throughout the public sector. However, it argues that despite this, it is not possible to affirm that said doctrine is untouchable for the legislature, since its creation occurred through legal-rank and not constitutional rules, which validly leads to the affirmation that just as the legislature authorized the recognition of time served in different State institutions for the purposes of paying service bonuses (anualidades), it is the same legislature that is empowered to modify that authorization when it deems it necessary to achieve the balance of public finances.

Regarding a transitory provision establishing permanent effects, it argues that such an objection could be useful to show that the duty to follow good legislative technique has been infringed; however, it considers that such an infringement could not render the rule unconstitutional, since it is not a substantial defect that justifies annulling the express will of the law.

**The second ground of unconstitutionality** alleged by the petitioner is for violation of the principle of non-retroactivity of the law and disregard for consolidated legal situations in relation to the reform made to Articles 50, 54, 56, 57 subsection l) of the LSAP and Transitory Provisions XXVII and XXXI, all of the LFFP No. 9635.

The objections raised here revolve around the issue of the prevalence or not of a supervening law (the LFFP) over current collective bargaining agreements and, in this regard, it recalls that in opinion C-060-2019, the Office of the Attorney General expressed its criterion in the sense that there are no constitutional reasons justifying giving prevalence to the mandates of a collective bargaining agreement or any other normative instrument over the law. It points out that the foregoing does not mean disregarding the vested rights (derechos adquiridos) or consolidated legal situations of the recipients of the collective bargaining agreements, because the application of the legal mandates that conflict with what was agreed in said agreements governs for the future, which implies that the labor benefits incorporated into the patrimony of each person by the application of the collective agreement clauses repealed by the law will remain in the patrimony of each of the persons who received them.

Regarding the current employees of Banco Nacional who, according to the petitioner, maintain a vested right (derecho adquirido) for the calculation of the severance pay (cesantía) benefit to be made on a maximum of twenty years of service (which was the limit admitted in the collective bargaining agreement) and not on a maximum of twelve years, as established by Transitory Provision XXVII of Law No. 9635, it recalls that the right to severance pay (cesantía) is acquired only when the termination of the service relationship occurs, and provided that said termination is due to one of the causes that justify the payment of that indemnity. Thus, before that occurs, the interested party has only a mere expectation of a right that could not prevail over legal-rank provisions such as those introduced into the LSAP by means of the LFFP. For the reasons stated, the Office of the Attorney General does not consider that Articles 50, 54, 56, 57 subsection l) and Transitory Provisions XXVII and XXXI of the LSAP infringe Article 34 of the Constitution by disregarding vested rights (derechos adquiridos) or consolidated legal situations of public sector officials.

**The third ground of unconstitutionality** is raised for violation of the principle of free collective bargaining regarding Articles 39, 50, 54, 55, 57 subsection l) of the LSAP amended by Law No. 9635 and its Transitory Provisions XXVII, XXXI, and XXXVI.

The right to collective bargaining for public servants is a right subject to legislative configuration, so its scope of application, as well as its reach, can be defined by legal-rank rules, without this necessarily implying a violation of constitutional rules. While it is true that some of the principles derived from Article 62 of the Political Constitution could apply to collective bargaining in the public sector, it is also true that this rule was not intended to be applied to public employment relations. To demonstrate this situation, it should be noted that ILO Convention No. 98 on the Right to Organise and Collective Bargaining, adopted in 1949, excluded public officials of the State Administration from its scope of application (Article 6), which shows that, for that year (which coincides with the promulgation of the current Political Constitution), the possibility was not envisaged for public employment relations to be governed by conventional rules, but rather by statutory rules, unilaterally issued by the State. The foregoing is consistent with the provisions of Article 191 of the Political Constitution to the effect that *“A civil service statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration”*; a rule that reflects a unifying vision of the rules that should prevail in employment relations between the State and its servants, which is compatible with the regulations on collective bargaining established in the LFFP. The absolute freedom of bargaining that the petitioner derives from Article 62 of the Political Constitution applies in relation to the labor conditions of the private sector, not for those of the public sector, since the latter is governed by rules and principles that, in some cases, are diametrically different from those of private employment.

The same treatment cannot be given to the use and disposition of public funds (which are what finance public employment relations) as is given to the use of private funds, because the former must be oriented toward the pursuit of the public interest and are therefore not absolutely available to the parties negotiating a collective bargaining agreement in the public sphere.

For many years, the Constitutional Chamber has maintained the thesis that collective bargaining in the public sector is not comparable to that of the private sector and that the former must respect the laws, regulations, and current guidelines in force, for example, in judgment No. 4453-2000, where it indicated that even in the public sector in which the application of collective bargaining agreements is constitutionally possible, in the companies or economic services of the State and in the personnel units of public institutions and entities in which the services they provide do not participate in public management, the Chamber reiterates and confirms its jurisprudence to the effect that the authorization to bargain cannot be unrestricted nor comparable to the situation of a private employer, because through this route, current laws, regulations, or governmental guidelines cannot be dispensed with or excepted, nor can laws that grant or regulate the competencies of public entities be modified or repealed.

In addition to the above, it recalls that no right, fundamental or not, is unrestricted; rather, all of them are subject to the limitations and restrictions inherent to their nature, provided that the latter are reasonable and are contained in legal-rank rules, as occurs with those imposed on collective bargaining in the public sector by the LFFP.

The principles of efficiency in the management of public funds, rationality of expenditure, sound management of public finances, etc., which are of constitutional rank, must be harmonized with the possibility of collective bargaining in the public sector, which cannot be unrestricted but must, on the contrary, adapt to the country's economic possibilities.

The Chamber, when analyzing the constitutionality of the bill that contained Article 55 of the LSAP and Transitory Provision XXXVI of what is now the LFFP, indicated that public sector employees who can validly enter into collective bargaining agreements cannot be limited in the possibility of creating incentives, compensations, or salary bonuses, and that the head of each public entity cannot be denied the power to denounce or not the respective collective bargaining agreement (Advisory Opinion No. 2018-019511).

The legislature can indeed establish restrictions on the exercise of the right to collective bargaining in the public sector, such as those regulated in Article 55 of the LSAP and Transitory Provision XXXVI of the LFFP. Imposing certain restrictions on collective bargaining in the public sector regarding severance pay (cesantía), the valuation of service bonuses (anualidades) and incentives, and the creation of new supplementary salaries does not empty the right to bargaining of its content, nor does it affect its essential core. It adds that, likewise, the obligation to denounce collective bargaining agreements upon expiration of the agreed term is aimed at adapting those instruments to the rules in force on the matter, but does not inhibit the possibility of entering into new agreements, provided that those instruments adapt—as has always been required—to the prevailing legal framework.

Establishing certain restrictions on collective bargaining in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been of public knowledge and whose attention has required sacrifices, not only from persons linked to the State by a public employment relationship, but from all economic and social sectors.

On the other hand, it points out that it is not possible to compare unions with solidarity associations (asociaciones solidaristas), since they are distinct figures, with their own characteristics that are very different from each other, and, in that sense, it recalls that solidarity associations (asociaciones solidaristas) have not been granted the right to collective bargaining, nor the right to strike, without them therefore being in a situation of unconstitutional disadvantage or discrimination with respect to unions.

Finally, regarding the objection relating to the permanent and non-temporary nature of what is regulated in Transitory Provision XXXVI of the LFFP (related to the obligation to denounce collective bargaining agreements upon expiration of the agreed term), it can be considered as a possible infringement of proper legislative technique, but it does not render the affected rules unconstitutional, as it is not a serious defect that justifies annulling those provisions.

It concludes with the suggestion that the Constitutional Chamber declare this action without merit, with the exception of the provision in the first paragraph of Article 12 of the LSAP, specifically, the phrase indicating that *“The service bonus incentive shall be recognized in the first half of the month of June of each year.”* **6.-** The edicts referred to in the second paragraph of Article 81 of the LJC were published in numbers 57, 58, and 59 of the Judicial Bulletin, of the days 21, 22, and 25 of March 2019.

**7.-** In a brief filed with the Secretariat of the Chamber on April 4, 2019, **Enrique Egloff Gerli**, in his capacity as **President of the Costa Rican Chamber of Industries (Asociación Cámara de Industrias de Costa Rica)**, appeared to request passive coadjuvancy in this matter.

He says that SEBANA's arguments start from a legally mistaken premise: that the payment of service bonuses (anualidades) is a fundamental labor right recognized at the constitutional level. This is not true because service bonuses (anualidades) are an exclusive creation of the legislature, so the first argument of the action refers to a typical case of legislative discretion, and the petitioner's criterion is not admissible because increasing, decreasing, or eliminating service bonuses (anualidades) can be varied over time as the country's economic and fiscal conditions change.

The challenged rules establish the percentage by which service bonuses (anualidades) may grow henceforth because previously the contradiction occurred that they grew more than inflation, which is contrary to the constitutional principle of reasonableness, without there being a fundamental right to service bonuses (anualidades) as the petitioner claims.

The system of annual salary increases should be the same as occurs with minimum wages in the private sector, which occurs only due to increases in the cost of living, since there is no justification whatsoever, neither legal nor economic, much less fiscal, for public employees to enjoy privileges in this matter over private ones, which harms the principle of equality, with the aggravating factor that the average salary level of the Public Administration is much higher than that prevailing in the sphere of private enterprise where, for equal work, less is paid despite the fact that it has been shown that employees are more efficient.

It is not true that service bonuses (anualidades) are linked to the efficiency of the public sector, since they have been paid and increased without support in technical criteria, decoupled from the increase in the cost of living, and therefore it is not harmful to Articles 191 and 192 of the Political Constitution. In the past, the State—under other fiscal conditions—could guarantee a very generous system regarding service bonuses (anualidades), but today the situation has changed radically, and therefore the situation must be adjusted to the fiscal reality of the country, which is being done through the challenged regulations that respect the vested rights (derechos adquiridos) of public servants up to the moment of its entry into force, and what has been done is constitutionally valid. The payment of service bonuses (anualidades) is condemned to disappear, since it only serves to increase the salary without reasonable justification, because the payment is made automatically merely by accumulating years of service. It recalls that the rights and obligations of public servants are those exhaustively established by the legal system, and therefore the legislature has discretion to regulate salary bonuses as it deems most opportune in view of the country's fiscal health. Access to public positions is based on equality of opportunity, and the selection of personnel for public positions is measured by a criterion of proven suitability that has no relation to the payment of seniority; therefore, it is not true that varying the payment of service bonuses (anualidades) will disincentivize or hinder access to public positions by merit.

Certainly, the matter regulated by Transitional Provision XXXIII should have been included in a substantive provision of the law because the legal nature of transitional provisions is to enable the transition from the previous regulations to the new ones; although this is a matter of poor legislative technique that may be reproachable, it is not unconstitutional.

There are no reasons justifying the first claim of unconstitutionality raised by the plaintiff, and therefore it requests that it be declared without merit.

Regarding the second ground of unconstitutionality alleged, it considers that there is also no defect of unconstitutionality. All provisions can be modified for the future by another of equal or higher rank without this implying a violation of the principle of non-retroactivity of the law; a principle that is only violated when acquired rights and consolidated legal situations have arisen as a direct consequence of subjective legal situations created under the protection of prior legislation, and it warns that legal situations consolidated or rights acquired are not considered to be those derived from collective bargaining agreements, regulations, or statutes, because these are provisions that regulate objective situations.

Consequently, it considers that none of the provisions being challenged implies a violation of the principle of non-retroactivity of the law, since what the legislator has done is to modify, with future effects, objective situations created by prior legislation.

In Costa Rica, the relationship between public servants and the State is statutory in nature, and therefore the conclusion of collective bargaining agreements is prohibited in the state sphere, with the exception of public enterprises and economic services of the State governed by private law, so it is logical to conclude that public servants cannot obtain any right under their protection.

A distinction must be made between the source producing the act and the legal nature of the act itself, such that a collective bargaining agreement, although it has legal value, does not come from the Legislative Assembly and therefore does not have the same force, meaning that these are provisions that can indeed be modified for the future, because what would be unconstitutional is if the challenged provisions had retroactively modified the system of service-based pay increments (anualidades) contained in the prior legislation. In this case, there is a constitutional authorization to modify the content of those provisions for the future—as of the entry into force of the new regulations—since it is a discretionary power of the legislator to modify the rights and obligations of public servants prospectively in order to protect the public interest. The legal system is not immutable, and the legislator has the discretionary power to modify it with the sole limit of not retroactively affecting acquired rights and consolidated legal situations prior to its entry into force. It adds that the legislator also has full freedom to choose the parameter it deems appropriate to determine future service-based pay increments (anualidades), without this implying an injury to the principle of non-retroactivity of the law.

The challenged Article 56 is poorly drafted, but it is not unconstitutional for that reason, because respect for acquired rights is a matter of principle and it is not necessary to indicate it expressly, so that collective bargaining agreements can be modified for the future by the legislator, and the only thing the latter must respect are the rights incorporated into the patrimony of individuals, meaning it can freely change the existing rules of the game as long as the servants do not have an acquired right, even when they have an expectation of a right.

As for the third ground of unconstitutionality, it reiterates that collective bargaining agreements are only applicable to public enterprises and economic services of the State governed by private law; therefore, the challenged regulations are applicable to all public servants, since the signing of collective bargaining agreements in the state sphere is prohibited, and as a result, the legislator can modify the maximum amount of the severance pay (auxilio de cesantía) for public servants without incurring a violation of the freedom to conclude collective bargaining agreements.

The challenged Article 39 and Transitional Provisions XXVII and XXXVI are not discriminatory regarding solidarist associations (asociaciones solidaristas), since Law No. 9635, being subsequent to Law No. 6970, amended it in the pertinent parts, although due to an error in legislative technique, this amendment was not expressly recorded in its text; however, it is evident that it was amended insofar as it authorizes the payment of severance pay (auxilio de cesantía) without being subject to any limit of years worked, given that there is a supervening incompatibility between the content of both laws regarding servants covered by the solidarist regime. It argues that, on the other hand, if the freedom of collective bargaining is prohibited in the public sector—with the two existing exceptions—it is not legally possible for that freedom to be violated by the challenged regulations, and, therefore, it is valid to regulate the payment of service-based pay increments (anualidades) in the state sector because the rights and obligations of public servants are solely and exclusively those established by law, by virtue of the principle of inalienability of the relationship, according to which the parties cannot negotiate the content of the service relationship existing between them.

The principle of progressivity applies to the freedom of collective bargaining, but since this right does not exist in the state sphere, it cannot be invoked as a parameter of constitutional validity for the challenged regulations. It concludes by requesting that the action be declared without merit.

**8.-** Through a document filed on April 9, 2019, **Miguel Ernesto Carranza Díaz** appears in his capacity as a public official, Internal Control and Central Archive Facilitator of the Hospital Monseñor Sanabria, to request that he be recognized as an active coadjuvant in this unconstitutionality action, as he considers himself affected by the challenged regulatory provisions, and he points out that, due to his condition as a public official and in the face of potential promotions, his economic income will be harmed.

**9.-** **Marvin Atencio Delgado** appears in his capacity as **general secretary of the Sindicato de Profesionales en Ciencias Médicas de la Caja Costarricense de Seguro Social e Instituciones Afines (SIPROCIMECA)**, through a document filed with the Secretariat of the Chamber on April 9, 2019, and requests that his represented party be considered an active coadjuvant in this unconstitutionality action. The union organization he represents fully adheres to the arguments put forth by the plaintiff and believes that the challenged provisions contravene the principles of due process, freedom of collective bargaining, non-retroactivity of the law, and respect for consolidated legal situations. It requests that the unconstitutionality action be declared with merit in all its aspects.

**10.-** **Álvaro Adrián Madrigal Mora**, in his capacity as **Secretary General of the Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN)**, appears through a document delivered to the Secretariat of the Chamber on April 10, 2019, to request that his represented party be considered an active coadjuvant in this unconstitutionality action.

Regarding the payment of severance pay (auxilio de cesantía), he states that the reform contained in Law No. 9635 did not consider the latest reform to the Worker Protection Law, which stipulated the right to severance pay (auxilio de cesantía) as an effective right for workers without being subject to a limit of years, as provided by Article 8 of Law No. 7983. Therefore, in his opinion, the provision contained in Article 3 of Law No. 9635, which added Article 39 of Law No. 2166, and Transitional Provision XXVII challenged herein, would also be contrary to Article 7 of the Political Constitution. This is because the ILO Conventions are a higher authority over the ordinary laws of Costa Rica, in which it has been established that collective bargaining, labor relations in the public administration, and the right to unionize are acquired rights; he recalls that Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. In the same terms are Conventions 151 and 154 of the ILO. Neither the Legislative Assembly nor the Constitutional Chamber can disregard such conventions because they are clear in stating that collective bargaining is permitted for public sector workers and that it will enjoy independence from the authorities (Articles 7 and 48 of the Political Constitution). Through the different laws enacted in the country, the legislative will can be inferred that the right to severance pay (auxilio de cesantía) applies not only in cases of dismissal with employer liability, but also in relation to retirement, old-age pension, death, or withdrawal granted by the CCSS or the various pension systems of the Branches of Government, the TSE, the autonomous institutions, semi-autonomous institutions, and the municipalities. In labor law, one starts from a right of minimums, so higher ceilings can be established, adjusted to the principles of reasonableness and proportionality. He indicates that the arguments raised in the unconstitutionality action regarding severance pay (auxilio de cesantía) are fully applicable to the workers of the Universidad Nacional, where, by way of a collective bargaining agreement, the ceiling for severance pay (auxilio de cesantía) has been fifteen years, and this remains in force in the recently extended IV Collective Labor Agreement UNA-SITUN, with a progressive and staggered increase up to twenty years as the maximum ceiling, with its full application as of the year 2017. He indicates that with the regressive reform introduced to the Labor Code through the Worker Protection Law No. 7983 of February 2000, workers in both the public and private sectors saw the proportion to be paid for severance pay (auxilio de cesantía) reduced, as a calculation table was established that worsens the benefit, according to the provisions of Article 29 of the Labor Code.

On the other hand, regarding the incentive of service-based pay increments (anualidades), he states that this is closely linked to the recognition of time served in the public sector, which, in the case of the UNA, is a salary supplement called service-based pay increment (anualidad) that, at that date, constitutes 4% of the base salary for each year worked for the institution and is dissociated from any type of annual evaluation, having been included through salary negotiation in the various collective bargaining agreements. He argues that the importance of the permanence and experience of workers has also been recognized in other public higher education institutions, and therefore the collective bargaining agreement recognizes it for all its academic and administrative workers. But it is also included in the Convenio de Coordinación de la Educación Superior Universitaria Estatal de Costa Rica, signed by the four rectors of the state universities. The objective that originates and sustains this recognition is the permanence and experience in the public sector, as opposed to the private sector, because the ends or objectives of both are not the same: private activity promotes profit and utilities for a reduced group of business owners, while the public sector seeks the development of state institutions with the objective of public service. Therefore, permanence and experience in the latter seek to provide the service in the most optimal way possible and the recruitment of better-trained and qualified human resources. It is irrational and disproportionate that the same fixed nominal, invariable amount has been set for the entire salary scale, as this is a set of differentiated categories, since each job or position has a profile and other elements that assign it a specific, diverse salary according to the volume and responsibilities of the position. The provision of the challenged Article 50 affects the acquired rights of public sector workers because no differentiation is established between those who are already incorporated and acquired their right to a service-based pay increment (anualidad) in percentage form, and now, suddenly, it is intended to transform this into an invariable fixed nominal sum, which is a direct impact on the salary that undermines the principle of salary protection as a fundamental component of the employment relationship with the State as employer. Transitional Provision XXXI permanently complements what is provided in the challenged Article 50 by establishing the percentages that will later define the fixed nominal amounts of the service-based pay increment (anualidad), which, by being frozen over time, will lose their real value, implying discrimination in relation to the differences in the percentages that existed (1.94% and 2.54%) and which are now intended to be calculated on a base salary from a date prior to the effective date of Law No. 9635. The reform made in Article 57, subsection l) is discriminatory in relation to the fixed application that will be made in the first half of June, since for people whose service-based pay increment (anualidad) is due from January to May, it will be delayed, while for those due from July to December, it will instead be advanced, which will generate a payment for them that does not yet correspond, and if this second group ceases their work, it creates a problem for the public treasury; a situation that will also affect interim workers, so some will be more benefited than others. This also intends to discourage people from seeking to improve their training and achieve temporary or permanent promotions, since it prevents the revaluation of already recognized incentives, disregarding the fact that the service-based pay increment (anualidad) is a salary concept that applies to the worker and not to the job or position, but it also generates legal uncertainty in the entire salary administration system of the public sector, evidencing a setback in salary policy and the system of economic incentives for public sector workers. The challenged Articles 54, 55, and 56 violate the right to collective bargaining and collective bargaining agreements in the public sector. Article 54 is ambiguous and indeterminate because it refers to "any other," which implies it refers to incentives or compensations, making it an *apertus* clause, harmful to legal certainty and the principle of legality. Article 56, for its part, is ambiguous because it refers to incentives "remunerated" on the date of entry into force of the law, applied in the future, which is strange because if they were remunerated, they cannot be applied in the future, so it seems that instead of "remunerated," it should have said "approved," since each public sector worker has in their individual file an approval document for all these incentives, compensations, and service-based pay increments (anualidades), so their modification must be made individually and with notification of the resolution so declaring it.

Transitional Provision XXXVI is ambiguous and indeterminate because it is not clear whether the alleged transitional obligation to denounce collective bargaining agreements is for the first opportunity or whether it must be applied indefinitely into the future each time the validity period of a collective bargaining agreement expires, with which the provision would no longer be transitional but would become substantive and permanent, thereby limiting the right to collective bargaining by conditioning one of the parties to denounce. This right is also limited as a fundamental right and is subjected to what the law establishes, but it does not say which law it refers to, whether it is Law No. 9635 or Law No. 2166, since it is in a law that amends another law. He recalls that in the event that a collective bargaining agreement is denounced and cannot be renegotiated, the rights and benefits contained in that and previous agreements are incorporated into the subjective and individual rights of each worker of the institution through their employment contract. To subject all collective bargaining to regulations issued by the Executive Branch is very dangerous for union freedom and the freedom of collective bargaining, because arbitrary abuses could occur by the rulers of the day to intend to limit the right to collective bargaining in the public sector through decrees, directives, or any lower-ranking provision that, in a dictatorial manner, is intended to be imposed on the union conglomerate of the public sector, losing the legal certainty that exists in the legal system. He points out as an example of this the Executive Decree No. 41654-MIDEPLAN-H, called Reglamento del Título III de la Ley de Fortalecimiento de las Finanzas Públicas referente al Empleo Público, with which, in his opinion, a series of abuses by the Executive Branch begins to be experienced by including a series of "definitions" based on the current interest of the Executive Branch and not on reality.

The second paragraph of Transitional Provision XXXVI contravenes, in addition to what was stated by the plaintiff, Articles 7 of the Political Constitution, 7, 23, and 25 of the Universal Declaration of Human Rights (UDHR), 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and 22 of the International Covenant on Civil and Political Rights (ICCPR). The correct dimension that the right to collective bargaining, which is of constitutional rank, must acquire in the case of the public sector is not that of a total curtailment for the servant as intended by the challenged regulations, but rather that its exercise is subject to certain limitations in consideration of the observance of the legal system, the limits of public spending, and the regulations that exist on the matter. If transitional provisions are part of temporary law because their objective is to resolve conflicts in the laws on a transitional basis, with the purpose of providing different and exceptional legal treatment, the legislator cannot pretend that such a provision be applied indefinitely in the transitional provisions challenged in this unconstitutionality action, since severance pay (auxilio de cesantía), the service-based pay increment (anualidad), and the denunciation of the collective bargaining agreement are not temporary issues, because the matters sought to be regulated are of an indeterminate nature. Therefore, although it is not appropriate, these transitional provisions will continue to be applied throughout the entire validity of the law, which distorts their objective. With the second paragraph of the challenged Transitional Provision XXXVI, the principle of non-delegability of state functions is also violated because the Legislative Assembly has sought to delegate certain of its own functions to the Executive Branch, and the latter, in turn, with the cited Executive Decree No. 41654-MIDEPLAN-H, to substitute the Constituent Assembly and the Legislative Assembly by interpreting and expanding the application of the contents of Title III of Law No. 9635 to public universities and the CCSS. It requests that, by connection, the constitutionality of Executive Decree No. 41654-MIDEPLAN-H, published on February 18, 2019, and particularly Article 3, be reviewed. It concludes by requesting that its represented party be recognized as an active coadjuvant and that the unconstitutionality action be declared with merit in all its aspects.

**11.-** Through a document filed with the Secretariat of the Chamber on April 10, 2019, **Róger Muñoz Mata** appears in his capacity as **Secretary General of the Unión de Empleados del Banco de Costa Rica (UNEBANCO)** to request that his represented party be admitted as an active coadjuvant, as it has a legitimate interest given that the amendment to the Salary Law of the Public Administration (LSAP) No. 2166 included, within its scope of regulation, the decentralized administration, i.e., autonomous institutions, semi-autonomous institutions, public enterprises of the State, and municipalities, with which the state banks became incorporated, which originally were not included within the coverage of that Salary Law, but which now, at the mercy of Law No. 9635, are subject to the provisions of Chapter III and following contained in Title III of that law. Therefore, his represented party has a legitimate interest in this process in protection of the collective interest of its members and the workers of the Banco de Costa Rica (BCR), since the provisions challenged in this action regarding severance pay (auxilio de cesantía), service-based pay increments (anualidades), incentives, salary compensations, and others, are relevant for the workers he represents because they are rights recognized to his members, regulated in the provisions of the collective agreement or in regulatory provisions, which are being affected by those legal provisions that harm their acquired rights and consolidated legal situations, whose protection is the responsibility of his represented party under Article 60 of the Constitution.

The challenged provisions directly impair the right of collective bargaining, not only regarding the specific regulation of the indicated salary items, but also the substantive nature of the right of collective bargaining as well as its essential content in the entire public sector, and the right of the union it represents in view of the upcoming negotiation of the current collective agreement, since the principle of collective autonomy is being undermined.

Art. 39 and Transitory XXVII are unconstitutional because the cut to the severance pay (auxilio de cesantía) to a maximum amount of eight years is incompatible with the evolution that the development of that right has had in Costa Rica and violates the principle of progressiveness of fundamental rights, substantive due process, collective bargaining, and is openly discriminatory against unions. Art. 26 of the ACHR provides that the States Parties undertake to adopt measures to progressively achieve the full effectiveness of the rights derived from the economic, social, and educational, scientific, and cultural norms contained in the Charter of the Organization of American States (OAS), which has a positive dimension implying that States are committed to progressively developing economic, social, and cultural rights aimed at their full effectiveness and universal satisfaction, but also a negative dimension that implies the irreversibility of the agreed protection, that is, the prohibition of any legislative measure that impairs or worsens a favorable legal situation recognized for individuals. In the specific case, the questioned norms, instead of developing and strengthening severance pay (auxilio de cesantía) as appropriate, impair that right and, instead of promoting the maximum effectiveness of that right, impose regressive regulation, incompatible with the principle of progressiveness.

They violate reasonableness and proportionality because the regression of eight years lacks any basis and that *ex lege* cap bears no equivalence or proportional relationship to the average career length or employment seniority of public servants.

The abrupt reduction of the cap on severance pay (auxilio de cesantía) could have unfavorable effects on the management of public services because it discourages the permanence of the public servant in the Public Administration, even though it facilitates the accumulation of experience that will ultimately translate into better management of public services. It also fosters discrimination and inequality between unions and solidarity associations because the latter have more benefits in this matter. The principle of collective autonomy contained in constitutional art. 62, which authorizes the negotiation of collective labor agreements in the public sector, is violated; a numeral that fulfills the function of the principle of constitutional legality by virtue of which collective labor agreements are recognized at the highest hierarchical level of the legal system, including agreements in the public sector. The recent reform to the Labor Code via Law No. 9343 recognizes the right of collective bargaining in the public sector, but the challenged regulations restrict or prohibit it, meaning there is an absolute prohibition against negotiating rules for severance pay (auxilio de cesantía) different from those stipulated in challenged art. 39. Transitory XXVII, together with the cited Art. 39, violate the principle of non-retroactivity of the law because they undermine the right of individuals to have recognized the severance pay (auxilio de cesantía) corresponding to the years they had accumulated on the date the law took effect, regardless of whether the right is recognized in a collective agreement, law, or any other source of the legal system, which violates a consolidated legal situation that cannot be ignored by a new law. In relation to Transitory XXXI, it states that it could never be argued that the seniority bonuses (anualidades) that public servants had accumulated on the date the new law took effect could be subjected to it, because that would be incompatible with the principle of non-retroactivity of the law. Similarly, it is contrary to this principle that the new form of calculation and payment of those seniority bonuses (anualidades) be applied with that new legal regime to the detriment of consolidated legal situations, and therefore it considers that they must continue to be paid on a percentage basis, as was done. That Transitory XXXI could be reasonable if the legislator had configured a framework of determined duration in time for it and had issued it as an extraordinary and temporary measure, but not indefinitely as it was enacted. The modification of the calculation parameter for the seniority bonus (anualidad) to an absolute amount is neither reasonable nor proportional, and furthermore, it lacks technical reasonableness by starting from differentiated percentages, depending on whether they are professional or non-professional classes, in the order of 1.94% or 2.54% respectively, without technical basis and violating free collective bargaining by not allowing another calculation modality to be proposed. Since the regulation of art. 50 did not stipulate any transitory provision, the conversion in the way of calculating incentives should not apply to public servants who were providing their services when the law was enacted, so that any other interpretation would be manifestly contrary not only to the text of the legal provision itself, but openly irreconcilable with the principle of non-retroactivity of the law, which could not have constitutional support.

Art. 57 subsection l) denaturalizes the seniority bonus (anualidad), which is intended to remunerate an annual period of work, meaning that the recognition of the seniority bonus (anualidad) in June of each year lacks all logic and proportionality, in addition to eliminating the recognition of time worked in the public sector, contrary to the principle of the single public employer (principio de patrono público único).

It concludes that the second paragraph of Transitory XXXI injures the principle of collective bargaining because it imposes the obligation that agreements be subject not only to provisions of this law, but also to any other regulation of the Executive Branch.

It requests that the unconstitutionality action be declared with merit in all its respects.

**12.-** Through a brief filed on April 12, 2019, **José Luis Soto Rodríguez, general secretary of the Unión del Personal del Instituto Nacional de Seguros (UPINS)**, filed a petition for active joinder (coadyuvancia activa) and considers that the claimants are correct, such that the challenged norms are openly unconstitutional.

His represented party has initiated ordinary labor proceedings in the Labor Court of the II Judicial Circuit of San José, processed under case files No. 19-000479-0166-LA and No. 19-000580-0166-LA, which aim at the recognition of the norms contained in the collective agreement of the Instituto Nacional de Seguros (INS) and UPINS and the consolidated legal situations of the workers of INS and the Bomberos de Costa Rica.

In advisory opinion No. 2018-019511, which addressed the constitutionality consultation on the draft of what is now Law No. 9635, the Constitutional Chamber stated that both the Political Constitution and the ILO conventions protect the right to free collective bargaining; therefore, limiting collective agreements by means of a law, forcing the parties to reform what was stipulated therein or imposing the regulations of Law No. 9635, is unconstitutional because it renders the fundamental right to free collective bargaining devoid of content. With the entry into force of the challenged norms, not only is the possibility of negotiating rights through collective agreements being limited, but, as indicated by the PGR in its pronouncement No. C-060-2019, the Government is forcing administrations to apply what is stipulated in Law No. 9635 as well as what it modified in the LSAP, which nullifies the norms contained in collective agreements, without them being expressly repealed. It recalls that collective agreements have the force of law, which allows both the institution and the unions to have the legal certainty that what was agreed upon will be fulfilled, and therefore, the challenged norms cannot limit or tacitly repeal the rights contained in a norm of a collective agreement without distorting its nature. The challenged norms are unconstitutional because they also contravene the provisions of arts. 188 and 189 of the Constitution, according to which autonomous institutions ‒such as the INS‒ have administrative independence and are only subject to the law in matters of governance, so it is unconstitutional for Law No. 9635 to attempt to regulate and limit their administrative independence, which violates their autonomy. It requests that the action be declared with merit with its consequences.

**13.-** Through a brief filed by **Gonzalo Francisco de Jesús Delgado Ramírez, in his capacity as president with powers of unlimited general agent (apoderado generalísimo sin límite de suma) of the Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado (UCCAEP) and Álvaro Sáenz Saborío in his capacity as special agent (apoderado especial) of that Union**, delivered to the Secretariat of the Chamber on April 12, 2019, it is requested that this guild be considered a passive joinder (coadyuvante pasivo) and asks that this unconstitutionality action be declared without merit.

Seniority bonuses (anualidades) are not a fundamental labor right, but rather a mere legislative creation subject to changes that the legislator itself can make, whether eliminating them, regulating them, and reforming them in accordance with the country's economic realities.

In the specific case, seniority bonuses (anualidades) have been growing more than inflation, which was unreasonable, disproportionate, and fiscally inconvenient. The system of annual salary increases must be similar to that of salaries in the private sector, where the increase occurs in accordance with the inflation index because, otherwise, public employees will continue to enjoy a privileged situation compared to the rest of the workers, which contradicts the principle of equality and violates the ideal of a social welfare State; a situation that has generated a disproportion in the sense that the average salary of the Public Administration is much higher than that of the rest of the country's workers. The minimum salaries of public workers must be uniform and their increase must be determined by the inflation index as an objective parameter, given that there is no supposed "constitutional right to seniority bonuses (anualidades)", as the claimants allege, and, if it existed, it should then also be given to the private worker.

They point out that the existence of seniority bonuses (anualidades) is not conditioned on the efficiency of the public employee, but rather it is a salary bonus that was paid and grew automatically for public officials, which became an annual salary increase without any criteria and without relation to inflation; therefore, its regulation, elimination, or reduction does not violate any fundamental or constitutional norm. The legislator is not obliged to grant benefits *ad perpetuam* or *sine die*, because society's needs are changeable, so that legislation that was beneficial for the community at one time may need to be changed or even abolished, if the situation so demands. The salary scale, based on hierarchy and responsibility, is justified by objective parameters, which is why it is reasonable that the system for recognizing seniority bonuses (anualidades) varies in accordance with the official's hierarchy, the complexity of their technical capabilities, so that there is equity in the remuneration, which does not violate the principle of proportionality because, unlike the private employee, the only way to establish scales and differences in the prerogatives and obligations of public servants is through law. The challenged norms do not imply any obstacle to access to public positions by merit, as the claimants allege, establishing inequalities between old and new workers, as there are other objective technical criteria, parameters, and measurements of suitability for the exercise of public positions, such as evaluations under the different regimes, credentials, qualifications, experience, or academic degrees, which has nothing to do with the seniority regime. The challenged legislation does not contravene substantive due process because what it intends is to impose a relationship of greater equity and justice with private workers, since, as is known, seniority bonuses (anualidades) are a perk or a privilege that is circumscribed to the public sector, which introduces a hateful situation in the entirety of the labor regime and the Social State, which is why well-known situations occur, such as the fact that a worker in a private company sometimes receives a tenth of what a public sector worker receives for doing the same job. The challenged norms do not attack the principle of public efficiency, since seniority bonuses (anualidades) have no relation whatsoever to an objective system of qualification and merit that would suggest that seniority bonuses (anualidades) affect the efficiency of the public service system. Norms can be varied as long as parameters such as the hierarchy of norms, competence, the body producing the norm and its competence, and respect for the non-retroactivity of rights acquired by law are respected, all of which they consider has not been violated in the challenged regulations, because those that arise or are born from collective agreements, regulations, or simple statutory regulations cannot be considered consolidated legal situations or acquired rights, insofar as they are objective situations, so in this case, what the legislator did was simply modify, for the future, objective situations created by previous laws. The Chamber has been reiterative in its jurisprudence stating that the relationship between public servants and the State is of a statutory nature, so it is not possible to obtain benefits from collective agreements signed in the state sphere since that prerogative is limited only to public enterprises and economic services of the State, governed by private law in accordance with Public Administration legislation, so acquired rights derived from benefits obtained from collective agreements for State servants cannot be claimed. If the negotiation of collective agreements between State servants is prohibited, then it cannot be invoked that the challenged norms violate the freedom of collective bargaining; therefore, the amounts of the severance pay (auxilio de cesantía) payment can even be modified without transgressing the freedom to negotiate collective agreements. SEBANA makes the mistake of considering that any norm that grants some benefit is by itself immutable and cannot be reformed, but forgets that only subjective situations are protected by the non-retroactivity of the norm. In the present case, acquired rights essentially refer to those that already belong to one's personal patrimony, so the legislator can indeed vary the regulations regarding potential future rights, because those are not acquired rights, but rather one more expectation. The challenged regulations do not injure any right of the solidarity associations, since they are subsequent to the Ley de Asociaciones Solidaristas, thus fulfilling the same principle in the sense that the legislator can approve subsequent laws that modify the regulatory reality. The international conventions of the ILO have a lower rank than the Constitution, so they cannot contradict constitutional numerals 191 and 192. Finally, the challenged regulations are not unconstitutional and therefore they ask that this unconstitutionality action be declared without merit.

**14.-** Through a brief filed on April 12, 2019, **Luis Gerardo Chavarría Vega, in his capacity as general secretary of the Unión Nacional de Empleados de la Caja y la Seguridad Social (UNDECA)**, appears and requests that his represented party be considered an active joinder (coadyuvante activo) in this unconstitutionality action.

The challenged art. 39 and Transitory XXVII are unconstitutional for several reasons; first, due to the cap imposed on the severance pay (auxilio de cesantía) to a maximum of eight years, which is totally incompatible with the evolution that the development of that right has had in Costa Rica and which implies a violation of the principle of progressiveness of fundamental rights, of substantive due process, of the right to collective bargaining, and because it is discriminatory against unions. The purpose of constitutional numeral 63 is to protect workers who lose their employment as a result of a dismissal without just cause, but that numeral does not prohibit that the worker be recognized the severance pay (auxilio de cesantía) in other circumstances. It points out that due to the historical evolution of the institute of severance pay (auxilio de cesantía) in Costa Rica, it does not have an exclusively compensatory nature because it was also recognized when the worker retires or receives a pension, thus configuring itself as an expectation of right without being of a reparatory nature; a situation that, hand in hand with the enactment of the Ley de Asociaciones Solidaristas, broke the minimum cap established in art. 29 of the Labor Code, with the challenged art. 39 and the corresponding Transitory violating this historical evolution of severance pay (auxilio de cesantía), consolidated as a personal, indisputable right of the worker, which is not subject to arbitrary caps, in addition to being considered disproportionate, because a public official, to consolidate the retirement right, needs to be at least 62 years old ‒men‒ and 60 years old ‒women‒, with a number of contributions equivalent to no less than thirty-eight years of service. A cap of eight years like the one imposed by the challenged regulations is left totally mismatched and devoid of all reasonableness and proportionality. The abrupt reduction of the cap on severance pay (auxilio de cesantía) could have unfavorable effects on the management of public services, because it discourages the permanence of the public servant in the Public Administration, whose continuity facilitates the accumulation of experience, with this new cap leaving unions in a situation of discrimination compared to solidarity associations because, while a cap of eight years is imposed on collective agreements, the employer contributions corresponding to workers affiliated with solidarity associations have no limit or cap; and in turn, they violate the principle of autonomy and collective bargaining as well as the principle of non-retroactivity of the law.

Regarding challenged art. 50 and Transitory XXXI, the new rule established for the payment of the seniority bonus (anualidad) incentive should not apply to public servants who were working on the effective date of Law No. 9635 and, therefore, it could not be argued that the seniority bonuses (anualidades) that public servants had recognized and accumulated on the date the law took effect can be subjected to the new rules, meaning that an interpretation of this type would be unconstitutional as it violates the principle of non-retroactivity of the law to the detriment of the acquired rights and consolidated legal situations of those public servants, to the detriment of the seniority bonuses (anualidades) accumulated as of the effective date.

Transitory XXXI violates the principle of necessity, proportionality, and reasonableness, as it comes to transform the calculation parameter of the seniority bonus (anualidad) from a percentage factor to a nominal or absolute amount, which would remain invariable, that is, the amount of the seniority bonus (anualidad) is frozen *ad perpetuam*, which will mean that its real value will progressively deteriorate at the expense of inflation, deteriorating the country's economic situation.

Regarding challenged art. 54, no transitory provision was stipulated, so this differentiated treatment allows one to argue that the conversion in the norm for calculating incentives does not apply to public servants who were providing their services when said law was enacted, so seeking to interpret it otherwise would be totally unconstitutional because it would violate the consolidated legal situations of individuals who have already acquired rights under the regulations that governed those salary incentives or supplements, whether those regulations correspond to a law, collective agreement, or any other normative source of the legal system. This norm would have a devastating effect on the salary levels of public servants whose salary incentives or compensations would remain frozen.

In relation to art.

55 challenged, argues that it was determined that it was not unconstitutional as long as it is understood as the Constitutional Chamber interpreted it, and the challenged art. 56 is not in itself unconstitutional because it can be interpreted as constituting a kind of general safeguard clause for the acquired rights and consolidated legal situations of public servants, whose scope permeates all the provisions contained in Title Three and the corresponding transitory provisions of Law No. 9635.

Art. 57, subsection l) distorts the annual bonus (anualidad) whose purpose is to remunerate an annual period of work, so that its recognition in June of each year lacks all logic and proportionality, and eliminates the recognition of time worked in the public sector, contrary to the principle of the single public employer.

It concludes that in relation to Transitory Provision XXXI, its second paragraph violates the principle of collective bargaining because it imposes the obligation that collective bargaining agreements be subject not only to the provisions of this law, but also to any other regulation of the Executive Branch. It ends by requesting that the action filed be declared with merit.

**15.-** By resolution at 09:54 hrs. on **April 25, 2019**, the Presidency of the Constitutional Chamber made two warnings:

“Prior to resolving the requests for joinder, the petitioner Marvin Atencio Delgado, identity card number 6-0178-0481, in his capacity as General Secretary of the Union of Professionals in Medical Sciences of the Costa Rican Social Security Fund and Related Institutions (SIPROCIMECA), is warned that he must provide the current legal status (personería jurídica) of the union he represents, accrediting the capacity he claims to hold with respect to that entity. Likewise, Álvaro Adrián Madrigal Mora, identity card number 1-0675-0987, in his capacity as General Secretary of the Union of Workers of the National University (SITUN), is warned that he must resubmit the document filing his joinder, since the digital document contained in the file is incomplete (folio 58 is missing).” **16.-** By resolution at 13:10 hrs. on **May 2, 2019**, the Presidency of the Chamber made the following warning:

“Prior to resolving the request for joinder, the petitioner Juan Carlos Chaves Araya, identity card No. 107210335, in his capacity as General Secretary of the Union of Workers of the Banco Popular y de Desarrollo Comunal (SIBANPO), is warned that he must provide the current legal status (personería jurídica) of the union he represents, accrediting the capacity he claims to hold with respect to that entity.” **17.-** By resolution at 09:29 hrs. on **May 8, 2019**, the Presidency of the Chamber resolved the following:

i. The following are admitted as passive coadjuvants: Messrs. Enrique Egloff Gerli in his capacity as president of the Costa Rican Chamber of Industries Association and Álvaro Sáenz Saborío in his capacity as special attorney-in-fact of the Costa Rican Union of Chambers and Associations of the Private Business Sector, because their interest is that this unconstitutionality action be declared without merit; ii. Messrs. Juan Carlos Chaves Araya in his capacity as general secretary of SIBANPO, Miguel Ernesto Carranza Díaz as a public official, Marvin Atencio Delgado in his capacity as general secretary of SIPROCIMECA, Álvaro Adrián Madrigal Mora as general secretary of SITUN, Róger Muñoz Mata in his capacity as general secretary of UNEBANCO, José Luis Soto Rodríguez in his capacity as general secretary of UPINS, and Luis Gerardo Chavarría Vega as general secretary of UNDECA, are admitted as active coadjuvants, since their interest is that this action be declared with merit; iii. The hearing granted to the PGR was deemed responded to; and iv. The action is assigned to the reporting magistrate who, by rotation, corresponds to its substantive study.

**18.-** On **March 22, 2019**, unconstitutionality action **No. 19-004931-0007-CO** was filed by Mr. **ALBINO VARGAS BARRANTES**, in his capacity as **GENERAL SECRETARY and JUDICIAL AND EXTRAJUDICIAL REPRESENTATIVE of the NATIONAL ASSOCIATION OF PUBLIC AND PRIVATE EMPLOYEES (ANEP).** The arguments were as follows:

“1.- **\underline{Article 26 added to Law No. 2166.}** It harms the principle of municipal autonomy and constitutional articles 11, 169, 170, and 188. This rule was created with the idea of cushioning public spending, sustained by the Government's crisis, and despite dealing with a Central Government situation, including decentralized institutions and autonomous entities in general within its application, as is the case with municipalities within the scope of this Law, violates articles 11, 169, 170, and 188 of the Political Constitution regarding their autonomy. The challenged rule violates normative, administrative, and tax autonomy. Additionally, with challenged article 26, the Executive Branch is being granted powers of direction and administration over decentralized and autonomous institutions, which are limited by constitutional provisions.

2. **\underline{Article 28, paragraphs 2 and 4, as well as Article 6 of Regulation No. 41564-MIDEPLAN-H,}** indicates that it harms the principles of autonomy, legal certainty (seguridad jurídica), reasonableness and proportionality, progressivity of rights, and autonomy of will, as well as the content of constitutional article 28. The challenged rule is unconstitutional insofar as it imposes on public institutions in general, and mainly on autonomous and decentralized ones, an obligation to sign contracts for exclusive dedication (dedicación exclusiva) for a specific time period set in this Law, violating the institutions' autonomy to decide under what terms, according to their interests and particular conditions, and for how long (duration of the contract), they may sign this type of contract with their collaborators. Establishing in this article the obligation to sign exclusive dedication contracts within the stated time range (from one to five years maximum) also makes it impossible, through specific rules such as collective bargaining agreements or internal work regulations, to establish more beneficial rules for the worker or rules more in line with institutional needs, which harms the principles of progressivity of labor rights and the protective principle of labor law. In relation to the principle of progressivity, it points out that it is an interpretive principle according to which rights cannot diminish; therefore, by only being able to increase, they progress gradually. Regarding paragraph 4 of the rule, it has defects of unconstitutionality insofar as it violates the principle of legal certainty (seguridad jurídica), by establishing in an ambiguous manner the express prohibition for officials who, without having an exclusive dedication contract or receiving financial compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over public interest.

3.- **\underline{Article 30 and Article 7 of Regulation No. 41564- MIDEPLAN-H,}** argues that it violates the principles of legal certainty (seguridad jurídica), reasonableness, the protective principle, and non-regressivity of labor rights, as well as constitutional article 34. Both rules contain defects of unconstitutionality insofar as they represent a regression of rights and guarantees for the most vulnerable party in the employment relationship, which is the worker. The fact that through these regulatory provisions a situation of juridical uncertainty is generated for officials whose contracts have not been renewed, including those contracts signed before the entry into force of Law 9635, and by prohibiting the automatic renewal (prórroga tácita), a situation of disadvantage and uncertainty is created, violating the protective principle.

4.- **\underline{Article 31, subsection 1)}**, argues that it harms the principles of legal certainty (seguridad jurídica) and equality, and constitutional article 33. The rule does not include, within the positions that could be subject to the payment of the salary supplement (sobresueldo) for exclusive dedication and prohibition, all possible forms of contracting within the Public Administration. The provision, to the extent that it establishes a numerus clausus of persons who may be subject to the payment for exclusive dedication and prohibition within the Public Administration, generates a clear inequality and a situation of juridical insecurity in relation to other officials, whose categories are not contemplated.

5.- **\underline{Articles 32 and 33 added to Law No. 2166}**, violates the principles of legal certainty (seguridad jurídica), equality, reasonableness and proportionality, and the prohibition of arbitrariness, and constitutional article 33. Establishing limitations such as those indicated in articles 32 and 33 creates a clear situation of inequality between officials who have an exclusive dedication or prohibition contract and therefore receive the corresponding payment, versus officials who do not have this salary incentive, and yet the State prohibits them from practicing their profession, according to the cited rules, which is clearly unconstitutional.

6.- **\underline{Articles 35 and 36 added to Law 2166, violate the principles of progressivity of rights, equality, efficiency and effectiveness, reasonableness, proportionality, and constitutional articles 7, 33, 50, 56, and 57.** The new recognition percentages for salary supplements (sobresueldos) for exclusive dedication and prohibition under less beneficial conditions harm the principle of progressivity of rights, pointed out previously. The approved regulation worsens working conditions within the public sector, justified by the country's poor fiscal situation, which cannot be permanent. However, the approved reforms do not foresee that the workers' situation will change if the country's economic situation recovers, so that becomes a permanent sanction. The new compensation rules for public officials harm the principles of progressivity of rights and of efficiency and effectiveness in the Public Administration. This will generate, in the short term, an exodus of experienced professionals, as there are no attractive salary conditions to keep them within the system. This, compounded by the freezing of other salary supplements (sobresueldos) such as annual bonuses (anualidades) and other incentives, will have a direct impact on the efficiency and effectiveness of the function performed by the Administration. The reduction applied to the salary supplements for exclusive dedication and prohibition is irrational and lacks a technical study that could support that impairment of working conditions, without there being certainty that it is the cause of the country's fiscal problem, when it has been pointed out that the causes of the fiscal deficit derive from more complex problems such as tax evasion and avoidance. In the near future, there will be officials performing the same or similar functions, but receiving a totally different income. The set of rules challenged in this section makes it clear that the law's purpose of "standardizing and unifying" public employment regimes is false, and that the State is creating gross and unjustified differences between officials of the same category, promoting the violation of the constitutional principle of equality.

7.- **\underline{Article 39 added to Law No. 2166, indicates that it harms the principles of collective bargaining, rationality, proportionality, progressivity of rights, and most beneficial condition, as well as constitutional articles 33 and 62.** This provision closes the possibility for the public sector to sign collective bargaining agreements, which have the force of law between the parties, which harms constitutional article 62. The challenged rule harms not only the right to collective bargaining, but also the acquired rights and consolidated legal situations of officials who, at the time the rule entered into force (December 3, 2018), had already acquired working conditions that cannot be affected. Furthermore, this provision ignores the fact that there are collective bargaining agreements and regulations or statutes that already contain provisions regarding the payment of incentives or compensations on a percentage basis.

Collective bargaining (negociación colectiva) is a fundamental right contained in Article 62 of the Political Constitution, such that the possibility of negotiating better working conditions between the parties signing a collective bargaining agreement (convención colectiva) is a fundamental right that must be protected. Expressly prohibiting the possibility of negotiating a higher cap on severance pay (auxilio de cesantía) through a mutual agreement limits not only the right to collective bargaining, but also the possibility of obtaining better working conditions for public employees, thereby emptying it of content. Article 7 of the Political Constitution establishes that international treaties and conventions have authority superior to laws. In turn, union freedom (libertad sindical) is a right contained in Article 16 of the American Convention, in Article 8 of the Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador; also in Article 23 of the Universal Declaration of Human Rights, and Article 22 of the American Declaration of the Rights and Duties of Man and, therefore, must be observed in Costa Rica. Convention 87 of the International Labour Organization, called “Convention concerning Freedom of Association and Protection of the Right to Organise”, duly ratified by Costa Rica, establishes the obligation of the Costa Rican State to put into practice the provisions of said convention. The challenged Article 39 injures Article 4 of that convention, which orders that the State must procure and promote collective bargaining and not limit or hinder it, and recognizes that the collective bargaining agreement is the quintessential mechanism for improving employment conditions through social organizations. The fact that the country's economic situation is difficult does not make collective bargaining unconstitutional.

**8.- Article 40 and Article 16 of Executive Decree No. 41564-MIDEPLAN-H, it is estimated that it injures municipal autonomy (autonomía municipal), as well as the principles of efficiency and effectiveness, legal certainty (seguridad jurídica), the constitutional right to collective bargaining, the progressiveness (progresividad) of labor rights, and the protective principle of labor law.** The norm constitutes unconstitutional interference by the State, by affecting the possibilities of self-government possessed by the Municipal regime. It is a prohibitive norm that eliminates the possibility for local governments to determine their own needs and possibilities in salary matters and establish incentives for work personnel to remain in their jobs. It violates the principle of progressiveness of labor rights, as it causes regression in some institutions that already pay the quinquennium (quinquenio) incentive, whether by legal means (Article 90, subsection c) of the General Police Law, Article 27 of the Legislative Assembly Personnel Law) or regulatory means (Articles 99 and 100 of the Autonomous Regulation of the Costa Rican Tourism Institute) or through collective bargaining (Junta de Protección Social de San José).

9.- **Article 46 added to Law No. 2166 and Article 22 of Executive Decree No. 41564-MIDEPLAN-H, injure municipal autonomy and that of decentralized entities in general, as well as the constitutional principles of efficiency, effectiveness, and legal certainty.** The unconstitutionality of the norm is evident, insofar as, in relation to Article 26 of Title III of Law No. 9635, it grants powers to the Central Administration, through the Ministry of Planning, to “define the guidelines, and the administrative regulations that tend towards the unification, simplification and coherence of public sector employment, ensuring that public sector institutions respond adequately to the defined objectives, goals and actions.” This constitutes a very clear intrusion into the administrative, policy, and organizational powers of the decentralized entities, in direct violation of the three degrees of autonomy that the Constitution and the laws of creation have granted to each of those administrations, stripping them of their power of self-administration. Each of the decentralized entities is a distinct legal entity, with a specific legal purpose and which attends to concrete needs established by law. For this, they are assigned a budget, which in many cases is their own because it comes from taxes created for their benefit or from a commercial activity. On the other hand, the Ministry of Planning is alien to the reality of each institution and the community or public interest it serves, despite which it is granted the power to decide on multiple aspects of the public employment regime. There is also a violation of the principle of legal certainty, as the duality in regulation (decentralized regime and regulatory powers of the Executive Branch) causes a state of insecurity for the entities and their workers.

10.- **Article 47 added to Law No. 2166, injures the autonomy of municipalities and decentralized entities, as well as the principles of efficiency, effectiveness, legal certainty, equality, and prohibition of arbitrariness (interdicción de la arbitrariedad).** The norm has the same constitutional defects indicated for Article 46, as it orders the decentralized entities to apply certain evaluation methodologies, with the Central Administration interfering in the administrative powers constitutionally granted to each of the institutions, in clear violation of their administrative autonomy. The term “respective exceptions” (salvedades respectivas) is ambiguous; neither the law nor the regulation mentions what they are. The ambiguity of the norm is not coincidental but rather serves the purpose of the Executive Branch to singularly derogate a norm in favor of whomever it wishes or whichever institution it desires, acquiring power over the decentralized institutions. There is also a violation of the principle of equality and that of the Prohibition of Arbitrariness, as the Administration can disapply its own evaluation methods whenever it wishes, without objective criteria established in the law. The violation of the principle of equality derives from paragraph 1 of the norm which establishes “quantitative indicators of fulfillment of individual goals for products and services provided.” The services provided by the Public Administration are never equated with the type of services provided in the private sector, so as to establish evaluation methods of a quantitative nature.

**11.- Article 48 added to Law No. 2166, it is indicated that it also violates the constitutional principles of municipal autonomy and that of decentralized entities, as well as those of legal certainty, equality, reasonableness, proportionality, and prohibition of arbitrariness.** As with Articles 46, 37 and 48, this article constitutes an intrusion by the Central Administration into the administrative competencies of the decentralized entities. The norm, viewed in light of the referenced articles, contains arbitrary provisions. It creates a new obligation for public employees, at any level, regarding keeping the updating and day-to-day maintenance of information for their performance evaluation (evaluación de desempeño), in a computer system, under penalty of being charged with committing a serious offense. This is a new obligation that translates into more work and less time to attend to daily obligations; it also does not clarify which workers it refers to. On the other hand, it establishes that 80% of the evaluation will be measurement of goals and 20% “responsibility of the leadership”. Thus, one-fifth of the total percentage of the worker's evaluation is granted to the subjective considerations of each leadership, understanding that this 20% is the difference between the public employee obtaining or not obtaining their annuity (anualidad), granting power to the leaderships to leave their subordinates, without any visible objective criterion, without the increases for time served for as many periods as they wish.

12.- **Article 50 added to Law No. 2166 and Article 1, subsection a) of its Regulation**, injure the constitutional principles of municipal autonomy and that of decentralized entities and, with it, the principle of legality. Likewise, the principles of progressiveness of labor rights, non-retroactivity of the law, reasonableness and proportionality, prohibition of arbitrariness, and the tax principles of non-confiscation, economic capacity, and progressiveness. The State intends to render useless over time the amount paid for the concept of annuity and to empty it of content, eliminating the right to this remuneration that helps workers keep their salaries maintaining their purchasing power against the cost of living. The norm does not indicate what the designated “nominal amount” (monto nominal) is and leaves that task for the Executive to define via regulation. This violates the principle of prohibition of arbitrariness, by eliminating from the laws the percentage amounts included in the Public Administration Salary Law and providing that it changes to an undetermined nominal amount, thereby granting abusive and undue discretion to the Central Administration. This will also define the same amount for the Municipalities and decentralized entities, due to its relationship with Article 26 of Title III, which injures the constitutional autonomy established in favor of such entities. Additionally, the legislator provided for increasing the set of goods and services taxed with the value-added tax (IVA), while the increases for time served, which prevented the loss of purchasing power, are set at an indeterminate nominal amount that will only lose value over time. This translates in practice into a loss of purchasing power on the part of workers that will prevent them from consuming many of the goods taxed with IVA and maintaining their lifestyle. The consolidated legal situations of public employees who entered service before the entry into force of Law No. 9635 are being violated by the norms that reformed Article 12 of the Public Administration Salary Law and Transitional Provisions XXVII and XXXI), insofar as they establish new forms of payment, fixed amounts of annuities for all public employees, even for those who, by special norms (collective agreements, internal labor regulations, autonomous service labor regulations, agreements of Councils), etc., have another modality of payment of bonuses, incentives, annuities, quinquenniums. Although Transitional Provision 56 of the Law provides that the promulgated norms may not be applied retroactively to the detriment of workers, an inadequate analysis has been made of what should be understood by acquired right and consolidated legal situations.

13.- **Article 51 added to Law No. 2166**, for violation of the constitutional principles of reasonableness and proportionality and the rights to collective bargaining, union freedom, and the singular inderogability of regulations. It states that the purpose of the norm is to disincentivize collective bargaining, prohibiting public employees who negotiate collective agreements from benefiting from them. This constitutes a violation of Article 4 of Convention 98 of the International Labour Organization.

**14.- Articles 52 added to Law No. 2166 and 21 of Executive Decree No. 41564-MIDEPLAN-H.** It states that they injure municipal autonomy and that of decentralized entities, and the principles of legality, reasonableness, proportionality, progressiveness of labor rights, as well as the constitutional right of collective bargaining. It points out that the norm injures the administrative autonomy of the decentralized entities insofar as they are ordered how to regulate their remuneration system. Although the law foresees that the salary is not varied, it orders institutions how to administer salaries, thereby committing an abusive ius variandi. There are workers who have their obligations planned according to a biweekly periodicity, as they have received their salary this way for years. The mere change of the payment modality can entail harm to these employees. The fact that the State, through the legislator, orders these institutions to conform to this article and its transitional provision, directly violates constitutional and conventional law, by disregarding these rights of a rank superior to the legal one, causing a setback in labor rights and, therefore, equally violating the principle of progressiveness thereof. The norm is neither reasonable nor proportionate, since according to Transitional Provision XXIX there should be no decrease or increase; in this sense, there is no reason whatsoever to affect the autonomy of the entities. As there is no palpable end, the norm entirely lacks reason and proportion.

15.- **Articles 53 added to Law No. 2166 and 15 of Executive Decree No.** 41564-MIDEPLAN-H, for violation of the constitutional principles of autonomy of decentralized entities, the right to collective bargaining (negociación colectiva), the principle of equality, equal pay (igualdad salarial), legal certainty (seguridad jurídica), and suitability (idoneidad) of the public official. Article 192 of the Political Constitution provides that public servants shall be appointed based on proven suitability (idoneidad comprobada). The challenged rule represents a step backward regarding the purpose of hiring suitable officials, by providing that professional career points will only be recognized when they cover the training they receive. This constitutes a serious disincentive for State professionals to improve their academic and training conditions. Additionally, the rule causes the emergence of two types of officials: those who can invest in their own training and those who depend on the Administration investing in it. Both would perform the same functions, but the training scenario would cause them to receive different incomes, which harms the principle of equality. The training incentive could be provided in a collective bargaining agreement (convención colectiva), in which case, the rule would also harm the right to collective bargaining (negociación colectiva). Finally, the wording of the rule causes legal uncertainty (inseguridad jurídica) because its wording is ambiguous and does not allow for determining with certainty what the legislator's spirit was: whether to recognize up to five years of training or to pay only for five years.

16.- Articles 54 added to Law No. 2166 and 17 of Executive Decree No. 41564-MIDEPLAN-H for violation of the constitutional principles of municipal autonomy and that of decentralized entities, the principle of legality, progressivity of labor rights, the right to collective bargaining (negociación colectiva), reasonableness and proportionality, prohibition of arbitrariness, and tax principles of non-confiscation, economic capacity, and progressivity. Like the challenged Article 50, this rule empties of future content any existing incentive provided by legal, conventional, or regulatory norm, by freezing it nominally, subjecting it to the loss of the currency's purchasing value. This is a terrible legislative technique that harms the progressivity of rights and the autonomy of decentralized entities and that directly impacts the purchasing power of public officials, whose salary would be confiscated. The unreasonable and disproportionate relationship of what the legislator seeks is clear: higher consumption taxes and a decrease in labor rights. The harm is not only to the professional class, but also to municipal laborers, administrative police officers, etc. The legislator intends to refinance the State at the cost of Costa Ricans' rights, especially those of public officials, regardless of their salary level.

17.- Article 55 added to Law No. 2166 for violation of the constitutional principles of legal reserve, municipal autonomy and that of decentralized entities, the principle of legality, progressivity of labor rights, and the right to collective bargaining (negociación colectiva). The legislator's intention is clear, seeking that no other avenue exists for the creation of incentives other than the legislative one. This harms the right to collective bargaining (negociación colectiva) and violates municipal autonomy and that of decentralized entities, whose powers derive from the Political Constitution and the respective laws. The regulatory power in matters of administration enjoyed by lesser entities is undermined by a legal norm that intends to legislate in an extraneous field. For this reason, the principle of legality is harmed.

18.- Article 57, subsections f), g), h), i), m), n), o), and p) of Title III of Law No. 9635. Subsection f), for violation of Article 192 of the Constitution regarding the suitability (idoneidad) and tenure (inamovilidad) of public officials, as well as their job stability. The others, for violation of the principles of equality, equal pay (igualdad salarial), and subsection i) for violation of the principles of reasonableness, proportionality, and legal certainty (seguridad jurídica). Regarding subsections g), h), i), m), n), o), and p), it has already been indicated that there is evident inequality promoted by the legislator without any justification, by determining that some officials will receive a prohibition on private practice (prohibición) payment percentage of 65% of the base salary, while others, under equal conditions regarding academic level and functions, will be compensated with only 30%. Subsection i) is an ambiguous provision, contrary to the principle of legal certainty (seguridad jurídica) because it reforms Article 5 of Law No. 5867, Law on Compensation for Prohibition on Private Practice Payment (Ley de Compensación por Pago de Prohibición) of December 15, 1975. The reformed norm indicates that the compensation will be calculated on the lowest salary indicated in the Public Administration salary scale issued by the General Directorate of Civil Service. The original norm provided that such compensation would be calculated on the base salary corresponding to each institution. The objective of paying the prohibition on private practice (prohibición) percentages to professionals, using the lowest salary on the scale, violates the principles of reasonableness and proportionality, insofar as the professional is compensated for the limitation on practicing their profession with an amount that does not correspond to what said professional could obtain if they were not legally limited. As for subsection f), it reforms paragraph 1 of Article 47 of Law No. 1581, Civil Service Statute (Estatuto de Servicio Civil) of May 30, 1953. Through the reform, the legislator repealed the state obligation to indemnify the worker included in the Civil Service Statute (Estatuto del Servicio Civil). It also repealed Article 37 of that Statute to which it referred via Article 58, subsection b) of the present law. The repealed norms have a raison d'être insofar as the constituent considered it necessary to include the public employment regime within the major normative body to guarantee suitability (idoneidad) and stability. Based on the latter, the indemnity provided in Article 37 guaranteed that the administrative head could not apply the exception cases (such as reorganization), indiscriminately, to dismiss officials. The norms accused of being unconstitutional break with that purpose, and equate the public official subject to the civil service regime with any private worker. This is contrary to what the constituent intended.

19.- Regarding Articles 5 and 11 of Law No. 9635. Indicates that they harm the principle of autonomy, as they allow the Executive Branch to impose budgetary policies on all institutions without determining the degree of independence of each one. In relation to Article 11, by providing that institutions in general must determine their current expenditures, directly relating it to the central Government's debt and limiting the current expenditure of the entire public sector, without taking into consideration the reality of each autonomous institution. For its part, Article 13, subsection c) restricts the way those institutions regulate salary increases, which is a power constitutionally established in their favor.

20.- Article 15 of Law No. 9635. It harms Articles 7, 11, 50, and 74 of the Political Constitution and the principle of progressivity of fundamental rights. The Constitutional Chamber has recognized the State's obligation to respect the amounts of specific allocations (destinos específicos) established by legal norm, especially when they are aimed at financing social welfare programs, serving vulnerable populations, or fulfilling fundamental rights in general. Giving the Executive Branch the power to vary those amounts or allocations is a clear deviation of power and a serious violation of fundamental rights that the State must guarantee. The Ministry of Finance's omission of transferring special funds in such an open manner, without the norm making any exception, is irrational and violates the Law of the Constitution. It is not possible that, due to the fiscal crisis, the State ceases to meet its obligations.

21.- Articles 17 of Law No. 9635 harms the principles of autonomy and reasonableness, as well as Articles 11, 169, 179, and 188 of the Constitution. This norm violates the independence of autonomous institutions in fulfilling their purposes; it is not valid that they are ordered to pay the Central Government's debt with resources that are their own and that are destined to fulfill specific purposes.

22.- Articles 23, 24, and 25 of Law No. 9635 violate the principle of autonomy and the progressivity of human rights, according to which "...as the level of development of a State improves, the level of commitment to guarantee rights improves...". Article 23, the source of unconstitutionality invoked for the three norms, contains a list of criteria for the budgetary allocation of the Costa Rican State. The budgetary allocation places the protection of rights and their progressivity in the ninth position, behind, even, the availability of financial resources, the fulfillment of institutional goals, and the priorities of the current government. It is necessary to analyze the danger that the hierarchy of criteria poses for the population holding those human rights that, according to the list, would be financed after other commitments. The order of state priorities embodied in this law will allow any public law institution to invoke the lack of budget in order not to finance the human rights that the State is obliged to protect, or for the State to establish budgets neglecting or minimizing the fulfillment of human rights. Articles 24 and 25 are intimately related to 23, in the understanding that the National Budget Directorate must use those criteria to budget transfers to State institutions. (...) - For standing (legitimación) purposes, it indicates that it derives from Article 75, paragraph 2 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional). The law they challenge affects the interests of the community as a whole, both in its individual and collective sphere, as it contains norms of general application. It also has norms applicable to a group with a social and common interest; specifically, Title III of the Law affects the public officials of this country and their families, thereby affecting their diffuse interests. Since public officials are a more or less determined group, but who are not linked by a common legal bond to the petitioner, it is considered that this involves the defense of diffuse interests and not necessarily collective ones. Furthermore, this action is also directed against certain norms of Title I and Title IV of the same body of norms, which affect an even larger community, such as, in their case, the constitutional rights of taxpayers, those administered under the municipal regime, and the local governments themselves from their autonomy (autonomía) granted in the Political Constitution, as well as the group of public officials who work in various public institutions who are entitled to a certain level of autonomy (autonomía), as well as the exercise of fundamental and constitutional rights that, as will be stated below, are threatened by the approval of a series of norms of the Law on Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas). It states that its represented entity has among its objectives, to participate in all those decisions that affect the interests of workers in public services and private enterprise. Likewise, to intervene and show solidarity with all those problems that affect, nationally or internationally, workers in their condition as a class. The National Association of Public and Private Employees (Asociación Nacional de Empleados Públicos y Privados) commits itself, across the entire spectrum of national reality, to generating discussions and struggles for a more just, egalitarian, participatory, and supportive society, and by reason thereof, they consider themselves to have standing (legitimados) to invoke the pertinent constitutional and legal norms to achieve said objectives. The norms accused of being unconstitutional are of a general nature and affect, not only the persons affiliated with its represented entity, but every public official, affiliated or not, who is subjected to a law that violates constitutional norms and principles and their rights in the abstract. Some of these norms harm the Social State of Law, which affects an even larger community. They consider that they are within their right and their duty to take the respective actions to defend those diffuse interests that the Constitutional Jurisdiction (Jurisdicción Constitucional) must protect. Another aspect they challenge through this action is the violation of the two degrees of autonomy (autonomía) that the Political Constitution grants to local governments.

All inhabitants of the country, including its members, live in one of the 82 cantons that form the country, are subject to its regulations and the decisions of their Councils. Its organization has approximately 3,645 affiliated municipal officials, who are being affected by the provisions on public employment and the impact on the municipal regime in general, in conjunction with the expansion of the sales tax to the value-added tax, all of this contained in the articles of Law No. 9635. Moreover, the organization it represents is a signatory to several collective bargaining agreements (convenciones colectivas) in the public sector. Many of these are in decentralized entities and autonomous institutions. The application of the specific articles of Law No. 9635 renders them void of content, in violation of the constitutional, conventional, and legal regulations that protect the right to collective bargaining. The national and international regulations indicated grant unions the standing to engage in collective bargaining on behalf of workers. That legitimacy must transcend the defense of the interests of workers who are in real or potential situations of collective bargaining, who may be affected by irrationally restrictive regulations to the detriment of that right. For this reason, from the point of view of defending diffuse interests, they consider that the union it represents possesses sufficient standing to bring an action before this jurisdiction, meaning that no prior matter is necessary to allow its filing." **19.-** By a ruling issued at 10:36 a.m. on **May 24, 2019**, the Presidency of the Chamber resolved and accepted a recusal request filed by Magistrate Fernando Cruz Castro in the unconstitutionality action **no. 19-004931-0007-CO.** **20.-** In the interlocutory ruling of the Full Chamber of the Constitutional Chamber **no. 2019-010635** (*Chamber composed of Magistrates Castillo V., Hernández L., Salazar A., Araya G., Esquivel R., Salas T., Fernández A.*) issued at 9:20 a.m. on **June 12, 2019**, it was ordered that the unconstitutionality action **no. 19-004931-0007-CO** promoted by **ALBINO VARGAS BARRANTES**, in his capacity as **SECRETARY GENERAL and JUDICIAL AND EXTRAJUDICIAL REPRESENTATIVE of the ASOCIACIÓN NACIONAL DE EMPLEADOS PÚBLICOS Y PRIVADOS (ANEP)** be consolidated with no. 19-002620-0007-CO, which remained as the principal case file and is to be considered an amplification thereof. This is due to the evident connection that exists between the challenges raised in both processes and in order to avoid contradictory rulings that could affect the rights and interests of the parties involved. In said ruling, some grievances were dismissed, and the admission of the unconstitutionality action against several articles of the Law for Strengthening Public Finances was ordered. The operative part (por tanto) of the ruling reads as follows:

*"This action is flatly rejected with regard to Article 26 of Law No. 2166 and Articles 5, 11 and Transitory Provisions XXVII, XXXI and XXXVI of Law No. 9635.- Additionally, the alleged violation of the principle of autonomy is flatly rejected in relation to Articles 28, 40, 46, 47, 48, 50, 52, 53, 54, 55 of Law No. 2166, 17, 23, 24 and 25 of Law No. 9635 and Articles 1, subsection 1), 6, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H. Likewise, the violation of Articles 169, 170, 188 and 189 of the Political Constitution by way of Articles 26 and 55 of Law No. 2166, and Articles 5, 11 and 17 of Law No. 9635 is flatly rejected.* *Regarding the remaining provisions, consolidate this action with the one being processed before this Chamber under case file No. 19-002620-0007-CO and consider it as an amplification of the same."* Consequently, it is understood that through said ruling, the course of the action was expanded against the following provisions, according to the express text of the ruling *supra* mentioned:

*"The norms subject to challenge that are admissible for such purposes are **Articles 28, paragraphs 2 and 4, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o) and p), added to Law No. 2166, Title IV of the Law for Strengthening Public Finances No. 9635 of December 5, 2018, Articles 23, 24, 25 and Articles 1, subsection a), 3, 4, 7, 9, 14, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H, the latter by reason of their connection.**"* **21.-** By a ruling issued at **3:14 p.m. on September 27, 2019**, this unconstitutionality action no. 19-002620-0007 was considered amplified, under the terms set forth in action 19-004931-0007-CO consolidated with it, in the sense that articles 28, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o) and p) of Law no. 2166, articles 15, 17, 23, 24, 25, of Title IV of Law no. 9635 of December 5, 2018, and articles 1, subsection a), 3, 6, 7, 15, 16, 17, 21 and 22 of Executive Decree no. 41564-MIDEPLAN-H are also challenged, as they are considered contrary to the principles of equality, legal certainty, reasonableness and proportionality, progressivity of rights, and party autonomy.

**22.-** In a brief filed with the Secretariat of the Chamber on October 15, 2019, **Enrique Egloff Gerli**, in his capacity as **President of the Asociación Cámara de Industrias de Costa Rica**, appeared and stated that he is appearing to be admitted as a passive coadjuvant in the amplification of this unconstitutionality action that was originally processed through case file no. **19-004931-0007-CO** and has been consolidated with this case file (19-002620-0007-CO). The right to enter into collective bargaining agreements belongs exclusively to workers covered by a private employment regime and, in the case of public employees, the execution of such agreements is openly incompatible with the legal principles that inform the public employment regime. There is a possibility of signing collective bargaining agreements and direct arrangements in public entities with a private employment regime, although such negotiations cannot violate the legal limits and those imposed by governmental guidelines. The Constitutional Chamber has indicated that it is valid for workers who do not participate in the public management of the Administration to enter into collective labor agreements, so that those with a labor-nature employment regime (not public), such as State Enterprises, can indeed bargain collectively in accordance with the provisions that inform collective labor law. All norms can be modified for the future by another of equal or higher rank without this implying a violation of the principle of non-retroactivity, and those derived from collective bargaining agreements, regulations, or statutes are not considered consolidated legal situations or acquired rights, since they are norms related to objective situations and not to specific acts that do qualify as subjective legal situations. Consequently, none of the norms challenged for alleged violation of the principle of non-retroactivity of the law is vitiated by unconstitutionality because what the legislator did was to modify, with future effects, objective situations created by prior legislation. If collective bargaining agreements are prohibited in the public sector, it must be concluded that public servants cannot obtain any right under their protection because it would be unlawful and cannot have the protection and recognition of the State. He reiterates that the challenged norms are constitutionally valid, as they find coverage in article 191 of the Political Constitution, which is applicable to all organs and entities of the State. He concludes by requesting that the unconstitutionality action be declared without merit.

**23.-** By means of a brief filed with the Secretariat of the Chamber on October 24, 2019, **Álvaro Madrigal Mora, in his capacity as secretary general of the Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN)**, requested that his represented party be considered an active coadjuvant in the unconstitutionality action **no. 19-004931-0007-CO**, through which the present action, now listed as the principal case file, was amplified. His represented party has standing to bring this action since it groups the collective and diffuse interests of its members. The norms challenged in action no. 19-004931-0007-CO violate the principles of legal certainty, reasonableness, proportionality, progressivity of rights, and party autonomy. Although it is true the country's economy must be reformed, this must be done rationally and with technical justifications to support it, in compliance with the regulations governing the matter and without violating the acquired rights of public officials. The norms have no support even though they are to the detriment of the working class, affecting the standard of living and labor dignity of individuals, also contravening free collective bargaining and the principle of legal reserve in the creation of new salary compensations. He affirms that it is unconstitutional to force public institutions to renegotiate their collective bargaining agreements downwards, which also violates the principle of progressivity of fundamental rights. He deems that what was alleged by the legal representative of ANEP in action no. 19-004931-0007-CO has a legal basis by injuring the indicated principles, and therefore he requests that the unconstitutionality be declared in the terms requested.

**24.-** **JULIO ALBERTO JURADO FERNÁNDEZ**, in his capacity as **Procurador General de la República**, appeared by means of a brief filed with the Secretariat of the Chamber on October 24, 2019, in order to render a report on the amplification made to this unconstitutionality action by ANEP.

Regarding the claim about the exclusive dedication (dedicación exclusiva) regime In Costa Rica, "exclusive dedication" is conventional, that is, the product of a formal agreement between the employer entity (Public Administration) and the professional public servant, in the sense that the latter will dedicate themselves exclusively to the exercise of the functions of the public position they hold, waiving the private practice of their profession, and for which the former will pay them financially as a bonus —not as a permanent salary component— a specific additional percentage calculated on the base salary of that specific position. He adds that at the judicial level, it has been recognized that the signing or not of that exclusive dedication contract by public administrations involves an undeniable discretionary power (potestad facultativa), that is, a liberality in the sense that the basis or not of its granting is openly discretionary. Before the reform introduced by Law no. 9635, that *inter partes* agreement was regulated by provisions issued by the DGSC in the case of persons assigned to that regime and had to be countersigned by the Human Resources Departments of each institution, taking effect during the agreed term, and once expired, such agreement was ineffective without being able to affirm that a subjective right existed in favor of the servant for the extension of the contract, nor a correlative obligation of the Administration to sign a new one, since, as stated, that agreement involves discretionary powers of the Administration, meaning it is not true, as affirmed in the action, that a consolidated situation exists for the extension of that contractual link, much less that this derives from the Constitution. Under this context, many of the alleged vices would lack constitutional relevance, since the exclusive dedication regime is a matter of legal regulation. The regulation of the "exclusive dedication" regime established with Law no. 9635, and especially with the reforms it made to the LSAP, forms part of the remuneration regime inherent to the civil service "statute" (estatuto) over which there is an express constitutional authorization for the legislator, in exercise of its inexhaustible power, to configure and regulate the employment conditions that must prevail throughout the public sector, especially referring to its professional stratum. With the new legal regulation, a series of postulates and norms in remunerative matters were established that tend towards the unification, simplification, and transverse coherence of the different pre-existing employment subsystems in the public sector —including central and decentralized administration— regardless of the degree of autonomy of each institution, or the type of services provided to the State. The Procuraduría General, in exercise of its binding consultative function, in legal opinion no. C-281-2019 of October 1, 2019, determined that given the general scope of application of this new regulation and its undeniable vocation for uniformity and homogeneity as a constitutionally valid option to regulate the remunerative conditions of employment in the entire public sector —including salary calculation, its components, and exclusive dedication, among others—, it prevails over any other pre-existing provision of legal or lower rank, at the sectoral level, by way of total or partial tacit derogation, due to normative incompatibility of its contents, even recognizing its supervening prevalence with respect to pre-existing collective bargaining agreements, especially when this new legislation is expressly directed at derogating, with future validity, conventional norms that have a specific content incompatible with it (legal opinion no. C-060-2019 of March 5, 2019). The legal regime of the public function in general is characterized by the fact that employment conditions are not established in a contract or by collective agreement, but are determined by objective norms that can be unilaterally modified by the competent body, and for this reason it is affirmed that the official does not have a contractual relationship with the administration, but rather a statutory one, such that the sub-principles derived from the protective principle of labor law invoked by the plaintiff are not applicable in the terms alleged. In this regard, he affirms that what the plaintiff describes as discrimination due to an alleged imposition of exclusive dedication without compensation is, in reality, a regime of functional incompatibility that seeks to enhance the principles of impartiality and independence that must govern the exercise of the public function. The public function is governed by a set of values, principles, and norms of high ethical and moral content, with the purpose of guaranteeing impartiality, objectivity, independence, and even avoiding nepotism in the exercise of the public function, as a typical manifestation of a conflict of interests, with the public interest prevailing over the private interest, and therefore, in the opinion of his represented party, the claims raised in the action regarding the issue of exclusive dedication are not admissible.

In relation to articles 35 and 36 added to Law no. 2166, regarding which the action is amplified: belonging to the exclusive dedication regime does not constitute a fundamental right as the plaintiff understands it, and he recalls that exclusive dedication is an agreement or convention between the public employer and the servant, so that if the latter does not agree with the financial compensation they would receive, they are in a position to not sign the respective contract. The LFFP respected the acquired rights and consolidated legal situations of officials who already had a signed and valid exclusive dedication contract, for which it was ensured that the total salary of active servants as of December 4, 2018, would not be reduced, according to Transitory Provision XXV, and additionally establishing that those with valid exclusive dedication contracts would maintain the percentages granted by the previous regulation. He argues that later, through Decree no. 41564, the Executive Branch issued the "Regulation of Title III of the Law for Strengthening Public Finances, Law no. 9635 regarding Public Employment" which in its articles 4 and 5 also preserved the acquired rights and consolidated legal situations of officials active on the date Law no. 9635 came into effect. For the Procuraduría, the changes introduced by Law no. 9635 in the matter of exclusive dedication do not violate the Constitution, especially considering that these changes did not affect officials who had entered the regime before the entry into force of that law. The plaintiff unions have not demonstrated the claim they raise, according to which the percentages of financial compensation for exclusive dedication applicable to officials who entered public service after the effective date of Law no. 9635 are harmful to the principle of reasonableness, for which they should have provided technical evidence and solid arguments to demonstrate it. His represented party does not consider that the new regulation on exclusive dedication makes the salary of professionals who enter the public sector to work after the effective date of Law no. 9635 ruinous, given that it is a compensation accessory to the salary which is based on a contractual figure and is waivable by the worker, so it is not true that exclusive dedication is a human right, nor that its reduction affects the principle of progressivity.

In addition to the foregoing, it points out that it is also untrue that Law No. 9635 will produce excessive, disproportionate, and unreasonable reductions in the salaries of professionals, since it will not affect those who were active as of December 4, 2018, but it must also be emphasized that the legal regulation of the civil service regime (régimen funcionarial) is an express and discretionary power of the legislature.

Regarding Article 39, added to the LSAP, which prohibits negotiating a different severance pay cap (tope de cesantía): it indicates that the challenged legislation establishes a new maximum cap of eight years with deferred effectiveness according to the Transitory regime that formalizes the maximum admissible cap in this matter and by collective bargaining agreement (convención colectiva) as ordered by the Constitutional Chamber (Sala Constitucional) in ruling No. 2018-008882. The objections raised on this point by the plaintiff revolve around the issue of whether or not a supervening law—Law No. 9635—prevails over existing regulations in current collective bargaining agreements. For the Attorney General's Office (Procuraduría), collective bargaining agreements are subject to the law, even when the law is supervening and expressly aimed at repealing the conventional norms that have specific content, with prospective effect while respecting acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas); consequently, in the opinion of its represented party, there are no constitutional reasons to justify giving prevalence to the mandates of a collective bargaining agreement or any other normative instrument over the law. A similar solution applies to collective bargaining agreements renegotiated and approved after December 4, 2018, as they must now be adapted in all their aspects to what is established in Law No. 9635 and other regulations issued by the Executive Branch (Poder Ejecutivo) pursuant to Transitory Provision XXXVI of that law. It recalls that these types of norms are often called peremptory law (derecho imperativo)—absolute necessary law—as they exhibit the legislature's will to not admit any other regulation of a specific matter than that contained in the applicable law; norms that imply an unavailability that prevents the subjects from disengaging from the norm, such that, in their actions, they must adjust at all times to the regulated limits dictated by the legal precept because its content is exhausted by law, so that, with respect to them, no supplementation by collective agreements or conventions is possible, nor is it possible for individual or collective autonomy of will (autonomía de la voluntad) to operate. Therefore, in these cases, the Administration must proceed in the manner determined in the norm without any margin, since any conduct contrary to law would be voidable. This does not imply disrespecting the acquired rights or consolidated legal situations of the recipients of collective bargaining agreements because the application of legal mandates that conflict with what was agreed upon in said agreements applies prospectively, so that the labor benefits incorporated into each person's assets through the application of conventional clauses repealed by law will remain in the assets of each person who received them; however, the right to severance pay is acquired only when the termination of the service relationship occurs and it is due to one of the grounds justifying the payment of that indemnity, thus, before that happens, the interested party has only a mere expectation of right that cannot prevail over statutory provisions such as those introduced to the LSAP by means of the LFFP. The Attorney General's Office does not consider that the modification on this matter made to the LSAP violates Article 34 of the Constitution by disrespecting acquired rights or consolidated legal situations of public sector employees.

Regarding the claim concerning Articles 40 of the LSAP and 16 of Decree No. 41564-MIDEPLAN: from the analysis of both numerals, it does not follow that the legislature's intention—in using the broad configuring powers over the Civil Service Statute (Estatuto de la función pública) granted by the Constitution—was to repeal provisions of different ranks that regulated the remuneration of public servants, but rather to adapt that regulation to a general and transversal framework applicable to each of the existing salary components insofar as they are normatively incompatible with it. An example of this is that the incentives or compensations existing upon the law's entry into force that were in percentage terms will prospectively become a fixed nominal amount. The fact that Article 40 of the LSAP, in relation to Article 16 of the regulation to Title III of Law No. 9635, decided to nullify specific salary supplements (sobresueldos) such as those for confidentiality and discretion, biennia (bienios), quinquennia (quinquenios), and any other related to the accumulation of years of service other than the annual increment (anualidad), supports the assertion that the salary supplements existing before the entry into force of that law—and which are not those mentioned in the aforementioned Article 40—remain in force and are applicable to the personnel of the institutions referred to in Article 26 of the LSAP, including personnel appointed in the future, but nominalized. The legal reserve (reserva de ley) for the creation of new salary supplements applies from the entry into force of Law No. 9635 and prospectively.

In relation to Article 46 of the LSAP and Article 22 of Regulation No. 41564-MIDEPLAN: it argues that the challenged reforms did not seek to establish a unitary public employment statute in formal terms or a single normative instrument, but rather to establish a series of postulates and norms in remuneration matters that tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the public sector—centralized and decentralized administration (administración central y descentralizada)—regardless of the degree of autonomy of each institution or the type of services provided to the State. According to these challenged numerals, the stewardship (rectoría) that Law No. 9635 grants to MIDEPLAN is to issue general policies and advise public institutions to achieve unification, simplification, and coherence in public employment matters, based on administrative efficiency and efficacy policies, following planning and result measurement criteria for public management in accordance with Article 140, subsection 8) of the Constitution. It indicates that the legislature's intention was not to repeal the powers granted to other public agencies in their respective enabling laws; an option that is legally viable and does not in any way affect the Constitution's Law (Derecho de la Constitución) in the terms challenged.

Regarding Article 47 of the LSAP: it indicates that, according to the plaintiff, this numeral violates the principles of efficiency and efficacy, legal certainty (seguridad jurídica), equality, and prohibition of arbitrariness (interdicción de la arbitrariedad) because the term "respective exceptions" ("salvedades respectivas") is ambiguous and allows for the specific derogation of undetermined norms on evaluation methods, without objective criteria, and with concepts that establish non-equatable quantitative evaluation methods typical of the private sector. In relation to this claim, it considers that it is an aspect of simple and strict ordinary legality (legalidad ordinaria) interest, through which alleged violations of constitutional norms and principles are not claimed in the terms of Article 73, subsections a) and b) of the LJC, but rather it refers to a clear aspect of normative interpretation and application of the scope of numeral 47 of the LSAP amended by said Law No. 9635. This cannot be the object of an unconstitutionality action (acción de inconstitucionalidad) because through it, the correct application of the Law cannot be controlled, so matters relating to this issue must be heard in the competent ordinary jurisdiction, which in this case could be the Administrative Litigation Court (Contencioso Administrativo).

As for numeral 48 of the LSAP: the plaintiff considers that it violates the principles of legal certainty, equality, reasonableness, proportionality, and prohibition of arbitrariness by creating a new obligation for public officials to maintain updated information for the evaluation of their performance, under penalty of being charged with liability for serious misconduct and also limiting their time to attend to daily obligations. Regarding this point, it recalls that in the specific legal regime of the public function, employment conditions are not established by contract or collective agreement but by objective norms—laws or regulations—that can be modified unilaterally, hence the relationship is statutory, by way of a specific public employment regime or personnel organization, founded and governed by Public Law principles. For this reason, civil service reforms are always connected to a preconceived strategy—public policy—of Administration modernization, all delimited by the brief references to the legal regime of the public function made by the Political Constitution in its Articles 191 and 192, which are postulates that must be taken into account by any bureaucratic model to be developed. It argues that, in this context, directly associated with the annual increment incentive, is the performance evaluation (evaluación de desempeño) which has operated a paradigm shift, as it overcomes that subjective criterion of mere assessment of the servant's individual performance in their work in general, and methodologically transcends to objective criteria based on quantitative indicators of compliance with individual goals for products and services provided, directly linked to processes and projects carried out by the unit to which the servant belongs (Articles 45 to 50 of the LSSAP, introduced by Law No. 9635), and its link to the payment of the annual increment is evident because it now depends on the result of the performance evaluation. Due to this special and novel formation operated in the performance evaluation, the alleged unconstitutionality defects are unfounded, because the legislature—in the exercise of its broad, inexhaustible power to configure the Statute of public officials (Articles 102, 121.1, and 191 of the Constitution)—sought to clearly establish postulates and norms that tend toward the unification, simplification, and coherence of the different existing subsystems of human resources management in the Public Sector. The determination of administrative offenses complies with the postulates of the principle of specificity (principio de tipicidad) in disciplinary matters, and that concerning its concrete application must be analyzed in the competent ordinary channel.

Regarding Article 50 of the LSAP in relation to Article 1, subsection a) of Regulation No. 41564-MIDEPLAN: the legislature is the one called to establish the incentives and the amount of the economic benefits it grants to its servants as part of the so-called "Civil Service Statute" ("Estatuto de funcionarios públicos") (Article 191 of the Constitution) and, therefore, the economic amount granted for annual increments is a function of the intensity with which the legislature wishes to incentivize public officials' permanence in their posts and the economic capacity to pay the sums derived from that incentive. It argues that, in its represented party's opinion, the legislature could even eliminate the payment of annual increments and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, because the obligation to recognize annual increments is not stipulated in constitutional norms but in legal norms, being part of the retributive regime or system proper to the so-called civil service "Statute." The permanent character that is implicit in giving the annual increment a nominal value—which is stable over time—is justified by the need to achieve a situation of balance in public finances, which goes beyond overcoming a temporary economic crisis, as it constitutes an economic objective whose maintenance over time is desirable. It indicates that if it is established that after a certain period, the changes made to the legal norms regulating public sector remunerations must be reversed, it is possible to fall back into undesirable states of economic instability. The State has the obligation to promote efficiency in the provision of public services, and for this, it is necessary to promote the efficiency of public employment; an objective that can be achieved not only through the payment of annual increments. Part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenses generated by the State's payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation and the availability of resources. The provisions on public employment contained in the LSAP related, among other topics, to the way salaries and their components in the Public Sector must be calculated, including annual increments, prevail over any other pre-existing statutory or lower-ranking provision at the sectorial level, so that, as implied repeal (derogación tácita)—total or partial—due to normative incompatibility of their contents, the LFFP will prevail over other special norms, to the extent they are incompatible (PGR opinions No. C-060-2019 of March 5, 2019, and No. C-281-2019 of October 1, 2019).

Regarding Article 51 of the LSAP: it recalls that the right to collective bargaining of public servants is a right of legislative configuration (derecho de configuración legislativa), so its scope of application and its reach can be defined by statutory norms without harming constitutional norms. Article 62 of the Political Constitution did not intend to be applied to public employment relations, and as proof of this, Convention No. 98 of the ILO on the Right to Organise and Collective Bargaining of 1949 excluded public officials of the State Administration from its scope of application. This shows that, for that year (which coincides with the promulgation of the current Political Constitution), the possibility that public employment relations be governed by conventional norms was not foreseen, but rather by statutory norms, issued unilaterally by the State. This also agrees with what is established in Article 191 of the Constitution in the sense that "A civil service statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration"; a norm that reflects a unifying vision of the rules that must prevail in employment relations between the State and its servants, which is compatible with the regulations on collective bargaining established in the LFFP. The bilateral determination of working conditions—between Administration and staff representatives—has a limited scope in Costa Rica and cannot be compared with collective bargaining in private enterprise. Additionally, the degree of autonomy of public officials is more limited than that recognized for private sector workers, and precisely for this reason, the normative provisions of collective bargaining agreements must be strictly adjusted and framed within the current legal system, which, in itself, limits the extent and object of the negotiation. That is, the normative provisions of collective bargaining agreements must conform to existing legal norms and cannot affect, much less repeal, higher-ranking normative provisions that are imperative or prohibitive in nature and of public order (orden público). It recalls that the same treatment cannot be given to the use and disposition of public funds (which finance public employment relations) as that given to the use of private funds, since the former must be oriented toward the pursuit of public interest and are not disposable by the parties negotiating a collective bargaining agreement in the public sphere.

The constitutional principles of efficiency in the management of public funds, rationality of expenditure, sound conduct of public finances, etc., must be harmonized with the possibility of collective bargaining in the public sector, which cannot be unrestricted but must adapt to the country's economic possibilities. This Article 51 establishes a specific type of incompatibility that seeks to avoid an eventual conflict of interest; a functional incompatibility that must be related to Article 48 of the Law against Corruption and Illicit Enrichment in the Public Function (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública). It considers that, for the foregoing reasons, the alleged defects are untenable.

Regarding Articles 52 of the LSAP and 21 of Regulation No. 41564-MIDEPLAN: it reiterates that one cannot lose sight of the vocation and character of generality and uniformity with which the LFFP was issued in the interest of subjecting everything concerning the salary policy of the public administration to uniform criteria. One of the reorganization measures for the containment and reduction of personnel expenses in public administrations is the periodicity of salary payments to officials, such that the salary agreed per monthly time unit will be paid on a biweekly periodicity or frequency, for which the corresponding adjustments must be made within three months following the effective date of Law No. 9635. This includes the adaptation of the available technological payment systems, as well as the performance of the calculations and adjustments necessary to ensure that the legally prescribed change in payment modality does not produce a decrease or increase in the servants' salary. It states that, pursuant to such legal norms, of clear character as necessary, imperative law of absolute content, all public institutions covered by that legal regulation would have to norm the salary payment modality or periodicity for their servants, and no other. It reiterates that this supervening Law No. 9635 prevails over what is established in any other pre-existing statutory or lower-ranking provision at the sectorial level, such as previously concluded collective bargaining agreements, by way of implied repeal—total or partial—due to normative incompatibility of their contents. The claims raised regarding this numeral are not admissible.

Regarding Article 53 of the LSAP and numeral 15 of Regulation No. 41564-MIDEPLAN: it points out that the professional career incentive (incentivo de carrera profesional) has the ultimate objective of ensuring that the administration has the highly trained personnel it needs for an adequate performance of the public function, which will depend on the normative regulation. It reaffirms that the regime of public officials' rights is not static but variable by nature, especially regarding those rights with economic content whose amount can be modified within the limits of the Constitution, since the servant does not have an acquired right against the legislator or the normative power of the employing administration to have a specific regulation of their rights maintained; on the contrary, they must submit to a continuous process of adjustments and reforms for reasons of general interest. The change operated by Law No. 9635 does not attempt to create an odious differentiation or a salary detriment as is unfoundedly claimed, but is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified. This goes beyond overcoming a temporary or circumstantial economic crisis, as it constitutes an economic objective that is desirable to maintain over time, without this implying a violation of the right to equality under the law as claimed by the plaintiff.

Article 54 of the LSAP and Article 17 of Regulation No. 41564-MIDEPLAN: it reiterates that the legislature is the one called to establish the incentives and the amount of the economic benefits it grants to its servants as part of the "Civil Service Statute," and it must be understood that the economic amount granted for incentives or bonuses is a function of the intensity with which the legislature wishes to incentivize public officials' permanence in their posts, and the economic capacity to pay the sums derived from that incentive.

Maintaining pre-existing salary components as percentages entails a greater expenditure of resources that is not consistent with the intention of balancing public finances that currently prevails, and therefore it was for the legislator to decide —as it already did— to nominalize them and thus promote the balance of public finances, without opting for one decision or the other implying any violation of constitutional norms or principles, given that these alternatives are constitutionally valid in light of the basic regulation of the constitutional regime of public employment (Article 191 of the Constitution), which falls to the legislator to configure (Articles 105 and 121.1 *Ibidem*). The permanent nature implicit in granting said salary components a nominal value that is stable over time does not have the purpose of worsening the situation of public employees, but is validly justified by the real need to achieve a situation of balance in public finances. It reiterates that the norm does not repeal them, but rather establishes the way in which they are to be calculated in the future, no longer as a percentage but by a fixed nominal amount, as has been indicated, as well as that one cannot claim that the statutory situation remain frozen in time, so it has been a consolidated criterion that the official lacks a general acquired right to the maintenance of a specific regulation of their working conditions or to prevent its modification. It reiterates the position of the PGR that collective bargaining agreements are subject to the law, even when the latter is supervening, especially when it is expressly aimed at repealing conventional norms that have a specific content (in this case with effectiveness for the future, respecting acquired rights and consolidated legal situations). It concludes that the allegations are also without merit.

Regarding Article 55 of the LSAP: it points out that, based on the advisory opinion of the Constitutional Chamber No. 2018-019511, union action can be limited or prohibited for public officials who participate in public management and who, therefore, do not have the right to enter into collective agreements; consequently, thus understood, that legal norm would not be unconstitutional.

Article 57 subsections f), g), h), i), m), n), o), and p) as well as Title III of the LSAP: through opinion C-281-2019 of October 1, 2019, the PGR indicated that in the face of any contradiction between the general rule for the payment of financial compensation (compensación económica) for prohibition (prohibición) established in Article 36 of the LSAP (which provides for the payment of 30% for a bachelor's degree or higher), and what is provided, for example, in subsection a) of Article 1 of Law No. 5867 (which establishes, for that same assumption, the payment of 65% compensation), or any other previous law on the same matter, the claim of generality and uniformity that inspired the reform to the LSAP operated through the LFFP must prevail; hence, the antinomy existing between numeral 36 of the LSAP, which establishes the base salary of each servant as the parameter for calculating the financial compensation for prohibition, and Article 5 of the "Law of Compensation for the Payment of Prohibition" ("Ley de Compensación por el pago de Prohibición"), which provides that the payment of compensation for the prohibition referred to in Article 244 of the Organic Law of the Judicial Branch (LOPJ) must be calculated on the lowest salary indicated in the Public Administration salary scale, always following the claim of generality and uniformity that inspired the reform to the LSAP, must be resolved in favor of the general and uniform rule established as the unifying parameter; that is, the parameter for calculating the aforementioned financial compensation must be the base salary of each servant. Thus, the financial compensation for prohibition was established at 65% in subsection a) of Article 1 of Law No. 5867 and now Article 36 of the LSAP provides a payment of 30% for the same concept; an antinomy that entails the tacit repeal (derogación tácita) of one of the two precepts, with the PGR considering that what is provided in Article 36 of the LSAP must prevail, not only because it is the most recent norm, but also because it reflects the claim of generality and uniformity that inspired the reform in matters of public employment operated through the LFFP. It argues that following another criterion would imply deviating from the purpose of the LSAP reform, which consists of establishing general guidelines on the manner in which incentives and financial compensations derived from employment relationships throughout the public sector are to be recognized. It indicates that, likewise, in order to maintain the intended uniformity and to ensure consistency with the constitutional principles of equality and reasonableness, regarding the method of calculating the financial compensation for prohibition, what is established in Article 36 of the LSAP (on the base salary of each official) must be applied, and not what is provided in Article 5 of Law No. 5867 (on the lowest salary of the Public Administration salary scale). It adds that, taking into consideration the express repeal of subsection f) of Article 37 of the Civil Service Statute and the modification of Article 47 of that same legal body made by Articles 58 subsection b) and 57 subsection f) introduced to the LSAP by Law No. 9635, as well as the application of its transitional regime (Transitorio XXVII and Article 13 subsection a) and *in fine* of Executive Decree No. 41564-MIDEPLAN-H), and especially due to the lack of identity between the indemnities normatively provided for that purpose, according to ordinal 111 subsection d) of the Regulation of the Civil Service Statute, it must also be concluded that: **a)** if the reorganization carried out requires the dismissal of employees covered by collective bargaining agreements, the applicable indemnity for severance pay (cesantía) may not be greater than twelve years while such collective instruments remain in force (PGR opinion No. C-060-2018 of March 5, 2019); **b)** for employees excluded from the application of those collective instruments who may be dismissed due to reorganization, Article 39 of Law No. 9635 is applicable, which is of immediate effect, which prevails over Article 27 subsection c) of the Regulation of the Civil Service Statute, and which indicates that the maximum limit is eight years of severance pay; **c)** in the event of the salary reduction or decrease alluded to, the special indemnity regulatorily provided, as a general rule, by the cited ordinal 111 subsection d) of the Regulation of the Civil Service Statute must continue to be applied, until the regulatory repeal or reform power held by the Executive Branch (Article 140.3) of the Political Constitution is exercised with respect to it. The guarantee of stability in the public position or post continues to exist at the legal level and, as a consequence, any unjustified dismissal entails the recognition of legal benefits, so there is no artificial or forced equivalence to the private labor regime, as is groundlessly accused in the unconstitutionality action, and consequently, the defects claimed are without merit as they are unfounded.

Regarding the claims concerning Articles 15, 23, 24, and 25 of Title IV on fiscal responsibility of Law No. 9635: in the opinion of the plaintiff, these numerals grant powers to the Executive Branch regarding various specific allocations (destinos específicos) with a deviation of power, affecting institutional goals and fundamental rights; however, in the opinion of the PGR, the defects claimed are entirely unfounded because the establishment of fiscal rules by Western states has become a popular vehicle to impose a certain fiscal discipline in the face of problems of fiscal deficit and increased public debt. The need to maintain a certain balance between public revenues and expenditures, which sums up the principle of budget stability, finds an answer in the first paragraph of Article 176 of the Political Constitution, and from there, the jurisprudence of the Constitutional Chamber has extracted the foundation of the constitutional principle of financial or budgetary balance, reaffirmed in judgment No. 2018-019511. This is a constitutional mandate that binds all public powers and is beyond the availability or competence of the State and other public entities, regardless of their degree of autonomy. The fiscal rule, consisting of a rule on current spending, is only one of the different public finance management options existing in the budget process, and being of infra-constitutional rank —Law No. 9635—, the Legislative Assembly would not be bound in the future, so it could legislate in the opposite direction, even adopting legislation that expands expenditures chargeable to the Budget of the Republic, if necessary. As the Attorney General's Office has interpreted, and has been endorsed by the Chamber as a legitimate manifestation of the constitutional principle of budget balance, the LFFP entails a paradigm shift regarding the regulation of specific allocations and the establishment of a floor for the budgeting of public resources. Contrary to what is accused, for its represented party, Law No. 9635, as a manifestation of the principle of budget balance, allows the Ministry of Finance to budget the allocation of resources provided by the laws that create specific allocations based on the assessment of fiscal conditions and other public policy imperatives and, therefore, allows it to adjust that allocation to the available financial resources, and in the exercise of these new powers, the Executive Branch has as limits the specific allocations created by the Constitution, as well as those created by law to finance a social service exclusively. On the contrary, allocations referring to taxes destined to finance public expenditures in a general manner do not constitute a limit, such as allocations chargeable to taxes like income or now the value-added tax. As ordered by Article 24 of the LFFP, the Ministry of Finance and the Executive Branch are obliged to allocate a sum no less than that allocated in the 2019 budget; therefore, that allocation in the current budget constitutes the minimum amount that must be granted, and the Ministry of Finance may allocate a greater amount of resources than budgeted in 2019, but never reduce it in order to guarantee the non-affectation of associated benefit services.

In relation to Article 17 of Title IV on fiscal responsibility of Law No. 9635: its represented party considers, as it has stated on other occasions, that it is not unconstitutional in the sense that it can only be applied to free surpluses (superávits libres), not to resources with specific allocations determined by the Constitution, which could only give rise to specific non-free or tied surpluses, unavailable to the ordinary or budget legislator.

The Attorney General's Office concludes by suggesting that the action, which has been expanded, be declared without merit in all its aspects.

**25.-** **María del Rocío Aguilar Montoya** submits her report in her capacity as **Minister of Finance**, through a document presented to the Secretariat of the Chamber on October 29, 2019, and states that, in general terms, the claims of the plaintiff are directed towards two questions:

**a)** firstly, regarding the salary affectation suffered by public servants as a consequence of the variants related to exclusive dedication (dedicación exclusiva), prohibition (prohibición), collective bargaining agreements, modification of the calculation method of salary components, among others; claims which, in her opinion, are limited to enunciating subjective or erroneous criteria in which the idea prevails that matters relating to public employment are immutable and static through the passage of time, which is a perspective of invariable permanence that is incorrect in a reality in which said subject matter is subject to changes, as the PGR has pointed out, especially regarding rights of economic content (remuneration system). She recalls that within the limits established by the Constitution, it is undeniable that the Administration holds a *"ius variandi"* over the content and scope of rights in public employment. The enactment of Articles 28, 30, 31 subsection 1), 32, 33, 35, 36 added to the LSAP by Law No. 9635 and its reform, in concordance with numerals 3, 6, and 7 of Executive Decree No. 41564-MIDEPLAN-H and its reforms, all relating to exclusive dedication, does not imply a setback in the normative development of labor rights, and she recalls that it has a contractual nature because it is a consensual regime that allows the State to count on a certain group of officials who do not practice their profession privately but rather provide the totality of their services to the contracting institution in exchange for financial remuneration or a salary bonus; a regime to which the official freely and voluntarily agrees, after assessing whether it is convenient for them to sign the contract or whether they find it more attractive to freely practice their profession and any other activity at the public or private level. For these reasons, the plaintiff's statements are unfounded because, from its granting, exclusive dedication is not a right of the servant but is conferred when the Administration assesses that it requires that the official not work privately. Like any contract, the exclusive dedication contract must have its term established, as well as the procedures or formalities required to extend it; hence, enacting regulations that contemplate these aspects complies with the principles of legal certainty, reasonableness, and proportionality, contrary to what the plaintiff alleges, and does not imply a regression of labor rights. There is no legal uncertainty for those who signed contracts prior to the entry into force of Law No. 9635 and its reforms when, on the contrary, the law itself contemplates provisions that seek to provide certainty and legal security regarding the application of the new variants that arise. The challenged Article 31 subsection 1) includes persons who work in property, interim, in substitution, or in confidence positions, so it is unknown which modality of the service relationship, in the opinion of the plaintiff, would be excluded. For its part, regarding the limitations contained in the challenged Articles 32 and 33, she argues that their reason for being is to prevent officials from compromising their impartiality and even exercising their other professions during the time they are on the workday, recalling the concept of time overlap (superposición horaria) that implies the simultaneous performance of posts and that implies a prohibition or impossibility of simultaneously holding two public posts. The norms challenged in this action do not entail any arbitrary or abusive action and, therefore, are not harmful to the principle of the prohibition of arbitrariness. The legislator is empowered to regulate, in a general manner, employment relationships throughout the public sector, in light of Article 191 of the Political Constitution, which admits the possibility that a single statute —of legal rank— regulates the relations between the State —in a broad sense— and its servants. Based on what the PGR has said, she affirms that it is public and notorious that the legislator's intention with the issuance of the LFFP, and specifically with its Title III related to the issue of public employment, was to establish general parameters applicable to the entirety of the public sector employment relationships, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State. She adds that among the effects of the LSAP is not that of repealing the supplementary salaries (sobresueldos) pre-existing Law No. 9635 but of adapting them to the general rules to which all supplementary salaries paid in the public sector must be subject, establishing the way in which they are to be paid in the future, no longer as a percentage but by a fixed nominal amount, as well as that the parameter for calculating the sum to be paid for each supplementary salary must be the base salary of each servant and not their total salary. To safeguard acquired rights, and because Transitorio XXV of the LFFP provided so, the total salary of servants who were active on December 4, 2018, when that law entered into force, cannot be reduced. In this way, the challenged norms, far from entailing arbitrary, discriminatory, disproportionate, and irrational actions, are directed at establishing a uniform regulatory framework, by legal means, for all employment relationships in the public sector. The percentages of exclusive dedication and prohibition can be reviewed and adjusted as occurred in Law No. 9635 without this implying a violation of the constitutional framework, for which reason she considers that the allegations relating to this topic and to prohibition are not unconstitutional.

The foregoing is also applicable regarding the allegations put forth by the plaintiff concerning the recognition of annual increases and regarding the modifications to the prohibition, because the reforms introduced by Law No. 9635 are in accordance with the Constitution.

Regarding the allegations raised by the plaintiff about Articles 39, 40, 51, 52, 53, 54, 55 added by Law No. 9635, as well as Articles 16, 17, and 21 of Executive Decree No. 41564–MIDEPLAN-H, she considers the statements of the PGR to be very accurate to the effect that the ordinary legislator is the first called upon to regulate the conditions and limitations under which that indemnity is paid, in accordance with the policy on the matter maintained at a given socioeconomic moment, but must always respect the constitutional framework established in Article 63 of the Constitution, as well as the constitutional jurisprudence according to which the payment of severance pay cannot be unlimited and must have a reasonable limit, so that what is negotiated in a collective bargaining agreement (convención colectiva) must be subject to the principle of reasonableness and avoid agreeing to breaches of the severance pay limit that imply improper use of public funds affecting the services that the institution is called upon to provide or that lack any objective reason that would allow the differentiation established in favor of that group of officials. In Article 39 of Law No. 9635, it was provided that now the severance pay limit may not exceed eight years; however, to avoid problems of transition from the new law to pre-existing collective bargaining agreements for situations pending or in progress at the time of the legislative change, and while that numeral fully enters into force, Transitorios XXVII and XXXVI were established, according to which officials covered by collective bargaining agreements that grant more than eight years of severance pay, who may continue to enjoy that right while the current agreements that so contemplate it are in force, were exempted, but in no case may the indemnity exceed twelve years, and in the event that any agreement is renegotiated, it must adapt in all its aspects to what is established in Law No. 9635 and other regulations issued by the Executive Branch. She recalls that, contrary to what the plaintiff states, the right to severance pay is not acquired until the termination of the service relationship occurs, and until that happens, what the interested party has is a mere expectation of a right that does not prevail over legal provisions such as those that were added to the LSAP through the reform made by Law No. 9635, and therefore she considers that the challenged Articles 50, 54, 56, and 57 do not infringe the provisions of constitutional numeral 34 and do not disrespect acquired rights or consolidated legal situations.

Regarding collective bargaining agreements, there is a hierarchical prevalence of the supervening law over them, by express repeal, and in Costa Rica, although the existence of collective bargaining agreements in the Public Sector is recognized, as well as the binding nature of what is agreed in them, this does not imply attributing constitutional or legal rank to the content of any agreement, but rather it must remain within administrative legality, since state laws are competent to set the hierarchy of legal sources, and Article 57 of the Labor Code has provided that the collective agreement is subordinated to the laws.

It is not permissible to allege the immutability or unalterability of the collective bargaining agreement (convenio colectivo) in the face of the law —even when it concerns a supervening state norm— since, by virtue of the principle of normative hierarchy, it is the collective bargaining agreement that must respect and submit to the law and not the contrary, especially when the permanent task of the legislator is at stake to configure, with the character of public order, the legal regime (régimen jurídico) applicable to public officials and employees (funcionarios y empleados públicos). Although collective bargaining agreements in the public sector have binding force between the parties that have signed them and constitute the most direct and specific norm regulating the legal-labor relations existing between them, the truth is that from a formal and material point of view, in the system of sources of Law, it is always subordinated to the law which, as a source of law of higher hierarchical rank, has the permanent capacity to regulate labor conditions and is automatically incorporated into the employment contract, and may even have, unlike the collective convention (convención colectiva), general efficacy, so that in case of conflict, the law imposes its primacy over the collective convention. For this reason, there is no right whatsoever to have what is established in the collective bargaining agreement remain unaltered and be immune to what is provided in a subsequent law until the moment it loses validity, so that the existence of collective conventions cannot make it impossible for the effects provided by laws to take place. With the legal modification (modificación legal) operated by Law No. 9635, the aim is not the denial or suppression of collective bargaining (negociación colectiva), nor its effective exercise as a negotiating faculty of the unions, nor is it being rendered inoperative or without content; rather, what is intended is the future adaptation of working conditions so that they adjust to the new prevailing circumstances which, by provision of the legislator, oblige temporary measures of reorganization (reordenación) and rationalization (racionalización), for the containment and reduction of personnel spending of the Public Administrations, required by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budget balance. It considers, as the PGR does, that establishing certain restrictions on collective bargaining in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been of public knowledge, and whose attention has required sacrifices not only from persons linked to the State by a public employment relationship, but from all economic and social sectors, for which it affirms that what is provided by Law No. 9635 does not limit, nor violate, union freedom (libertad sindical), nor the possibility of carrying out collective bargaining.

• b)a second group of claims by the plaintiff party is aimed at attacking the provisions relating to the allocation of the repealed specific allocations (destinos específicos) contained in Title IV of Law No. 9635. Certainly, with the entry into force of this Title IV as of January 1, 2020, the repeal of a series of specific allocations occurs as provided in Articles 31, 32, 33, 34, 35, 36, 37, and 38 of that law. It recalls that, among the objectives of Law No. 9635, is to allow a better allocation of budget resources to face the fiscal crisis confronting the country, which is why it is provided that budget allocations, even for social programs, will respond to the fiscal conditions in a given year and not to the percentages or sums provided in the norms that created the specific allocation; legislation that establishes:
• 1)a change regarding the regulation of specific allocations: it points out that the budget of the Republic has been affected by the creation of specific allocations by ordinary laws that hinder the programming and allocation of budget resources according to public needs, the priorities of economic and social development, the availability of resources available, and, therefore, it hinders the Executive's ability to allocate resources and decide on their execution. It adds that Law No. 9635 produces a substantial modification to the relationship between ordinary law and budget law from two points of view: first, by repealing certain specific allocations created by law and, second, because it authorizes the Budget Law to affect the spending obligations provided for by ordinary law so that they are adjusted according to the country's fiscal conditions to achieve the objective of budget balance. It states that thus, the Executive Branch when preparing the budget project, and the Legislative Assembly when approving it, can adjust the allocations of resources to which they are obligated by virtue of laws that create specific allocations, according to fiscal conditions, whereby, from strict subjection to the percentages and sums established by the legislator, there is a shift to a possibility of valuation of the financial resources available to give content to the spending obligation established by the law, as well as other imperatives of public policy to budget an amount less than that which would correspond in application of that law creating the obligation. Various provisions of the law determine that, under certain conditions, the Budget Law will not contemplate or, once approved, the Ministry of Finance will not transfer the budget transfers or specific allocations originating from ordinary laws that were in force, which implies that the budget allocation will not be determined by the ordinary law creating the allocation and, therefore, the beneficiary entity will not see the resources provided by the ordinary law assured, which it considers a Fiscal Responsibility provision. It indicates that, for example, in the case of Article 15, the budgeting of specific allocations would depend on the availability of income, the levels of budget execution, and the existence of free surplus (superávit libre). It states that the decisions on resource allocation are made to depend not on the law that established the financing of those bodies, but on "criteria of fiscal sufficiency" ("criterios de suficiencia fiscal"), which means that sufficient financial resources exist, respecting fundamental rights and the priorities of the National Development Plan, which substantially modifies the relationship between ordinary law and budget law, but also expands the powers of the Ministry of Finance regarding resource allocation, making the structural rigidity of public finances more flexible. This does not mean, in any way, that through the allocation of resources, the Executive Branch can leave certain programs or bodies without financing, since Article 22 obliges it to guarantee the financing of institutions and social and economic development programs. State economic solvency must be focused on strengthening and developing a solidary political system that safeguards the rights of the economically weakest strata of society; an objective that should be achieved because among the determining criteria for the allocation of resources (challenged Article 23) are the social purpose of the beneficiary institution, the provision of public services of collective benefit, the effective fulfillment of fundamental rights, the principle of progressivity of human rights, and not only the availability of financial resources. The limit to the new powers of the Executive Branch would refer to specific allocations created by the Constitution, or those created by law to finance a social service exclusively, which excludes, then, the allocations referring to taxes destined to finance —in a general manner— public expenses, such as those allocations charged to taxes like income tax, or now the value-added tax.
• 2)A modification of the financing of FODESAF: it points out that this set of novel provisions allows affirming that, as of the validity of the LFFP, the beneficiary bodies of resources with specific allocation will see their financing modified because now it will be determined by the new criteria established by the legislator, as well as because, in the future, that financing will not be linked to a particular source of income, to the product of certain taxes or other types of resources —unless these have been preserved by Law No. 9635— since budget allocations will now not be referred to a specific one, whereby the scope of the specific allocations created by law undergoes a substantial modification.
• 3)The establishment of a "floor" ("piso") regarding the budgeting of resources: it indicates that the Constitutional Chamber (Sala Constitucional), when hearing the consultation on the draft of what is now Law No. 9635 (consultative opinion No. 2018-019511), stated that the repeal of specific allocations does not inexorably equate to the undermining of entitlements (derechos prestacionales) and the non-fulfillment of the duties of the Social State of Law (Estado Social de Derecho), and also that the laws that support those are not immutable nor are they excluded from the free configuration of the legislator; quite the contrary, it is the responsibility of Parliament to define the most suitable means to satisfy such entitlements without legislative production emptying or unreasonably diminishing the budget content of state programs to such a degree that the principle of the Social State of Law is considered violated. It argues that in the terms indicated by the Chamber in the referenced ruling, numerals 23, 24, and 25 of Law No. 9635 constitute "protection clauses" ("cláusulas de protección") that allow mitigating or counteracting the eventual budget decreases that could occur.

The plaintiff's statements regarding the new powers of the Ministry of Finance and the content of Articles 23, 24, and 25 of Law No. 9635 are subjective affirmations, lacking substantiation, since, on the contrary, the constitutionality of those norms derives from the fact that they constitute the legal measures or mechanisms that the legislator established as a guarantee against the repeal of several legal allocations (destinos legales) that the same normative body contemplates, which was also endorsed by the Constitutional Chamber. Regarding the challenged Article 17, it states that it is a norm that refers to resources that could not be executed, and therefore they constitute a free surplus, and in the terms of that numeral, what is intended is to give them effective, efficient, and effective use, and, therefore, it is not considered unconstitutional. The continuous search to strengthen the development of a solidary political system —which is one of the main objectives of a State like Costa Rica's— is not inadequate; what is incorrect is when, in that eagerness, an aspect of reality is neglected that has to do with the existence of economic solvency to meet the demands of the citizenry, especially when it concerns the most vulnerable strata, so that without healthy finances, the aspirations of the Social State of Law will be nothing more than that, a desire. It concludes by requesting that the unconstitutionality of Articles 28, 30, 31 subsection 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 subsections f), g), h), i), m), n), o), and p) of Law No. 2166 modified and added by Title III of Law No. 9635 of December 5, 2018, its reform, and Articles 1, subsection a), 3, 6, 7, 15, 16, 17, 21, and 22 of Executive Decree No. 41564-MIDEPLAN-H and its reforms, be rejected, considering that they do not violate Articles 7, 28, 33, 34, 50, 56, 57, 73, 129, and 167 of the Political Constitution.

26.- On the action of unconstitutionality (acción de inconstitucionalidad) No. 19-022051-0007-CO.- By means of a written brief filed in the Secretariat of the Chamber at 10:40 hrs. on November 19, 2019, Carlos Stradi Granados, of legal age, married, engineer, resident of San José, with identity card 1-0663-0636, in his capacity as president of the Union of Engineers of ICE and Affiliates (SIICE), and Mario Ching Rosales, of legal age, married, with identity card 1-0585-0325, in his capacity as president of the Trade Union Association of Industrial Employees of Communications and Energy (ASDEICE), appear to file an action of unconstitutionality against Articles 39, 50, 54, 56, 57 subsection l), the latter insofar as it reforms Article 12, and against Transitional Provisions XXVII and XXXI of Law No. 2166, which is the LSAP reformed and added by Article 3 of Law No. 9635 of December 5, 2018. They argue that the standing (legitimación) to file this action comes from Article 75, second paragraph, of the LJC because the action of their represented parties is ascribed to the protection and preservation of diffuse and collective interests.

• a)first ground of unconstitutionality for violation of substantive due process (debido proceso sustantivo): they challenge Articles 50, 57 subsection l) insofar as it reforms Article 12, and Transitional Provision XXXI of the LSAP reformed by Law No. 9635. These norms must also be related to Article 58 subsection c) which repeals Article 5, and with Articles 48 and 49 referring to performance evaluation (evaluación del desempeño). To determine if the legal reforms introduced on this point comply with the so-called substantive due process, they must be subjected to a reasonableness test (test de razonabilidad) in order to ascertain their necessity, their suitability, and their proportionality, as constitutional parameters.

They assert that said regulation, lacking reasonableness, suitability, and proportionality, violates substantive due process and, thereby, the provisions contained in Articles 9, 11, 121, 191, and 192 of the Political Constitution, by creating a system of payment of annuities (anualidades) that undermines the merit system and the principle of efficiency that these numerals contemplate. Furthermore, they claim that it was in a transitional norm, characterized by its momentary nature —with a beginning and an end in time— where the annuity percentage with which the calculation of what will later be the nominal and unmodifiable amount of annuity must begin, as well as the date from which that calculation must begin, was established; a regulation that should have been included in a substantive norm and not in one of a transitional nature.

• b)second ground of unconstitutionality for violation of the principle of non-retroactivity of the law (irretroactividad de la ley) and disrespect for consolidated legal situations (situaciones jurídicas consolidadas): they indicate that the norms challenged on this ground are Articles 39, 50, 54, 56, and 57 subsection l) of the LSAP and Transitional Provisions XXVII and XXXI of the LFFP. They argue that on this point, it is not about the adaptation over time of rights derived from exclusive dedication contracts (contratos de dedicación exclusiva) or the rules for the payment of severance pay (auxilio de cesantía) —when this is regulated in special instruments such as a collective bargaining agreement (convención colectiva) or a special statute, as is the case of ICE— and the ceiling is higher than established in Article 39 of the LSAP added by Law No. 9635; but rather, on the contrary, the provisions of Transitional Provisions XXVI and XXVII do is reform and empty that right of its original content, without considering acquired rights (derechos adquiridos) or consolidated legal situations as prescribed by Article 34 of the Political Constitution. It argues that, with the indicated exceptions of Transitional Provisions XXVI and XXVII, it is a general defect of Law No. 9635 that, when dealing with issues relating to additional salaries (sobresueldos), the consolidated legal situations of workers who already acquired rights under the previous regulations governing them are not respected, whether that regulation comes from a law, a special statute, or another valid source.

The law was remiss in resolving conflicts of laws over time, and this is visible throughout all its provisions, except regarding exclusive dedication where exclusive dedication contracts signed before the entry into force of the law are respected, and, in a less rigorous manner, also in matters of severance pay, since in this case the law imposes a ceiling that did not respect the accounting of the years that had been incorporated into the patrimony of rights of public sector employees based on norms of collective bargaining agreements that were in force when the law reform came into effect, for which the legislator disrespected the content of the subjective legal situations (situaciones jurídicas subjetivas) of public employees.

Finally, they argue that the legal technique used by the legislator in Articles 39, 50, 54, 56, and 57 subsection l), in relation to Article 12, all of the LSAP, and Transitional Provisions numbers XXVII and XXXI of Law No. 9635, is unconstitutional because it omitted to consider that, in accordance with Article 34 of the Political Constitution, the existence of subjective rights derived from own acts, nor consolidated legal situations born from instruments such as collective bargaining agreements (convenciones colectivas), regulations, and personnel statutes could not be ignored.

They conclude by requesting that the unconstitutionality of the norms challenged herein be declared.

27.- By interlocutory judgment of the Full Bench of the Constitutional Chamber at 10:15 hrs. on December 18, 2019, it was ordered to accumulate the action of unconstitutionality No. 19-022051-0007-CO to the one being processed in file No. 19-002620-0007-CO —which is now the main one— and that it be considered as an expansion thereof.

28.- On the action of unconstitutionality No. 19-023575-0007-CO.- Through a written brief filed in the Secretariat of the Chamber at 13:21 hrs. on December 10, 2019, Mélida Cedeño Castro, of legal age, divorced, educator, resident of Heredia, with identity card 9-0058-0394, appears in her capacity as president of the Association of Secondary Education Teachers (APSE), to bring an action of unconstitutionality against Article 53, third paragraph, of the LSAP added by the LFFP No. 9635, against Executive Decree No. 41564-MIDEPLAN-H, and against Resolution No. DG-139-2019 of the DGSC, considering that they violate the provisions of Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution.

She argues that the standing to bring this process comes from Article 75, second paragraph, of the LJC because her represented party works for the protection and defense of the labor rights of workers in the education sector and, therefore, holds standing based on the collective interests it protects. Her represented party is legitimized because the challenged norms directly affect the core of rights and interests of the collective that APSE represents.

The professional career (carrera profesional) is a system that exists in the Public Administration intended to promote the professional and labor advancement of professional civil servants (servidores profesionales) so that their performance reaches standards of efficiency that effectively contribute to the quality and timeliness of the benefits in favor of the public service provided to the citizenry, which comprises an economic incentive of a salary nature recognized to servants based on the points obtained for professional degrees or training. This regime is regulated in Resolutions No. DG-064-2008, modified by Resolution No. DG-139-2019 of July 24, 2019, which regulates the professional career of professional civil servants covered by Title I of the Civil Service Statute (Estatuto de Servicio Civil), and No. DG-333-2005 for servants covered by Title II of the Civil Service Statute, all from the DGSC. The economic incentive that, by concept of professional career, has been granted to a worker configures a perfected, subjective right that is incorporated into the patrimony of the worker; however, despite the foregoing, the challenged numeral establishes that the recognition of new points for professional career will only be recognized and remunerated for a maximum period of five years. Such a temporal limitation on the recognition of new professional career points is totally arbitrary, but also injures Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution. She concludes by requesting that the unconstitutionality of the norm be declared in the terms requested.

29.- In an interlocutory judgment of the Full Bench of the Constitutional Chamber at 9:20 hrs. on January 15, 2020, it was ordered to accumulate the action of unconstitutionality No. 19-023575-0007-CO to the one being processed in main file No. 19-002620-0007-CO and that it be considered as an expansion.

30.- The edicts referred to in the second paragraph of the art.

81 of the Constitutional Jurisdiction Law and in which the notification of the expansion of the course of the unconstitutionality action was communicated, were published in numbers 25, 26, and 27 of the Judicial Bulletin, of the days **07, 10, and 11 of February 2020**.

**31.-** In a written submission presented at the Secretariat of the Chamber on February 27, 2020, **[Name 002]** appears, of legal age, married, attorney, with identification number 1-0718-0497, in his capacity as special judicial representative of the National Union of Specialist Physicians (Sindicato Nacional de Médicos Especialistas, SINAME) to indicate that, due to the expansion that was made to this unconstitutionality action, he requests that his represented party be considered an active coadjuvant, considering that the decision adopted by the Chamber in relation to the challenged norms will have a direct impact on the sphere of interests of the union members he represents. He argues that Article 17 of Executive Decree No. 41564-MIDEPLAN-H must be declared unconstitutional because it violates the acquired rights and consolidated legal situations of public officials, since a retroactive effect is being granted to the norm to their detriment, to the detriment of the administered parties, in complete disregard of Article 34 of the Constitution. He argues that what is established in that paragraph of the regulation of Law No. 9635 is contrary to the Political Constitution because it nominalizes all annuities and salary bonuses even though those amounts were established as percentages since their creation, and this creates an impact on the economic rights of the administered parties, leaving them completely unprotected and without legal certainty, despite the fact that these are rights derived from collective bargaining. In accordance with the principle of non-retroactivity, a subsequent law cannot be allowed to influence these types of relationships forged under the protection of the law. The legal system must protect the intangibility of these acquired rights and consolidated legal situations that are being threatened by the challenged norms. He requests that this coadjuvancy be accepted and that the promoted unconstitutionality action be declared with merit.

**32.-** In a written submission delivered at the Secretariat of the Chamber on January 22, 2021, **[Name 003]** appears, of legal age, retired, married, resident of San Isidro de Pérez Zeledón, with identification number **[Value 002]**, to request to be considered an active coadjuvant in unconstitutionality action No. 19-002620-0007-CO. He states that he coincides with the arguments put forth therein by the petitioner and asks that this action be declared with merit.

**33.-** By means of a brief of **March 23, 2023**, **Melvin Reyes Durán** appeared in the process in his capacity as special judicial representative of **Ana Cristina Forn Moraga, Ana Lorena Rodríguez Castillo, Carlos Eduardo de Jesús Álvarez Rodríguez, Magdalena Castro Varela, Iris Solano Portilla, Ivone Odette Furgeson Redguard, Luis Alfredo Meza Sierra, Ruperto López Umaña**. They request the prompt dispatch of this matter, as the challenged regulations are related to a process they have filed before the Contentious Administrative and Civil Court of the Treasury.

**34.-** On **June 1, 2023**, Mr. Sergio Antonio Rodríguez Brenes appeared to request the prompt dispatch of this matter.

**35.-** On **June 22, 2023**, Mr. Albino Vargas Barrantes attached a prompt dispatch request.

**36.-** On **August 9, 2023**, Magistrate Garro Vargas presented a recusal (inhibitoria) request.

**37.-** By resolution at 11:06 hrs. on **August 17, 2023**, the Presidency of the Chamber granted the recusal request of Magistrate Garro.

**38.-** On **August 24, 2023**, the recusal request of Magistrates Castillo, Cruz, Rueda, Salazar, Araya, and Garita was attached to the process.

**39.-** In a drawing conducted by the Presidency of the Supreme Court of Justice, Magistrate Alexandra Alvarado Paniagua was elected.

**40.-** By resolution signed by the acting President Magistrate *a.i.* Ana María Picado Brenes at 10:13 hrs. on **August 31, 2023**, the recusal raised by the Full Chamber was admitted.

**41.-** In a drawing conducted by the Presidency of the Supreme Court of Justice, Magistrates Sánchez Navarro, Picado Brenes, Lara Gamboa, Rosibel Jara, Aracelly Pacheco, and Ana Cristina Fernández were elected.

**42.-** On **September 22, 2023**, the excuse of alternate Magistrate Rosibel Jara Velásquez was filed, considering that several challenged norms are applicable to her person.

**43.-** On **September 22, 2023**, alternate Magistrate Alexandra Alvarado Paniagua presented her recusal request. She stated that what is resolved is related to and affects the payment of the salary she periodically receives within the Judicial Branch.

**44.-** On **September 22, 2023**, alternate Magistrate Ana Cristina Fernández Acuña presented a recusal request.

**45.-** On **September 29, 2023**, the recusal request of alternate Magistrate Ileana Sánchez Navarro was filed.

**46.-** On **October 23**, the request of Mr. Vargas Barrantes was sent again.

**47.-** On **November 13, 2023**, the recusal request of Magistrate Ingrid Hess Herrera was filed in the Virtual Desk.

**48.-** On **November 21, 2023**, Magistrate Picado Brenes attached her recusal request.

**49.-** By resolution at 16:10 hrs. on **November 21, 2023**, the acting Presidency *a.i.* of the Constitutional Chamber resolved the following:

&nbsp;*“Given the object of this process and the statements of Magistrates Ingrid Hess Herrera, Ileana Sánchez Navarro, Rosibel Jara Velásquez, Ana Cristina Fernández Acuña, Alexandra Alvarado Paniagua, and Ana María Picado Brenes, regarding having a direct interest in what is resolved in this matter, as they work for the Judicial Branch and are a judicial retiree - the latter -, the appropriate course is to grant the recusals and have them separated from the knowledge of this unconstitutionality action (In the same sense, resolution at 10:13 hours on August 31, 2023). Notify the pertinent office to the Presidency of the Supreme Court of Justice, in order to proceed with their substitution, in accordance with Article 6 of the Constitutional Jurisdiction Law.”* **50.-** Through a drawing conducted by the Presidency of the Court, it was recorded that *“because originally 6 alternates had been requested and there are only 4 available, the drawing was conducted with the alternates that are available”*. The elected magistrates were Alejandro Delgado Faith, Ronald Salazar Murillo, Jorge Isaac Solano Aguilar, and Hubert Fernández Argüello.

**51.-** On **January 12, 2024**, Magistrate Alejandro Delgado Faith formulated a recusal request.

**52.-** On **February 6, 2024**, Paola Loría Castillo appeared in the process to request the prompt resolution of this unconstitutionality action.

**53.-** On **March 13, 2024**, the recusal request raised by Magistrate Ronald Salazar Murillo was added to the record (expediente).

**54.-** On **April 8, 2024**, Mrs. Karen Carvajal Loaiza (ANEP) appeared to provide a copy of legal opinion PGR-C-036-2024 of March 4, 2024, related to conventionality control.

**55.-** On **April 10, 2024**, Magistrate Fernández Argüello presented a recusal request.

**56.-** By resolution at 16:03 hrs. on **April 12, 2024**, the Presidency of the Constitutional Chamber ‒Magistrate Fernando Castillo Víquez‒ resolved the following:

*“The recusal formulated by Magistrate Alejandro Delgado Faith is rejected. Magistrates Ronald Salazar Murillo and Hubert Fernández Argüello are deemed separated from the knowledge of this process. Magistrates Fernando Castillo Víquez, Fernando Cruz Castro, and Paul Rueda Leal are declared qualified to hear this process. Notify. Continue with the processing of the record.”-* **57.-** By resolution at 16:10 hrs. on **April 17, 2024**, the investigating magistrate for the process, Aracelly Pacheco Salazar, ordered a hearing be granted to the **Office of the Attorney General of the Republic (Procuraduría General de la República)** and the **Ministry of Finance (Ministerio de Hacienda)**, and to integrate into this process the **Ministry of Economic Planning (Ministerio de Planificación Económica)** and the **Civil Service Directorate General (Dirección General de Servicio Civil)**. The foregoing, so that they may address the arguments raised in unconstitutionality action No. 19-023575-0007-CO, filed by Mélida Cedeño Castro, in her capacity as president of APSE and accumulated to this process. Specifically, for the following reasons:

*“The professional career is a system that exists in the Public Administration intended to promote the professional and labor advancement of professional servants so that their performance reaches efficiency standards that effectively contribute to the quality and timeliness of the benefits in service of the public good provided to the citizenry. It includes a salary-based economic incentive recognized to officials based on points obtained for professional degrees or training. This regime is regulated in Resolution No. DG-064-2008, amended by Resolution No. DG-139-2019 of July 24, 2019, which regulates the professional career of professional servants covered by Title I of the Civil Service Statute, and No. DG-333-2005 for servants covered by Title II of the Civil Service Statute, all from the Civil Service Directorate General (DGSC). The economic incentive granted to a worker for professional career constitutes a perfected, subjective right that is incorporated into the worker's assets; however, despite the foregoing, the challenged paragraph ‒ Article 53, paragraph 3 of the Public Administration Salary Law, reformed by the Public Finance Strengthening Law, No. 9635‒ establishes that the recognition of new points for professional career will only be recognized and remunerated for a maximum period of five years. Such a temporary limitation on the recognition of new professional career points, in the petitioner's judgment, is completely arbitrary, and furthermore, it injures Articles 34, 40, 45, 56, 57, and 74 of the Political Constitution.”* **58.-** On May 7, 2024, **IVÁN VINICIO VINCENTI ROJAS**, in his capacity as **ATTORNEY GENERAL OF THE REPUBLIC (PROCURADOR GENERAL DE LA REPÚBLICA)**, rendered his report.

**On standing (legitimación):** It is deemed that the petitioner has sufficient standing (legitimación) to promote this unconstitutionality action, according to paragraph 75, second paragraph, of the LJC, since she acts in defense of a corporate interest, specifically, in safeguarding the interests of the members associated with that union.

**On the merits:** **On the *“Public Officials Statute”*** The PGR states that what traditionally characterizes the legal regime of the public function in general is that the conditions of employment are not established in a contract or by collective agreement, but are meticulously determined by objective norms, laws, or regulations of Public Law – Articles 9 and 112.1 of the LGAP– which, depending on their nature and hierarchy, can be unilaterally modified by the competent body, without it being possible to demand that the statutory situation be frozen in the terms in which it was regulated at the time of entry. Hence, it is affirmed that the official does not have a contractual relationship with the Administration, but a statutory one, since from the moment they enter the service of the Public Administrations, they are placed in an objective legal situation, essentially mutable. This is for the sake of achieving a clear pre-established goal: better and more efficient administrative performance and organization, in accordance with ever-changing circumstances – Article 4 of the LGAP–. An idea omnipresent even in our original constitutional framework of the public function, according to which: *“A civil service statute shall regulate the relations between the State and the public servants, with the purpose of guaranteeing the efficiency of the administration”* (Article 191 of the Constitution). So that the Constitution itself establishes an express reservation for the regulation by law of the diverse spheres of the Public Function, among which is the so-called “Statute” for officials, which includes among its essential contents the regime or remunerative system of public officials. Which, as has been noted in responding to the unconstitutionality actions processed under record numbers 19-6416-0007-CO, 19-12772-0007-CO, and 20-000491-0007-CO, constitutes an authorization for the legislator, in the exercise of their broad and inexhaustible freedom of normative configuration –Articles 9, 105, 121.1, and 191 of the Constitution–, to configure and regulate the employment conditions that must prevail in the Public Sector. Hence, it is the legislator who is called upon to establish the incentives and the amount of the economic benefits granted to their servants; this as part of the so-called *“Public Officials Statute”* (Articles 105, 121.1, and 191 of the Constitution).

The LFFP did not seek to establish, by way of artificial homogeneity, a unitary statute in formal terms; that is, a single normative instrument. Rather, it established a series of postulates and norms in remunerative matters that, as part of the salary policy of the Public Administration (Article 140, subsection 7 of the Constitution), in general terms and with a clear claim to generality, tend towards the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State. Based on the foregoing, they have been clear and emphatic in warning that the effects of the reform of the LSAP do not include the total and absolute repeal of the remunerative regimes pre-existing Law 9635, but rather adapting them to the homogenizing rules to which the salaries and extra salaries that continue to be paid in the stated public institutions must be subject in the future. Given its general scope of application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option for regulating the remunerative conditions of employment throughout the public sector (Art.

(191 constitutional), affirm that the regulatory provisions contained in the LSAP, introduced by Law 9635, related, among other matters, to the way in which salaries and their components must be calculated and paid, performance evaluation, payment frequency, temporary exclusion of increases, and caps on remuneration in the public institutions within its scope of coverage, take precedence over any other provision of legal or lower rank pre-existing at the sectoral level; this operates as an implicit repeal —total or partial— due to normative incompatibility of their contents.

From the reform, the so-called principle of "wage indemnity" (indemnidad salarial) is inferred, according to which: the total salary of public servants who are active in the institutions within the scope of application of its Title III upon this latest law's entry into force may not be reduced, and the acquired rights they hold will be respected. Thus, among other things, the changes to the salary regime established with the validity of that law will be applied "prospectively" (a futuro), without being able to be applied retroactively to the detriment of already appointed officials and their property rights.

In this way, in safeguarding acquired rights and consolidated legal situations, the questioned regulations establish that servants covered by the Professional Career regime before December 4, 2018 —the effective date of the aforementioned Law 9635—, whether under Title I or Title II of the Civil Service Statute, will retain, without time limitation, as long as their employment relationship subsists uninterruptedly, the quantity of points accumulated and recognized before that date and the respective economic compensation. And only for the updating and recognition of new points and other aspects regulated in the matter of Professional Career, will they be subject to the established regulatory modifications. Obviously, these rules do not, in a general manner, retroact their effects to the detriment of acquired rights or consolidated legal situations. On the contrary, they adjust the transition of the content of each of the cases regulated under the old regulations to the new provisions established in the norm. The foregoing does not mean, in any way, disrespecting the acquired rights or the consolidated legal situations of the professional beneficiaries of the professional career, as is groundlessly alleged in this action, because the application of the new legal and sub-legal (infra legales) mandates governs for the future; which implies that the employment benefits incorporated into each person's assets by the application of the previous legal regime of the professional career, will be kept intact in the assets of each of the persons who received them, according to the rules or conditions under which they were recognized. In this sense, the challenged legal and sub-legal (infra legales) norms cannot be considered unconstitutional for violation of the principle of non-retroactivity of the law —Art. 34 constitutional—, nor for violating the principle of patrimonial inviolability —Art. 45 Ibid.—, as is groundlessly alleged, because they truly did not imply any detriment to their total salary formed prior to the established reform. And the professional career points already earned before December 4, 2018, form an indisputable part of the assets of the beneficiary public servants and cannot be reduced under any circumstance, since they entered their assets prior to the legal reform and was so stipulated by the legislator.

It is not true that the new regulation on the professional career, which introduces a five-year validity —for the points acquired and compensated under this concept after December 4, 2018— is contrary to the principle of non-confiscation, since it is an economic compensation, quantitatively minimal, accessory, complementary, and optional to the total salary, which in terms of the Chamber itself does not affect the essential core of the constitutionally protected minimum wage —Art. 57 constitutional— (Rulings numbers 2011-014174, 2019-021130, and 2022-019113). Therefore, it cannot be affirmed that it turns out to be confiscatory in the terms alleged, especially when the plaintiff does not base or develop any technical, precise, and solidly supported argumentation in this regard in her filing brief.

Nor is any violation of the principle of non-waivability of social rights —Art. 74 constitutional— observed, because as there is no right to the immutability of the legal order, the matter of salary supplements for those still under the composite salary scheme is tangible and disposable material by the legislator, for not being part of the constitutional labor regime (minimum wage, Art. 57), since it is the ordinary legislation that must set and regulate them and, in this case, the challenged regulation, by its content, does not even entail an infringement of the principle of non-retroactivity.

**Conclusion** In sum, the legal change operated with Title III of Law No. 9635 in remuneration matters, which is of general application in the Public Sector, does not seek to create a salary detriment as is groundlessly alleged, but is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified; a need that goes beyond overcoming a passing or circumstantial economic crisis, as it constitutes an economic objective that it is desirable be maintained over time. It concludes that this unconstitutionality action must be entirely dismissed, on substantive grounds, as set forth.

**59.-** **LAURA FERNÁNDEZ DELGADO** submitted a report, in her capacity as **MINISTER OF NATIONAL PLANNING AND ECONOMIC POLICY.** **Background** In the context of the fight against the fiscal deficit, an enormous effort was made to contain spending and clean up public finances. The plaintiffs may or may not agree with some of the measures taken or consider that excesses were committed in that paradigm shift that had to be carried out. However, the spending containment measures were embodied, with majority approval by the Legislative Assembly and with the due constitutionality consultation with the Constitutional Chamber.

She emphasizes that the economic situation facing the Costa Rican State continues to be complex and sustained, and as of fiscal year 2020, public debt exceeded the sixty percent (60%) cap of the Gross Domestic Product (GDP) established in the LFFP in the Fiscal Responsibility section, and although, by reason of all the measures, adjustments, and efforts made by the Government of the Republic (especially by the Ministry of Finance and this office, in accordance with the relevant competence), at the close of fiscal year 2023, public debt reached sixty-one point one percent (61.1%) of GDP, which continues to exceed the normatively provided threshold, whereby the general, superior, and current interest subsists to maintain the validity of the norms. Therefore, the Public Administration continues to advocate for the balance between public finances, budgetary restrictions, and respect for the acquired rights and consolidated legal situations of public servants.

**On the merits: professional career** She cites the provisions of PGR opinions numbers C-366-2020 of September 16, 2020, PGR-C-223-2021 of August 9, 2021, PGR-C-120-2022 of May 31, 2022.

As of the entry into force of the LFFP, the professional career incentive will be recognized to public servants for those academic titles or degrees that are not a requirement for the position, but that are relevant to it. To be considered under the professional career heading, the cost of training activities must be covered by the public servant, whether or not they are taken during working hours, provided they are relevant to the position they hold. In those training activities not paid for by public institutions, permission with salary may be granted, upon due justification, to receive the training. The new professional career points would be compensated for a maximum period of five years, after which they must be excluded. *A contrario sensu*, the points recognized prior to December 4, 2018, would continue to be paid according to the previous parameters, but as a nominal amount. Newly hired public servants and those who were not subject to the professional career regime at the time the law came into force (within or outside the Civil Service Regime), must be compensated the incentive in accordance with the rules established by the LFFP (unless they fall within the assumptions established by the Public Employment Framework Law (LMEP) for applying the global salary). Exceptionally, professional career points could be recognized, according to the parameters prior to the entry into force of the LFFP, in the cases of those requests submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that had not been processed for causes attributable to the Administration. On the other hand, by regulation, labor continuity is configured as long as a period of no more than one calendar month has not elapsed without the public servant providing their services to the State. In this sense, the Theory of the Sole Employer State must be taken up again, which not only applies for the recognition of seniority bonuses (anualidades), but for the recognition of all labor rights acquired by the person in their performance in the public function. This aspect was included among the considerations that grounded the addition of subsection f) of Art. 14 cited, through Executive Decree No. 41904-MIDEPLAN-H of August 9, 2019.

Likewise, from the application of Art. 56 in concordance with the provisions of Transitional Provision XXV of Title III of Law 9635, the State (as sole employer, as long as labor continuity subsists) is compelled to safeguard salary amounts as a manifestation of the principle of wage indemnity (indemnidad salarial), the acquired rights, and the consolidated legal situations of the public servants covered by the scope of application of the law, such that the amounts that had already entered the asset sphere of the public servants at the time of approval of said law, cannot be reduced or an undue retroactive application made. However, the acquired rights and consolidated legal situations over the amounts recognized for the concept of professional career before the entry into force of the LFFP cannot be equated with the expectations of rights that public servants may have over the recognition of new points, nor can they aspire to a recognition that exceeds the maximum cap set by law, as this would indisputably incur a flagrant violation of the principle of legality.

She requests that the unconstitutionality action be declared without merit.

**60.-** **FRANCISCO CHANG VARGAS** submits a report in his capacity as **GENERAL DIRECTOR OF THE CIVIL SERVICE GENERAL DIRECTORATE.** He begins by clarifying that the compensation regime of the Public Administration is built on a premise of equality, justice, and dignified treatment of public officials; as well as based on the responsibilities of the position they hold. The foregoing is not only a desire to comply with the constitutional rights of every servant, but also for public institutions to fully, efficiently, and effectively fulfill the purposes legally entrusted to them, under the terms of Art. 4 of the LGAP.

The officials who provide services to the institutions covered by the Merit Regime and who entered the Administration prior to the entry into force of the LMEP are subject to the compensation regime regulated in the LSAP, in accordance with the provisions of the first and fourth numerals of that regulatory body. That is, their remunerations are based on the salary scale issued by this General Directorate and enjoy the protection contained in numeral 48 of the Civil Service Statute, Law No. 1581 of May 30, 1953, and its reforms.

The questioned norms in no way contain constitutional conflicts, as what the plaintiff questions is the elimination of a salary bonus that cannot, nor should, be considered an acquired right, for the reasons that will be set forth in the following section, such that this cannot translate or be considered a direct affectation to the salary of her represented parties.

He explains that the Constitutional Chamber has established that salary bonuses (sobresueldos) that depend on some condition to be granted —as is the case at hand— do not constitute an acquired right, as this cannot be considered part of the salary itself, since its granting depends on the objective conditions for which it was recognized. Congruent with this stance, the Second Chamber of the Court in Ruling No. 03167-2022 of November 18, 2022, was categorical in stating that as an acquired right, only those rights that have entered a person's assets can be framed, which could not be eliminated without causing a concrete and evident detriment to the conditions they previously held; a fact that does not happen in the present case, since from the reading of the already referenced numeral 53, it is categorically determined that the professional career incentive may only be recognized for a maximum period of five years. In other words, it is clear that in accordance with the legal reform introduced with Law No. 9635, it is widely known from the moment of its granting that said bonus will be recognized and compensated temporarily.

Reinforcing the stance set forth, he emphasizes that the Constitutional Chamber in Ruling No. 23953-2022 indicated that salary incentives cannot be considered an acquired right solely and exclusively when they depend on an objective fact or situation for their granting; as happens in the case at hand, in which the regulations related to the granting of the professional career incentive are contingent on compliance with legally established requirements.

He concludes then that when referring to the granting of salary incentives, such as the recognition of points for the concept of professional career, we are not in the presence of an administrative act generating acquired rights as the plaintiff mistakenly proposes; on the contrary, it is a benefit granted and conditioned not only on compliance with certain assumptions and requirements but also that its enjoyment is legally conditioned to a previously established period, so its suppression cannot be considered an abusive *ius variandi* by the Administration, upon the fulfillment of the temporal condition —five years— of the enjoyment of the cited salary bonus.

It is not possible to assert that the cessation of the recognition of the professional career incentive constitutes a violation of the principle of inviolability of one's own acts, as both doctrinally and jurisprudentially it has been sustained that this principle can only be violated when the Administration intends to *ex officio* annul an administrative act generating acquired rights or consolidated legal situations, a situation that is not comparable to the one at hand. In this regard, it is clarified that Art. 34 of the Political Constitution prohibits giving retroactive effect to acts generating acquired rights or consolidated legal situations that were born under the rule of legal norms, whenever this results in a detriment to the interested party or parties. In other terms, this principle prevents giving retroactive legal effects to a new norm to the detriment of acquired rights or consolidated legal situations under another norm. However, this is not an impediment to assert that a norm brought to legal life cannot be modified or suppressed by a later law; rather, what is intended with this principle is solely to protect the factual assumptions occurring prior to the new legal reform. In this regard, he brings up the explanatory memorandum of Bill No. 20.5806, since from it, it is determined that the LFFP was a product of the precarious economic situation prevailing in the country at the time of its issuance, whereby the legislator —exercising the powers conferred by the legal system— determined that the main objective of the cited reform was not only to modify but also to ensure compliance with these regulations, particularly those referring to the remuneration regime and payment of salary incentives for officials of the Central Administration, the Legislative Branch, the Judicial Branch, the TSE, and decentralized Administration: autonomous and semi-autonomous, public companies of the State, and municipalities. Law No. 9635 was brought to legal life as a product of the complicated economic situation our country faced and faces, and its primary purpose was to stabilize public finances and serve as a means of containing public spending by creating four fundamental pillars, two aimed at reducing the fiscal deficit in the short term, while the remaining two sought to generate fiscal discipline and higher quality in public spending in the medium and long term, as extracted from the explanatory memorandum. In this regard, he cites the motivation for the issuance of the LMEP and refers to criteria from the CGR that had warned the following:

"[T]he current remuneration scheme impacts fiscal sustainability, given the already mentioned characteristics of its structure, so it is necessary to deepen the discussion on more efficient systems that respond to the already stated principles as well as parameters of reasonableness, efficiency, effectiveness, and fiscal responsibility." &nbsp; He concludes then that the legislator not only could, but had to introduce changes in the legal regulations in force regarding the remunerations of servants, without this implying the violation of the principle of non-retroactivity and patrimonial inviolability, since what is constitutionally prohibited is to suppress a legally granted benefit, not so the Administration's possibility of regulating future situations, as happens in this case when the legislator regulates new conditions, requirements, and deadlines for the granting of the salary incentive for the concept of professional career. In this section, it must be considered that the deputies, upon enacting Law 9635, respected the cited principles, which can be verified from the reading of numeral 56 and Transitional Provision XXV of that legal body.

It notes that Comparative Law offers sufficient examples on this subject, concluding that there is no acquired right to maintain the remuneration of public officials unchanged and, to that effect, cites an excerpt from judgment 327:2111 of June 8, 2004, issued by the Superior Tribunal of Justice of the Province of Río Negro of Argentina, from which the following considerations are derived:

“[T]he intangibility of the public employee's salary is not guaranteed by any constitutional provision, nor does there exist, therefore, an acquired right to maintain a level of future remuneration without variations and under all circumstances.” A thesis reiterated by the Supreme Court of Justice of Mendoza, Argentina, which issued a final judgment on August 25, 2009, in case no. 80507, ruling that it is not unconstitutional to vary the scope of provisions related to future salary payments for public employees.

A situation similar to the case at hand arose in Spain, a country which, during 2010, due to the fiscal crisis it was undergoing, adopted Royal Decree-Law 8/2010 of May 20 of that same year, and when subjected to constitutional review, the Spanish Constitutional Court, in Plenary Order 85/2011, of June 7, 2011, decided not to admit for processing the question of unconstitutionality 8173-2010, raised by the Labor Chamber of the National Court in relation to various precepts of Royal Decree-Law 8/2010, of May 20, by which extraordinary measures were adopted.

In accordance with the analysis of comparative law conducted, in our context it must be kept in mind that the legislator, in compliance with numeral 34 of the Political Constitution, issued Law 9635, but this legal reform did not imply any violation of the principle of salary integrity (principio de indemnidad salarial) in accordance with the content of Articles 56 and Transitory Provision XXV of that legal body, by maintaining the remunerations that the public servants were receiving before its entry into force and by not applying the legal changes retroactively but prospectively. In this same order of ideas, it is necessary to reiterate that the changes ordered in the LFFP in relation to the recognition of the professional career salary incentive (incentivo salarial carrera profesional), regarding its recognition and payment, began to take effect from the entry into force of that law ‒December 4, 2018‒, therefore, there is no affectation whatsoever of legal situations prior to that date, since the salaries of the public servants who were providing services for the Costa Rican State prior to the entry into force of the cited law are respected.

Consistent with this legal position and the legal change introduced in our context, this General Directorate (Dirección General), in accordance with the powers constitutionally and legally assigned to it, issued resolution No. DG-139-2019 of July 24, 2019, which modified resolutions numbers DG-064-2008 of February 28, 2008, and DG-333-2005 of November 30, 2005, this with the purpose of adjusting these regulations to the precepts established in Law 9635 and its regulation.

The actions carried out by this General Directorate were not only timely and diligent, but also conformed to the norms in force, and were developed in strict adherence to the principle of legality.

Regarding the alleged harm to Article 74 of the Political Constitution, it states that with respect to this last grievance, it must be indicated that the plaintiff did not provide factual or legal elements that would allow this General Directorate to mount an effective defense and rule on the possible violation of this principle. However, it clarifies that, in its opinion, the questioned norms do not violate the principle of the inalienability (irrenunciabilidad) of the labor rights affected by them, because our Political Constitution, in Article 57, contemplates the right of every worker to receive a minimum salary, or in the case of public officials, it guarantees that they may not earn a salary lower than that established for their salary category. In that sense, the cessation of the recognition of professional career points for the incentive, since it is not an acquired right but a salary bonus (plus salarial) granted by the Administration for a determined period, in no way transgresses the principle of inalienability of the labor rights of public servants.

It concludes that there is no unconstitutionality whatsoever and requests that the appeal be declared without merit.

61.- NOGUI ACOSTA JAÉN, in his capacity as MINISTER OF FINANCE (Ministro de Hacienda), submitted a report.

On the salary nature of the professional career The professional career aims to stimulate the academic and professional development of the public servants, so that they remain in constant learning and updating, and that this is applied in the performance of their duties.

On the alleged harm to Article 57 of the Political Constitution The professional career incentive is considered a salary bonus (plus) and/or benefit, which will depend on whether the public servant has professional or training degrees and, additionally, whether these comply with the provisions of the regulations governing said incentive for its recognition. On the other hand, as administrative jurisprudence has indicated, the relationship existing between the State and the official is one of public law, which is inserted into a statutory regime (régimen estatutario), is subject to a legal status, to the duties of impartiality, objectivity, and independence that characterize the exercise of the state function, and to the power of unilateral modification in the hands of the Administration. For this reason, the regime of rights of public officials is not a static regime but a variable one, since the servant cannot resist its normative power, even regarding rights of economic content, within the constitutional limits of Article 34 of the Political Constitution, that is, in a retroactive manner unless it affects individual rights or consolidated legal situations, which is why it must be subjected to a more or less continuous process of adjustments and reforms for reasons of general interest.

It warns that in application of the principle of salary integrity (principio de indemnidad salarial), public servants who had professional career points recognized before December 4, 2018, will retain ‒without time limitation and as long as the employment relationship continues‒ the number of points accumulated and recognized before that date, and based on which they receive the respective economic compensation; but the points obtained after the entry into force of Law 9635 and other aspects regulated regarding the professional career will be subject to the normative modifications introduced by the cited law. The alleged violation of salary does not occur, since rights of economic content can be modified within the limits of the Constitution (Article 34 constitutional).

The reinforced protection of salary Labor Law is characterized by a series of its own principles, the protective principle being a classic one. The jurisprudence of the Second Chamber (Sala Segunda) has indicated that the protective principle in labor relations governed by public law is always subject to the principle of legality, and its application is impossible if it causes a normative breach.

In that order of ideas, it explains that the third paragraph of Article 53 of the law does not violate the protective principle. The purpose of Law 9635 is not to seek differentiation or salary detriment, but rather it was proposed to obey budgetary and financial limitations, with the clear objective of seeking to maintain a balance in public finances and ensuring that this economic objective is maintained over time and is not only applicable to a fiscal crisis. In that sense, it is the obligation of the State to guarantee the principle of efficiency by ensuring the necessary resources to meet employer obligations toward public officials and the expenditures for payroll payments that it must make, adjusted to the reality that the country's finances are going through. The payment of salary bonuses or incentives must be related to the equilibrium of public finances. Said reform introduced with Law 9635 aims to promote this equilibrium without this meaning that it has violated constitutional norms and/or principles. It is important to point out that, to safeguard salaries, and because Transitory Provision XXV of the LFFP so ordered, the total salary of the public servants who were active as of December 4, 2018 ‒the date on which that law entered into force‒ cannot be reduced.

On the alleged harm to Article 34 of the Political Constitution The final paragraph of cited Article 53 does not repeal the professional career incentive existing before the creation of Law 9635, but rather establishes a time limit for the recognition and remuneration of the economic incentive for the professional career, for a maximum of up to five years. Public servants who had professional career points recognized before December 4, 2018, will conserve ‒without time limitation and as long as the employment relationship continues‒ the quantity of points accumulated and recognized before that date, and based on which they receive the respective economic compensation, but the points obtained after the entry into force of Law 9635 and other aspects regulated regarding the professional career will be subject to the normative modifications introduced by the cited law.

It is important to reiterate what has been said, in that the regime of rights of public officials is not a static regime, but a variable one, especially regarding rights of economic content, modifiable within the limits of Article 34 of the Political Constitution. That is to say, it cannot be intended that the statutory situation be frozen or remain forever static, but rather it can be modifiable or vary by law or regulation, even eliminated by a later norm. Indeed, there is no right to the immutability of the legal system; the ordinary legislator keeps intact its power to enact laws, reform them, repeal them, and give them authentic interpretation (ordinal 121, subsection 1) constitutional).

This Ministry does not consider that acquired rights are being violated, since Law 9635 prevented the affectation of acquired rights by referring specifically to these in Transitory Provision XXV of the LFFP; the total salary of the public servants who were active as of December 4, 2018, the date on which that law entered into force, cannot be reduced and the acquired rights they hold will be respected.

On the presumed harm to the principle of the inviolability of assets (principio de intangibilidad del patrimonio) The reform made to Article 53 of the LSAP does not repeal the professional career incentive, since the points obtained before the entry into force of said law are conserved for the duration of the statutory relationship. It modifies the condition under which they will be granted after its effectiveness, in that only new career points will be recognized for a period of 5 years. In that sense, Article 191 of the Political Constitution, as well as the judicial and administrative jurisprudence that informs it, enable the uniform regulation, by law, of all employment relationships in the public sector, without this being considered a violation of the indicated constitutional principles. The law safeguards acquired rights and the non-reduction of salary, as observed in Transitory Provision XXV of the LFFP, therefore, in this regard, the impugned norm does not violate the principle of the inviolability of assets.

On the presumed harm to the principle of inalienability (principio de irrenunciabilidad) The principle of inalienability implies the impossibility for workers to waive the rights granted by labor legislation (ordinal 74 Political Constitution and Article 11 Labor Code). The rights of workers are inalienable; however, on this point, it is important to note that with the modification operated in Law 9635, the suppression of labor rights is not sought, but rather the law established Transitory Provision XXV of the LFFP, in order to safeguard acquired rights, as well as what concerns respecting the salary conditions of the public servants who were active as of December 4, 2018, the date on which that law entered into force.

Finally, it refers to the state of public finances, to conclude that it is clear that the State is under the obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet its obligations, adjusted to the reality that the country's finances are going through, and therefore the payment of salary bonuses or incentives must be related to the equilibrium of public finances.

It requests that the action of unconstitutionality be declared without merit.

62.- In a brief received at the Secretariat of the Chamber on July 5, 2024, Mr. [Name 004] appeared requesting to be considered a party to this case file.

63.- On October 31, 2024, a motion for prompt dispatch was attached.

64.- By means of a brief dated January 21, 2025, substitute magistrate Jorge Isaac Solano Aguilar attached a request for recusal.

65.- By resolution of the Presidency of the Chamber at 11:39 a.m. on January 24, 2025, the request for recusal of magistrate Solano Aguilar was rejected.

66.- The prescriptions of law have been followed in the proceedings.

Drafted by magistrate PACHECO SALAZAR; and,

CONSIDERING:

I.- Procedural Matters:

• 1)On the admitted joinders By resolution of the Presidency of this Tribunal at 9:29 a.m. on May 8, 2019, the following was ordered in relation to the requests for joinder (coadyuvancia) submitted up to that moment:
• a)Messrs. Enrique Egloff Gerli, in his capacity as president of the Asociación Cámara de Industrias de Costa Rica, and Álvaro Sáenz Saborío, in his capacity as special legal representative of the Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado, are considered passive coadjuvants (coadyuvantes pasivos), the foregoing because their interest is that this action of unconstitutionality be declared without merit; b) Messrs. Juan Carlos Chaves Araya, in his capacity as general secretary of SIBANPO, Miguel Ernesto Carranza Díaz as a public official, Marvin Atencio Delgado in his capacity as general secretary of SIPROCIMECA, Álvaro Adrián Madrigal Mora as general secretary of SITUN, Róger Muñoz Mata in his capacity as secretary of UNEBANCO, José Luis Soto Rodríguez in his capacity as general secretary of UPINS, and Luis Gerardo Chavarría Vega as general secretary of UNDECA, are considered active coadjuvants (coadyuvantes activos), all coinciding in their interest for this action to be declared with merit.
• 2)On the subsequent joinders Due to the broadening of scope that was made based on the arguments raised in the action of unconstitutionality No. 19-004931-0007-CO that was consolidated with this one, requests for joinder were submitted, which are resolved as follows:
• a)[Name 002], in his capacity as special judicial representative of SINAME, requested that his represented party be considered an active coadjuvant because he considers that the decision adopted by the Chamber in relation to the alleged norms will have a direct impact on the scope of the interests of the members of that union. Article 83 of the LJC states that in the fifteen days following the first publication of the notice referred to in Article 81, second paragraph of the LJC, those who have a legitimate interest may appear in order to coadjuvate in the allegations that could justify the appropriateness or not of the action of unconstitutionality, or to broaden, where appropriate, the grounds of unconstitutionality in relation to the matter that interests them. In the specific case, as observed, it was on February 27, 2020, when the representative of SINAME requested to be considered an active coadjuvant, estimating that his represented party has a legitimate interest in this action. Consequently, and given that the first publication of the notice of broadening of scope of this action occurred on February 7, 2020, the appropriate course is to consider this petitioner as an active coadjuvant within this process.
• b)[Name 003], ID number [Value 002], submitted on January 22, 2021, to the Secretariat of this Tribunal, a request to be considered an active coadjuvant in this action; however, his claim is untimely since, as was indicated, the first notice was published on February 7, 2020, and he came to this Tribunal almost a year later, meaning his motion is outside the period referred to in Article 83 of the LJC and therefore must be rejected.
• c)In a brief received at the Secretariat of the Chamber on July 5, 2024, Mr. [Name 004] appeared requesting to be considered a party to this case file. However, his motion is untimely and must be rejected.

</p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445376" class=""><span style="text-transform:uppercase">II.- On the Integration of the Chamber to Hear This Matter</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span>After carrying out the corresponding procedures, as recorded in the procedural history (resultandos) of this case file, the hearing of this case file was assigned to the following magistrates: </span><span style="font-weight:bold">Fernando Castillo Víquez, Fernando Cruz Castro, Paul Rueda Leal, Jorge Isaac Solano Aguilar, Fernando Lara Gamboa, </span><span style="font-weight:bold">Aracelly Pacheco Salazar and Alejandro Delgado Faith</span><span>. </span></p><h1 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445377" class=""><span style="text-transform:uppercase">On Admissibility:</span></a><br data-mce-bogus="1"></h1><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445378" class=""><span>III.- </span><span style="text-transform:uppercase">On the Formal Requirements of Admissibility and Standing (legitimación)</span></a><span style="text-transform:uppercase"> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>This Chamber has repeatedly indicated that the action of unconstitutionality (acción de inconstitucionalidad) is a process with certain formalities which, if not met, make it impossible to rule on the merits of the matter. Article 75 of the LJC regulates standing (legitimación) to file actions of unconstitutionality and provides for different situations. The first paragraph requires the existence of a matter pending resolution, either in a judicial venue – including habeas corpus or amparo appeals – or in the administrative venue – in the procedure for exhausting this route – in which the unconstitutionality of the challenged norm is invoked as a reasonable means to protect the right or interest considered harmed in the main matter. The second and third paragraphs regulate the direct action (acción directa), which are cases where the underlying matter is not required under the following assumptions: </span><span style="font-weight:bold">a)</span><span> when, by the nature of the matter, there is no individual and direct harm (lesión); </span><span style="font-weight:bold">b)</span><span> it involves the defense of diffuse interests (intereses difusos) or those that concern the community as a whole; and </span><span style="font-weight:bold">c)</span><span> when the action is brought by the Attorney General (Procurador General de la República), the Comptroller General (Contralor General de la República), the Prosecutor General (Fiscal General de la República), and the Ombudsman (Defensor de los Habitantes). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Thus, only in exceptional cases established by law is the existence of this requirement not necessary, and this Court has clarified that </span><span style="font-style:italic">“the assumptions contained in Article 75, second paragraph constitute an exception to the rule established in the first paragraph (incidental route (vía incidental)) that must be carefully assessed” </span><span>(judgment </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1145735" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">n.°</span><span style="text-decoration:underline; color:#000000">2022-003938</span></a><span>). </span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445379" class=""><span style="text-transform:uppercase">IV.- </span><span style="text-transform:uppercase">The Standing (legitimación) of the Claimants in THE SPECIFIC CASE</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>As is evident from the case file, in the different actions that have been consolidated into this main case file, the claimants justify the standing (legitimación) they hold based on the provisions of the second paragraph of Article 75 of the LJC, by affirming that they appear in defense of the diffuse interests (intereses difusos) of public officials, but also of the members of the different associations and unions they represent. This Chamber examined said legal basis and in interlocutory judgment </span><span style="font-weight:bold">n</span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-921416" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">.º</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2019-010635</span></a><span> of 9:20 hrs. on June 12, 2019 (issued in consolidated action n.º 19-004931-0007-CO), </span><span style="font-weight:bold; text-decoration:underline">it was expressly indicated that the criterion that they were appearing in defense of diffuse interests was not shared, and it was stated that, in the specific case, we are in the presence of corporate interests (intereses corporativos), also derived from the collective interests (intereses colectivos) that are what the appearing associations and unions seek to defend</span><span>. Likewise, the Chamber stated in that resolution that there is a clear relationship between the questioning of the norms and the interests of their members that produces standing (legitimación) to file this action of unconstitutionality. However, the following was also warned: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">[T]</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">hat relationship is not sufficient to protect the rights of the families of its members or of an even larger community, formed by taxpayers, those subject to the municipal regime, local governments, and public officials who work in various public institutions that are creditors of a certain level of autonomy</span><span style="font-style:italic">. Accepting that the Association is legitimated to defend the interests of that broader, general, and diverse group </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">would mean accepting the existence of a kind of popular action (acción popular), which is reserved to law in our legal system</span><span style="font-style:italic">, such that it must be expressly provided for by it, which is not the case” </span><span style="font-style:italic">(see interlocutory judgment n.º 2019-010635 of 9:20 hrs. on June 12, 2019, issued in case file n.º 19-0004931-0007-CO). </span><span>(The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In accordance with that resolution, it must be warned then, </span><span style="font-style:italic">prima facie</span><span>, that </span><span style="font-weight:bold; text-decoration:underline">the standing (legitimación) of the claimants is only for the purpose of questioning legal or regulatory norms that allegedly affect the labor and salary sphere of the workers, and not for questioning other aspects of public policy that are not directly related to strictly labor aspects</span><span>. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The Chamber's criterion has been reiterated in several subsequent resolutions. For example, in interlocutory judgment </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1061802" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2021-022948</span></a><span>:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic; background-color:#ffffff">III.- OF THE INADMISSIBILITY OF THE PRESENT ACTION, REGARDING THE ALLEGED VIOLATION OF THE AUTONOMY OF THE CAJA COSTARRICENSE DE SEGURO SOCIAL.</span><span style="font-style:italic; background-color:#ffffff">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">In the </span><span style="font-style:italic; background-color:#ffffff">sub lite</span><span style="font-style:italic; background-color:#ffffff">, the claimants formulate as a first objection a presumed violation of the reinforced institutional autonomy (autonomía) recognized in the constitutional text to the Caja Costarricense de Seguro Social (articles 73 and 188 of the Political Constitution).</span><span style="font-style:italic; background-color:#ffffff">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">Regarding this particular point, it must be indicated that this Constitutional Court has repeatedly resolved that the defense of the autonomy of an institution must be made before this instance by that same entity and not by a third party (Votos Nos. 2008-014190 of 10:00 hrs. on September 24, 2008, 2008-017295 of 14:48 hrs. on November 19, 2008, and 2016-01669 of 09:30 hrs. on February 3, 2016). Said criterion was ratified by this Chamber, recently, when hearing an action of unconstitutionality analogous to the present one, filed by another union organization (ANEP) that also sought to challenge various articles of the cited Ley de Salarios de la Administración Pública (reformed by Ley No. 9635), precisely, for alleged violation of the autonomy of the municipalities and different autonomous institutions. On that occasion, this Tribunal issued Voto No. 2019-010635 of 9:20 hours on June 12, 2019, in which it was indicated – regarding this point – that: (…) This criterion was confirmed again by this Tribunal, subsequently, by rejecting repeated actions of unconstitutionality, through Votos Nos. 2019-19597 and 2019-22464, by reason of several actions filed by the Sindicato de Trabajadores del Instituto Nacional de Aprendizaje against diverse regulations for alleged violation of the autonomy of that institution. In such judgments, it was reiterated that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the representatives of union organizations do not have standing (legitimación) to act, directly, in alleged defense of the autonomy of an autonomous institution, but rather the defense of the autonomy of an institution must be made by that same entity</span><span style="font-style:italic; background-color:#ffffff">.</span><span style="font-style:italic; background-color:#ffffff">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">Ergo, this action is inadmissible regarding this particular objection”.</span><span style="background-color:#ffffff"> (Considerations reiterated in judgments numbers </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1117460" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000; background-color:#ffffff">2022-023912</span></a><span style="font-weight:bold; background-color:#ffffff">, </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1156180" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000; background-color:#ffffff">2023-010777</span></a><span style="font-weight:bold; background-color:#ffffff">, </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000; background-color:#ffffff">2024-007057</span></a><span style="background-color:#ffffff">).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>This being the case, it must be said that, for this Tribunal, it is clear that [Nombre 001] in his capacity as general secretary of SEBANA; Albino Vargas Barrantes in his capacity as general secretary of ANEP; Carlos Stradi Granados in his capacity as president of SIICE together with Mario Ching Rosales as president of ASDEICE; and finally, Mélida Cedeño Castro in her capacity as president of APSE, are duly legitimated to appear via this route before this Tribunal, based on the provisions of Article 75, second paragraph of the LJC, </span><span style="font-weight:bold; text-decoration:underline">in defense of corporate interests (intereses corporativos) derived from collective interests (intereses colectivos)</span><span> that are what they seek to defend, as was indicated in the resolution admitting this case file (19-002620-0007-CO) and in the referenced interlocutory resolution n.º 2019-010635, issued in consolidated action n.º 19-004931-0007-CO). Regarding the active coadjuvancies (coadyuvancias activas), it is also noted that their admission is for purposes of coadjuvating in relation to the defense of the labor rights of the persons unionized to the corresponding unions, and not, as has been noted in the precedents, to carry out the defense of the institutional autonomy (autonomía) of the institutions for which they work. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>It must be insisted that, in principle, these actions are admissible insofar as they concern the </span><span style="font-weight:bold; text-decoration:underline">concrete defense of the public servants unionized to the different claimant unions</span><span>. Therefore, when examining in detail the grievances raised, it will be detailed which norms are inadmissible for analysis before this Tribunal, precisely attending to the standing (legitimación) held by the claimants. In that sense, although </span><span style="font-style:italic">prima facie</span><span> the actions filed are admitted, it will later be detailed which grievances must be dismissed by virtue of the fact that the standing (legitimación) of the unions cannot be assimilated to a popular action (acción popular) in which all the content of the LFFP is questioned. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Magistrate Cruz Castro dissents and also admits the standing (legitimación) of the claimants regarding the defense of institutional autonomies (autonomías), fiscal responsibility, and the destination of free surpluses (superávits libres).</span></p><h1 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445380" class=""><span>CONSIDERATIONS ON THE MERITS</span></a><br data-mce-bogus="1"></h1><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445381" class=""><span style="text-transform:uppercase; background-color:#ffffff">V.- On the Methodology of Analysis of the Action.</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span style="background-color:#ffffff">To facilitate the study of the challenged regulations, in the following recitals (considerandos) each of the questioned articles will be analyzed, including all the topics that are directly related to what is challenged by the claimants. Likewise, in each specific point, a brief reference will be made to what the coadjuvants, PGR, Ministerio de Hacienda, MIDEPLAN, and DGSC indicate, to finally carry out the constitutionality analysis by this Tribunal. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Preliminarily, general considerations are made related to the context of the approval of the challenged regulations, reflections on the necessary balance that must exist between the approval of public salary policies and the safeguarding of the fundamental rights of public servants, on the mutability of the legal system, the principles of progressivity and non-regressivity, acquired rights (derechos adquiridos), a clarification on the application of this regulation, and the general principle that governs constitutionality control processes, which is the necessary substantiation of the grievances. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445382" class=""><span style="text-transform:uppercase">VI.- Preliminarily. Context and Approval of the Challenged Regulations.</span></a><span style="text-transform:uppercase"> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Before examining in detail the list of grievances raised, it is necessary to assess the context in which the reform occurred. As will be developed below, the LFFP received legislative impetus and approval at a critical moment in the Costa Rican fiscal situation, in which one of the axes is to seek uniformity and containment of spending in relation to the payroll of public servants. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Indeed, matters relating to the payment of salaries of state employees have been a subject of concern for several years on the part of public authorities, such that there has been an impetus and calls for attention that, in a context of fiscal crisis, it is relevant to take permanent actions aimed at ordering spending on remunerations and, very particularly, in relation to salary incentives. Thus, for example, in the </span><a href="https://cgrfiles.cgr.go.cr/publico/docsweb/documentos/publicaciones-cgr/memoria-anual/2015/memoria-anual-2015.pdf" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">Annual Report of the Contraloría General de la República (CGR)</span></a><span> for the year 2015, an analysis was made of the increase in spending on remunerations and the following warnings were made:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“•</span><span style="font-style:italic"> </span><span style="font-style:italic">Spending on remunerations in the public sector reached ¢5,132,158 million, 5.7% more than in 2014. However, its share within total spending is increasingly larger, going from 24.2% in 2010 to 26.3% in 2015. </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">•</span><span style="font-style:italic"> The Central Government absorbs 41.4% of total spending on remunerations, and its growth rate is 7.3%, higher than that of the public sector. </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">•</span><span style="font-style:italic"> The ratio of salary incentives/basic remunerations in the Public Sector goes from 0.99 in 2010 to 1.1 in 2015. Incentives grew 6.1% in 2015 while basic remunerations grew 4.8%. </span></p> </p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">•</span><span style="font-style:italic"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">Given the current fiscal situation, it is relevant to take permanent actions aimed at organizing spending on remuneration, so that it is governed by the principles of reasonableness, efficiency, and effectiveness</span><span style="font-style:italic">”.</span><span> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In that annual report, the CGR likewise warned</span><span> that while spending on remuneration is of the utmost importance for the functioning of the Public Administration, such payments must be governed by the principles of efficiency, effectiveness, and economy, and that the dispersion of salary regimes and the disbursement of high incentives lead to an </span><span style="font-style:italic">“</span><span style="font-style:italic">unsustainable behavior of remuneration”</span><span>. The CGR warned</span><span> that it would be up to the Legislative Assembly to approve the norms and legislative proposals to</span><span> regulate the matter:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Without a doubt, spending on remuneration is of great importance for the effective functioning of the public administration, however, it must be governed by principles of reasonableness, efficiency, effectiveness, and economy. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The dispersion of current salary regimes, salary policies, and wasteful salary incentives lead to an unsustainable behavior of remuneration. A situation that is critical for a line item that absorbs practically a quarter of public resources and is of a recurrent nature</span><span style="font-style:italic">. As has been mentioned in other sections of this Economic Year Annual Report, there are already several proposals in the legislative pipeline aimed at containing this spending; it is up to the legislator to analyze and approve them in order to promote permanent solutions”.</span><span> (The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>Subsequently, in the </span><a href="https://cgrfiles.cgr.go.cr/publico/docsweb/documentos/publicaciones-cgr/memoria-anual/2017/memoria-anual-2017.pdf" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">2017 Annual Report</span></a><span>, the CGR carried out</span><span> an analysis of what the fiscal deficit in our country is about and explained several reasons for how it could have been generated. Among the causes that are listed is</span><span> precisely the growth in the remuneration systems of the public</span><span> sector: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Another cause of spending growth is the public sector remuneration systems that foster inertial growth: annual increments (anualidades), professional points (for seniority, courses, and professional degrees, etc.), reclassification of positions and posts,</span><span style="font-style:italic"> extraordinary salary adjustments, an increase in the number of civil servants, laws that create government programs or functions and originate more spending, creation of new units through reorganization, among others. The design of the current remuneration scheme comp</span><span style="font-style:italic">rises the payment of incentives, which tend to have a more dynamic behavior compared to base salaries. On average for the 2012-2017 period, incentives grew at a rate of 6.3% compared to the 5.2% average of basic</span><span style="font-style:italic"> remuneration. The foregoing, because some of these incentives are adjusted for inflation or are otherwise strongly associated with the number of years served, as is the case with the annual increments (anualidades).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Incentives have also come to be higher than base salaries, since in the aggregate of the public sector, for every ¢</span><span style="font-style:italic">100,000 of base salary, ¢</span><span style="font-style:italic">109,106 were disbursed for incentives, and in some institutions, incentives not </span><span style="font-style:italic">only equal the base salary but double it, that is, up to two-thirds of a civil servant's remuneration can correspond to the payment of incentives, r</span><span style="font-style:italic">eflecting the distortion (desnaturalización) that incentives have undergone in the base salary plus components schemes, as they gradually went from being additional compensation to being more important than the salary itself. This incentives/base salaries ratio </span><span style="font-style:italic">has</span><span style="font-style:italic"> grown steadily over time, for example, in 2013 for every ¢</span><span style="font-style:italic">100,000 of base salary, ¢</span><span style="font-style:italic">104,093 were paid in incentives. It is worth noting</span><span style="font-style:italic"> that the magnitude of this ratio differs according to the institutional sector, as it is greater in </span><span style="font-style:italic">non-business public entities (instituciones descentralizadas no empresariales) and smaller in Local Governments (1.3 versus 0.7 respectively).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">The upward trend in salary spending, not only in the Central Government but also in entities with autonomous status that are financed through Government transfers, has repercussions on the Government's fiscal result</span><span style="font-style:italic">”.</span><span> (The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>In that report, it was further warned</span><span> that it was vital to finalize legal reforms to regulate remunerative aspects of public employment and that inaction on that matter was undermining fiscal sustainability: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom-left:0pt; margin-bottom:0pt; margin-bottom-right:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">In short, the remuneration scheme, employment behavior, and inflation define the trend of spending on remuneration; where the administration </span><span style="font-style:italic">only has some control over the second aspect, while salary regimes </span><span style="font-style:italic">and inflation are exogenous variables. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The finalization of reforms to organize public employment and simplify salary regimes is of the utmost importance in addressing the fiscal issue. Inaction constitutes one of the main risks that undermine fiscal sustainability</span><span style="font-style:italic">, while perpetuating the inequities and contradictions of the current regimes”</span><span style="font-style:italic">. </span><span>(The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>From the foregoing CGR reports, it is evident that at least since 2015 there had been insistence on the need to simplify and contain salary spending as a measure to address the fiscal deficit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In this way, it is understood that the LFFP was adopted</span><span> in a context in which the Government and the Legislative Branch determined that it was imperative to adopt measures of all kinds in order to</span><span style="font-style:italic"> “</span><span style="font-style:italic">resolve the fiscal imbalance in a sustainable manner”</span><span style="font-style:italic"> </span><span>and seek a solution</span><span> to the structural problem of public finances (containment of spending and increase in revenues). The foregoing, because</span><span> all economic indicators pointed towards a severe fiscal deficit and an imbalance in public</span><span> finances. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In fact, upon examining the very background records of this Court, it is found that </span><a name="_Hlk146720664" class=""><span>in advisory opinion </span></a><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-894553" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">No. 2018-019511</span></a><span> which precisely examined</span><span> the doubts of constitutionality raised in relation to the bill that sought to approve the LFFP</span><span style="-aw-bookmark-end:_Hlk146720664"></span><span>, the Court warned</span><span> that the context surrounding the approval of the bill could not go unnoticed and the</span><span> following statement was made that precisely served</span><span> as a parameter</span><span> to assess the constitutionality of the legislative reforms: </span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">[I]n legislative file No. 20.580 there are technical criteria and reports from various authorities with competence in the matter that, for the purposes of this process, constitute sufficient evidence to conclude that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">due to the disregard for the constitutional principle of financial equilibrium, enshrined in Article 176 of the Political Constitution, our country presents a fiscal situation so deteriorated that it threatens the State's financial sustainability</span><span style="font-style:italic">”.</span><span> (The highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>After the analysis of both technical criteria contained in the legislative file, the Court assessed</span><span> that </span><span>—</span><span>in accordance with the specialists and the Government itself</span><span>—</span><span> the country's fiscal situation did not guarantee the State's financial sustainability and, therefore, it was not only desirable but unavoidable for the Costa Rican State to adopt measures to guarantee the qualities and principles of our </span><span>Social State of Law (Estado Social y de Derecho). The foregoing, under a harmonious interpretation of the princip</span><span>le of budgetary equilibrium and the Social State of Law. In this regard, this Court warned</span><span> of the following:</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">From this panorama, the Court observes sufficient technical criteria to (prove) that, at this time, the country's fiscal situation does not guarantee the State's financial sustainability and, therefore, the fulfillment of its constitutional obligations.</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-style:italic">In this regard, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">faced with a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant services, the decision of the competent authorities to define and apply measures suitable for alleviating or solving the problem is not only reasonable but, even more so, is unavoidable</span><span style="font-style:italic">.</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-style:italic">However, it is not for the Court to define specifically what</span><span style="font-style:italic"> type of remedies should be applied or which is the most suitable, since that is part of the State's economic policy, which in turn constitutes a matter of government. In reality, judicial review (control de constitucionalidad) is constrained to ensuring that the solutions are adopted while safeguarding the fundamental rights enshrined in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political system (in a democratic, free, independent, multi-ethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), all of which implies an exercise of balancing and optimizing the various constitutional principles, rights, and values at play.</span></p><p style="margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">In this context, a harmonious interpretation of the principle of budgetary equilibrium and the Social State of Law is of special importance. The Court warns that, for a Social State of Law to be able to persist and fulfill its constitutional and legal purposes, it becomes necessary for a healthy management of public finances to be carried out</span><span style="font-style:italic">; that is, there must inexorably be a balance between social 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 solidary political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Stated differently, the “ideal” Social State of Law is the “possible” Social State of Law, against which one precisely acts when the principle of budgetary equilibrium is violated, since, in the medium term, that 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. Ensuring then that a failed or paper Constitution is not reached, where social welfare rights of constitutional rank cannot be effective, is a fundamental task of this Court, strictly within what the framework of its competences allows it”.</span><span> (The highlighting does not correspond to the orig</span><span>inal). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Further</span><span> on, the Court again refers to the context of the approval of the regulation in question in order to conclude that the adequate respect for social and welfare rights is an aspiration that is contingent</span><span> upon the healthy and appropriate management of</span><span> public finances and that it is necessary for a balance to exist between social welfare rights and the State's economic solvency, since the former depend on the material possibilities brought about by the latter. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Therefore, the starting point is precisely the need to adopt legal, administrative, and material measures that would allow reversing the brink of a fiscal crisis of particularly serious gravity, which was characterized as unsustainable, which implied</span><span> a threat to the Social State of Law. In this regard, the Court made</span><span> the following reflections: </span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">As has already been stated in this ruling, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">for a Social State of Law to be able to fulfill its constitutional and legal purposes, the country's fiscal sustainability must be safeguarded; that is, there must inexorably be a balance between social welfare rights and the economic solvency of the State, since the former depend on the material possibilities brought about by the latter</span><span style="font-style:italic">. Hence</span><span style="font-style:italic"> the “Ideal” Social State of Law is the “Possible” Social State of Law, because indebtedness and irresponsible management of public finances, even if carried out with the aim of alleviating social problems, when they reach disproportionate levels can put the country's financial sustainability at risk, which not only leads to its economic weakening (even to levels of very difficult or traumatic management), but also increases the possibility of losing social programs and the socioeconomic gains achieved to date. Furthermore, as a starting point, this ruling is based on the premise that the challenged bill is guided by the constitutional principle of budgetary equilibrium, within a context in which there is sufficient body of evidence to verify a fiscal crisis of particularly serious gravity, which has been characterized either as unsustainable or as a threat to the Social State of Law, according to the technical criteria of various authorities from the university, economic, and oversight sectors (Institute of Economic Research of the University of Costa Rica, Central Bank, Office of the Comptroller General of the Republic, State of the Nation Program, among others). It is noted that such economic weakening of the country can undermine the foundations of the welfare and solidarity state, which precis</span><span style="font-style:italic">ely puts the Social State of Law itself at risk. In the task of solving such a problem, the legislator enjoys broad freedom of configuration, regarding which it is not for the Constitutional Court to define specifically what type of remedies</span><span style="font-style:italic"> s</span><span style="font-style:italic">hould be applied or which is the most suitable, since that is part of the State's economic policy, which at the same time constitutes a matter of government.</span></p> The function of the jurisdiction is limited to ensuring that the solutions adopted safeguard the fundamental rights protected in the Political Constitution and the international human rights instruments ratified by Costa Rica, as well as the organization and political structures contemplated in the Fundamental Law, the foundations of our democratic political system.” (The emphasis does not correspond to the original).

Magistrates Salazar Alvarado and Araya García pointed out that it did not correspond to the Chamber to define whether our country was effectively going through a fiscal crisis or not; however, they did recognize that, in light of the respective technical criteria contained in the legislative file, the context could be assessed and the legal reforms being proposed could be examined. However, they warned that the potential financial crisis could not justify, by that mere circumstance, the emptying of the content of the fundamental rights of the inhabitants, since this could imply, in essence, a dismantling of the Social State of Law. In the pertinent part, they made the following reflections:

“It is necessary to emphasize that it is not for this Chamber to define, specifically, whether the country is going through a fiscal crisis or not, nor the characteristics thereof—if one existed—and, much less, what type of remedies should be applied, nor which are the most appropriate, nor the timeliness and advisability of the financial and public spending reduction measures adopted, all of which falls within the macroeconomic policy of the State, a matter typical of government. Neither does it correspond to decide on one solution or another. It is for the competent administrative departments, through technical and actuarial criteria, to define whether a fiscal crisis exists in the country, to what extent, as well as its characteristics and economic and social consequences. This, however, does not prevent this Court, in light of those technical criteria—such as the Economic Report AL-DEST-IIN-114-2019, of March 2, 2018, from the Department of Studies, References and Technical Services of the Legislative Assembly (see page 1477 of the legislative file); official communication No. DFOE-SAF-0183, from the Audit Area of the Financial Administration System of the Comptroller General of the Republic of April 13, 2018 (visible on page 4525 of the legislative file); and official communications JD-5846/04, of September 26, 2018, and DEC-AAE-0083-2018, of October 16, 2018, from the General Secretary and the Department of Economic Analysis and Advisory, both of the Central Bank of Costa Rica (visible on pages 15805 and 20519, respectively, of the legislative file); among others—from assessing the situation—not defining it—in order to, within that context, carry out the constitutionality review which is its responsibility. These considerations are typical of a Court of the nature of this Chamber, because not only can it not be oblivious to the financial and social reality of the country, but this issue is inserted within the constitutional principle of financial balance that the Constituent Assembly of '49 established in Article 176 of the Political Constitution, which has serious repercussions on the Social State of Law. However, the financial crisis of the State cannot justify, by itself and in itself, the restriction or the curtailment of fundamental rights. In this sense, it is indeed incumbent upon this Court to determine whether the proposed measures are or are not in accordance with the Law of the Constitution, so that the content of constitutional rights is not emptied in order to seek a healing of public finances. In this matter, there exist intangible limits for the legislator. In this context, an exacerbated impairment of social guarantees cannot be admitted, especially of welfare rights, without this implying a dismantling of the Social State of Law.” (The emphasis does not correspond to the original).

Magistrate Hernández López also referred to the context of regulatory approval as a parameter of reasonableness and proportionality, warning, however, that it is a contingent aspect that could improve:

“Another aspect that is crucial to clarify is that, although this judgment contains references to the current economic situation (according to the technical studies provided in the record), that context has been taken into account insofar as the competent authorities rely on it to justify that some of the measures adopted are determinable for the economic sustainability of the State's responsibilities. In that sense, the references to that situation, from my perspective, have been made for the purpose of assessing the reasonableness and proportionality as constitutional parameters of some of the measures consulted. By acting in that manner, I understand that it reaffirms the necessity—also clearly recognized by the doctrine itself—that the decisions of this body take into account and always operate within a specific social and economic context, so that—within such specific circumstances—the best possible balancing, protection, and equilibrium of the fundamental rights of the administered parties is achieved, but without affecting the viability, endurance, and stability of the Political Constitution, as a legal and political instrument that makes the realization of the social pact possible; the opposite would risk ending up at the antipodes of the constitutional rule of law, with a fundamental Charter, in the air, with rights that exist only on paper, that is, with a failed state, incapable of guaranteeing its obligations, particularly those of welfare rights (especially those of the most vulnerable populations: children, adolescents, the elderly, poverty programs, security, health, justice, and peace, among others), which would be emptied of content. Nothing exempts a constitutional rule of law from fulfilling its obligations to guarantee, in a programmatic manner, the fulfillment of these responsibilities, which are also part of its raison d'être. In that sense, different contexts (economic, political, or social) can influence the way in which a Constitutional Court, fulfilling its protective and oversight function, endows specific meaning and scope, especially to so-called constitutional principles, due to their open texture, and guides the authorities on the scope of the programmatic norms of a given state, at a specific moment and under specific historical circumstances; it could not be otherwise, nor has it ever been, when it comes to the task of building a democratic and social State of Law, in which this Court also participates, insofar as it corresponds—due to its function as guardian of the Political Constitution—and as part of its role, to ensure the stability and endurance of the social pact. Such is the real meaning of what is stated in this judgment, which, as indicated, cannot serve to pre-judge in an exact and rigid manner the questions that in the future—facing concrete cases and in different contexts—may be brought before the Chamber, because it would not be correct for—for example—the specific parameters of reasonableness and proportionality employed under a given context to be maintained, without adjustment, in the face of changes or improvements that may arise in the future; such that, in a context of economic prosperity, the reasonableness and proportionality of some of the measures adopted would not have the same meaning from a constitutional standpoint. From my perspective, for example, it would not be constitutionally sustainable, in the face of future economic stability or prosperity, to maintain in force some of the growth restrictions on social spending—destined for populations in the greatest state of vulnerability and for workers' rights—that have been imposed in the current context.” It should be indicated that the LFFP included a series of provisions related to modifications in tax matters, specifically regarding the Value Added Tax Law (Title I), the Income and Profits Tax Law (Title II); a series of rules were added that reformed the LSAP (Title III)—which refers precisely to the subject matter to be examined in this action—; provisions related to fiscal responsibility were also introduced (Title IV); and finally, transitory rules to make the reforms in question operative.

Regarding the impact on the salaries of public servants, the statement of legislative intent for the bill explained the purpose of the initiative, namely: to guide the remunerations of the public function towards a framework of efficiency and quality in public spending. In this way, the statement of legislative intent for the bill stated the following:

“b) Addition to the Public Salaries Law With the reform of the Public Salaries Law, the aim is to guide the remunerations of the public function towards a framework of efficiency and quality in public spending. To this end, it establishes: i) Caps on the highest salaries of the Public Administration; ii) A single salary remuneration system for senior officials; iii) The legal regulation of the regimes of prohibition and exclusive dedication; and iv) The conversion of the annual increment (anualidad) into a mechanism for evaluating individual excellence, but one that takes into account the fulfillment of institutional goals and the National Development Plan. This last point seeks to reduce the paradox of having officials rated as excellent, who nevertheless provide services in entities that have not met expectations. The compensation of high-ranking officials must be based on the nature of their work and the competencies to be performed. For many positions of responsibility, the base salary represents only 20% of the total salary, their remunerations being adjusted through the most diverse bonuses, which are less transparent and controllable, and which can result in evidently abusive compensation, especially if the reality of our labor market is taken as a parameter. In this sense, the establishment of caps for the best-remunerated positions could bring the double benefit of, on the one hand, avoiding abusive compensation and, on the other, standardizing the compensation of high-ranking officials who perform functions of equal responsibility. On the other hand, it is undeniable that the performance evaluation system of the public sector is not only complex, but also facilitates the inflation of ratings and is carried out in isolation from the actual provision of services, which is, after all, what matters to the citizenry. Furthermore, according to INEC data, there are approximately 305,000 public officials in Costa Rica, representing a number close to 15% of the workforce. Determining whether that number is excessive does not depend on the number itself, but on the results achieved. An adequate evaluation system, based on ease of understanding, on transparency so that its results are publicly known, and on the merit of officials, would have as a necessary corollary the incentive for better individual performance and in the provision of services. This would also result in a better analysis of the resources allocated to our public workforce, and even in the possibility of redirecting them to those areas of greatest demand or impact. For these reasons, the following bill is presented to the deputies:” (The emphasis does not correspond to the original).

In the Integrated (Legal) Report No. AL-DEST-IJU-110-2018 from the Department of Studies, References and Technical Services, dated March 21, 2018, concerning the bill processed in legislative file No. 20.580, on the LFFP bill, precisely the intentions of the legislator to put a stop to the uncontrolled growth of public finances were highlighted, based on several rules that seek to avoid the exponential increase in the salaries of public servants and to unify the salary policy of the Public Administration. This report, in the pertinent part, established the following:

“As can be observed, the rule intends for the entire Public Administration to be governed by a single salary. This assumption has already been implemented in institutions such as the Comptroller General of the Republic, with the intention of managing in an adequate and rationalized manner the salary bonuses that have been granted to public officials up to now. Limiting the growth of so-called public remuneration has been an objective of the legislator, relatively recent and articulated through various mechanisms, as in this case, tending to restrict not only the amount of such compensation in the public sector through the legal establishment of maximum limits or caps, but also to curb the increase in public spending. On this matter, the Constitutional Chamber has warned the following: “(...) the effects that imbalances in the State's salary regime produce on public finances and, therefore, for the country in general, make it fully justifiable and even constitutionally necessary to subject everything concerning the salary policy of the Public Administration to uniform criteria. (....).” (Ruling No. 3309-94 of 15:00 hours on July 5, 1994). Therefore, it is not surprising that the proposal of this bill seeks to make effective a measure of general economic policy, of undeniable budgetary nature, aimed at containing the relative expansion of one of the components of public spending, namely that related to employee and high-level official remuneration. Even though it is true that there is no norm in our legal system that specifically supports the competence of the State to establish global maximum limits or caps on the remuneration of personnel serving in public administrations, it must be considered that even though the Executive Branch—strictu sensu—has among its powers that of “Ordering the collection and investment of national revenues” (Art. 140.7 of the Constitution), and from this the powers of salary fixing have been derived (resolution No. 1822-01 of 15:46 hours on March 7, 2001, Constitutional Chamber), the Magna Carta expressly establishes that it must do so “in accordance with the laws.” And what is proposed is undeniably a legal proposal that seeks to establish maximum limits or caps on the remuneration of all personnel serving the public sector, under a uniform scheme, based on the principles of equality and solidarity, aimed at containing the relative expansion of one of the essential components of public spending and reducing the public deficit.” (The highlighted portion does not correspond to the original).

In the month of April of the year 2018, the Permanent Ordinary Committee on Financial Affairs issued a favorable report on the bill by majority, and in the report submitted to the Plenary, they also referred to the economic context for the approval of the proposed reforms. Regarding this action of unconstitutionality, it is pertinent to highlight the legislators' purpose of adjusting salary elements that constitute a trigger for public spending:

"B) FISCAL CONTEXT AND THE PROPOSAL PRESENTED In recent years, there has been an increase in the country's tax collection, which has led fiscal revenues to be close to the average of fiscal revenues in Latin American and Caribbean countries. However, and despite this improvement and the efforts made to reduce spending, resources are insufficient to finance the expenditures currently needed in the country.

The high levels of deficit have caused a rapid increase in public debt, making it increasingly difficult to cover it with current tax revenues. The Central Government's budget went from a surplus of 0.57% of GDP in 2007 to a deficit of 6.2% in recent years. Public debt rose from approximately 25% of GDP in 2008 to more than 40% in 2015. The level of indebtedness in Costa Rica is high compared to the estimated average in the region's countries. On the other hand, indebtedness expressed as a percentage of public revenues reaches unsustainable levels and has grown more than in other countries in the region. In 2015, Costa Rica's debt level was nearly three times the Government's annual revenues, placing Costa Rica in the second-highest position in the region after El Salvador.

If not adequately addressed, Costa Rica's fiscal deficit could be unsustainable, and public debt could reach critical values that would jeopardize the country's growth. To balance the budget, Costa Rica must obtain new revenues and, at the same time, control public spending; it is necessary to correct the distortions generated, for example, by the excessive earmarking of tax revenues, which substantially limits governmental decisions on public financing, and it is also necessary to establish rules for the deceleration of spending and control of spending triggers, all of which, combined with a reform of the tax structure, are the necessary elements required to set Costa Rica on the path to fiscal sustainability.

(...)

All of the above highlights the need to approve the proposed reform, which contains the following pillars:

Improvement in the tax structure to allow for better collection and to approach a budgetary balance, which involves:

(...)

Establish improvements in the definitions of prohibition and exclusive dedication, cap the annual salary increases (anualidades), and other regulations governing public employment. (...)".

(The highlighted portion does not correspond to the original).

Subsequently, it was demonstrated that the legislative file was referred to a special committee: "Special Committee responsible for issuing a report on legislative file 20.580, Law for the Strengthening of Public Finances, which contains legislative file 20.730." A series of consultations and interviews were conducted within this committee. It was demonstrated, for example, that at ordinary session No. 28 on Thursday, June 21, 2018, the then Minister of Finance was received for an interview, during which she gave a broad explanation of the bill. Particularly, regarding public employment, she regretted that the country had delayed in taking concrete actions to standardize salary matters and made projections regarding making bonuses nominal. The foregoing, without any impact on the salary of public servants. On these points, the following statements are recorded:

"In this opinion study and her recent efforts, which the Office of the Comptroller General (Contraloría) released yesterday and made public, there are very interesting recommendations that I believe should be considered in that potential public employment law.

Regarding the estimate made, for the purposes of the ninety-six billion, it is an estimate based on the following.

Today, there are about one hundred fifteen thousand employees, one hundred twenty thousand Government employees, from the Budget of the Republic, one hundred thirty if all are included.

They have an average annual base salary of six million colones. So, what was done was to use the average seniority, which is more or less ─seniority in terms of the number of annual salary increases (anualidades)─ in the order of fourteen or fifteen, if I remember correctly.

What was estimated is based on several assumptions: 3% inflation and 100% payment of the annual salary increase. What is the impact on the growth of that incentive in the coming years, and what would the situation be if, instead of keeping it as a percentage, a fixed estimate is made?

Under that assumption that I am adding an annual salary increase to that group and that every time I make the salary adjustment, I am not just increasing that year's annual salary increase, but the inventory of those accrued, it yields a certain amount. And then, not only the savings from the annual salary increase are added, but also the rest of the social charges that would be avoided as a result of that non-adjustment of the automatic and inertial manner that annual salary increases have.

It is assumed, right?, because this is done based on assumptions, of course, as I said, that each person earns an annual salary increase each year, because as you know in the public sector, in the Central Government, practically 99%, I don't know if there is any exception, earns the full annual salary increase.

(...)

Deputy Yorleny León Marchena:

Always within the framework of that table, Mrs. Rocío, and thank you for expanding that information for us. A question arises regarding the participation yesterday by the Minister of Labor and your appearance here today.

In this table, there is an item that speaks of constant payment of each annual salary increase, and earlier you explained to us, then, how those ninety-six billion colones listed there are derived, representing 0.21, right?

For this effect of measures to occur, then, the situation that annual salary increases will go from being percentages to being nominal, and so forth, must take place in practice.

But yesterday, the Minister of Labor repeatedly indicated that no worker in this country would see their salary affected in any way. Now I have the doubt as to which is the correct interpretation.

Mrs. Rocío Aguilar Montoya:

No doubt. The salary that each public servant receives today is not reduced. What is modified is forward-looking, how certain components are calculated.

I would give them the example of a year when inflation was zero and in that year there was no salary adjustment, and despite there being no salary adjustment, remunerations grew by 1.93. And that is an effect of salary increases that are decoupled, let's say, from what happens with the cost of living, which is the classic case of the annual salary increase, the biennial bonus, the merit bonus, and others, they have another name, right?, but they are automatic increases as a percentage of the base.

So, here, no one is being stripped of that benefit they have today; what is being modified is how it is calculated going forward. And, as I was saying, what is sought here is to be able to manage salary policy in a better way and so that when I make an increase in the base, a series of other benefits do not start to float up which, being anchored as a percentage to the base, grow disproportionately.

Looking, for example, not only at the Central Government, if one looks at the budget report prepared by the Office of the Comptroller General for the entire institutional set, it is striking how remunerations grow at a lower rate than incentives, and the reason is precisely that: that incentives are thus divorced.

If one had managed to make the decision —I think I did the calculation very early in the morning— in 2014, if I remember correctly, having decoupled them would have generated savings of about... I said one hundred fifteen billion, one would have to do the math better, but I did that in very general terms.

That is what one wants to avoid. And what should one seek in the medium term? That the base salary really has value again. The base salary today is about 40%, but because no one touched it again because it became untouchable, because if I touch the base salary, the rest of the things automatically grow for me.

Deputy Yorleny León Marchena:

So, Mrs. Rocío, let's see. My current salary will not be modified, but my salary expectation based on future components will indeed be affected. That is the impact. Is that correct?

Mrs. Rocío Aguilar Montoya:

It is one way to describe it, and this is important because here we must begin to distinguish between acquired rights (derechos adquiridos) and expectations of rights. And regarding another concept that the Court itself has developed in a way that seems excellent to me, the concept of the immutability of the law, none of us has the right for that not to be modified going forward.

Of course, if that modification implies that my acquired right was modified, well, it must be compensated.

But if what we are talking about is the expectation of a right, which is somewhat the topic I referred to, then the matter is different, that can be varied.” Additionally, in regular session no. 29 of 27 June 2018, the appearance of the Comptroller General of the Republic was received, who made important reflections on the urgency of approving the LFFP:

“We referred on that occasion to a fiscal reality characterized by a deficit of more than six percentage points of GDP, associated with a public debt that brushes against the limit of sustainability and that has been fueled for almost thirty years by financing current expenditure with indebtedness, and that is rooted in political practices and decisions that have been established without a medium-term vision of their consequences on public finances and that have become a problem that is a structural matter.” Specifically, regarding the salary issue, the Comptroller provided the following explanations:

“With respect to title three, this is a modification to the Public Administration Salary Law and seeks, first, to regulate limits and general criteria for the recognition of compensation for exclusive dedication and prohibition, also indicating that it will be paid on base salary only.

More specifically, the text modifies the dedication incentive, establishing percentages of 55, 20, and 30% according to the academic degree of the official and, additionally, establishes that these contracts must be for a minimum of one year and a maximum of five years. The prohibition would be established at 65 for graduates and higher and 30 for bachelor's degree holders.

It declares incentives such as discretionary compensation, confidentiality, biennial supplements (bienios), quinquennial supplements (quinquenios), and similar ones as inadmissible. It regulates the severance pay (auxilio de cesantía), according to the provisions of the Labor Code, at eight years.

It establishes a limit on the remunerations for all public servants of twenty monthly base salaries of the lowest category in the Public Administration salary scale; twenty-five in the case of the President, and thirty in the case of officials of institutions operating in competition, which represents distortions regarding the level of responsibility and remuneration received, and we had pointed this out also in March.” Subsequently, the strengthening of public service delivery was advocated with the notion of uniform salary conditions:

“Given its importance in fiscal and social matters, I will briefly refer to the topic of public employment. And here, clarify that public employment is a means to contribute to and increase the State's capacity to offer goods and services that improve the quality of life of citizens.

Public employment is not merely compensation or remuneration. That is only one part, and everything must function effectively and efficiently to deliver the expected results.

Among other components of this system, we have recruitment, selection, the administrative career, performance evaluation, profiles, competencies; all of which must be designed so that public employment, which is fundamental for the economic and social growth of the country, is vigorous, fair, balanced, equitable, and transparent.

In that sense, various documents from the Comptroller's Office have advocated for a necessary comprehensive vision and the creation of a defined policy on public employment, given the diversity of the remunerative system in force in the public sector, characterized by unequal base salaries and salary incentives of very varied nature that are enshrined in laws, decrees, collective bargaining agreements, and internal regulations.

(…)

Specifically, on the topic of remunerative schemes, our most recent work corresponds to the study on challenges for the modernization of the remunerative scheme in the Government ministries, where general principles were identified towards which remuneration schemes can be oriented in order to attract and count on motivated, effective, and efficient personnel. That is, paying equal salary for the same work, paying different salaries only in the presence of differences in the work performed, in the responsibilities, and the required qualifications, paying salaries in the Government comparable, as far as possible, to those of equivalent strengths in the public sector, periodically and systematically reviewing the remuneration schemes to guarantee their continued validity.

The application of these principles has an important impact in five areas, such as governance, and there is the use of public resources and transparency, economic policy, the implementation of fiscal policy, the distribution of public goods and services, and fiscal sustainability.

(…)

In conclusion on this title three of the bill, it is considered that it is a positive signal towards the ordering of remunerations, which must advance towards a balance internally, but also externally to the institutions.

The Comptroller's Office proposes beginning a transition towards a remunerative system in which salary incentives are adjusted to the principles mentioned above, which is important as a step towards a more uniform remuneration regime, as well as addressing other crucial topics of public employment necessary to impact efficiency in public management.” (The highlighting does not correspond to the original).

With the context of the regulation's approval and the purposes of the Legislative Assembly being clear, each of the alleged claims will now be examined. It is emphasized that this argument was added for the purpose of evaluating the final motivation of the reform, without this in itself being a condition that legitimizes all provisions relating to public employment and salary provisions.

VII.- ON A NECESSARY BALANCE BETWEEN SALARY POLICIES AND THE SAFEGUARDING OF THE FUNDAMENTAL RIGHTS OF PUBLIC SERVANTS Considering the serious fiscal situation of our country, this Court considers that the Costa Rican State, in the broad sense, must aspire to a healthy balance between respect for the fundamental rights of working persons—a salary that ensures conditions of well-being and dignity, respect for acquired rights (derechos adquiridos), and the right to collective bargaining, among others—and the orientation of public finances, specifically the remuneration system, towards a scheme of efficiency and quality in public spending. The foregoing, with the purpose of curbing the salary gaps and disparities that have been affecting public finances. To achieve the above, the principles of equality, reasonableness, and proportionality must be taken into consideration in the recognition of salary improvements, so that there is no severe impact on the disposition of public funds and no unfair disparity among public servants themselves. For example, when this Court, in judgment no. 2018-008882, examined the cap on the amount of severance pay that can validly be improved through collective bargaining, it made the following considerations:

“The problem that the majority of the Chamber finds here—and which does not seem to have been specifically addressed previously—arises when the magnitude of the benefit is contrasted, not only internally within the group of employees favored by the Collective Bargaining Agreement, as was done in the cited judgments, but when the magnitude of that payment of severance pay is analyzed within the complete universe of public servants in the broad sense; this extension of the comparative framework is justified inasmuch as for all employees in the service of state institutions, the source of financing for that payment of severance pay is one and the same: the tributes and public prices paid by all the people inhabiting the Republic. And it does not preclude that, both in this case and in many others, it concerns state companies acting in a competitive market and administering funds from consumers, savers, and borrowers, since, inasmuch as such institutions belong to the State and have its backing, their health and financial practices can be—and are in fact—extremely relevant for public finances, as is clearly demonstrated by the well-known current condition of Bancrédito and the estimates that have been made regarding the impact its closure will have on the national budget.

Thus, it must be affirmed that provisions of an economic nature agreed upon by the administrators of public institutions when negotiating collectively with their workers cannot evade the necessary coherence and proportionality in relation to what constitutes the general framework of economic benefits that the State (in its broad concept) has been recognizing over time, in favor of its workers, nor can the financial possibilities of the entities in general and the way in which these provisions will affect state expenses and economic obligations be left unconsidered, given that such commitments determine and are simultaneously determined by the distinct economic variables and situations and have a direct impact on the general economic situation of the country.

Upon assuming this approach, the majority of the Chamber verifies the existence of a very wide gap between the payment of severance pay applicable to the vast majority of public servants, whose cap is 8 years, and the payment that the workers of Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months of salary for the same severance pay. This is a difference of one hundred and fifty percent (150%), which from the perspective of the majority of us who make up this Chamber, is abysmal and therefore, should have clear and incontestable arguments justifying it, but rather it lacks them and is disproportionate and unsustainable in such magnitude.

It must be remembered, on the one hand, that this Chamber, in tune with the development of fundamental rights linked to the work environment, has exercised its constitutional control work in this matter with great restraint, understanding that the fundamental nature of the right to collective bargaining—one of the fundamental pillars of the right to work—has as its legitimate purpose the improvement of workers' labor conditions and this necessarily entails the generation of differentiations and disparities that are in no way unjust or illogical in themselves and even less can they be labeled unconstitutional, for the mere fact of benefiting a group of people who have achieved such claims through the instrument of collective bargaining. But the foregoing cannot completely deactivate the need for the improvements to which the State commits itself to be proportionate and reasonable, not only regarding the condition in which the other state workers not protected by collective bargaining agreements are left, but regarding the burden that society must bear to cover such sums. Thus, a difference of 150 percent (that is, a difference halfway between double and triple the normal sums) between what may correspond to some public servants over all others for the same concept is located far beyond what can be understood as proportionate and acceptable as a legitimate claim in the condition of state workers.” (The highlighting does not correspond to the original.)

This criterion of the Chamber has been reiterated in multiple judgments, such as, for example, 2019-008679, 2019-009222, 2019-0009723, 2020-00320, 2020-014208 and 2021-025969, among others, in which the Chamber expressly warned that “due to the financial situation of the Costa Rican State, it should re-examine its original position.” So that the recognition of certain rights and labor improvements are also subject to contingent aspects such as the financial and fiscal situation of the Costa Rican State.

This thesis, if looked at in detail, is not a novel position, but rather in reality this Chamber has positively assessed that the salary policy of the Public Administration be subject to certain uniformity standards to avoid harm with respect to public finances.

Thus, for example, we have that in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81035" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">1994-3309</span></a> this Chamber addressed the constitutionality of the Law Creating the Budgetary Authority, n.° 6821 of October 19, 1982, which established in its article 1° that one of the main functions of the Budgetary Authority is the formulation of guidelines for the budgetary policy of the public sector, including aspects related to salaries. On that occasion, the Chamber stated the following:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“So that if in article 9 of the challenged law the Budgetary Authority was granted the power to ensure equal pay for equal work, thereby guaranteeing the constitutional principle of the right to equal pay </span><span style="font-style:italic">under </span><span style="font-weight:bold; font-style:italic">"identical conditions of efficiency"</span><span style="font-style:italic"> and thus issuing the necessary criteria to standardize the salary regime of all public servants, the actions of the Budgetary Authority must respect articles 57 and 68 of the Political Constitution as they establish:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:spaces">&nbsp;</span><span style="width:4.05pt; display:inline-block">&nbsp;</span><span style="font-weight:bold; font-style:italic">"Article 57: Every worker shall have the right to a minimum wage, to be fixed periodically for a normal workday, which will provide them well-being and a dignified existence. The wage shall always be equal for equal work under identical conditions of efficiency."</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Likewise, paragraph 1</span><span style="font-family:Symbol; font-style:italic"></span><span style="font-style:italic"> of article 68 of the Political Constitution indicates that:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="width:7.05pt; display:inline-block">&nbsp;</span><span style="font-weight:bold; font-style:italic">"Article 68: No discrimination may be made regarding salary, advantages, or working conditions between Costa Ricans and foreigners, or regarding any group of workers..."</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">On the contrary, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">the effects that imbalances in the State's salary regime produce on public finances and, therefore, on the country in general, make it fully justifiable and even constitutionally necessary to subject everything concerning the salary policy of the Public Administration to uniform criteria</span><span style="font-style:italic">”</span><span style="font-style:italic">. </span><span>(The highlighted text does not correspond to the original. See also judgments </span><span style="font-weight:bold">1994-6471, 1994-5297, 1995-6577 and 2003-09954</span><span>, among others). </span></p> <p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p> More recently, in judgment <span style="font-weight:bold">n.°</span><span style="font-weight:bold">2024-007057</span> this Chamber addressed the regulatory provisions that make the public employment regulations issued under the LFFP operative, and the Chamber affirmed precisely that such regulations respond to the “<span style="font-style:italic">public interest of reducing public spending and, consequently, alleviating the country's fiscal crisis</span>.” However, in the same way, it must be warned that one cannot lose sight of the fact that <span style="font-weight:bold; text-decoration:underline">the hollowing out of the fundamental rights of public sector workers in the eagerness to solve the problem of public finances is not valid</span>. The fiscal crisis that Costa Rica has been suffering is due to several reasons that must be addressed comprehensively. <span style="font-style:italic">Supra</span> mention was made precisely of the annual reports of the CGR. In that of the year <a href="https://cgrfiles.cgr.go.cr/publico/docsweb/documentos/publicaciones-cgr/memoria-anual/2017/memoria-anual-2017.pdf" style="text-decoration:none"><span style="text-decoration:underline; color:#000000">2017</span></a> several reasons were listed, and while mention is made of the need to curb the disproportionate growth of remunerations, other reasons are also listed, such as the institutional design and atomization of the Costa Rican public apparatus with duplication of functions in various institutions that do not necessarily result in the efficiency of the Public Administration; differentiated tax treatments in favor of certain activities or persons and tax evasion, to name a few causes.

Therefore, while this Court accepts the general premise that the Legislator State can regulate and standardize public employment rules since there is no acquired right for certain regulations to remain intact, this must not in any way imply sacrificing the public workforce so that they perceive hollowing outs in their fundamental rights. In that sense, just as was previously pointed out, it is necessary to balance the scales, given that the stability and dignity of the salaries of public employees is also a cornerstone of the Social and Democratic Rule of Law. In this regard, it must be based on the fact that in accordance with the provisions of article 56 of the Constitution, the performance of their work is an obligation of the servant, but it also gives them the right to obtain the corresponding remuneration for it, in a timely manner and in an amount that provides well-being and a dignified existence (article 57 of the Political Constitution).

Now, it is worth noting that the regulations relating to the remunerations of public servants must not remain stagnant. As was examined, it was healthy and necessary to intervene in order to establish uniform salary provisions and avoid exponential increases outside of all economic and social reality in accordance with the state of national finances. However, this in itself is contingent or dynamic, so these regulations must not remain frozen in time to the detriment of public servants, to the point that salaries are not attractive —which could impact the efficiency of the Public Administration— or do not guarantee minimum conditions of dignity and well-being for workers. Therefore, it is the obligation of the Costa Rican State, even by virtue of the principle of progressivity, to assess, in accordance with fiscal conditions and efficiency in public spending controls, how to aspire for the salaries of public workers to guarantee conditions of dignity and well-being. In this regard, it is worth bearing in mind that article 56 of the Political Constitution recognizes the fundamental right to work as a dual situation, a right-responsibility. But it also enshrines the obligation for the State to ensure that all persons have access to employment that is <span style="font-style:italic">“duly remunerated”</span>. This means that people have the right to receive a fair and adequate salary for their work, which allows them to maintain a dignified standard of living. Article 56 states the following:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Art 56.- Work is a right of the individual and an obligation to society. The State must seek to ensure that everyone has honest and useful occupation, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">duly remunerated</span><span style="font-style:italic">, and prevent that because of it conditions are established that in some way diminish the freedom or the dignity of man or degrade his work to the condition of simple merchandise. The State guarantees the right of free choice of work”.</span></p> <p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p> Furthermore, article 57, when referring to salary, establishes that there is a right to a minimum wage and that it must be set periodically, to seek the well-being and dignified existence of workers, which confirms that salary aspects are dynamic and must be assessed in light of supervening circumstances so that well-being is recognized for the working person. In line with the above, we can verify that article 23 point 3) of the Universal Declaration of Human Rights establishes that <span style="font-style:italic">“Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”</span>. Article 7 of the International Covenant on Economic, Social and Cultural Rights also establishes that the States Parties recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, remuneration which provides all workers, as a minimum, a fair wage and a decent living for themselves and their families. Moreover, the ILO Convention C131 - Minimum Wage Fixing Convention, 1970 (n.° 131), law n.° 5851-A of December 9, 1975, confirms that the periodic fixing of minimum wages —which could be extrapolated to the periodic review of the salary rules for public servants or in general— responds to contingent situations that can be examined and assessed according to new evaluative elements, such as the following:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Among the elements that must be taken into account in determining the level of minimum wages, the following should be included, to the extent possible and appropriate, in accordance with national practice and conditions:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:47.55pt; margin-bottom:0pt; text-indent:-19.2pt; line-height:normal; font-size:12pt; -aw-import:list-item; -aw-list-level-number:0; -aw-list-number-format:'(%0)'; -aw-list-number-styles:'lowerLetter'; -aw-list-number-values:'1'; -aw-list-padding-sml:5.21pt"><span style="-aw-import:ignore"><span style="font-style:italic">(a)</span><span style="font:7pt 'Times New Roman'; -aw-import:spaces">&nbsp;&nbsp;&nbsp; </span></span><span style="font-style:italic">the needs of workers and their families, taking into account the general level of wages in the country, the cost of living, social security benefits, and the relative living standards of other social groups;</span></p> <p style="margin-top:0pt; margin-left:47.55pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p> <p style="margin-top:0pt; margin-left:47.55pt; margin-bottom:0pt; text-indent:-19.2pt; line-height:normal; font-size:12pt; -aw-import:list-item; -aw-list-level-number:0; -aw-list-number-format:'(%0)'; -aw-list-number-styles:'lowerLetter'; -aw-list-number-values:'2'; -aw-list-padding-sml:5.21pt"><span style="-aw-import:ignore"><span style="font-style:italic">(b)</span><span style="font:7pt 'Times New Roman'; -aw-import:spaces">&nbsp;&nbsp;&nbsp; </span></span><span style="font-style:italic">economic factors, including the requirements of economic development, levels of productivity and the desirability of attaining and maintaining a high level of employment”.</span></p> <p style="margin-top:0pt; margin-left:36pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p> Consequently, it is reiterated that this Court is aware of the need and the justification of the LFFP as a legislative mechanism to establish general rules for remunerations in the public function with the clear purpose of curbing eventual salary increases that are not consistent with the fiscal reality of our country. And, on this point, as a matter of principle, it is established that it is legitimate for the legislator to modulate this topic of remunerations in accordance with the objectives outlined and duly explained in the preceding recital (considerando). Also, in accordance with the need to professionalize the public function through efficiency in the public service and aspiring to the proven suitability of public servants. The foregoing, without harming previously recognized rights and without emptying fundamental rights or essential principles of the Costa Rican Social State of content. In addition, without it being possible for these matters to become stagnant to the detriment of the rights of workers, especially if, as has been developed in these recitals, there are obligations imposed by the Law of the Constitution in the sense that remunerations must be fair and equivalent to guarantee conditions of well-being and dignity for all workers —in other words, to appropriately satisfy their basic needs and those of their families—. In this regard, the considerations made by the CGR in the oral appearance before the Legislative Assembly are highlighted, in the sense that it is the obligation of public authorities <span style="font-style:italic">“to periodically and systematically review the remuneration schemes to guarantee their continued validity”.</span> Regarding remunerations, it must finally be noted, and as a general premise, that there is not, as such, a fundamental right for the salary to be calculated in a specific manner, but rather that the amount be dignified and its setting be periodic in order to guarantee the worker the possibility of guaranteeing themselves and their family conditions of dignity and well-being. In that sense, it is warned, as this Chamber has manifested in other precedents, that no one has a <span style="font-style:italic">“right to the immutability of the legal order”</span>, that is, for the rules to never change and, to that extent, the legislator has the power to vary the conditions or requirements under which various salary bonuses are recognized for public servants, who, as a matter of principle, are subject to a statutory regime that establishes rules of public order regarding salary compensations. The foregoing, of course, provided that acquired rights of the servants are not harmed or unreasonable rules are established that harm in some way principles of constitutional order such as reasonableness, proportionality, and equality and non-discrimination lacking in legal support.

Finally, regarding the right to a dignified salary, it is necessary to refer to the considerations made by this Chamber in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-962204" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2019-016791</span></a> in which this Court addressed precisely this fundamental right and the fact that when alleging violations of this principle, sufficient arguments relating to the generality of public employees must be provided, and the alleged violation of the right to a dignified salary must not be argued in a generic and abstract manner. In the relevant part, the following was resolved:

<p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">“On the right to a dignified salary. The union alleges that article 24, of the challenged</span><span style="font-style:italic; background-color:#ffffff"> Collective Agreement</span><span style="font-style:italic; background-color:#ffffff">, is an instrument that improves the salary of municipal officials, because the one they have is accused of not being decorous. It asks to dismiss the </span><span style="font-style:italic; background-color:#ffffff">action</span><span style="font-style:italic; background-color:#ffffff">, based on the fact that this salary would be protected for being a human right. It points out article 25, of the Universal Declaration of Human Rights, which establishes:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"/.</span><span style="font-style:italic; background-color:#ffffff"> Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, and in particular to food, clothing</span><span style="font-style:italic; background-color:#ffffff">,</span><span style="font-style:italic; background-color:#ffffff"> housing</span><span style="font-style:italic">&nbsp;</span><span style="font-style:italic; background-color:#ffffff">,</span><span style="font-style:italic; background-color:#ffffff"> medical care and necessary social services; and has likewise the right to security in the event of unemployment, sickness, disability</span><span style="font-style:italic; background-color:#ffffff">,</span><span style="font-style:italic; background-color:#ffffff"> widowhood, old age or other lack of livelihood in circumstances beyond his control</span><span style="font-style:italic; background-color:#ffffff">\\</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Now, this Chamber has referred to the right to a salary in the public function, with the following:</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"If work is conceived as a right of the individual whose exercise benefits society and which, regarding the official, guarantees periodic remuneration, it could not be accepted that the State receives a service without paying the public servant the corresponding salary or that it is delivered late. The salary as remuneration owed to the servant by virtue of a statutory relationship, for the services they have rendered or must render, is not only an obligation of the employer, but a constitutionally protected right" (Judgment N.° 2009-008062 of 21:35 hours on May 13, 2009).</span></p> <p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In this sense, the Union is correct that the State, or in its case, the Municipality, must pay the official the salary that corresponds to them for the work performed. Likewise, the Chamber has established that article 57, of the Political Constitution, establishes the protection of workers with the right to a minimum wage, which may be composed according to the freedom that the legislator or its interpreter has, to define its content and composition of the minimum wage (Judgment N.° 2017-16272 of 11:30 hours on October 11, 2017). For the Chamber, there is no doubt that the right to work is a human right that deserves protection, that ensures the individual the realization of many other rights and that allows them to achieve an adequate and dignified way of life, for themselves and their family. But, this Constitutional Court considers that to clear up the argument of the indignity of the salary put forward by the Union, it must be defined first, that the human right to a dignified salary must be understood as the remuneration that an employer owes for the work that the worker renders, by virtue of an employment contract (written or verbal), and that seeks a dignified existence. In this sense, there must be access to a salary determined through a national policy that must ensure a dignified life and family life. This type of remuneration must be fixed by the States, through the mechanisms established in international regulations (ILO Conventions N.°s 26, 95, and 131, among other instruments), as well as by the second paragraph, of article 57, Constitutional, with the purpose of avoiding ruinous and indecorous wages for persons. In its practical sense, it refers to a problem of salary policy (of public and private employers), which must be of general observance by all respective employers. But, of course, there is a problem of sufficiency that cannot be associated with each worker, considered individually and their own needs, nor those of their family; rather, one must aspire to a salary average that the representatives of the State, employers and workers must estimate with fair retribution for work in the national context, with the help of economic and social mechanisms, to provide a dignified existence and family life to workers.</span></p> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">It is reiterated, as occurs with many economic, social, and cultural rights, that they cannot be defined in terms of concrete solutions, nor of an individual, nor their specific needs, but rather of the collectivity, integrally established by technical studies based on a fair mean or average</span><span style="font-style:italic; background-color:#ffffff">.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Thus, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">to justify the indignity of the salary, as intended, a series of conditions must be taken into account that are not present in the case file, because if it is affirmed that municipal employees do not receive a decent salary, this should be argued and proven</span><span style="font-style:italic; background-color:#ffffff">. In this vein, to affirm that the salary received at the Municipality of Limón is not decent, and if it implies salary problems of such magnitude that it prevents reaching levels below the legal minimums, this is not credible, since we must start from the premise that if it concerns municipal officials, they are paid a salary whose setting already relies on technical studies and their respective increases, determined by the respective public authority, as well as their corresponding institutional approvals. Nor could it be thought that the State could be complicit in authorizing amounts lower than those required for the private sector. This Chamber notes the lack of other useful and pertinent information on this point provided by the Union, such that it cannot be sustained, in the abstract, that the challenge to the constitutionality of the contested salary improvement constitutes a violation of the effective exercise of the human right to a salary. Although it is alleged that the salary of municipal workers is very low, the truth is that State salaries must respond to technical criteria and could not, therefore, be lower than those established by the Executive Decree on minimum wages for the rest of the workers.”</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="background-color:#ffffff">(The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445384" class=""><span>VIII.- ON THE MUTABILITY OF THE LEGAL SYSTEM</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>As just noted, it should be indicated, as a general premise, that no one has a </span><span style="font-style:italic">“</span><span style="font-style:italic">right to the immutability of the legal system”</span><span>, that is, that the rules never change and, to that extent, the legislator has the power to vary the conditions or requirements under which various salary supplements are recognized for public employees. </span><span>In ruling </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1070372" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2021-011957</span></a><span> this Chamber referred to the principle of the mutability of the legal system in matters of social security and stated the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">LXXVI.-</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">Drafted by</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">Magistrate Herná</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">ndez Ló</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">pez.</span><span style="font-family:Arial; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">On the principle of mutability</span><span style="font-weight:bold; font-style:italic; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; background-color:#ffffff">in matters of social security.</span><span style="font-family:Arial; font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">A sector of the claimants argues that they understand the scope of the principle of mutability of the legal system because it responds to realities, but they also affirm that mutability must make it flexible, adaptable, and suitable for regulating life in society, considering that Law 9544 does not allow this to be applied because, in a single bubble of identical legal effects, it places officials who have very dissimilar personal circumstances, assuming the burden of the reform under equal conditions. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">In relation to this principle, it must be recalled that this Chamber has repeatedly pointed out that no one has a right to the immutability of the legal system, that is, that the rules never change (see ruling number 6134-98 of 17 hours 24 minutes of August 26, 1998)</span><span style="font-style:italic; background-color:#ffffff"> and, in the case of special retirement and pension regimes, the legislator has full authority to make the modifications deemed pertinent to give sustainability to the regime, but also because they are solidarity-based systems that are built with the contributions of workers, employers, and the State in the legally established proportion, so that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">in order to guarantee compliance with basic principles of social security and protection, it is the competence, but also the obligation of the legislator, to adopt the measures that are necessary to maintain the actuarial balance in those regimes, and this implies that the mutability of the legal system in this matter is aimed at satisfying the interest of the collectivity and not the particular interests that some of its members might have</span><span style="font-style:italic; background-color:#ffffff">. It should be remembered that, even in this matter, in light of the social purposes it protects, it might be possible that a modification eventually occurs that could be considered regressive, but that would be valid to the extent that it is by law, is justified on technical criteria, and conforms to parameters of reasonableness and proportionality. From this perspective, then, this argument is improper and it is considered that, in the specific case, the mutation of the legal system that has operated in the Pension and Retirement Fund of the Judicial Branch as a result of the contested reform, conforms to the Law of the Constitution because it is aimed at achieving an objective that is of a social, solidarity-based, and collective nature: guaranteeing the solvency of that Fund for 100 more years for the benefit of its current and future members”.</span><span style="background-color:#ffffff"> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>These considerations can also be applied in the matter of the salaries of State public employees. There are premises that are essential and must always be respected: the right to a minimum wage, the aspiration to decent wages that ensure a sphere of well-being for people, the review of the salary to face the increase in the cost of living, and the prohibition of applying reforms to the detriment of patrimonial rights that have already entered the sphere of rights of the public employee. However, this does not translate into a right for the payment rules to remain intact, especially since when this regulation was approved, a fiscal crisis was verified that generally justified the legal reforms aimed at standardizing salary policies and avoiding salary increases detached from the national reality. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445385" class=""><span style="text-transform:uppercase">IX.- On the principle of progressivity and non-regressivity.</span></a><span style="text-transform:uppercase"> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>In advisory opinion </span><a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-894553" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2018-019511</span></a><span> which referred to the draft law for the approval of the LFFP, the Constitutional Chamber pronounced on the protection of benefit rights and the principles of progressivity and non-regressivity, endorsing that the protection and realization of these rights can be impacted by contingent aspects that require an adjustment in the level of protection. All of the foregoing under the adequate substantiation of the measures that must be adopted. In pertinent part, the Chamber stated the following:</span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“[W]hen it comes to applying conventionality control in matters of benefit rights, a relevant aspect to consider is the financial sustainability and availability of economic resources of the State, even according to its level of development, which depends on the economic context at a given historical moment and the technical basis that is held to justify some type of measure, so that the greatest possible realization of such rights is always sought in accordance with what the economic circumstances allow. Precisely, that progressive achievement of which the norms speak undoubtedly constitutes an objective to be achieved, but subject to an inexcusable condition: that there effectively be resources”. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Of importance for the resolution of the issues raised by the claimants, it must be noted that the Chamber was emphatic in pointing out that the principles of progressivity and non-regressivity do not imply the right to the immutability of the legal system. This Court, citing its own precedents, warned that the State is obliged not to adopt measures, policies, or approve legal norms that worsen, without reasonable and proportionate justification, the situation of rights achieved up to that point. However, it was warned that this principle does not suppose an absolute irreversibility, since all States experience national situations of an economic, political, social nature, or due to causes of nature, that negatively impact the achievements reached up to then and force a downward reconsideration of the new level of protection. In line with those considerations, the Chamber resolved the following: </span></p><p style="margin:10pt 2.45pt 8pt 35.4pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">Neither the right of progressivity nor that of non-regressivity oppose the mutability inherent to law (permanent and inevitable modification), since no right is immutable or eternal, given that this would mean the petrification of the legal system</span><span style="font-style:italic"> and would cause Law to cease being a dynamic means for the resolution of society's problems, which perennially vary over time. What the mentioned principles do demand is that the keynote be to always and preferably aspire to increase the coverage of human rights and likewise of benefit rights in the interest of the Social State of Law; however, such a goal is not detached from the socio-economic context of a specific historical juncture nor from the obligation to carry out an exercise of weighing and optimizing the various constitutional principles, rights, and values at play (for example, between the principle of the Social State of Law and that of Budgetary Balance), so that in the context of a particularly serious financial unsustainability of the State, duly accredited from a technical point of view, measures can be taken to alleviate the situation, provided that these are adopted safeguarding the fundamental rights protected in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multiethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), which implies that the remedies in question cannot empty any constitutional right of content, a situation that in the specific case and at this moment is not observed to occur with the questioned regulation”.</span><span> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:spaces"> </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445386" class=""><span>X.- ON VESTED RIGHTS</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>In ruling </span><a href="file:///D:/MARICRUZ%20BARQUERO/MARICRUZ%20BARQUERO/19-2620/PROYECTO%2001/2005-16394" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2005-16394</span></a><span> the Chamber referred to vested rights (derechos adquiridos), explaining it in the following sense: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">“Well then, as acquired, one must understand that right (as an expression of a concrete legal relationship that projects onto a specific subject) that has effectively entered into a person's patrimony, in such a way that it could not be eliminated without causing concrete and evident impairment to the conditions they already held previously. Thus, a mere future expectation could not fall within this conception, even if one had objective parameters to calculate what could constitute its possible effective consequence, because the truth is that in this latter stage it has not yet become part of the subject's patrimonial sphere, ergo, it cannot then be considered 'acquired'. The spirit of Article 34 prevents the new law from affecting the legal effects already produced in certain concrete situations, subjective rights that already had an individualized expression in the patrimony of a person at the time the new legislation came into effect. Under this reasoning, it must be admitted that the future projection of a specific legal relationship cannot be protected by this constitutional guarantee, because such a thing entails a sort of 'freezing' or petrification of the legal system and of the legislative and regulatory power of the State, which does not align with the principle derived from Article 129 of the Constitution, when it states that 'laws are obligatory and take effect from the day they designate'. The foregoing, because before any possible variation in the legal regime concerning a specific matter, anyone could allege their 'vested right' for the prior normative conditions to be maintained or preserved, which in good logic is clearly inadmissible. Returning to what was said above, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the constitutional prohibition applies only to assumed rights, integrated into the patrimony</span><span style="font-style:italic; background-color:#ffffff">. In contrast, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">regarding pending, future situations, that which is not yet consummated, it is only possible to have an expectation</span><span style="font-style:italic; background-color:#ffffff">. </span></p> Within a legal relationship (relación jurídica) that is maintained over time, there is no retroactive application when the new regulatory conditions are applied to the future development of the relationship, without affecting the effects already consummated in the prior situation (RSC N.° 05291, 10:42 hours, June 2930, 2000).” (The emphasis does not correspond to the original).

The distinction made here is particularly relevant for examining the grievances raised, since in the majority of cases, the attempt is to classify certain salary incentives or calculation rules for such incentives as subjective rights that, as such, have not entered the patrimony of the public servants, all of which will be detailed below.

XI.- PRELIMINARY CLARIFICATION. APPLICATION OF THE QUESTIONED REGULATIONS TO THE INSTITUTIONS COVERED BY THE LFFP It is necessary to clarify beforehand, as stated in judgment n.° 2024-007057, that the constitutionality of the rules examined herein is contingent upon their application being limited to those institutions that are legitimately covered by the LFFP, as delimited in advisory opinion (opinión consultiva) n.° 2018-19511. In the aforementioned judgment, this Chamber made the following warnings:

“In summary, the bill that gave rise to the law regulated herein, through Executive Decree No. 41729-MIDEPLAN-H published in Digital Supplement No. 113 of La Gaceta Digital No. 94 of May 22, 2019, called ‘Reforma a los artículos 14, 17 y 22 del Decreto Ejecutivo No. 41564-MIDEPLAN-H, Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley No. 9635 del 3 de diciembre de 2018, referente al Empleo Público’, did not require a qualified majority, solely because under a systematic interpretation (interpretación sistemática) made by this Chamber of the rules indicated therein, it was ruled out that, in matters of salaries and regarding the performance evaluation of its officials, the Judicial Branch was subject to that regulation, given that its special laws are those that govern it. (…) Now, what has been said thus far does not apply to the officials of the excluded institution, since, as explained ut supra, the application of the law must be in adherence to advisory opinion No. 2018-19511, taking into consideration that the law for Strengthening Public Finances should not be applied to the institution excluded in said opinion, nor should the rules of the regulation of the cited law challenged in this action, specifically the regulation of Title III regarding public employment. (…) By majority, the consolidated actions are dismissed, on the understanding that the rules of the questioned decree must be applied only to the officials of the institutions that are not excluded from the application of the law for Strengthening Public Finances in salary matters in accordance with the provisions of advisory opinion No. 2018-19511, of 9:45 p.m. on November 23, 2018, mentioned in the considerandos.” The same warnings must be made here. That is to say, the rules of the LFFP that reformed the LSAP will be examined in detail according to the grievances raised, always on the understanding that they do not apply to the servants of the institutions excluded from the LFFP in salary matters in accordance with the guidelines of the analyzed advisory opinion.

XII.- ON THE NECESSARY SUBSTANTIATION OF THE GRIEVANCES By virtue of some precisions that will be made later, it is necessary to establish that this Chamber has been rigorous regarding the substantiation (fundamentación) of grievances. In judgment n.° 2023-19520, the following was stated:

“II.- ON THE NECESSARY SUBSTANTIATION (FUNDAMENTACIÓN) OF THE WRIT IN WHICH THE UNCONSTITUTIONALITY ACTION IS FORMULATED. As indicated, the unconstitutionality action (acción de inconstitucionalidad) is a process with certain formalities, which, if not met, make it impossible for the Chamber to hear the challenge intended. One of those requirements corresponds to the necessary substantiation of the writ in which the unconstitutionality action is formulated. The Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), in its Article 3, provides that ‘The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles.’ Now, in order for this Tribunal to deem the infringement established and to declare the unconstitutionality of the challenged norm or act, with the consequent annulment and expulsion from the legal system, whoever promotes an unconstitutionality action has the burden of demonstrating how that provision infringes the Law of the Constitution and, in addition, must indicate why the claim should be granted. This is referred to by this Chamber as the burden of argumentation (carga de la argumentación), meaning that ‘a norm that is facially (sic) contrary to the Constitution shifts the burden of argumentation to those who maintain that there is actually no conflict between that norm and the Political Constitution; the opposite occurs if action is taken against a norm that at first glance does not appear contrary to the Constitution, in which case it is the plaintiff who must advance with the arguments that convince of its unconstitutionality’ (see judgment No. 0184-95 of 4:30 p.m. on January 10, 1995). In a subsequent judgment, this Chamber stated, regarding the lack of exposition of the unconstitutionality arguments in matters of unconstitutionality actions, the following: ‘The unconstitutionality action is filed with the argument that the challenged Executive Decree is harmful, injures and infringes the fundamental rights to a healthy and ecologically balanced environment, the right to health and the international commitments subscribed to with the Kyoto Protocol. Despite the opportunity granted to the plaintiffs, it is confirmed, as the Attorney General's Office indicates, that there is no concrete analysis of the provisions of the challenged Executive Decree that are considered unconstitutional, but rather it is limited to establishing generic and abstract discrepancies against the entirety of the Regulation, moreover against all activity carried out by the Sugar Mills and Haciendas, since they maintain that they cause inconveniences in the quality of life and health of the surrounding inhabitants, without specifying what constitutionality arguments must be taken into account against each of the provisions or groups of norms of the challenged Regulation. […] The first paragraph of Article 78 of the Law of Constitutional Jurisdiction establishes the obligation to authenticate the writs filing unconstitutionality actions, given that it is deemed necessary for there to be arguments put forth by a legal professional, which this Tribunal does not rule out should respond to a serious study of the technical and scientific merits of a given matter, given the diversity and universality of the norms of the legal system. Unlike the guarantee processes, that is, the remedies of habeas corpus and amparo, which can be directly filed by any interested party before the constitutional jurisdiction in defense of their fundamental rights, generally against acts or omissions that injure their personal sphere (although not always, as in environmental cases), in the processes defending the Political Constitution (such as the unconstitutionality action), the legislator entrusted the authenticating attorney with a task whose demand is even greater, arguably more elaborate and exhaustive, which must be reflected in the filing brief by reason of their professional office, to demonstrate to the Tribunal the injury to the constitutional norm by a norm of lower rank, undermining the principle of constitutional supremacy (supremacía constitucional) contained in Article 10 of the Political Constitution. Precisely the material and formal drafting of the Law, as well as of the other secondary provisions, entail an extremely costly process for the State, in which organized civil society has participated in many ways for or against its drafting, and whose procedures for formation, approval, and promulgation should not be analyzed lightly. In this sense, this Chamber must recognize that there is limited space for this Tribunal to remedy the manifest absences of the legal professionals who authenticate the writs in this constitutional jurisdiction, without exposing the impartiality and analysis owed to each of the unconstitutionality actions.’ (Judgment No. 2012-05285 of 3:03 p.m. on April 25, 2012). The cited Article 78 of the Law of Constitutional Jurisdiction requires, in that sense, that the writ filing the action must set forth ‘its grounds in a clear and precise manner.’ (…) Finally, in vote No. 2020-000319 of 12:15 p.m. on January 8, 2020, this Chamber reiterated that: ‘(…) given the formalism legally provided for constitutional review proceedings, the argumentative burden in the processing of an unconstitutionality action falls on the plaintiff, who must explain, unequivocally, the contradiction existing between an infraconstitutional regulation and the constitutional block, as well as the standing that assists them’.” (The emphasis does not correspond to the original).

Thus, it must be established beforehand and as a general premise that, by virtue of the seriousness of a constitutional review process and given the formalism legally provided for these processes, the argumentative burden in the processing of an unconstitutionality action (acción de inconstitucionalidad) falls on the claimant, and the absence of sufficient reasoning (arguments and evidence for the claims) cannot be remedied or supplied by this Chamber. This Court has insisted, in this regard, that it is not enough to allege, in a generic and abstract manner, the lack of reasonableness of a norm or supposed discriminations. These arguments must be duly demonstrated. For example, in judgment n.° 2023-015596, the following was warned:

“In other words, the unconstitutionality action refers to mere hypothetical scenarios ‒ exponential growth of public spending, detriment to public services, and increase in the tax burden ‒ that are also not duly substantiated in serious and real economic projections (which is precisely the omission the claimant reproaches). Thus, in the terms in which the action was filed, without solid arguments or evidence, and barely a month after its approval, they do not allow for the accreditation of a supposed unreasonableness that has threatened the constitutional principles invoked by the claimant. (…) Furthermore, although a technical unreasonableness in the adopted measures is alleged, the claimant does not provide any element that allows for the analysis he proposes. This Chamber has been consistent regarding the need to provide objective parameters to be able to define the concurrence or not of a technical bias in the adoption of this type of norm. The insufficiency in this matter submits this Court to speculation about the content of the questioned norm and imposes on it the burden of making comparisons and assessments without having the minimum parameters or elements to do so. Hence, it finds no merit to order the unconstitutionality of the questioned regulation.” (The emphasis does not correspond to the original).

If the absence of adequate reasoning and proof of the grievances is verified, the challenge must be dismissed. The foregoing, without prejudice of course, that in a later scenario and with more complete and duly accredited reasoning, the presumed violation of the Law of the Constitution (Derecho de la Constitución) can be reassessed (art. 87 of the LJC).

Agravios de la acción n.° 19-2620-0007-CO XIII.- CAMBIO DE REGULACIÓN EN LO RELATIVO A LAS ANUALIDADES Normas impugnadas The secretary general of SEBANA questions, firstly, the constitutionality of the provisions relating to the regulation of annual salary increments (anualidades) following the approval of law n.° 9635. The challenged norms read as follows:

“Art. 50- Sobre el monto del incentivo. Upon the entry into force of this law, the annual salary increment incentive for public officials covered by this title shall be a fixed nominal amount for each salary scale, an amount that shall remain invariable.

(Thus added by article 3° of title III of the Law for the Strengthening of Public Finances, N° 9635 of December 3, 2018).

Art. 57.1 l) Article 12 of Law N.° 2166, Law of Salaries of the Public Administration, of October 9, 1957, is reformed. The text is as follows: Article 12- The annual salary increment incentive shall be recognized in the first half of the month of June of each year. If the servant is promoted, they shall begin to receive the minimum of the new category; under no circumstance shall incentives already recognized be revalorized.

TRANSITORIO XXXI. To establish the calculation of the fixed nominal amount, according to what is regulated in article 50, in the recognition of the annual salary increment incentive, immediately upon the entry into force of this law, one point ninety-four percent (1.94%) of the base salary for professional classes, and two point fifty-four percent (2.54%) for non-professional classes, shall be applied on the base salary that corresponds for the month of January of the year 2018 for each salary scale.” Provisions which, in the claimant's judgment, must be related to other norms of the LSAP that were also modified by law n.° 9635. Such as, for example, art. 58 subsection c) which repealed art. 5 and provisions 48 and 49 referring to the performance evaluation (evaluación del desempeño) and that, have in common, the correlation between the payment of annual salary increments and the existence of a merit system. Art. 5 made reference to the principle of efficiency of the Administration by indicating that the annual increases would be granted on the basis of merit, whereas now with the new regulation, it is indicated that the result of the annual evaluation will be the sole parameter for granting the annual salary increment incentive to each official. Art. 58 c) states:

“Art. 58- Derogatorias. The following provisions are repealed: c) Article 5 of Law N.° 2166, Law of Salaries of the Public Administration, of October 9, 1957.” The repealed norm stated the following:

“Art. 5º.- In accordance with this salary scale, each category shall have increases or steps, according to the amounts indicated in article 4º above, until reaching the maximum salary, which shall be the sum of the base salary plus the annual steps or increases of the corresponding category.

Every servant shall begin earning the minimum of the category that corresponds to the position, except in cases of inopia at the discretion of the respective Minister and the Dirección General de Servicio Civil. The annual increases shall be granted on the basis of merit to those servants who have received a rating of at least "good", in the previous year, granting them an additional step, within the same category, until reaching the maximum salary.

(Thus reformed by article 1 of law Nº 6408 of March 14, 1980).” Meanwhile, the performance evaluation provisions establish the following:

“Art. 48- Criterios para la evaluación del desempeño. Each head of department of the Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products, and services of the unit, establishing delivery deadlines and estimated time for their preparation. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; its non-compliance shall be considered a serious fault in accordance with the applicable regulations. For the regular and frequent follow-up of the work plan activities, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and compliance with deadlines and times. It shall be the responsibility of each official, including the entire managerial level, to update and maintain up-to-date the information necessary for evaluating their performance, in accordance with the processes, projects, products, and services particularly assigned, their delivery deadlines, and estimated times for their preparation, in said computer system that the Administration shall make available to them. Its non-compliance shall be considered a serious fault in accordance with the applicable regulations. The annual salary increment incentive shall be granted solely through performance evaluation for those servants who have met a minimum rating of "very good" or its numerical equivalent, according to the defined scale. Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter, and twenty percent (20%) shall be the responsibility of the head of department or superior.

Art. 49- Efectos de la evaluación anual. The result of the annual evaluation shall be the sole parameter for granting the annual salary increment incentive to each official. The annual ratings shall constitute a precedent for granting the incentives established by law and suggesting recommendations related to the improvement and development of human resources. It shall be considered for promotions, recognitions, training, and instruction, and shall be determined by the history of the official’s performance evaluations. Likewise, the evaluation process must be considered to implement actions for the improvement and strengthening of human potential. Annually, the Dirección General de Servicio Civil shall issue the technical and methodological guidelines for the application of the performance evaluation instruments, which shall be of mandatory compliance.” Agravios de la parte accionante (acción n.° 19-2620-0007-CO) Sobre la constitucionalidad del art. 50 y el Transitorio XXXI (test de razonabilidad y proporcionalidad) The reform to art. 50 and the provisions in Transitorio XXXI must be subjected to a reasonableness test to ascertain their necessity, their suitability, and their proportionality, as constitutional parameters in consideration of what is provided by the principle of due process (debido proceso).

Regarding the necessity of the new regulation regarding the payment of annual salary increments, the legislator's intention when converting the percentage of the increment into a fixed and permanent amount is not clear, nor is the reason for precisely setting the increment percentage contemplated in Transitorio XXXI clear, making the separation between professional classes and non-professional classes.

What the norms establish is a percentage anchored in the salaries earned in January 2018, from which a nominal amount is derived, which does not vary over time, regardless of the years a servant works in the public sector. By the time the law was approved, this reference salary that the legislator used had already been modified by the statutory salary adjustments.

With this mechanism introduced in the law, a future increase in the payment of annual salary increments is avoided, which would lead ‒ hypothetically ‒ to a reduction in public spending on salaries; however, this argument lacks internal logic because if the need to reduce the payment of annual salary increments and salaries in the public sector is due to an economic criterion, one cannot attempt to regulate the salary reduction once and for all, as if the country's economic conditions were to last sine die.

The challenged regulations are also not suitable, because if the amount of the annual increments is anchored to the salaries corresponding to each salary scale for the month of January 2018, such amounts will not only fail to grow over time, but will eventually reach a value very close to zero due to the effect of monetary devaluation and inflation, without there being a logical or reasonable relationship between the objective of the annual increment – as an economic incentive that allows for improved efficiency of public sector employees – or between the annual increment as a formula to reward those who are evaluated annually in the spirit of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning.

Art. 50 and Transitory Provision XXXI are also not proportional to the end they propose, because the payment of annual increments is eliminated in the future, and that is the true implicit purpose. The sacrifice that these rules impose on employees who earn a composite salary is completely radical and confiscatory, given that, in the future, earning a composite salary, with payment of annual increments, will have no real meaning for such employees because those increments are eliminated in the future, rendering them insubstantial, without any real economic content, and converted into a symbolic payment.

*Unconstitutionality of Art. 57, subsection 1) insofar as it reforms Art. 12 of the LSAP as amended by Law No. 9635. Regarding payment in June and the non-revaluation* The payment of the annual increment previously had to be made on the first day of the month closest to the date of the official's entry or re-entry into the position, but with the reform, the annual increment payments will be made in the first half of June of each year, which is considered openly unconstitutional, because in addition to creating a disproportionate and unjustified sacrifice against persons who are entitled to seniority when their entry or re-entry date is prior to the month of June, this contravenes the very nature of the annual increment, whose purpose is to remunerate an annual period of work and not any period arbitrarily or artificially constructed by the legislator, for which reason the rule is not suitable, nor is it logical or reasonable. Furthermore, Art. 12, subsection d) – which allowed time accumulated in other public sector entities to be considered for annual increment payment purposes – was eliminated, which is unreasonable and discriminatory, in addition to being harmful to the principle of proportionality because persons who have worked in other public sector entities would be forced to start counting from zero in each entity in which they work, damaging the doctrine of the State as sole employer which, as a legal concept, has been taking shape in the jurisprudence of the Second Chamber and the Constitutional Chamber. The rule is also not suitable because it discourages the transfer or re-entry of public employees and officials to the various State entities, contributing to hindering the constitutional system of access to public function based on merits.

It is also alleged that it is discriminatory because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely, over those who aspire to improve their condition or to provide a better public service elsewhere in the public sector, and, secondly, because it creates discrimination between all persons who, prior to Law No. 9635, succeeded in having the years worked in other public sector entities counted for annual increment purposes, with respect to those who wish to transfer or re-enter the public sector after the approval of Law No. 9635.

It summarizes that Arts. 50, 57 subsection l) and Transitory Provision XXXI, by lacking reasonableness, suitability, and proportionality, violate substantive due process and thereby violate the provisions contained in Arts. 9, 11, and 121 of the Political Constitution, but also an indirect violation of constitutional Arts. 191 and 192 by creating a system of annual increment payment that undermines the merit system and the principle of efficiency.

It argues harm to the principle of reasonableness because it was a Transitory Provision that established the annual increment percentage with which the calculation of what will later be the nominal and unmodifiable amount of the annual increment must begin, as well as the date from which that calculation will start, which, in its opinion, should have been included in a substantive rule so that it is part of the permanent legal body.

Grievances of the plaintiff (consolidated action No. 19-004931-0007-CO) The State intends to render useless over time the amount paid for annual increments and to empty it of content, eliminating the right to this remuneration that helps workers maintain their salaries' purchasing power against the cost of living.

Allegations of the plaintiff (consolidated action No. 19-022051-0007-CO) By virtue of the identity of the object, we shall proceed to include in this section the allegations of action No. 19-022051-0007-CO brought by ASDEICE.

In said action, it was questioned that the rules challenged in this section harm the principle of substantive due process and do not satisfy the test of reasonableness.

Regarding the necessity of the new regulations on the payment of annual increments, they reiterate that the legislator's intention when converting the percentage of the annual increment into a fixed and permanent amount is not clear, nor is the reason for which the annual increment percentage contemplated in Transitory Provision XXXI is precisely set, making the separation between professional classes and non-professional classes clear. The challenged regulations also do not meet the requirements of suitability and proportionality. Regarding the first, if the amount of the annual increments is anchored to the salaries corresponding to each salary scale for the month of January 2018, such amounts will not only fail to grow over time, but will eventually reach a value very close to zero, due to the effect of monetary devaluation and inflation. Therefore, there is no logical or reasonable relationship between the objective of the annual increment – as an economic incentive that allows for improved efficiency of public sector employees –, or between the annual increment as a formula to reward those who are evaluated annually in the spirit of complying with the merit system contemplated in the Political Constitution, and a payment that, as the years progress, loses all real meaning. Articles 50 and Transitory Provision XXXI are also not proportional to the end they propose, because the payment of annual increments is eliminated in the future, thereby conferring an implicit purpose on the legal reform, which is the disappearance over time of the annual increments. Surreptitiously, the payment of a single or total salary is introduced, practically eliminating the composite salary system currently governing a large part of the public sector. In the particular case of ICE, as of the date of filing this action, the base salary plus bonuses continues to be the predominant salary modality, in accordance with the regulation made in the Personnel Statute, which is a unilateral administrative act of the institution's Board of Directors from which subjective rights for its employees emanate. One of the subjective rights originating in that Statute is the right to the payment of annual increments on a scale of 3.56% over the base salary of each category; however, in practice, the challenged rules will render those subjective rights void, substituting the scheme of employees' rights with another that infringes the principles of reasonableness and proportionality. The sacrifice that the cited rules impose on employees earning a composite salary is completely radical and confiscatory, given that, in the future, earning a composite salary, with payment of annual increments, will have no real meaning for such employees. Regarding the substitution made by Law No. 9635 of the text of Art. 12 of the LSAP, previously the payment of the annual increment had to be made on the first day of the month closest to the official's entry or re-entry date, but with the reform, the annual increment payments must be made in the first half of June of each year, which is considered openly unconstitutional. For its part, it exposes that subsection b) of the former Art. 12 of the LSAP established that if the previous position occupied by a promoted person had entitled them to one or more annual increases, upon moving to a superior position, they would be entitled to a revaluation of the annual increments previously received, according to the new category to which they were promoted; a rule that was modified in the challenged law by stating that *"under no circumstances shall incentives already recognized be revalued"*. The previous rule was logical and complied with the principle of proportionality insofar as it intended that the promotion to a position positively affect the person opting for a superior position, stimulating public sector employees to be able to opt for superior positions; however, with the reform, persons are discouraged from occupying positions of greater responsibility by freezing their previous annual increments and not allowing them to opt for a revaluation of them. Regarding subsection d) of the former Art. 12 that allowed time accumulated in other public sector entities to be considered for annual increment payment purposes, the elimination of this provision in the reformed Art. 12 is unreasonable and discriminatory as well as harmful to the principle of proportionality because persons who have worked in other public sector entities would be forced to start counting their annual increments from zero when they move to other public institutions or companies, violating the doctrine of the State as sole employer which, as a legal concept, has been taking shape both in the jurisprudence of the Second Chamber of the Supreme Court of Justice and the Constitutional Chamber. The rule is also not suitable, from a logical and rational standpoint, because it discourages the transfer or re-entry of public employees and officials to the various State entities, which hinders the constitutional system of access to public function based on merits. It is a discriminatory rule in a double sense: first, because it confers a disproportionate advantage on persons who prefer to remain in the same institution indefinitely over those who aspire to improve their condition or to provide a better public service elsewhere in the public sector, and, secondly, because it creates discrimination between all persons who, prior to Law No. 9635, succeeded in having the years already worked in other public sector entities counted – for annual increment purposes –, with respect to those persons who wish to transfer or re-enter the public sector after the approval of Law No. 9635.

PGR Report The legislator is the one called upon to establish the incentives and the amount of the economic benefits granted to its servants, so it must be understood that the economic amount granted for annual increments depends on the intensity with which the legislator wishes to incentivize the permanence in the position of public officials and on the economic possibility of paying the sums derived from that incentive. The legislator could even eliminate the payment of annual increments, and incentivize efficiency and permanence in the public service through a mechanism different from the one currently used, since the obligation to recognize annual increments is not stipulated in constitutional-level norms, but in legal ones.

Its represented party does agree with the plaintiff in that there is no logical reason for the payment of the annual increment to be made, in all cases, starting in the first half of the month of June of each year, and there is no justification for persons who complete their annual period immediately after that date having to wait periods that could be almost a year to receive the respective compensation; a situation that is unreasonable and discriminatory, since those who complete their annual period in May or June, for example, would receive their compensation under more favorable temporal conditions than those who complete it in July or August of each year, for which reason the Attorney General's Office considers that the system should allow that, once the performance evaluation is done and the level of efficiency required by current regulations is demonstrated, it be possible to recognize the economic incentive no later than the month following the date on which the official completes their annual period.

It insists that it is the legislator who has the power to decide which aspects of the service relationship should be incentivized through the payment of annual increments, or through the revaluation of that benefit, all in accordance with the prevailing economic possibilities. It considers it evident that revaluing the economic incentives already acquired in the event that the official is promoted to a new position could be an important incentive to foster the administrative career; however, it argues that this entails an expenditure of resources that might not be consistent with the intention of balancing public finances, and in view of this situation, it is up to the legislator to decide – as it has already done – whether to incentivize the administrative career, or whether to promote the balancing of public finances, without opting for one decision or the other implying any violation of constitutional norms or principles.

It considers that the suppression of the phrase in Art. 12 of the LSAP indicating that public sector servants would have their time of service rendered in other public sector entities recognized for annual increase purposes, is contrary to the doctrine of the State as Sole Employer, which emerged as a way of ensuring, for workers who move from one State institution to another, the continuity in the enjoyment of the rights recognized throughout the public sector; however, it argues that despite this, it is not possible to affirm that said doctrine is untouchable for the legislator, since its creation occurred through legal-rank norms, and not constitutional ones, which leads to validly affirming that just as the legislator authorized the recognition of time served in the different State institutions for the purpose of paying annual increments, it is the same legislator who is empowered to modify that authorization, when it deems it necessary to achieve the balance of public finances.

The permanent effects of a transitory rule: Regarding a transitory provision establishing permanent effects, it argues that such an objection could be useful to reflect that the duty to follow good legislative technique has been infringed; however, it considers that such an infringement could not generate the unconstitutionality of the rule, as it is not a substantial defect that justifies annulling the express will of the law.

It is also necessary to take into consideration the report given by the PGR in the unconstitutionality action No. 19-015299-0007-CO in which the following was reported:

*"On the topic of vested rights (derechos adquiridos), this Chamber has indicated that they are those that have definitively entered the patrimony of their holder, so mere expectations are not considered as such, and that consolidated legal situations are those that can never be modified (judgment No. 670-1994 of 8:46 a.m. on December 23, 1994). It has also held that a vested right is that circumstance already consummated, in which a thing, material or immaterial, has entered or impacted the person's patrimonial sphere, such that the person experiences an ascertainable advantage or benefit. (Judgment 2765-1997 of 3:03 p.m. on May 20, 1997).* *For its part, this Attorney General's Office, with respect to the specific topic of vested rights in salary matters, has held that the remuneration system may be modified in the future, provided that the global amount of the salary is not affected.* *(…)* *In summary, the legislator may make changes to the conditions under which services are rendered to the State, provided that the vested rights and consolidated legal situations of persons who maintained a service relationship before such changes are respected. Respect for vested rights implies, with regard to salary matters, not diminishing the salary received by the persons to whom the regulatory changes are directed.* *In the specific situation analyzed, this Attorney General's Office considers that both the Law for Strengthening Public Finances and the Regulation to Title III of that law (Decree No. 41564 of February 11, 2019), respect the acquired salary rights of the servants to whom the changes relating to the calculation of salary components are directed. (…)* *Specifically, with regard to annual increments, the method of calculating them set forth in the questioned provisions does not entail a reduction of the total salary that public servants were receiving as of December 4, 2018, the effective date of the Law for Strengthening Public Finances, since the sums already received for that incentive remain in the salary of each servant, without any reduction, in such a way that the conversion to nominal amounts referred to in Article 50 of the Public Administration Salary Law began to be applied as of the effective date of that law.* *The situation would have been different if the new calculation rules had been applied to the annual increments already accumulated by each official, calculated in accordance with the provisions in force at the time they obtained them, because that would indeed imply a reduction in the total salary of each servant; however, that is not what the challenged rules provide, and therefore the application of the latter has not implied any reduction in the total salary of the public servants."* Allegations of the coadjuvants *Active coadjuvants* The general secretary of SIBANPO and the general secretary of SIPROCIMECA expressed themselves in favor of the plaintiff's theses.

Mr. Álvaro Adrián Madrigal Mora, as general secretary of SITUN, states that the annual increment incentive is closely linked to the recognition of time served in the public sector which, in the case of UNA, is a salary bonus called annual increment that, as of that date, constitutes 4% over the base salary for each year worked for the institution and that is dissociated from any type of annual evaluation, included through salary negotiation in the various collective bargaining agreements.

It argues that the importance of worker permanence and experience has also been recognized in other public higher education institutions, and that is why the collective bargaining agreement recognizes it for all its academic and administrative workers, but that it is also included in the Agreement for the Coordination of State University Higher Education of Costa Rica, signed by the four rectors of the state universities. The objective that originates and sustains this recognition is permanence and experience in the public sector as opposed to the private sector, because the purposes or objectives of both are not the same. It considers it irrational and disproportionate that a single, invariable fixed nominal amount has been set for the entire salary scale when it is composed of a set of differentiated categories, since each position or post has a profile and other elements that assign it a specific, diverse salary according to the volume and responsibilities of the post. The provision of the challenged art. 50 affects the acquired rights of public sector workers because no differentiation is established between those who are already incorporated and acquired their right to an annual increment (anualidad) as a percentage, and now, suddenly, it is intended to transform it into a fixed, invariable nominal sum, which is a direct impact on salary that violates the principle of salary protection as a fundamental component of the employment relationship with the State as employer. Transitory Provision XXXI permanently complements what is provided in the challenged art. 50 by establishing the percentages that will later define the fixed nominal amounts of the annual increment (anualidad) which, by being frozen in time, will lose their real value, which implies discrimination in relation to the differences in percentages that existed (1.94% and 2.54%) and which are now intended to be calculated on a base salary from a date prior to the effective date of Law No. 9635.

The **Secretary General of UNEBANCO** states that it could never be argued that the annual increments (anualidades) that the servants had accumulated as of the date the new law came into effect could be subject to it, because this would be incompatible with the principle of non-retroactivity of the law. It is likewise contrary to this principle to attempt to apply the new calculation method and the payment of those annual increments (anualidades) under this new legal regime to the detriment of consolidated legal situations, and for this reason, it considers that they must continue to be paid as a percentage, as was done. That Transitory Provision XXXI could be reasonable if the legislature had configured a limited duration framework for it and had issued it as an extraordinary and temporary measure, but not indefinitely as it was enacted. The regulation lacks technical reasonableness by starting from differentiated percentages, depending on whether they are professional or non-professional classes, in the order of 1.94% or 2.54% respectively, without technical basis and violating free collective bargaining by not allowing another calculation method to be proposed. Art. 57 subsection l) distorts the nature of the annual increment (anualidad), which aims to remunerate an annual period of work, such that the recognition of the annual increment in June of each year lacks all logic and proportionality, and also eliminates the recognition of time worked in the public sector, going against the single public employer principle.

The representative of **UNDECA** questions that the new rule established for the payment of the annual increment (anualidad) incentive should not apply to public servants who were working on the effective date of Law No. 9635, and therefore, it could not be argued that the annual increments (anualidades) that the servants had recognized and accumulated as of the date the law came into effect could be subject to the new rules, so an interpretation of this kind would be unconstitutional since it violates the principle of non-retroactivity of the law to the detriment of acquired rights and consolidated legal situations of those public servants, diminishing the annual increments (anualidades) accumulated as of the effective date. Transitory Provision XXXI violates the principle of necessity, proportionality, and reasonableness, as it transforms the calculation parameter of the annual increment (anualidad) from a percentage factor to a nominal or absolute amount, which would remain invariable, that is, the annual increment (anualidad) amount is frozen *ad perpetuam*, which will imply that its real value will progressively deteriorate at the expense of inflation, deteriorating the country's economic situation. Art. 57 subsection l) distorts the nature of the annual increment (anualidad), whose objective is to remunerate an annual period of work, so its recognition in June of each year lacks all logic, proportionality, and eliminates the recognition of time worked in the public sector, going against the single public employer principle.

***Passive Co-adjuvants*** The president of the **Costa Rican Chamber of Industries Association** argued that annual increments (anualidades) are an exclusive creation of the legislature, so the first argument of the action refers to a typical case of legislative discretion, because increasing, decreasing, or eliminating annual increments (anualidades) can be varied over time as the country's economic and fiscal conditions change.

The representatives of **UCCAEP** stated that annual increments (anualidades) are not a fundamental labor right but a mere legislative creation subject to changes that the legislature itself can make, be it eliminating, regulating, and reforming them according to the country's economic realities. In this specific case, annual increments (anualidades) have been growing more than inflation, which was unreasonable, disproportionate, and inconvenient at the fiscal level. They point out that the existence of annual increments (anualidades) is not conditioned on the public employee's efficiency, but rather it is an additional salary bonus that was paid and grew automatically for public officials, which became an annual salary increase without any criteria and without relation to inflation; therefore, its regulation, elimination, or reduction does not violate any fundamental or constitutional norm. The legislature is not obligated to grant benefits *ad perpetuam* or *sine die*, as society's needs are changeable, so legislation that was beneficial for the community at one time may need to be changed or even abolished if the circumstances so require.

### Resolution of the Constitutional Chamber Regarding the action of unconstitutionality No. 19-022051-0007-CO that was consolidated into this case file, it is necessary to note that the plaintiffs allege a presumed injury to art. 121 of the Political Constitution; however, there was no concrete development of said argument regarding what the presumed contradiction is between the challenged provisions and the content of the referenced constitutional article. Therefore, since an appropriate substantiation of said grievance was not carried out, but rather it was a mere statement, the argument must be dismissed from the outset.

## General Information on Annual Increments (Anualidades) The concept of annual increment (anualidad) is found in art. 1 of the Regulation of Title III of the Public Finance Strengthening Law, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H, which defines it in the following terms:

“a) Annual increment (Anualidad): salary incentive granted to public servants as recognition for their continued permanence providing services to the Public Administration in those cases where they have met a minimum qualification of "very good" or its numerical equivalent in the annual evaluation, and as a fixed nominal amount for each salary scale”.

As can be seen, the annual increment (anualidad) is a salary incentive —a compensation mechanism—, that is, it is not part of the core salary of public servants, which is granted as recognition for their continued permanence efficiently providing their services to the Public Administration. Thus, for example, in opinion C-262-2007 of August 6, 2007, the PGR provided the following explanations:

“Articles 5 and 12 of the Public Administration Salary Law regulate the annual increment bonus (sobresueldo de anualidad), through which an amount of money is recognized for each year of seniority that the servant accumulates in service to the public sector.

“The salary supplement called ‘annual increment’ (anualidad), is a recognition granted by the Administration, whose purpose is to reward the experience acquired by its officials who have remained continuously providing their services to it. Basically, this incentive is a reward for the seniority of the official who has dedicated their effort, experience, and knowledge acquired over the years to put it at the service of a single employer, in this case the State and its institutions.” (Opinion C-242-2005 of July 1, 2005.)

The annual increment bonus (sobresueldo por anualidad) is based on the concept that the State is a single center for the imputation of labor rights, a principle commonly known as the theory of the State as a single employer, so that regardless of the specific public entity or agency in which the worker performs their productive activity, the annual increment (anualidad) benefit is recognized.” (The highlighting does not correspond to the original).

As it is an additional component to the salary, this Chamber has expressly stated that “granting or recognizing annual increments (anualidades) responds to the criteria of opportunity and convenience that the legislature embodied in the legislation, which it may well reform in the future” (judgment No. 2014-001227). Based on that premise and on the fact that there is no right to the immutability of the legal system, it is clear that the legislature is perfectly empowered to regulate, for the future, the terms and amounts through which this type of salary incentive can be recognized. Also, following the same logic, the legislature can perfectly regulate the requirements necessary to legitimately aspire to this salary recognition. The foregoing, of course, safeguarding acquired rights (constitutional art. 34) and other constitutional principles such as reasonableness and non-discrimination.

## On the Constitutionality of art. 50 of the LSAP and Transitory Provision XXXI (Reasonableness) The challenged legal norm establishes that upon the entry into force of the law, the annual increment (anualidad) incentive will be a fixed nominal amount for each salary scale, being an invariable amount. Furthermore, Transitory Provision XXXI establishes the successive amounts to be recognized for professional or non-professional classes.

First, the plaintiff asserts that it is not clear what the legislature's intention is with these decisions. In this regard, according to the analysis of the examined background and the reports submitted to the case file, it is possible to conclude that the legislature's intention in reforming the provisions related to the payment of annual increments (anualidades) was aimed at ensuring that said bonus be paid, in the future, as a fixed nominal sum, without this implying an impact on the amount of annual increments (anualidades) already accumulated, or on the total salary of public officials. That is, to set a cap to prevent a disproportionate increase in salary payments, but without affecting in any way the salary amounts already received and consolidated in each servant's salary status. From the background in the legislative file that was listed *supra*, it can be seen that the objective is for the annual increment (anualidad) amount to be a fixed one in order to prevent them from having revaluations due to cost of living or other factors that, in the long run, excessively inflated the amount of the corresponding incentive (“that non-adjustment in the automatic and inertial way that annual increments (anualidades) have” —Appearance of the Minister of Finance before the Legislative Assembly).

It should be noted, as already stated *supra*, that the legislature can make changes to the conditions under which services are provided to the State. That is, it has the competence to issue general guidelines for the regulation of remunerations and, in that sense, it is appropriate to establish that there is no fundamental right to maintain a specific regulatory mechanism. The foregoing, provided that the acquired rights and consolidated legal situations of persons who maintained a service relationship before these changes were made are respected, and also, constitutional principles such as reasonableness and non-discrimination are respected. The foregoing, in the judgment of this Chamber, is safeguarded in general terms by the provisions of the law itself by establishing in art. 56 of the LSAP that “the incentives, compensations, caps, or annual increments (anualidades) remunerated as of the effective date of the law will be applied to the future and may not be applied retroactively to the detriment of the official or their patrimonial rights”. Furthermore, Transitory Provision XXV of the LFFP orders that:

“The total salary of the servants who are active in the institutions contemplated in article 26 upon the entry into force of this law may not be decreased, and they will be respected for the acquired rights they hold”. (The highlighting does not correspond to the original).

Meanwhile, art. 3 of the Regulation of Title III of the Public Finance Strengthening Law, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H provides that:

“Acquired rights correspond to the incentives, additional bonuses, pluses, additional remunerations, or any other of equivalent nature, that prior to the entry into force of Law No. 9635, made up the total salary of the public servant, whether permanent or interim”.

With the above, it is proven that the regulations that the legislature is authorized to execute were established for the future, leaving the amounts already received by active servants unharmed.

Regarding necessity, this Chamber verified that there is a legitimate motivation, which is precisely to address the fiscal crisis caused, among several reasons, by the lack of uniformity of salary remunerations in the public sector. It is pertinent to emphasize that compliance with the principle of financial or budgetary equilibrium in this case is an objective and reasonable justification to conclude that the legislature's motivation is in accordance with Constitutional Law, especially if the highly deteriorated fiscal situation of the central Government is taken into account, which endangers the viability of the Social State of Law and the Costa Rican economy as a whole.

In this line, it is pertinent to note that this Chamber has verified that through this type of additional bonuses (sobresueldos), injuries have been caused to public finances. For example, in judgment No. 2006-17440, the following was resolved:

“**VII.** **Annual increments (Anualidades) of a minimum of 3%.** The plaintiffs consider it unconstitutional that the National Production Council recognizes a higher annual increment (anualidad) percentage than that of other workers, without providing a maximum cap, which violates the principle of legality.

In this regard, clause 36 of the Collective Labor Agreement (Convención Colectiva de Trabajo) of the Consejo Nacional de Producción establishes:

"Article 36°: The Institution shall automatically pay a minimum of 3% annually on base salaries for seniority (antigüedad), as the worker completes each year of service." This Chamber does not consider that setting a higher seniority percentage for officials of the Consejo Nacional de Producción compared to other workers is discriminatory, as this responds to the salary policy of each institution and is supported by the Public Administration Salary Law. However, what this Chamber can assess is the reasonableness of the amount set, since an abusive use of this power can mean evident harm to public finances. It is on this point that the Chamber observes the unconstitutionality of a part of the challenged rule, because it establishes that seniority shall be paid with a "minimum" of 3% annually on base salaries, making it evident that said clause does not establish a cap, and consequently, it empowers the Administration to dispose of public resources without limit. This is undoubtedly contrary to Constitutional Law, as it constitutes a disproportionate liberality in favor of the Consejo Nacional de Producción that cannot be justified. Consequently, given the normative openness of the clause in question, this Chamber deems it appropriate to annul the phrase "a minimum of" contained in Article 36 of the analyzed Collective Labor Agreement (Convención Colectiva).

One may also consult judgment No. 8254-2020 in which, moreover, this very Chamber reiterated that the recognition of this type of incentive cannot be detached from the performance evaluation (evaluación del desempeño) process:

"B. 2.- ON THE SALARY INCREASE BASED ON THE WORKER'S SENIORITY. The provision allowing workers to receive annual salary increases based on the percentages established in Transitorio I of the Collective Labor Agreement (Convención Colectiva) is challenged. These increases occur in a staggered manner, as detailed in the provision transcribed below:

"TRANSITORIO I. For workers whose anniversary falls in the second half of 2007, the seniority increase shall be applied as soon as this convention is approved and retroactively from the date of the anniversary (...).

c.- After the first five-year period, and up to 10 (ten) years of service, the worker shall receive a salary increase for each year of efficient service of 7% (seven percent) of their base salary, and from year 11 (eleven) to year 25 (twenty-five), 4% (four percent), and from year 26 (twenty-six) until their retirement from the Institute, 3% (three percent) of their base salary.

d.- (...)".

In this way, the worker will be entitled to percentage salary increases for each year of efficient service, which implies that a performance evaluation (evaluación del desempeño) system for the worker exists or must exist, through which they become entitled to the staggered increase. Although the plaintiffs state that this is a rule that grants the annual increment automatically by the passage of time, this Chamber agrees with the PGR's reading of the provision. The foregoing does not mean that the Chamber varies the jurisprudence that classifies fixed increases established only by the passage of time as unconstitutional (judgment No. 17438-2006). This position is maintained and reaffirmed in this case. The problem of constitutional relevance with the rule we are now analyzing is quantitative, not nominal, since the source of the increase would be verified annually, according to the valuable final output of the worker (considered individually), similarly to what is regulated in the General Public Administration Salary Law.

Now, regarding the 7% increase on salary per step or year of service, where the most significant increase occurs at the beginning of the employment relationship with the INS, a percentage which is questioned by the plaintiff. It is important for this Chamber to establish the existence of a breach of the principle of reasonableness of the rules.

Although a Collective Labor Agreement (Convención Colectiva) could precisely exceed the legal minimums for salary increases by annual steps, the fact is that these must pass a reasonableness test. In the Chamber's opinion, as INS is an autonomous institution, although its relationship with the majority of employees is one of common or labor law, it is subject to the criteria of financial legality, reasonableness, and proportionality of its actions. The UPINS union did not provide further criteria to explain that the rule has an important purpose, other than ensuring that the Collective Labor Agreement (Convención Colectiva) reinforces the loyalty and retention of its employees. Specifically, there is no record justifying a rule such as the one challenged, which appears excessive if the goal is to keep employees in the institution, since if it was indeed created as a mechanism to prevent the exodus of employees with the breaking of the INS insurance monopoly, it is currently in a market regime that does not justify that type of action. The Chamber therefore leans towards considering that the 7% increase is contrary to the principles of legality, austerity, and reasonableness in public spending (see judgments Nos. 6347, 6728-2006 and 3267-2012). Regardless of whether it would be aimed at producing worker loyalty and fidelity, 7% proves to be a significant sum, since some employees would be consolidating their initial skills at work after five years, and there would be no logical and fair relationship with a compensation at such a high percentage. Furthermore, this Chamber considers that workers must be efficient in their duties, receiving benefits for good performance, following objective, reasonable, and proportional criteria. But increasing 7% of the base salary after the first five-year period up to ten years is a very particular way of managing the experience and suitability of workers, because those with less experience at the start would receive a greater salary increase, and those with more experience would receive a smaller increase. In addition to the foregoing, the executive presidency report of the INS establishes that Article 54 of the Collective Labor Agreement (Convención Colectiva de Trabajo) currently provides for an annual salary increase of 6.8% and 9.99%, depending on the job category, from the first through the fifth year of service. This shows that the increase in the percentage of annual increments (anualidades) has a greater impact over time, for example, that the 2007 budget for this item doubled by 2015. Consequently, the action must be granted, that is, the unconstitutionality of the 7% annual increase for workers. Regarding the other percentages established in subsection c), the action is dismissed, but this Chamber declares these percentages constitutional provided they are granted conditional on the approval of the performance evaluation (evaluación del desempeño)." With that, it is understandable that the legislator promoted legislation to regulate these types of compensations and established rules to prevent them from growing disproportionately, thereby meeting the reasonableness conditions in their determination.

Now, given that granting or recognizing annual increments (anualidades) responds to criteria of opportunity and convenience that the legislator must establish, it is not considered that the established regulatory mechanism is openly unreasonable or disproportionate. Within legislative prerogatives, the legislator could choose the amount to be recognized going forward, even making a legitimate distinction between the percentages to be recognized for professional and non-professional classes.

It is true that matters relating to remuneration need not necessarily remain stagnant, as set forth supra, but regarding bonuses and their growth—given the serious fiscal situation—it is subject to the legislator's discretion, and since it was now urgent to cap these bonuses to safeguard the state of public finances, it is also true that in the future, more favorable compensatory mechanisms for retaining personnel may be provided, but that will correspond to a public policy from the legislator which, given the current state of public finances, cannot be anticipated.

Moreover, the plaintiffs in case numbers 19-02620-0007-CO and 19-022051-0007-CO made generic arguments about the mechanism devised by the legislator, arguing that it lacks reasonableness and proportionality, that it violates substantive due process, that it lacks internal logic, that over time these bonuses will approach a value close to "zero," and that the sacrifice is radical and "confiscatory." In this regard, this Chamber must reiterate the resolution of this Chamber, No. 2024-007057, to the effect that these generic statements, without adequate legal grounding and without proof of their assertions, must be rejected. Regarding this, the Chamber already resolved the following:

"b.- On the partial inadmissibility of the plaintiff's allegations in this action. Once the writs initiating this process have been analyzed, it is clear that there are allegations by the plaintiff that were not duly substantiated or that do not constitute constitutional issues, but rather issues of legality, and, therefore, prevent this Tribunal from ruling on them.

1- As this Chamber has repeatedly indicated, the action of unconstitutionality is a process with certain formalities, which, if not met, prevent this jurisdiction from hearing the intended challenge. One of these requirements corresponds to the necessary legal grounding of the writ in which the action of unconstitutionality is filed. The Constitutional Jurisdiction Law, in its Article 3, provides that 'The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the challenged rule or act, its effects, or its interpretation or application by public authorities, with constitutional norms and principles.' Now, for this Tribunal to consider the infringement established and to declare the unconstitutionality of the challenged rule or act, with the consequent annulment and expulsion from the legal system, whoever brings an action of unconstitutionality has the burden of demonstrating how that provision infringes Constitutional Law and, furthermore, must indicate why the claim should be granted. This is called by this Chamber the burden of argumentation, that is, that 'a norm that prima facie (sic) is contrary to the Constitution shifts the burden of argumentation to those who maintain that there is in fact no conflict between that norm and the Political Constitution; the opposite occurs if action is brought against a norm that upon first examination does not appear contrary to the Constitution, in which case it is the plaintiff who must advance arguments that convince regarding the unconstitutionality' (see judgment No. 1995-0184 of 16:30 hours on January 10, 1995).

(...)

The plaintiff alleges the following: a) The violation of the right to a decent and fair salary, considering that the reductions are excessive, disproportionate, and unreasonable, not only due to the calculation they will apply to the payment of annual increments (anualidades), but also regarding how the assessment will be subjectively conducted. It is indicated that the percentage of decrease in the payment of annual increments (anualidades) is such that it contradicts the criteria of equity, justice, proportionality, and reasonableness, because that nominal value reaches almost zero and will not grow over time. It is argued that it is unreasonable as an economic stimulus for the worker and disproportionate, by eventually eliminating the future payment of annual increments (anualidades) in a composite salary. b) The violation of the principle of prohibition of arbitrariness, by subjecting workers to unequal treatment in the management of their recognized rights and/or consolidated legal situations. c) The violation of the principle of prohibition of abuse of power, due to the abusive, excessive, and unconstitutional use made by the Executive Branch regarding its powers. d) The violation of the principle of equality, due to the drastic decrease that the questioned regulations will entail in the amount of payment of annual increments (anualidades) for only some workers and, for making a distinction in the amount of that same item between professionals and non-professionals.

However, in the sub examine, a clear and sufficient legal grounding concerning these allegations is notably absent.

The action requires rigor not only when setting out the grounds of unconstitutionality perceived in a regulation, but also in establishing them with due specificity and substantiation, so that any eventual judgment on the merits is consistent with the arguments raised; this is not fulfilled in these cases.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Without those evidentiary elements to support its argument, it is not possible to undertake an examination of the reasonableness of a norm, due to the absence of a coherent line of argument grounded in evidence. In this regard, the following has been stated:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"To undertake an examination of the reasonableness of a norm, the Constitutional Court requires that the party provide proof or at least evidentiary elements on which to base its argument, and the same procedural burden falls on whoever refutes the arguments of the action, and failure to comply with these requirements renders claims of unconstitutionality unacceptable. The foregoing, because it is not possible to conduct a 'reasonableness' analysis without the existence of a coherent line of argument that is supported by evidence. This, of course, when the cases are not those whose 'unreasonableness' is evident and manifest" (Judgment No. 1999-005236 of 2:00 p.m. on July 7, 1999, reiterated in Judgment No. 2016-014392 of 9:05 a.m. on October 5, 2016).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In this sense, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the Chamber considers that the claimants' approach is abstract and general, as it merely mentions that there is a salary detriment to workers that they consider disproportionate and irrational, through a norm that, subjectively, is considered unreasonable; however, the reasons are not specified, they do not present solid data or evidence, or evidentiary elements that would allow a reasonableness analysis of the decision made by the Executive Branch, as required by the jurisprudence of this Chamber</span><span style="font-style:italic; background-color:#ffffff">. Thus, for this Tribunal, it is impossible to carry out a reasonableness analysis in the absence of suitable evidence which, as stated, is an indispensable requirement, unless it is a case of evident and manifest unreasonableness, which is not the case here.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">On the other hand, the claimants consider that, to the extent that the granting of incentives such as the annual salary increments (anualidades) depends on subjective evaluations by those who qualify them, the right to a salary will be violated. However, in the Chamber's view, the questioning of the subjectivity in the evaluation to which the employee could eventually be subjected is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the eventual violation of fundamental rights. And, in any case, any disagreements that officials may have with the results of the conducted examination is a matter of legality that this Tribunal is not responsible for assessing and that, therefore, must be discussed before the Administration or in the corresponding jurisdictional venue.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Likewise, regarding the alleged injury to the principle of the prohibition of arbitrariness and the principle of the prohibition of misuse of power, the filing brief does not provide an adequate substantiation of the reasons on grounds of constitutionality for which the eventual violation of those principles is considered, but rather refers to criteria that must be verified in the legality venue.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In relation specifically to the principle of equality and non-discrimination, simply invoking its violation is not enough. In this sense, it is appropriate to remind the claimant that it has been the jurisprudential line of this Tribunal that, when a violation of the principle of equality or proportionality is alleged, as in this case, they have the duty to provide a parameter of comparison, along with the corresponding analysis. Hence, whoever invokes that type of breach is obligated to provide elements that allow for a full comparison between subjects treated differently, allowing for verification of whether the alleged inequality occurs or not. This, in doctrine, is known as the "tertium comparationis" (point of reference, of comparison), and regarding it, in Judgment No. 1994-7261 of 8:30 a.m. on December 9, 1994, reiterated in Judgment No. 2021-24764 of 9:20 a.m. on November 3, 2021, and in Judgment No. 2022-13096 of 9:30 a.m. on June 8, 2022, it was stated:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">"Regarding the principle of equality, as this Chamber has repeatedly held, the most important factual presupposition is that there exists a discriminatory treatment devoid of any objective and reasonable justification; this is the reason why whoever invokes a violation of this principle must provide, for the purposes of enabling a full comparison, parameters of comparison, and in this way, verify whether or not inequality occurs (see, among others and by way of example, Judgments Nos. 196-91 in Considerando II; 1432-91, in Considerando II and 1732-91)."</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">In the sub examine, the claimant in the consolidated action neither provided nor developed a parameter of comparison that would allow the Tribunal to carry out the corresponding analysis; they only questioned a differentiated treatment for the nursing workers sector, without referring to which other sector specifically and how the articles of the challenged regulation caused it. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">They also did not do so when questioning the difference in the recognition of the annual salary increment payment between the professional and non-professional sector; and the assessment they make regarding a future possibility that the payment of annual salary increments might disappear is merely subjective, without objective parameters of constitutionality.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">Consequently, the lack of substantiation of the action regarding these aspects prevents even an assessment of the violation of the stated principles. As already indicated, the jurisprudence of the Chamber is emphatic in pointing out this duty to substantiate the arguments of unconstitutionality (see also in this regard Judgment No. 2023-31744, of 9:30 a.m. on December 6, 2023). In the case under study, the claimant merely points out the constitutional principles allegedly affected by the regulation they intend to challenge, without detailing or constructing concrete arguments that would allow for an assessment of whether, in effect, the stated defects are present.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">It is therefore inappropriate for this Chamber to rule on the merits of norms challenged in an action when the plaintiff does not substantiate the reasons for the challenge, as this would imply conducting an abstract constitutional review as an academic exercise, which is not compatible with the purpose of a process of this nature."</span><span style="background-color:#ffffff"> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-family:Arial; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>So that —because of the manner in which this set of arguments was presented by the claimants and active coadjuvants— the Chamber must dismiss them because they amount to nothing more than generic and abstract assertions about the supposed effects of the challenged norms (loss of purchasing power). The absence of clear substantiation and a real demonstration of grievances </span><span>prompts this Chamber to reject these arguments of alleged unconstitutionality.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding these allegations, the unconstitutionality action is declared without merit.</span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445400" class=""><span>Regarding the recognition of annual salary increments in the month of June, employment continuity, and revaluation</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:8pt"><span>The claimants questioned the terms in which Article 12 of the LSAP was regulated in its version after the reform operated by the LFFP. Said norm, as set forth supra, stated the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"Art. 12. The annual salary increment incentive shall be recognized in the first half of the month of June of each year.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">If the employee is promoted, they shall begin to receive the minimum of the new category; under no circumstances shall incentives already recognized be revalued."</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding this provision, three grievances were raised: 1) that it radically changed the date of recognition of the annual salary increment, making it not the moment when each employee completes the corresponding annual period but artificially in the month of June, implying a sacrifice for employees who, having the right to receive the annual salary increment in a specific month, must wait until the following month of June; 2) that it eliminated subsection d) of Article 12, which allowed considering the time accumulated in other public sector entities for the purposes of paying annual salary increments, forcing them to start the count from zero if they change employment entity, generating discrimination and disincentives; and 3) that subsection b) of the former Article 12 of the LSAP established that if a person was promoted, upon moving to the new position they would have the right to have the annual salary increments previously received be revalued, meaning that people are discouraged from occupying positions of greater responsibility by freezing the previous annual salary increments and not allowing the revaluation of annual salary increments already received.</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span>To resolve these allegations, it is necessary to reiterate the basic premises indicated supra, in the sense that the recognition of annual salary increments obeys criteria of timeliness and convenience of the legislator, </span><span style="background-color:#ffffff">that there is no right to the immutability of the legal system, and that the legislator is empowered to regulate, for the future, the amounts and terms in which this type of salary incentives may be recognized, safeguarding acquired rights (Article 34 of the Constitution) and other principles of constitutional order such as reasonableness and non-discrimination.</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="background-color:#ffffff">In the Chamber's view, based on the foregoing, the Chamber considers that the first two allegations are admissible, since, as recognized by the PGR, there is no logical reason for the payment of the annual salary increment to be made in all cases in the first half of the month of June, and there is no justification for such an odious distinction between employees who, for example, complete their anniversary in the months of May and June and can receive the payment of their annual salary increment within a reasonably close period; and other employees who must wait until the following month of June to receive the annual salary increment that would correspond to them, for example, in the month of January. This Chamber agrees with the PGR that it is a discriminatory and unreasonable situation among public employees in the same conditions, that is, who have completed the calendar year of service and have received a "very good" performance evaluation, but whose salary recognition will be made in dissimilar periods.</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="background-color:#ffffff">As a second aspect, in the Chamber's view, the fact that the recognition or counting of annual salary increments in other public sector dependencies was eliminated is also a decision lacking reasonableness; because if </span><span style="text-decoration:underline; background-color:#ffffff">the general motivation for the annual salary increment incentive is the recognition of the public employee's permanence, providing their services efficiently in favor of the Public Administration</span><span style="background-color:#ffffff"> (see definition supra), it is not reasonable for said counting to be carried out individually by particularized entities to the detriment of the public employee who has provided their services efficiently in those entities. In that sense, if the legislator decided —within the scope of its discretion— to contemplate this salary recognition, it must do so under conditions that do not generate discriminatory or unreasonable situations, that is, contrary to the very reason for the recognition or the historical definition of "anualidades." This Chamber must insist that, although it is an incentive available to the legislator, its regulation cannot injure constitutional principles such as reasonableness and non-discrimination; therefore, if the very definition and creation of the incentive is due to the desire to incentivize efficient and continuous services in the Public Administration by public officials, it seems unreasonable to render the counting of previous annual salary increments without effect.</span><span style="background-color:#ffffff; -aw-import:spaces"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="background-color:#ffffff">Therefore, regarding these grievances, it is appropriate to declare the action with merit solely for the effects it may have produced during the validity of the challenged norm</span><span>. It is worth noting that the legislator itself proceeded to enact the LMEP and to expressly reform what was established in Article 12 of the LSAP, so that the norm currently states the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"Article 12- </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The annual salary increment incentive shall be recognized in the month immediately following the anniversary of the entry or re-entry of the public servant who works under the composite salary scheme</span><span style="font-style:italic">, in accordance with the following rules:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">a) If the employee is transferred to a position of equal or lower category to the one they are occupying, there shall be no interruption whatsoever in the computation of time for the salary increase.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">b) If the employee is promoted, they shall begin to receive the minimum annual salary increments of the new category; under no circumstances shall incentives already recognized be revalued.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">c) </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">For public servants, whether permanent or interim, the time of service provided in other public sector entities shall be computed for the purposes of recognizing the annual salary increment incentive</span><span style="font-style:italic">.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus reformed by Article 49, sub-subsection a) of the Ley Marco de Empleo Público, No. 10159 of March 8, 2022)"</span><span style="font-style:italic">.</span><span> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:normal"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Said norm —in the Chamber's view— addressed what was questioned by the claimants, in the sense that the annual salary increment is recognized according to the anniversary of each specific employee, and also that public servants —whether appointed permanently or on an interim basis— shall have all the time of service provided in other public sector entities computed</span><span>.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Finally, regarding the allegation that the challenged regulation limits salary improvements by virtue of promotions because subsection b) of Article 12 of the LSAP in its original version was suppressed, it is questioned that the norm had a logic in that it intended for the position promotion to positively affect the person who opted for a higher position, whereas now people are discouraged from occupying positions of greater responsibility by freezing the previous annual salary increments and not opting for a revaluation. This Chamber considers that the discussion raised is one of normative interpretation and integration and not a matter of constitutionality. It should be noted, on this point, that the challenged norm in its original wording stated: "If the employee is promoted, they shall begin to receive the minimum of the new category," from which it is rejected that the public employee will not receive a salary improvement. It is true, and this Tribunal has so verified, that the point has been the subject of analysis by the various competent instances in its interpretation and application, and, as demanded by the claimants, the interpretation has been reached that, in effect, upon a promotion, the serving person begins to receive the amount corresponding to the annual salary increments according to the qualities of the new position they perform. In fact, Executive Decree No. 41564-MIDEPLAN-H explains this explicitly in Article 14 by providing that:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"d) In accordance with Article 12 of Law No. 2166, added by Article 3 of Law No. 9635, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">if the employee is promoted, the accumulated annual salary increments shall be recognized at the value of the annual salary increment corresponding to their new position</span><span style="font-style:italic">, as a fixed nominal amount according to the provisions of this article. Under no circumstances shall the annual salary increments they were earning prior to the promotion be revalued. The same shall apply in the case of demotions."</span><span> (The highlighting does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt; background-color:#ffffff"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>It is also possible to find that through Circular No. DG-CIR-009-2019 of August 9, 2019, the DGSC explained the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"With the objective of facilitating the application of said reforms and for the purposes of paying the annual salary increments of employees covered by the Statutory Regime, it is established that the calculation thereof must be made according to the annual salary increment amount established for the salary level to which the class of the position held by the serving person is linked.</span></p> The foregoing implies that when the official is part of a personnel movement that results in a promotion or demotion in the classification and position held, the total amount to be recognized for the concept of annuities must be calculated considering the annuity amount established for the salary level to which the new position classification is assigned.” Additionally, it is verified that the PGR, through opinion [n.° 075 of April 6, 2022](http://www.pgrweb.go.cr/scij/Busqueda/Normativa/pronunciamiento/pro_ficha.aspx?param1=PRD&param6=1&nDictamen=23278&strTipM=T), made the following considerations:

“Now, regarding the scope of the regulatory precept in question, two possible interpretations could arise. The first, given by opinion C-396-2020, according to which, based on the understanding that the concept ‘revaluation (revalorización)’ in common language refers to any increase in value, in cases of promotions, it is no longer possible to revalue or increase, based on the category of the position to which the employee is promoted, the nominalized annual increases the employee carries, which will remain invariable. The second consists of the notion that ‘revaluation (revalorización)’ has a specific technical-legal meaning, which in the case of annuities refers to the automatic change or increase that, before the reforms introduced by the Law for Strengthening Public Finances, occurred in them as a result of the base salary increase decreed by the Executive Branch, whether generally for cost of living or through a technical adjustment of some salary levels. Thus, the invariability or non-revaluation (no revalorización) –arts. 50 and 12 of the Public Administration Salary Law- refers to the increase in the value of annuities resulting from those increases, but not to changes occurring in the classification or in the positions due to the employee's promotion, a scenario in which, due to the correlation with the respective salary level that the nominalization mechanism involves, in the case of promotions, the amount of the annuities the employee carries must be adjusted, recognizing their value according to the salary level of the new class of the position to be occupied.

However, in special consideration of the sufficient and legally relevant reasons given by both the DGSC and MIDEPLAN, and for which the technical-legal criterion contained in our opinion is not shared, there are important arguments to opt this time for the second interpretation of the regulatory precept.

In the first place, we must recognize that, prior to the entry into force of the Law for Strengthening Public Finances, No. 9635, annuities were revalued automatically, taking into account the base salaries updated by adding to them the cost of living periodically decreed by the Executive Branch, as well as specific technical adjustments (Among many others, opinion C-314-2018 of December 14, 2018), and that this produced an exponential increase in salaries, thus constituting one of the main triggers of public spending, the solution to which the legislator sought specifically through the nominalization of its economic value based on a fixed and invariable parameter -the base salary corresponding to each category for the month of July 2018-. Not in vain have we held that ‘the non-revaluation (no revalorización) of incentives already recognized alludes to the invariability of both the fixed nominal amount into which the annuities received prior to December 4, 2018 –entry into force of Law No. 9635- are converted, and that of those acquired after that date, which will also be calculated as a fixed nominal amount, as ordered by the Law’ this last, according to art. 50 of the Salary Law-.” (Opinion C-153-2020 of April 24, 2020). Consequently, it is reasonable to affirm that the invariable refers to the inadmissibility of that revaluation of annuities that previously occurred due to constant change in their value as a result of a periodic salary increase decreed by the Executive Branch, and not to other scenarios involving changes in classification or positions, as is the case with promotions. This is the interpretation that best aligns with the objective of the Law.

In the second place, derived from the above, by providing content or concrete meaning to that indeterminate legal concept of ‘revaluation (revalorización)’ currently referred to in article 12 of the Public Administration Salary Law, beyond the common linguistic meaning we resorted to in opinion C-396-2020, given the clear lack of precision of the normative precept, by the autonomy, independence, and especially, by the self-integration of Administrative Law with respect to other branches of law (art. 9.1 LGAP), the first supplementary source the legal interpreter must turn to in case of gaps or deficiencies in the regulation of certain public nature relationships is the administrative legal system (art. 9.2 Ibid.), comprising all the written rules of Public Law. Therefore, it is reasonable to then resort to the linguistic-dogmatic meaning given by national law on salary matters, as alluded to by the technical criteria of both the DGSC and MIDEPLAN, and which, as a direct conceptual reference, gives a very specific content to that concept; understanding by it the ‘Modification of the salary for position classes due to increases decreed by the Executive Branch’ (Decree No. 38916-H of March 13, 2015 and its reforms. Without limiting with it -we insist- other different scenarios involving changes in classification or positions, as is the case with promotions. This interpretation is oriented in the most rational direction that corresponds to the satisfaction of the public interest (arts. 10 and 113 of the General Public Administration Law).

Thus, contrary to what was originally concluded, in reality a corrective interpretation is not necessary to harmonize the normative provisions contained in articles 12 of the Public Administration Salary Law and 14, subsection d) of the Regulation to Title III of the Law for Strengthening Public Finances, Executive Decree No. 41564-MIDEPLAN-H, like the one made in section II of opinion C-396-2020. The literal wording of the regulatory norm is sufficient in itself: ‘In accordance with article 12 of Law No. 2166, added through article 3 of Law No. 9635, if the employee is promoted, the accumulated annuities will be recognized with the annuity value corresponding to their new position, as a fixed nominal amount according to the provisions of this article. Under no circumstance will the annuities earned before the promotion be revalued. It will apply equally in the case of demotions’ (Thus amended the previous subsection by article 1° of Executive Decree No. 41807 of July 23, 2019).

Therefore, contrary to what was stated in opinion C-396-2020, it must be understood that, due to the correlation with the respective salary level that the mechanism for the nominalization of salary bonuses and incentives involves, when an employee is promoted or demoted –temporarily or permanently- in the classification or the position held, the amount or value to be recognized for the concept of accumulated annuities they carry must be calculated considering the annuity amount nominally established for the salary level of their new position. It is important to point out that this adjustment situation should not be confused with the concept of annuity revaluation prohibited by law, which refers exclusively to the adjustment for cost of living or any other increase decreed by the Executive Branch, which was done before and which the legislator wanted to avoid (…)

Consequently, given the change in criterion operated in this opinion, in response to the specific order of the questions asked, we must indicate that, in the context of the objective desired by the legislator at the time of enacting the Law for Strengthening Public Finances, No. 9635, the ‘non-revaluation (no revalorización)’ of the annuities is referred to the inadmissibility of modifying the nominalized amount into which they are converted as a consequence of salary increases resulting from cost-of-living adjustments or other technical adjustments decreed by the Executive Branch. This allows, in the case of promotions or demotions, to give the previously accumulated annuities the nominalized value corresponding to the new position to be occupied.” (The emphasis does not correspond to the original).

In accordance with these administrative precedents, it is corroborated that what is raised in this specific section refers to a question of legality regarding the proper interpretation of the norm, which, in itself, does not generate the limitations raised by the petitioner.

## On the alleged injury to the principle of reasonableness because the percentages of annuities are established in transitory norms The petitioners argue an injury to the principle of reasonableness since it is a transitory norm that came to regulate the annuity percentages, which, in their view, should have been reflected in an ordinary norm. In this regard, the PGR concluded that such objection is useful to show that the legislator did not use good legislative technique, but it could not generate the unconstitutionality of the norm. This Chamber agrees with that point of view. It is true that transitory law has a purpose aimed at regulating aspects related to the application of norms over time and precisely the transition that must occur between one regulation and a subsequent one. In this regard, in advisory opinion [No. 2021-017098](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1049802), the following was stated:

“As is well known, transitory law is a legal technique that seeks to respond to the problems of applying norms over time, which arise from the repeal and the entry into force of another, in which it becomes necessary to adapt the prevailing situations to the new reality created by the newly enacted law. Indeed, as doctrine has well held, transitory provisions form part of Intertemporal Law insofar as they aim to resolve conflicts of laws. Faced with the transitory problems that the new law causes, the legislator establishes a legal regime applicable to pending legal situations. In that sense, the function of so-called transitory provisions is to regulate, temporarily, certain situations, in order to adjust or accommodate the new regulations or to give a different and temporary treatment, of an exceptional nature, to certain situations. It is worth highlighting that at the basis of the transitory norm lies that need to respond to problems posed by the entry into force of the new law; that is its essence. It has been said that the content of transitory provisions seeks to solve several situations. In the first place, whether the new regulations apply or not to legal situations prior to the law, whether by declaring the application of the new law, the survival of the old law, or by establishing a transitory regime different from that established in both laws -the old and the new-. Another option available to the legislator, within a range of alternatives, is to provisionally regulate new legal situations when this is intended to facilitate the definitive application of the new law.” It is evident that the content of Section XXXI of the LFFP, which regulates the calculation and amounts to be paid for annuities as a fixed nominal amount of 1.94% of the base salary for professional classes, and 2.54% for non-professional classes, on the base salary corresponding to the month of January 2018 for each salary scale, does not seem to be a truly transitory norm, as it does not respond to a need to address the application of norms over time, nor does it have a temporary purpose, but rather intends to establish the rules for calculating annuities going forward. However, the PGR is correct in that this incorrectness in legislative technique does not imply the unconstitutionality of the norm, which in any case was adopted by the Legislative Assembly through the legitimate mechanisms for issuing legal norms. The petitioners are correct that the most suitable approach would have been to reflect that provision in a substantive legal norm, but from the arguments presented, it is not perceived that we are facing an essential or substantial defect that invalidates the legislative will and warrants the unconstitutionality of the norm.

## On Potential Normative Antinomies The representatives of ASDEICE (plaintiffs in action No. 19-022051-004-CO), as well as the joining parties from SITUN, refer to specific situations and possible antinomies between the provisions of the LSAP and the internal regulations ‒personnel statutes‒ regarding the payment of service-years increments (anualidades) and that even, in the case of UNA, the payment is dissociated from any type of annual evaluation.

On this point, beyond the possible unconstitutionality of such provisions that promote the recognition of salary incentives regardless of the performance and efficiency of public servants, it is pertinent to note that these questions refer to discussions of mere legality regarding which rules prevail for the recognition and payment of certain salary bonuses.

In this regard, it is worth recalling that this Chamber, when referring to the amendments to the National Teachers' Pension Regime (Régimen de Pensiones del Magisterio Nacional), warned that it is not its role to examine specific cases in order to resolve the potential legality issues that may arise when applying certain regulations:

"[I]t is necessary to insist that in an action of unconstitutionality (acción de inconstitucionalidad) it is not appropriate to carry out a legality analysis to examine whether the authorities of JUPEMA or the Ministry of Finance are properly applying the legal framework in light of the specific situation of each retired person. In this regard, this Chamber has reiterated that 'the improper application of the law or its erroneous interpretation in the specific case' is not a matter to be heard through the action of unconstitutionality (judgment No. 1994-5966). Each particular situation may be examined in accordance with the entire block of legality in the competent ordinary venues. Thus, for example, in judgment No. 2001-02235 this Tribunal warned the following:

"The Chamber finds no reasons to modify its previous criterion, apart from the fact that, as the transcribed judgment also adds, establishing whether there is an impact on the essential content of the right is a question that must be analyzed case by case." Additionally, in judgment No. 2019-024201 the following was resolved:

"On repeated occasions, this Chamber has indicated that questions regarding the application of norms cannot be the subject of an action proceeding (proceso de acción), which is designed to exercise a constitutionality control of the norms and not to examine the correct interpretation and/or application of the Law. Consequently, it is not up to this Constitutional Tribunal to determine which norm is applicable in the specific case, or whether or not the statute of limitations (prescripción) declared by JUPEMA applies, as this alludes to a conflict of ordinary legality that exceeds the scope of competence of this Tribunal. For the same reasons, the claim seeking that this Tribunal order the payment of a specific sum of money is rejected. In light of the foregoing, the action is inadmissible and must be rejected." Therefore, each specific situation may well be aired in the competent legality venues, venues in which all reproaches referring to the correct application and interpretation of the legal and regulatory rules in force may be raised." (Judgment No. 2024-006250).

Likewise, when questions of this type are raised regarding the prevalence of one or another legal norm in relation to the payment and recognition of salary bonuses, the Chamber stated the following:

"As the General Attorney's Office of the Republic (Procuraduría General de la República) indeed explains, it is clear that the discussion presented in this numeral is of ordinary legality, since it involves a conflict of norms applicable over time; that is, of legal antinomies. At issue is whether some of the provisions that support the percentages regulated conventionally, or established by law, have been repealed, thus discussing whether a presumed tacit repeal of various provisions of the Law on Salaries of the Public Administration (Ley de Salarios de la Administración Pública), the Law on Economic Compensation for the Payment of Prohibition (Ley de Compensación Económica por el pago de Prohibición), occurs with the reforms introduced in the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas). As is evident, it must be defined whether subsection a), of article 1, of the Law on Economic Compensation for the Payment of Prohibition, survives the legal reforms, and in this type of circumstances, the integration and interpretation of infra-constitutional norms is required, which is not the responsibility of the Constitutional Chamber, but rather of the administrative and judicial authorities, as appropriate." (Judgment No. 2023-010798. The highlighting does not correspond to the original).

Finally, it is necessary to point out that the active joining parties also refer to an alleged violation of Article 34 of the Political Constitution due to the alleged injury to acquired rights. This grievance will be examined in the following section.

## Conclusions Based on the considerations made, the action must be partially granted only due to the unreasonableness of the recognition of the service-years increment incentive in the month of June of each year and for breaking labor continuity. This is according to what is regulated in Article 12 of the LSAP in its version amended by the LFFP and during the term it was in force. In all other respects, the grievances are declared without merit.

Judge Rueda Leal issues a separate opinion and grants the action regarding the phrase "The service-years increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged Article 12 of the Law on Salaries of the Public Administration as amended by Law No. 9635 'Strengthening Public Finances' during its period of validity.

Judge Lara Gamboa grants the action only regarding the phrase "The service-years increment incentive shall be recognized in the first half of the month of June of each year" contained in the challenged Article 12 of the Law on Salaries of the Public Administration as amended by Law No. 9635 'Strengthening Public Finances' during its period of validity.

Judge Cruz Castro dissents and grants the action regarding service-years increments, particularly with respect to Article 50 and Transitory Provision XXXI.

## XIV.- ON THE ALLEGED VIOLATION OF THE PRINCIPLE OF NON-RETROACTIVITY OF THE LAW AND DISRESPECT FOR CONSOLIDATED LEGAL SITUATIONS ### Preliminary Clarification Regarding this section, and given that it is a cross-cutting issue in the consolidated proceedings, the arguments from various actions will be addressed, identifying in each case the respective grievances and the response given by the PGR.

### Challenged Norms The norms questioned on this ground are Articles 50, 54, 56, subsection 1) of Article 57 insofar as it amends Article 12, and Transitory Provisions numbers XXVII and XXXI of the LSAP, as amended by Law No. 9635.

The norms state the following:

"**Art. 50- On the amount of the incentive**. As of the entry into force of this law, the service-years increment incentive for public officials covered by this title shall be a fixed nominal amount for each salary scale, an amount that shall remain invariable.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).

**Art. 54- Conversion of incentives to fixed nominal amounts**. Any other existing incentive or compensation that, upon the entry into force of this law, is expressed in percentage terms, its future calculation shall be a fixed nominal amount, resulting from the application of the percentage to the base salary as of January 2018.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).

**Art. 56- Application of incentives, caps, and compensations**. The incentives, compensations, caps, or service-years increments remunerated as of the date of entry into force of the law shall be applied prospectively and may not be applied retroactively to the detriment of the official or their patrimonial rights.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).

**Art. 57. 1)** l) Article 12 of Law No. 2166, Law on Salaries of the Public Administration, of October 9, 1957, is amended. The text is as follows:

Article 12- The service-years increment incentive shall be recognized in the first half of the month of June of each year.

If the servant is promoted, they shall begin to receive the minimum of the new category; under no circumstance shall the incentives already recognized be revalued.

**TRANSITORY PROVISION XXVII**. From the application of Article 39, Unemployment Assistance, those officials covered by collective bargaining agreements (convenciones colectivas) that grant the right to more than eight years of unemployment compensation (cesantía) are excepted, who may continue enjoying that right, as long as the current agreements that so contemplate it are in force, but in no case may the compensation be greater than twelve years.

In cases where a right to unemployment compensation greater than eight years has been granted through legal instruments other than collective bargaining agreements, and which are in force, the number of years to be compensated may not exceed twelve years, in the case of those persons who have already acquired that right; for all other cases, any compensation exceeding eight years shall be without effect.

**TRANSITORY PROVISION XXXI**.

To establish the calculation of the fixed nominal amount, as regulated in Article 50, in the recognition of the seniority bonus (anualidad) incentive, immediately upon the entry into force of this law, one point ninety-four percent (1.94%) of the base salary for professional classes shall be applied, and two point fifty-four percent (2.54%) for non-professional classes, on the base salary corresponding to the month of January of the year 2018 for each salary scale." <h3>Complaints of the Claimant (Action No. 19-002620-007-CO)</h3> The claimant asserts that the legal technique used by the legislator in Articles 50, 54, 56, and subsection 57(l) in relation to Article 12 of the reformed LSAP, and Transitory Provisions XXVII and XXXI of Law No. 9635, is unconstitutional by ignoring that, in accordance with Article 34 of the Political Constitution, there are consolidated legal situations arising from instruments such as collective bargaining agreements (convenciones colectivas), regulations, and personnel statutes, which should have been respected.

Article 50 of the LSAP and Transitory Provision XXXI impose a seniority bonus (anualidad) for a fixed nominal amount that overrides what has been established in some institutions through collective bargaining agreements (convenciones colectivas) or other normative instruments that usually grant a higher and different seniority bonus amount through a percentage payment calculated on the employee's base salary, whereby these rules impose calculation techniques for seniority bonuses that directly clash with the collective bargaining agreements (convenciones colectivas) and regulations that exist in the public sector on this matter. The legislator exceeded its powers, thereby violating consolidated legal situations by not establishing—as it did, with the salary component for exclusive dedication (dedicación exclusiva) in Transitory Provision XXVI of Law No. 9635—or establishing in a defective manner on the topic of severance pay (cesantía), provisions to mitigate the effect on consolidated legal situations.

The challenged Article 54, which refers to the "conversion of incentives to fixed nominal amounts" ("conversión de incentivos a montos nominales fijos"), implies a direct and heteronomous intrusion into existing collective bargaining agreements (convenciones colectivas) and future ones that may be negotiated, which seriously injures the principle of non-retroactivity of legal norms, for two reasons: first, because the salary corresponding to the month of January 2018 that the law uses as a reference to determine the nominal amount to be paid for the seniority bonus concept had already been modified by the time the law was approved, so the legislator disregarded the principle of non-retroactivity in drafting the norm by using a delimiting parameter of the article's content that was then outdated in time; the second reason is that the provision of the norm ignores the existence of collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions on the payment of incentives or compensation in percentage form, such as the collective bargaining agreement (convención colectiva) of Banco Nacional, signed by his represented party, where percentages for productivity incentive payments have been set in Article 63, denominated in several prior agreements as results-based incentive, so for the persons to whom this collective bargaining agreement (convención colectiva) applies, there is a right and not a mere expectation of a right, that during the entire time the collective bargaining agreement (convención colectiva) is in force, that subjective right be respected.

Regarding the challenged Article 56 relating to the "application of incentives, caps, and compensations" ("aplicación de los incentivos, topes y compensaciones"), this is a norm with an intelligibility problem, which is confusing even though it regulates a topic of great interest such as acquired rights and consolidated legal situations. If the legislator intended to refer to a future regulation, it could not state that what applies in the future are the previous incentives, compensations, caps, or seniority bonuses, and interprets that perhaps what the legislator meant to say was that the new regulations on incentives, compensations, caps, or seniority bonuses govern prospectively and not retroactively. The norm is contrary to the principle of reasonableness and, therefore, to substantive due process, as well as violative of Article 34 of the Political Constitution, as acquired patrimonial rights are not respected.

Regarding subsection 57(l) which reformed numeral 12 of the LSAP, the claimant affirms that the provisions contained in collective bargaining agreements (convenciones colectivas) or other legal instruments creating subjective rights were also not respected on topics such as when payment of each seniority bonus is appropriate, the way it is calculated when there are promotions, the recognition of those rights to those coming from other institutions in the public sector or when they rejoin it, making it uncertain what happens with persons who were transferring from a company or institution within the public sector prior to the publication of Law No. 9635 but for whom the years worked in other public sector dependencies have not yet been accounted for, nor whether the consolidated legal situation that their prior time worked be registered should be disregarded. On this point, it is alleged that the law was remiss in the solution of conflicts of laws over time, and this omission is visible throughout all its provisions, except regarding exclusive dedication (dedicación exclusiva) where the exclusive dedication (dedicación exclusiva) contracts signed before the law's entry into force are respected, and also, less rigorously, regarding severance pay (cesantía).

Regarding Transitory Provision XXVII, which refers to the application of severance pay assistance (cesantía), this is a norm containing two defects of unconstitutionality: the first is the violation of the right to collective bargaining and the second is the disrespect for the principle of non-retroactivity of the law and disregard of consolidated legal situations. The norm limits the payment for severance pay assistance with caps above twelve years, without considering that many collective bargaining agreements (convenciones colectivas) in force when Law No. 9635 took effect established rules with higher caps, such as the one signed between his represented party and Banco Nacional which provided that it was a real right in favor of the institution's employees paid with a cap of twenty years and which was not considered unconstitutional when analyzed in an action that challenged it. The limitation introduced by this Transitory Provision extends to other legal instruments different from collective bargaining agreements (convenciones colectivas) in which the payment of severance pay (cesantía) is regulated under more beneficial conditions than those stipulated in Article 29 of the Labor Code, in which case the twelve-year limit is also imposed. The defect of unconstitutionality of the Transitory Provision resides in the omission to dimension the scope of its effects, in such a way that the consolidated legal situations in favor of public employees were duly safeguarded and not affected, who, under the protection of existing collective bargaining agreements (convenciones colectivas) or other legal instruments, at the time the legal reform entered into force, had already accumulated a labor seniority that granted them the right to earn severance pay assistance (cesantía) exceeding eight or twelve years.

<h3>Complaints of the Claimant (Action No. 19-004931-0007-CO)</h3> The claimant challenges Article 50 added to Law No. 2166 and also cites the provisions in Article 1, subsection a) of its regulation which enshrines the definition of what is meant by seniority bonus (anualidad). The claimant alleges an injury to the constitutional principles of municipal autonomy and that of decentralized entities and, with it, the principle of legality. Also, to the principles of progressivity of labor rights, non-retroactivity of the law, reasonableness and proportionality, interdiction of arbitrariness, and the tax principles of non-confiscation, economic capacity, and progressivity.

The consolidated legal situations of public officials who began working before the entry into force of Law No. 9635 are being injured by the norms that reformed Article 12 of the LSAP and Transitory Provisions XXVIII and XXXI insofar as they establish new forms of payment, fixed amounts for seniority bonuses (anualidades) for all public officials, even for those who, by special norms (collective bargaining agreements [convenciones colectivas], internal work regulations, autonomous service work regulations, Council agreements, etc.) have another payment modality for bonuses, incentives, seniority bonuses, quinquenios. While it is provided that they cannot be applied retroactively to the detriment of workers, an inadequate analysis has been made of what should be understood by acquired right and consolidated legal situations.

<h3>Complaints of the Claimant (Action No. 19-022051-0007-CO)</h3> Article 50 of the LSAP, in conjunction with the aforementioned Transitory Provision XXXI, impose a seniority bonus (anualidad) for a fixed nominal amount for each salary scale, overriding the fact that, in the institutions where it will be applied—including ICE—a different, higher seniority bonus amount has been established through the personnel statute and other instruments than the one contained in Transitory Provision XXXI, by a percentage payment calculated on the base salary of each employee. The percentage amounts with which the calculation of seniority bonuses (anualidades) begins in the mentioned transitory provision—which later go on to form a nominal amount—the differentiation between professional and non-professional classes, and that the seniority bonus becomes an invariable amount that will lose economic value, are calculation techniques that clash directly with the subjective rights of workers and especially, in the case of ICE, which derive from the Personnel Statute. Normative provisions must be interpreted and applied in the manner most favorable to the human being or under the pro homine principle, so, under that context, the challenged norms must be interpreted in clear safeguarding and protection of the consolidated legal situations that ICE employees have under the Personnel Statute.

Article 54 of the LSAP implies an absolute prohibition for collective bargaining in Public Administrations, which also injures the principle of non-retroactivity of legal norms, for two reasons: the first because the salary corresponding to the month of January 2018, which is used as a reference to determine the nominal amount to be paid for the seniority bonus concept, had already been modified by the time the law was approved as a consequence of the salary readjustment applied semi-annually; the second reason is that it ignores the existence of collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions on the payment of incentives or compensations in percentage form, as is the case of the ICE Personnel Statute. For all personnel covered by the cited statute, there is a right and not a mere expectation of a right, that during the entire time such instrument is in force, the subjective rights born during its validity be respected, therefore there is a violation of Article 34 of the Political Constitution.

Article 56 of the LSAP contains confusing precepts, so that the norm would only have a logical and legally admissible meaning if it were interpreted that the new caps, incentives, and compensations can only govern for new employees who join after the law's enactment and not for those with subjective rights or consolidated legal situations prior to other regulations.

Subsection 57(l) also does not respect the provisions already contained in other instruments, as is the case of the ICE Personnel Statute on aspects as important as the moment when payment of each seniority bonus (anualidad) is appropriate, the way it is calculated when there are promotions, or the recognition of those rights to those who come from other public sector institutions or rejoin it.

<h3>Report of the PGR (Action No. 19-002620-0007-CO)</h3> The objections raised here revolve around the issue of the prevalence or not of a supervening law (the LFFP) over existing collective bargaining agreements (convenciones colectivas) and, in this regard, it recalls that in opinion C-060-2019 the Attorney General's Office expressed its criterion that there are no constitutionality reasons justifying giving prevalence to the mandates of a collective bargaining agreement (convención colectiva) or any other normative instrument, over the law. It points out that the foregoing does not mean disrespecting acquired rights or the consolidated legal situations of the beneficiaries of collective bargaining agreements (convenciones colectivas) because the application of legal mandates that conflict with what was agreed in said agreements, governs prospectively, implying that the labor benefits incorporated into the assets of each person by the application of conventional clauses repealed by the law, will remain in the assets of each person who received them. It refers that the right to severance pay (cesantía) is acquired only upon the cessation of the service relationship, and provided that said cessation is due to one of the grounds that justify the payment of that indemnity, so that, before that occurs, what the interested party has is a mere expectation of a right that could not prevail over legal-rank provisions such as those introduced to the LSAP through the LFFP.

For the reasons stated, the Attorney General's Office does not consider that Articles 50, 54, 56, subsection 57(l), and Transitory Provisions XXVII and XXXI of the LSAP, violate Article 34 of the Constitution.

<h3>Report of the PGR (Action No. 19-004931-0007-CO)</h3> In the judgment of the PGR, the allegations related to the nominalization of seniority bonuses must be dismissed. The foregoing, according to the following considerations:

*"As we indicated in the original report of March 18 last, within this file, regarding the possible invalidity of granting a nominal value to seniority bonuses permanently and indefinitely, without knowing if the economic situation that justifies that sacrifice will be maintained in the future, we must indicate that, in the judgment of this Attorney General's Office, the legislator is the one called to establish the incentives and the amount of economic benefits it grants to its servants; this as part of the so-called 'Public Officials Statute' (Art. 191 constitutional).* *Based on the foregoing, it must be understood that the economic amount granted for seniority bonuses is a function of the intensity with which the legislator wishes to incentivize the permanence of public officials in their posts, and the economic possibility of paying the sums derived from that incentive.* *We consider that the legislator could even eliminate the payment of seniority bonuses, and incentivize efficiency and permanence in public service through a mechanism different from the one currently used, since the obligation to recognize seniority bonuses is not stipulated in constitutional-rank norms, but legal ones, as it is part of the remuneration regime or system typical of the so-called civil service 'Statute,' which the legislator has an authorization to configure and regulate (Arts. 105, 121.1 and 191 constitutional), as we have noted when recently answering the unconstitutionality actions processed under File Nos. 19-6416-0007-CO and 19-12772-0007-CO."* <h3>Allegations of the Co-adjuvants</h3> The secretary general of SIBANPO limited himself to supporting the claimant's thesis.

The president of the Asociación Cámara de Industrias de Costa Rica alleged that all norms can be modified prospectively by another of equal or higher rank without this implying a violation of the principle of non-retroactivity of the law; a principle that is only violated when acquired rights have arisen and consolidated legal situations as a direct consequence of subjective legal situations created under the prior legislation, and warns that those derived from collective bargaining agreements (convenciones colectivas), regulations, or statutes are not considered consolidated legal situations or acquired rights, because these are norms that regulate objective situations. None of the norms being challenged implies a violation of the principle of non-retroactivity of the law, because what the legislator has done is to modify, with future effects, objective situations created by prior legislation.

<h3>Ruling of the Constitutional Chamber</h3> <h2>Preliminarily</h2> First of all, on many of the aspects questioned, it is necessary to abide by what has already been resolved on seniority bonuses (anualidades) in the preceding considerando.

On the other hand, most of the allegations in Action No. 19-004931-0007-CO must be dismissed because they refer to municipal or decentralized entity autonomy and it has already been established and defined that the standing of the claimants, based on a corporate issue and defense of members' rights, is insufficient to question aspects relating to autonomies. The allegations related to the presumed injury to the principles of reasonableness and proportionality, interdiction of arbitrariness, and the tax principles of non-confiscation, economic capacity, and progressivity must also be rejected, since in its judgment, the State intends to render useless over time the amount paid for the seniority bonus concept and empty it of content. In this regard, it was already noted supra that said allegations lack adequate foundation because the alleged injury to said principles is neither justified nor demonstrated properly.

Regarding the vicissitudes of the application of seniority bonuses (anualidades) and the regulations related to the moment of their recognition and labor continuity, this was resolved in the preceding considerations.

<h2>Amounts of seniority bonuses and other bonuses that disregard what is established in other legal instruments</h2> The allegations related to the fact that supposedly the challenged norms (Articles 50, 54 and Transitory Provision XXXI) violate Article 34 of the Political Constitution, reasonableness, and substantive due process by disregarding consolidated legal situations or acquired patrimonial rights in collective bargaining agreements (convenciones colectivas), regulations, or personnel statutes must be rejected for the reasons explained below.

Firstly—regarding the alleged violation of the Article 34 of the Political Constitution for the alleged injury to acquired rights — this Chamber must reiterate the considerations made in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2024-007057</span></a><span style="font-weight:bold"> </span>in which, after distinguishing between an acquired right and a consolidated legal situation — citing what was resolved by this Chamber in precedent <span style="font-weight:bold">n.°</span><span style="font-weight:bold">2019-1601</span> — it concluded the following:

<span style="font-style:italic">“</span><span style="font-style:italic">In the sub examine, it must be noted that </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">the future payment of an annuity is not an automatic effect incorporated into the salary of every public servant, but rather, as recognized by the Procuraduría General de la República, it constitutes an expectation of right if certain conditions are met, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">for example, reaching the annual period and also qualifying within the evaluation parameters</span><span style="font-style:italic">. If such conditions are not met, the recognition in question would not be made. In that sense, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">it cannot be attempted to establish as an acquired right the manner in which these will be paid or the assumptions under which it must be done, since there is no right to the immutability of the legal system, according to the precedent cited above.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Certainly, the challenged regulations also establish that, as of December 4, 2018, the payment of the annuity to public servants will be recognized solely through performance evaluation and when they achieve a rating of "very good" or "excellent," or its numerical equivalent, according to the defined scale, and no longer merely by the passage of time. However, this is not an innovation of the regulation under review, since Law No. 9635, in Article 48, so contemplates it, that is, there is a provision of legal rank that already establishes it, and the decree, as will be discussed later, develops said legal provision. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">Nor does it imply a retroactive application of the law, since it concerns the future payments of the annuities, not those whose amounts have already entered the public servant's personal estate, the amount of which remains intact, regardless of whether the public servant was evaluated on previous occasions o</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">r not, nor of the value obtained in his or her rating. </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">Thus, what was already acquired and contemplated in the salary received by the worker prior to the entry into force of Law No. 9635, as was made explicit, is maintained, with public servants preserving their acquired rights and without any affectation to the salary due to them</span><span style="font-style:italic">”</span><span style="font-style:italic">. </span>(Highlighting not in the original).

Due to its importance in clarifying the point, reference must also be made to judgment <a href="file:///D:/MARICRUZ%20BARQUERO/MARICRUZ%20BARQUERO/19-2620/PROYECTO%2001/2005-16394" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">2005-16394</span></a> in which the Chamber referred to acquired rights, explaining it in the following sense:

<span style="font-style:italic; background-color:#ffffff">“</span><span style="font-style:italic; background-color:#ffffff">Well, then, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">as acquired, one must understand that right (as an expression of a concrete legal relationship that is projected onto a specific subject) that has effectively entered the patrimony of a person, in such a way that it could not be eliminated without causing a concrete and evident impairment in the conditions previously held</span><span style="font-style:italic; background-color:#ffffff">. Thus, a mere expectation for the future could not fall within this conception, even if there were objective parameters to calculate what its possible effective consequence could be, since </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">the truth is that in this last stage it has not yet become part of the subject's patrimonial sphere, ergo, it cannot be considered "acquired" then</span><span style="font-style:italic; background-color:#ffffff">. The spirit of Article 34 prevents the new law from affecting legal effects already produced in certain concrete situations, subjective rights that already had an individualized expression in the patrimony of a person at the time the new legislation supervened. Under this reasoning, it must be admitted that the future projection of a certain legal relationship cannot be covered by this constitutional guarantee, because such a thing entails a kind of "freezing" or petrification of the legal system and of the legislative and regulatory power of the State, which does not align with the principle derived from Article 129 of the Constitution, when it states that "laws are obligatory and take effect from the day they designate." The foregoing, because before any possible variation in the legal regime pertaining to a given matter, anyone could allege their "acquired right" for the previous normative conditions to be maintained or preserved, which in good logic is clearly inadmissible. Returning to what was said earlier, the constitutional interdiction governs only for assumed rights, integrated into the patrimony. In contrast</span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">, regarding pending, future situations, regarding what has not yet been consummated, it is only possible to hold an expectation</span><span style="font-style:italic; background-color:#ffffff">. Within a legal relationship that is maintained over time, there is no retroactive application when the new normative conditions are applied to the future development of the relationship, without affecting the effects already consummated under the previous situation (RSC No. 05291, 10:42 a.m., June 29-30, 2000).”</span><span style="background-color:#ffffff"> (Highlighting not in the original). </span> In the *sub lite*, it is pertinent to reiterate these considerations, which are applicable to the issue of annuities, but also to any other bonuses. That is, the salary incentives that the legislator provides within its liberality are conditioned on the fulfillment of certain requirements, so that if they are not already incorporated into the patrimony, they are merely an expectation of right and the legislator validly can regulate them for the future, without any irregularity contrary to the Law of the Constitution arising from the generic allegations. From the text of Art. 56 —which is questioned here— as from what was stated in the precedent, it is very clearly evident that the regulation is prospective and that <span style="font-style:italic">“</span><span style="font-style:italic">the incentives, compensations, caps, or annuities remunerated as of the date the law entered into force will be applied prospectively and may not be applied retroactively to the detriment of the public servant or his or her patrimonial rights”</span>. This was emphasized in Transitory Provision XXV of the LFFP by stressing that the total salary of the public servants who are active upon the law's entry into force <span style="font-style:italic">“</span><span style="font-style:italic">may not be decreased and the acquired rights they hold will be respected”</span>. That is, there was an express legislative decision to safeguard the patrimonial rights of public servants so that the amounts established by the legislator do not affect them retroactively, but rather the regulations will apply to new recognitions that are made. However, the adequate application of this maxim in each specific case corresponds to a particularized assessment and not to the constitutionality of the challenged legislation, since, it is reiterated, the legislator expressly provided that the regulation cannot be applied retroactively to the detriment of the public servant or of their patrimonial rights.

In a second order of ideas, it is necessary to insist on the fact that it is incumbent upon this Chamber to guarantee the supremacy of constitutional norms and principles, and in constitutional review, it is its role to assess whether a norm of a general nature injures the Law of the Constitution by contradiction or omission. However, this Court is not competent to resolve problems of application or interpretation of norms of *infra*-constitutional rank to determine the prevalence of one or the other for the resolution of conflicts of a labor nature such as those raised in these unconstitutionality actions, where what is sought is to resolve eventual antinomies between the law and collective bargaining agreements, regulations, or personnel statutes. It is reiterated that the Constitutional Chamber is not responsible for the integration and interpretation of *infra*-constitutional norms, but rather the administrative and judicial authorities are, as appropriate. The allegations of action n.° 19-022051-0007-CO coincide with what was raised and rather seem to seek that this Chamber resolve what should prevail —whether what was provided by the legislator in a law of a general nature and of public interest such as the LSAP or the special provisions that regulate the labor relations of various entities— which, as was already stated *supra*, is a discussion of legality and not of constitutionality.

Additionally, the plaintiffs allege an infringement of the stated constitutional principles because the salary corresponding to the month of January 2018, which the law uses as a reference to determine the nominal amount to be paid for the annuity concept, had already been modified when the law was approved as a consequence of the salary adjustment applied semi-annually, and therefore the legislator disregarded the principle of non-retroactivity in the drafting of the norm. In this regard, it is necessary to reiterate that the recognition of annuities responds to criteria of opportunity and convenience of the legislator, there is no right to the immutability of the legal system and that, therefore, the legislator is empowered to regulate prospectively the requirements, amounts, and terms under which these types of salary incentives can be recognized, safeguarding acquired rights (Art. 34 of the Constitution) and other constitutional principles such as reasonableness and non-discrimination. In that sense, the parameter that the legislator opportunely and conveniently used to delimit the payment of future annuities, under the allegations raised by the plaintiffs, does not appear unreasonable nor injurious to Art. 34, given that, it is repeated, they are regulations that govern the future annuities to which the public servant aspires.<span style="background-color:#ffffff; -aw-import:spaces"> </span> Sobre el Transitorio XXVII que se refiere a la aplicación del auxilio de cesantía It is alleged that the norm limits the payment for the concept of severance pay (auxilio de cesantía) with caps higher than twelve years, without considering that many collective bargaining agreements in force when Law n.° 9635 came into effect established rules with higher caps, such as the one entered into between its represented party and Banco Nacional, which provided that it was a real right in favor of the institution's employees paid with a cap of twenty years and which was not considered unconstitutional when it was analyzed in an action that challenged it. The vice of unconstitutionality of the Transitional Provision resides in the omission to dimension the scope of its effects, in such a way that the consolidated legal situations in favor of public employees would be duly safeguarded and not affected, who, under the protection of collective bargaining agreements in force or other legal instruments, at the time the legal reform came into force, already had accumulated a length of service that granted them the right to earn compensation for severance pay higher than eight or twelve years. This section questions the alleged infringement of Art. 34 of the Political Constitution.

It is necessary to point out that this Chamber has already examined cases in which the fact that the Labor Code has established a ceiling or limit on the issue of severance pay is questioned. In judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-81592" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">n.°</span><span style="font-weight:bold; text-decoration:underline; color:#000000">1995-2754</span></a>, this Chamber examined grievances very similar to those raised in this opportunity, namely, the possibility that the legislator introduce limits to the payment of severance pay, as well as the alleged injury to the principle of non-retroactivity, that is, what pertains to the supposed breach of acquired rights. Since that judgment, the Chamber was emphatic in the sense that, in general terms, it is for the legislator to regulate the form and the parameters within which the severance compensation (cesantía) will be paid and that “<span style="font-style:italic">there is no fundamental right of the citizen to receive the severance pay in an unlimited manner</span>,” that is, it is legitimate and possible to introduce reasonable limits. Furthermore, as long as the pecuniary amount of the severance pay has not entered the worker's patrimony, one cannot speak of a supposedly acquired right. The judgment under analysis explains it very clearly:

<span style="font-style:italic">“</span><span style="font-style:italic">The Political Constitution, in Article 63, enshrines a principle that was previously established in Article 29 of the Labor Code, which is, the right of the worker dismissed without just cause to receive compensation called severance pay (auxilio de cesantía). </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">From such constitutional statement, it does not derive, as the plaintiff claims, that it is an absolute and unlimited right not subject to any type of regulation; on the contrary, it is for the legislator to regulate the form and the parameters within which such compensation will be paid</span><span style="font-style:italic">. It is clear, then, that there is no friction between Article 29 subsection d) of the Labor Code and the principle established in Article 63 of the Constitution; both norms complement each other. Within this same order of ideas, the argument that the challenged norm violates the content of Article 50 of the Constitution, insofar as severance pay is a form of wealth distribution and a method of social solidarity for the protection of the Costa Rican family and therefore cannot be limited, is also not acceptable.</span><span style="font-style:italic"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">There is no fundamental right of the citizen to receive severance pay in an unlimited manner</span><span style="font-style:italic">. The State opted for a certain way of regulating such compensation, contributing to the well-being of citizens and developing, in what corresponds, the mandate of Article 50.</span> From this perspective, the substantive matter that the claimant seeks to discuss is not a constitutional violation but rather an issue of the State's social and economic policy, which must be resolved before other instances and not in this venue.

III.- Regarding the violation of the principle of non-retroactivity of the law, the claimant's argument is summarized as follows: the cap on the unemployment benefit (auxilio de cesantía) undermines a legal situation consolidated by the passage of time, protected by adverse possession (prescripción adquisitiva), because each year that passes, the worker acquires the right to the unemployment benefit (cesantía) and it becomes part of his assets. This argument is not acceptable. For a retroactive effect of a law to be unconstitutional, the right considered injured must have been acquired before the enactment of the law:

"Article 34 of the Political Constitution prohibits giving retroactive effect to a law when it harms acquired rights or consolidated legal situations. Both concepts have been clearly defined by constitutional doctrine and national jurisprudence. (...) A legal situation can become consolidated—as the Full Court has stated before—by a judicial ruling that declares or recognizes a contested right, and also under a legal provision that establishes or guarantees certain consequences in favor of the right holder, a consequence that a later law cannot disregard without incurring unconstitutionality for violation of Article 34 of the Constitution (ruling number 1119-90 of fourteen hours on the eighteenth of September of nineteen ninety.)" In the same vein, it has been stated:

"Article 34 of the Political Constitution prohibits giving retroactive effect to a law when it harms, inter alia, 'acquired property rights.' A distinction must be made between: a) A law that regulates a past factual situation to the detriment of those rights, which we could call retroactivity proper and in principle unconstitutional, which affects consummated facts, and: b) The regulation of a factual situation that comes from the past but extends to the moment of the law's enactment—in which case the validity or invalidity of indirect ex tunc effects must be examined on a case-by-case basis" (ruling number 4691-94, of seventeen hours thirty-nine minutes on the thirty-first of August of nineteen ninety-four) There is no judicial ruling in the claimant's favor that declares or recognizes a contested right, nor a prior law that guarantees him receipt of the unemployment benefit (auxilio de cesantía) without being subject to the eight-year cap, since the provision of subparagraph d) of Article 29 of the Labor Code that sets the unemployment benefit (cesantía) cap predates the beginning of his employment relationship with JAPDEVA. Therefore, and in accordance with this provision, the claimant never had an acquired right to receive the unemployment benefit (auxilio de cesantía) without the eight-year cap." Subsequently, the Chamber addressed the unemployment benefit (auxilio de cesantía) with respect to public servants in the ruling n.° 2005-07180, where its origin in the Labor Code was explained—which predates the Political Constitution—where the stability of public servants was guaranteed, and in that ruling it was also emphasized that it is not an unlimited or absolute right, but rather it is up to the legislator to design the manner in which such compensation is regulated:

“To facilitate the examination of the constitutionality of the challenged Article 586, subparagraph b), it is pertinent to refer to certain historical aspects of the contested provision as well as to the adoption of the concept of the State as the sole employer in our legal system. It is through Articles 585 and 586 of the Labor Code, located in Title Eight, called 'The regime of the servants of the State and its institutions,' whose sole chapter is titled 'Special provisions for the servants of the State and its Institutions,' that the legislator recognizes in favor of public servants a minimum of rights, specifically: the unemployment benefit (auxilio de cesantía), the prior notice (preaviso), and the payment of damages (artículos 585 and 586 in relation to 28, 29, and 31 of the Labor Code). This regulation predates the Political Constitution of 1949, which came to guarantee in its Article 192 the stability of public officials who had entered the civil service regime, a constitutional guarantee that covers all officials serving the State, both in the Central Administration and in decentralized entities (To this effect, see rulings of this Court 5778-94 and 5222-94). In this regard, it is worth mentioning what is set forth in considerando V of ruling 2000-00229 of ten hours thirty-five minutes on the eighteenth of February of the year two thousand of the Second Chamber of the Supreme Court of Justice, as it states that the legislative provision made through Articles 585 and 586 was explained by:

“V (…) the non-existence, at that time, of the guarantee of immovability or stability, since it was not until the Political Constitution of 1949 that it was incorporated into the national legal system (Article 192) (Second Chamber of the Supreme Court of Justice, Voto n° 299, of 9:05 hours, on October 11, 1996). (…)

It is along the same line of reasoning set forth by the Labor Cassation Chamber in the cited ruling, as well as by the statements of the Attorney General's Office and SUGEF in their respective reports, that this Chamber, in agreement with the common jurisprudence on this matter, recognizes the right of every worker to be compensated upon the termination of their relationship with the employer, not only because it includes inalienable rights such as salary, vacation, and the year-end bonus (aguinaldo), but also because labor laws, in cases where a cause for unilateral dismissal by the employer is not invoked, require the employer to recognize a certain monetary compensation to the worker (In that regard, see ruling 942-97 of fifteen hours thirty-nine minutes on the twelfth of February of nineteen ninety-seven). However, it is worth highlighting what SUGEF stated in its report, in that it says that the reimbursement of sums paid as compensation, when the servant is hired again by the State, with the exception of amounts corresponding to the period during which they were unemployed, is justified by the theory of the State as sole employer; a theory that should be remembered emerged to correct the situation of servants who transferred to work for a different public entity or administration, without their previous service time being recognized, to the detriment of benefits derived from seniority in service, for the State as employer. The natural evolution of the concept of the State as sole employer fully justifies the proportional reimbursement of money paid as unemployment benefit (auxilio de cesantía), if it is demonstrated that the person held another remunerated position in the Public Administration.

VIII.- THE RIGHT TO COMPENSATION FOR UNEMPLOYMENT BENEFIT ARISING FROM ARTICLE 63 OF THE CONSTITUTION.- Regarding the provision of Article 63 of the Constitution, which establishes the obligation to pay the worker a sum as compensation for the breaking of the employment relationship without just cause, and which, as stated in its report by the Attorney General's Office, does not regulate public service relationships, this Chamber reiterates what was stated in the previous considerando, to the effect that Article 63 of the Constitution embodies a principle previously established in Article 29 of the Labor Code, which is the right of a worker dismissed without just cause to receive compensation called unemployment benefit (auxilio de cesantía). As already stated, Article 586 of the Labor Code, challenged in its subparagraph b), incorporated the right to compensation in favor of public servants whose relationship ceases without just cause; a situation that, while difficult to assume due to the prevalence of the guarantee of stability in service for public servants as provided in the constitutional text in its Article 192, does not clash with the constitutional pronouncement establishing the obligation to pay compensation for unemployment (desocupación) when the dismissal was not justified. On the contrary, the Chamber observes that in cases where the situation of dismissal without just cause may arise, the payment of the unemployment benefit (auxilio de cesantía) in favor of the servant is justified, adjusted, and fully complemented by the provisions contained in Articles 585 and 586 in relation to Articles 28, 29, and 31, all of the Labor Code, which provide the basis for unemployment compensation and seek to protect the right of every worker to be compensated upon the termination of their relationship with the employer, regardless of whether or not it is the State. This, this Court emphasizes, is not only because it includes inalienable rights such as salary, vacation, and the year-end bonus (aguinaldo), but also because labor laws, in cases where a cause for unilateral dismissal by the employer is not invoked, require the employer to recognize a certain monetary compensation to the worker to allow for their support and that of their family, as well as to preserve their dignity (in this regard, see ruling 942-97 of fifteen hours thirty-nine minutes on the twelfth of February of nineteen ninety-seven, already cited), which is what gives meaning to the benefit. Consequently, Article 63 of the Constitution must be understood as a guarantee of every worker to be compensated for the breaking of the relationship without just cause.

(…)

As the reporters rightly state, the right to compensation for unemployment (indemnización por desocupación), elevated to constitutional rank, called unemployment benefit (auxilio de cesantía), is not an unlimited right; rather, it is up to the legislator to regulate the form and parameters within which such compensation will be paid. It is in this sense that this Court, through ruling 2754-95 of fifteen hours forty-five minutes on the thirtieth of May of nineteen ninety-five, stated: “There is no fundamental right of the citizen to receive the unemployment benefit (auxilio de cesantía) in an unlimited manner. The State opted for a particular way of regulating such compensation, contributing to the well-being of citizens and developing, as appropriate, the mandate of Article 50 (…).” (The highlighting does not correspond to the original).

These considerations were also taken up by the Chamber in ruling n.° 2012-008891, where it was justified that payment of the unemployment benefit (cesantía) no longer applies only for dismissal, but also to workers who take retirement, old-age pension, or voluntary withdrawal (retiro), and to the contingency of death, but understanding, again, that it is not an unlimited or absolute right:

“Now, in ruling number 17439-2006 of 19:36 hours on November 29, 2006, the Constitutional Court held that the unemployment benefit (cesantía) has a proportional relationship with the worker's seniority (antigüedad): 'Although it recognizes a compensation higher than the legal minimums, the fact is that it does not become unreasonable, if one takes into account that it is subject to a limit and that it is relatively proportional to the official’s seniority (antigüedad) in the institution, so that this right is held only by someone who has served for a long period of time. The benefit is thus constituted as an incentive for permanence within the institution, preventing the departure of officials with experience in handling matters pertaining to the Junta's competencies. In this way, the Chamber considers that the challenged provision does not transgress the constitutional rules and principles invoked by the plaintiffs.' (The highlighting is not from the original). From the cited texts, it is evident that the unemployment benefit (auxilio de cesantía) is not an unlimited or absolute right. The law extended its application to workers who take retirement, old-age pension, or voluntary withdrawal (retiro), and to the contingency of death. Furthermore, the Chamber has conceived it as a deterrent mechanism against unjustified dismissal, but has also admitted that it can be an incentive for the permanence of the employed person in an institution.” (The highlighting does not correspond to the original).

In ruling n.° 2018-008882, this Chamber examined its own precedents regarding the breaking of the unemployment benefit (cesantía) caps that were established in the Labor Code, arriving at the current point of assessment, to the effect that through collective bargaining (negociación colectiva) it was legitimate to expand the minimum set forth in the Labor Code so that servants regulated by such provisions who may eventually engage in collective bargaining (negociación colectiva) have a constitutionally legitimate maximum cap, or a margin of negotiation where the maximum is twelve years. In this regard, the following considerations were made:

“In adopting this approach, the majority of the Chamber verifies the existence of a very wide gap between the payment of unemployment benefit (auxilio de cesantía) applicable to the vast majority of public servants, whose cap is 8 years, and the payment that workers of the Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements (convenciones colectivas) will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months of salary for the same unemployment benefit (auxilio de cesantía). This is a difference of one hundred fifty percent (150%), which, from the perspective of the majority of us who make up this Chamber, is abysmal and therefore should have clear and incontestable arguments to justify it, but rather lacks them and proves disproportionate and unsustainable in such magnitude.

(…)

XXIII.Having said the above, the majority of the Chamber must then face the need to determine a limit or “ceiling” for those conventional clauses that could be negotiated regarding the breaking of the cap on the payment of unemployment benefit (auxilio de cesantía), and to this end we find two main ideas that should guide the decision: on the one hand, there is the fact that a mere equalization with the eight-year cap established in the Labor Code would mean—in practice—a virtual exclusion of this matter from the possibility of collective bargaining (negociación colectiva), which would become an unjustified limitation on the exercise of that right whose fundamental nature has been recognized by the Court.

Furthermore, in the opposite sense, there is a need to take into account a sense of proportionality—which has led to rejecting a maximum cap of 20 years in the preceding recitals—and to assess the economic environment in which the public finances that directly and exclusively fund the cap exceptions for the direct payment of unemployment assistance (auxilio de cesantía) to the worker operate—and are expected to operate for the coming years. The public and notorious fact that our country is going through a serious crossroads regarding the quality and quantity of public spending and the economic contribution that the different sectors are willing to deliver for the maintenance of our social and democratic rule of law cannot be alien to this particular type of decision. It would be unacceptable for this Chamber, in this environment, to fail to take into account that pressing situation, which this type of negotiation could worsen further if an adequate balance of all the elements at play is not carried out. For the foregoing reasons, this Chamber considers that collective bargaining on this specific point of the cap exception for the payment of unemployment assistance must not exceed a cap of twelve (12) years, which allows a respectable margin of negotiation for the parties to collective bargaining agreements in the public sector, which—eventually—would allow them to raise the floor of 8 years established by the Labor Code for this specific type of benefit payable by the public employer by up to 50 percent. This addresses the legitimate claims that could come into play, by allowing a margin of negotiation that is considered relevant, but without significantly affecting public finances at a historical moment where their austere and careful management has a prominent priority for the very subsistence of our institutional framework.

*In conclusion regarding this point, the majority of the Chamber agrees that the payment of unemployment assistance agreed upon in clause 47, second paragraph, of the Bancrédito collective bargaining agreement (Convención de Bancrédito) cannot be made without any cap and that—for the reasons stated—said cap cannot be maintained at twenty (20) years as had been previously held, but rather the maximum that could be paid under this scenario is one month's salary for each year worked up to a maximum cap of twelve (12) years. Therefore, when the payment of such sums is appropriate, it shall be made—as to the amount of unemployment assistance to be paid—under similar conditions and terms set forth in the collective bargaining agreement or in the applicable legislation for those cases of termination of the contract for reasons not attributable to the will of the worker, but on the understanding that the sums paid may not exceed the recognition of more than 12 years of service.”* In accordance with such arguments, it is necessary to conclude that it is legitimate for the legislator to regulate the form and limits for the recognition of unemployment assistance, since it has already been established that it is not an unlimited right. By reason of the foregoing, the fact that the LSAP introduces a rule in an identical sense to that established in the Labor Code with a specific cap does not appear illegitimate or harmful to the acquired rights of workers. As can be seen, this Chamber had to reconsider its jurisprudential lines in the sense that it is neither valid nor legitimate to pay unemployment compensation without a cap or a reasonable parameter, as this would be contrary to the principle of equality and the sound management of public finances. In this order of ideas and in the context of the approval of the LFFP, the challenged rule is understood as reasonable, which does not affect the acquired rights of workers because if the necessary condition to aspire to the compensation in question has not been fulfilled, what is maintained is a mere expectation of a right and not an acquired right. For a retroactive effect of a law to exist and for this effect to be unconstitutional, the right that is considered harmed must have been acquired before the enactment of the law. In the *sub lite* case, reference is made to the mere expectation of acquiring the compensation without the caps introduced by the legislator, whereby a violation of Article 34 of the Political Constitution is not verified. Moreover, as can be seen, what the legislator agreed upon within the framework of its discretion responds to and is consistent with the jurisprudential lines of this Chamber, given that since 2018 it has been reiterated that the maximum to be recognized for unemployment compensation within the framework of collective bargaining is 12 years, which was respected by the legislator given that Transitory Provision XXVII warns *that “from the application of Article 39, Unemployment Assistance, those officials covered by collective bargaining agreements that grant the right to more than eight years of unemployment assistance are exempted, who may continue to enjoy that right, as long as the current agreements that so contemplate it are in force, but in no case may the compensation be greater than twelve years”*. In that sense, it is observed that the Transitory Provision established by the legislator seeks to recognize what was agreed upon conventionally, introducing a limit of constitutional order derived from the jurisprudence of this Chamber. From this perspective, the view of the plaintiffs regarding the alleged violation of Article 34 of the Political Constitution is not shared.

## Conclusion As a corollary of the considerations made, it is imperative to declare the claims related to the alleged violation of the principle of non-retroactivity and Article 34 of the Political Constitution without merit.

Judge Cruz Castro partially dissents and declares Articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.

## XV.- Violation of the principle of free collective bargaining ### Preliminary clarification Regarding this section, and given that it is a cross-cutting issue in the accumulated proceedings, the claims of various actions will be addressed, identifying in each case the respective grievances and the response given by the PGR.

### Challenged rules In general terms, the plaintiff says that the challenged rules result in an emptying of collective bargaining.

The rules challenged in this section are as follows:

### Grievances of the plaintiff (case file action No. 19-2620-0007-CO) It is reproached that the regulation established by Law No. 9635 leaves no space for these matters to be regulated through collective bargaining and thus exceed the minimums contemplated by ordinary legislation. This, despite the fact that these are essential labor matters and that the Labor Procedural Reform, approved by Law No. 9343, in its Article 690, subsection i), established the possibility for unions and employer representatives to negotiate clauses of a salary nature.

The articles of the LSAP introduced or amended by Law No. 9635 that are challenged, absolutely exclude any negotiation of salary components or bonuses, as well as prohibit the negotiation of the right to unemployment assistance, all of which is observed in the insurmountable cap of eight years on the compensation for the payment of unemployment assistance (Art. 39), or with the establishment of a single seniority payment that has a single way of calculating it through an inelastic division between professional classes and non-professional classes and an invariable amount that remains anchored in time based on the salaries earned in January 2018 (Arts. 50 and 57, subsection l), or imposing a prohibition on establishing incentives or compensations in percentage terms (Art. 54), or establishing a legal reserve for the creation of all types of incentives, economic compensations, or salary bonuses (Art. 55) and, furthermore, obligating the heads of entities to denounce collective bargaining agreements upon their expiration (Transitory Provision XXXVI). The right to collective bargaining of incentives and components of a salary nature contemplated in subsections h) and i) of Article 690 of the Labor Code, whose legal framework derives from Convention No. 98 of the ILO and Article 62 of the Political Constitution, has been emptied of all economic content. The intention of the legislator who enacted Law No. 9635 was to create a kind of legal reserve in matters of supplementary salaries (sobresueldos) and seniority payments, supplanting the constitutional legislator in clear violation of Articles 60 and 62 of the Political Constitution, but Articles 26 of the ACHR and 8, subsection a) of the Protocol of San Salvador are also transgressed.

When ruling on legislative file No. 20.580, the Constitutional Chamber was clear that it was not possible to establish a total interdiction on the creation of supplementary salaries by means of a collective bargaining agreement; notwithstanding the foregoing, the rules challenged here do establish that type of interdiction, despite the warning made by the Chamber, so Law No. 9635 was approved according to the text decreed in the first debate that the Chamber reviewed, and this confirms the unconstitutionality that is requested.

For this reason, the challenged rules are violative of the principle of free collective bargaining, which implies the violation of ILO Convention 98, of Article 8, subsection a) of the Protocol of San Salvador, and of Article 62 of the Political Constitution.

Article 39 of Law No. 2166, amended by Law No. 9635, by imposing a cap of eight years for the payment of unemployment assistance, imposes very serious limitations that impact the constitutional order of collective bargaining and points out that even the Constitutional Chamber, on repeated occasions even with restrictive criteria, has endorsed clauses of collective bargaining agreements signed in the public sector that establish unemployment assistance caps exceeding eight years, understanding that the exception to the legal cap is constitutionally valid and conforms to parameters of reasonableness and proportionality.

The alleged unconstitutionality is magnified by the existence of Transitory Provisions XXVII and XXXVI of Law No. 9635, from which it is inferred that the legislator's purpose has been none other than to establish an absolute prohibition so that, via collective bargaining agreement, rules on compensation for unemployment assistance different from those established in the articles can be negotiated.

39 of the Salary Law under review, as amended by Law No. 9635, and 29 of the Labor Code, without taking into account that in Costa Rica, the payment of the severance pay (auxilio de cesantía) with caps higher than those established in the Labor Code has been accepted for more than thirty years, since the approval of the Solidarist Associations Law No. 6970 of November 7, 1980, which establishes the payment of severance pay (auxilio de cesantía) by the employer—public or private—without any type of year cap and as a real right, that is, its recognition is appropriate under any assumption regardless of the cause that extinguishes the employment relationship. Based on the foregoing, an unequal and unjustified treatment is also created to the detriment of the union organization compared to the solidarist organization, since the latter can do so by special law, while the union cannot, which generates a disparity of conditions in the legal treatment that the legal system offers to one and the other organization.

Transitory Provision XXVII represents a clear intrusion and imposition by the legislator on the content to be negotiated in the collective bargaining agreements (convenciones colectivas de trabajo) that were in force when the reform contained in Law No. 9635 came into effect, as this transitory rule limits the payment for severance pay (auxilio de cesantía) to a maximum of twelve years, despite the existence of conventional rules that provided for higher limits.

These articles are unconstitutional because they disregard the legal nature that the Political Constitution grants to collective bargaining agreements (convenciones colectivas), but also because they violate the right to free collective bargaining (libre negociación colectiva), by supplanting the negotiating will of the signatory parties to these normative instruments.

It reiterates that Article 50 of the LSAP, together with Transitory Provision XXXI contained in Law No. 9635, by imposing an annuity at a fixed nominal amount, implies an unreasonable and disproportionate limit on free collective bargaining (libre negociación colectiva) but also a total prohibition on negotiating the payment of annuities in collective bargaining agreements (convenciones colectivas de trabajo) as had been negotiated before the entry into force of Law No. 9635; Article 54 of the LSAP is unconstitutional because it denies any possibility of negotiating a different amount for incentives or compensations, which have now been transformed into a fixed percentage, anchored in the month of January 2018, without any possibility of future improvement, in contrast to the provisions of Article 690, subsection h) of the Labor Code, which contemplates the possibility that salary incentives may be negotiated; With the reform made by Law No. 9635 to Article 55 of the LSAP, the legislator sought to create a legal reserve so that any incentive, compensation, or salary bonus (plus salarial) had to be created by law; however, this is unconstitutional because Article 62 of the Political Constitution and Convention No. 98 of the ILO, duly approved by Costa Rica, prevent establishing a limitation of such a nature, but also because this article harms the principle of free collective bargaining (libre negociación colectiva); Transitory Provision XXXVI is one of the most pronounced intrusions of the Public Power into the right to collective bargaining (negociación colectiva), since it obliges the heads of public entities to denounce collective bargaining agreements (convenciones colectivas) upon their expiration, thereby suppressing the content of Article 62 of the Political Constitution and of Conventions 87 and 98 of the ILO, in conjunction with Articles 26 of the CADH and 8 subsection a) of the Protocol of San Salvador, for which reason it considers it contrary to the Law of the Constitution; this regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements (convenciones colectivas) are negotiated, they must adapt to the provisions of Law No. 9635, which means that working conditions that worsen the previous ones will have to be inserted, without respect for consolidated legal situations. Furthermore, the rule leaves the door open for the Executive Branch to establish any content for those agreements, all of which is also introduced in a rule of a transitory nature but that causes permanent and definitive effects.

### Grievances of the Claimant Party (Action No. 19-004931-0007-CO) The representative of ANEP alleges that the challenged Article 39 harms the principles of collective bargaining (negociación colectiva), rationality, proportionality, progressivity of rights, and the most favorable condition, as well as Articles 33 and 62 of the Constitution.

This provision closes the possibility for the public sector to sign collective bargaining agreements (convenciones colectivas), which have the force of law between the parties, which harms Article 62 of the Constitution. The challenged rule not only harms the right to collective bargaining (negociación colectiva), but also the acquired rights, the consolidated legal situations of the officials who, at the time the rule came into effect (December 3, 2018), had already acquired working conditions that cannot be affected.

On the other hand, this provision overlooks that there are collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions on the payment of incentives or compensations in percentage form.

Collective bargaining (negociación colectiva) is a fundamental right contained in Article 62 of the Political Constitution, so the possibility of negotiating better working conditions between the parties that sign a collective bargaining agreement (convención colectiva) is a fundamental right that must be protected. Expressly prohibiting the possibility of negotiating a higher severance pay (auxilio de cesantía) cap, through an agreement between parties, limits not only the right of collective bargaining (negociación colectiva), but also the possibility of obtaining better working conditions for officials, which empties it of content.

Article 7 of the Political Constitution establishes that international treaties and conventions have authority superior to laws. For its part, freedom of association is a right contained in Article 16 of the American Convention on Human Rights, in Article 8 of the Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador; also in Article 23 of the Universal Declaration of Human Rights, and Article 22 of the American Declaration of the Rights and Duties of Man and, therefore, must be observed in Costa Rica. Convention 87 of the ILO, called "Convention concerning Freedom of Association and Protection of the Right to Organise", duly ratified by Costa Rica, establishes the obligation of the Costa Rican State to put into practice the provisions of said convention. The challenged Article 39 harms Article 4 of that convention, which orders that the State must promote and encourage collective bargaining (negociación colectiva) and not limit or hinder it, and recognizes that the collective bargaining agreement (convención colectiva) is the quintessential mechanism for improving employment conditions through social organizations. The fact that the country's economic situation is difficult does not make collective bargaining (negociaciones colectivas) unconstitutional.

Likewise, the claimant challenges Article 55, stating that the legislator's intention is clear in seeking that there be no other way to create incentives other than the legislative one. This, in ANEP's judgment, harms the right to collective bargaining (negociación colectiva) and violates municipal autonomy and that of decentralized entities, whose powers derive from the Political Constitution and the respective laws. The regulatory power in matters of administration enjoyed by minor entities is undermined by a legal rule that aims to legislate in an unrelated field. For this reason, the principle of legality is harmed.

### Grievances of the Claimant Party (File Action No. 19-022051-0007-CO) The representation of ASDEICE challenged that Article 39 of the LSAP, in relation to Transitory Provision XXVII, are rules that infringe the right to collective bargaining (negociación colectiva). They point out that although the article exempts the application of Article 39 of the law for those public officials covered by collective bargaining agreements (convenciones colectivas) or other legal instruments in which the right to payment for severance pay (auxilio de cesantía) is granted with caps higher than that established in Article 29 of the Labor Code, such exception is relative insofar as the rule always ends up limiting the payment of the right to a twelve-year cap, without taking into account that in many normative instruments existing before the law came into effect, rules are established for the payment of severance pay (auxilio de cesantía) with caps higher than twelve years.

### Report of the PGR (Action No. 19-2620-0007-CO) The PGR indicates that the regulation of collective bargaining agreements (convenciones colectivas) is a matter of law, as is compiled with in this case. It states that public employment is called to be governed by statutory rules and, therefore, the legislator can establish restrictions on the exercise of the right to collective bargaining (negociación colectiva) in the public sector, such as those regulated in Article 55 of the LSAP and in Transitory Provision XXXVI of the LFFP. Imposing certain restrictions on collective bargaining (negociación colectiva) in the public sector regarding severance pay (cesantía), the valuation of annuities and incentives, and the creation of new salary supplements, does not empty the right to negotiation of content, nor does it affect its essential core. Establishing certain restrictions on collective bargaining (negociación colectiva) in the public sector is particularly necessary when the country is in a situation of economic imbalance that has been public knowledge and whose attention has required sacrifices, not only from people linked to the State by a public employment relationship, but from all economic and social sectors.

It is not possible to compare unions with solidarist associations, as they are distinct figures, with their own characteristics, very different from each other, and, in that sense, it recalls that solidarist associations have not been conferred the right to collective bargaining (negociación colectiva), nor the right to strike, without thereby finding themselves in a situation of disadvantage or unconstitutional discrimination with respect to unions.

Regarding the Transitory Provision that includes permanent rules: with respect to the objection relating to the permanent and non-temporary nature of what is regulated in Transitory Provision XXXVI of the LFFP (related to the obligation to denounce collective bargaining agreements (convenciones colectivas) upon the expiration of the agreed term), it may be considered as a possible infraction of adequate legislative technique, but it does not generate the unconstitutionality of the affected rules, as it is not a serious defect that justifies annulling those provisions.

### Report of the PGR (Action No. 19-004931-0007-CO) The PGR suggests dismissing the alleged unconstitutionality attributed to Article 39. The foregoing, based on the following considerations:

*“In this regard, as we indicated in the original report of this action, dated March 18, 2019, the institutional position of this advisory body on said topic was expressed in our opinion C-060-2019, of March 5 last. In said pronouncement, the conclusion was reached that collective bargaining agreements (convenciones colectivas) are subject to the law, even when the latter is supervening, especially when that law is expressly aimed at derogating (with future effect, consequently respecting acquired rights and consolidated legal situations) the conventional rules that have a specific content. (…)”* &nbsp; Next, the PGR cites the referred opinion, from which the following is essentially derived:

*“And we must be clear and forceful in pointing out that the legal modification carried out by Law No. 9635 does not seek the denial, much less the suppression, of collective bargaining (negociación colectiva) and its effective exercise as a negotiating faculty of the unions in our environment, nor is it rendering the collective bargaining agreement (convención colectiva) signed in that institutional sphere inoperative or without content – by administrative dispensation or non-application –* ***but rather the future adaptation of working conditions to the new prevailing circumstances that, by provision of the legislator, mandate conjunctural measures of reorganization and rationalization, for the containment and reduction of personnel expenses of the Public Administrations, required by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budget balance*** *.* *Which makes said legal precept, in itself, compatible with the effectiveness of the agreed collective bargaining agreements (convenciones colectivas pactadas).”* (The highlighting does not correspond to the original).

&nbsp; Subsequently, the PGR adds the following:

*“The conventional rules agreed 'previously' may have their effectiveness affected by a supervening norm with the rank of Law, which would have an indubitable prevailing character – due to strict subjection to the principle of normative hierarchy – over those in matters of mandatory law and absolute content thus regulated by the legislator. Thus imposing the preeminence of the supervening Law, and for the future, with respect to the previously agreed collective bargaining agreement (convenio colectivo).* *A similar solution occurs in the case of collective bargaining agreements (convenciones colectivas) renegotiated and approved after December 4, 2018, since they must adapt in all their extremes to the provisions of the cited Law No. 9635 and other regulations issued by the Executive Branch; this in accordance with Transitory Provision XXXVI of the cited Law.”* &nbsp; Regarding Article 55, on the prohibition of generating new incentives via collective bargaining agreement (convención colectiva), the PGR reported the following:

&nbsp; *“Although we are aware that in Resolution No. 2018-019511 of 9:45 p.m. on November 23, 2018, the Chamber indicated that the cited Article 55, insofar as it imposes the creation of incentives and compensations only through a formal law, is not unconstitutional, as long as it is understood that it does not apply to public employees and workers who may enter into collective bargaining agreements (convenciones colectivas), in accordance with the reform introduced by the Labor Procedural Reform, Law No. 9343, to Article 112, subsection 5) of the General Law of Public Administration (LGAP), according to the inverse determination or* *contrario sensu* *that Articles 683 and 689 make of them, since in those articles it is rather defined who are those who participate in public management; then all other servants, except those stated therein, are enabled to conclude collective bargaining agreements (convenios colectivos). This is in order not to empty the content of the right to enter into collective bargaining agreements (convenciones colectivas) and the union action itself.* &nbsp; *Which leads us to reaffirm that,* ***for the rest of the public officials who, by participating in public management, do not have the right to enter into collective bargaining agreements (convenios colectivos) and for whom union action can reasonably be limited or even prohibited (ILO Conventions 87, 98, 151, and 154; See OJ-035-2019, of May 17, 2019), that legal reserve is constitutionally feasible*** *.* &nbsp; *As we indicated in the original report of March 18 last, within this file, in the judgment of this Attorney General's Office, the legislator is the one called upon to establish the incentives and the amount of the economic benefits granted to its servants; this as part of the so-called "Statute of public officials" (Article 191 of the Constitution), which is characterized by its determination, not by contract or collective bargaining agreements (convenios colectivos), but through objective norms, laws or regulations, which, depending on their nature and hierarchy, can be unilaterally modified by the competent body.”* <span style="font-weight:bold; font-style:italic; text-decoration:underline">Hence</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> it is rightly affirmed that the public official does not have a contractual relationship with the Administration, but rather a statutory one. An idea omnipresent even in our original constitutional framework of the public function, according to which:</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">A civil service statute shall regulate</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> the relations between the State and public servants, for the purpose</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> of guaranteeing the efficiency of the administration”</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">(Art. 191).</span> (…)

*Thus understood, that legal norm is not per se unconstitutional in the terms accused, as long as it is interpreted in its proper dimension, as this Chamber itself has dimensioned it, regarding its scope, in that optional precedent”.* (The emphasis does not correspond to the original).

### <a name="_Toc193445426" class=""><span style="text-transform:uppercase; background-color:#ffffff">Report of the Ministry of Finance</span></a> Regarding the cap on the severance pay benefit (auxilio de la cesantía) established in the legislation, the Minister suggests dismissing the objections raised and agrees with the PGR in the sense that it can be perfectly regulated by a law of the Republic. The report states the following:

*“[T]he constituent power limited itself to establishing the worker's right to receive that compensation when he has been dismissed without just cause, but it did not establish the form, nor the specific guidelines for the payment of that compensation; that is, it did not define the manner of calculating the quantum to be granted for that concept; in this context, the ordinary legislator is the first called upon to regulate the conditions and limitations under which that compensation is paid, in accordance with the policy on the matter maintained at a given socio-economic moment, but it must always respect the constitutional framework established in Article 63 of our Magna Carta. It is thus that Article 29 of the Labor Code contains a series of guidelines that regulate the granting of that compensation only in cases of dismissal without just cause. And although said article has been subject to several changes, especially regarding the salary percentages to be received for each year worked (Art. 88 of the Law for the Protection of Workers), the truth is that it maintains an apparent cap of eight years as the compensation limit, which has been interpreted in our medium as a legal minimum that can be surpassed or improved for the benefit of the worker.* *However, in the Public Sector, although it has been admitted that the severance pay cap can be surpassed when there are specific and special norms – which may be collective bargaining agreements or autonomous service regulations – “that must inexorably be applied until they are repealed, modified, or declared illegal or even unconstitutional” (OJ-116-2005, of August 8, 2005; OJ-072-2008, of August 22, 2008; OJ-018-2017, of February 15, 2017; C168-2012, of July 2, 2012 and C-146-2016, of June 24, 2016), we have been clear and forceful in warning that its establishment by regulatory or conventional rules must inexorably respect that which until now has been an unwritten rule (Arts. 7 of the LGAP and 13 of the Law of Constitutional Jurisdiction) derived from constitutional jurisprudence, and according to which, the payment of severance pay cannot be unlimited or, rather, must have a reasonable cap (Opinions C168-2012 and C-146-2016 op. cit.)… …In this regard, emphasis has been placed on the fact that, in the case where one of the parties is a public institution, what is negotiated in a collective bargaining agreement regarding the severance pay cap must be subject to the principle of reasonableness. This is insofar as public institutions have the duty to avoid agreeing to breaches of the severance pay cap that involve an improper use of public funds, affect the public services that the institution is called upon to provide, or lack any objective reason to permit the differentiation established in favor of that group of officials. (…)* *Below, it is important to warn that, as constitutional jurisprudence has indicated, it is evident that those conventional provisions that provide for a severance pay payment without any cap, whether because they do not establish a limit on the number of years to be recognized for the payment of compensation, are unreasonable because they constitute an improper use of public funds. This is insofar as such compensation would constitute a disproportionate burden on the public treasury that would eventually imply a detriment to the public services provided by the institution. (…)* *From the reading of the considerations set forth by the Attorney General's Office of the Republic, it is deduced in a clear manner that, unlike what the claimant has indicated, the right to severance pay is acquired only when the cessation of the service relationship occurs. The foregoing implies that as long as this does not happen, what the interested party has is an expectation of a right, which consequently does not prevail over legal provisions like those that were added to the Salary Law, by means of Law No. 9635 and its reform. Starting from the above, it can be affirmed that the provisions in Articles 50, 54, 56, and 57 do not violate Article 34 of the Magna Carta, because they do not disrespect acquired rights or consolidated legal situations”.* Regarding both the limitations on freedom of association and the possibility of developing rights via collective bargaining agreements invoked by the claimant, the Minister of Finance also suggests dismissing the accumulated actions and for this refers to reports from the PGR and precedents of the Constitutional Chamber. In this regard, she dictates the following passages:

*“[O]ur Legal System merely recognizes the existence of collective bargaining agreements in the Public Sector and indicates the obligatory nature of what is agreed in them. But this does not imply attributing constitutional or legal rank to the content of any agreement; rather, this content must be maintained within administrative legality, because state laws are competent to fix the hierarchy of legal sources (Art. 6 of the LGAP) and the law applicable in this regard (Art. 57 of the current Labor Code) has established that the collective agreement is subordinated to the Laws.* *Judicial jurisprudence has been clear and consistent in recognizing and warning of the supremacy of the Law over the collective bargaining agreement, as something normal, insofar as the latter must be inserted into the general legal system in a descending order, so to speak; that is, subordinating itself to the former, which is the Law of state origin and of a mandatory nature (Resolution No. 2004-00335 at 09:40 hrs. of May 7, 2004, Second Chamber); which means that collective labor agreements are subject to and limited by public policy laws (Resolution No. 1355-96 at 12:18 hrs. of March 22, 1996, Constitutional Chamber). Hence, the force of law is conferred upon them, insofar as, the collective bargaining agreements have been agreed in accordance with the legislation (Resolution No. 783 at 15:21 hrs. of June 3, 2010, Second Chamber). From which follows a subordination of these to the legislative power of the State, which produces a normative precept of public order, inderogable by essence before mere private initiative – Art. 129 constitutional –, so that a collective agreement cannot render mandatory rules ineffective (Resolution No. 2007-000213 at 11:00 hrs. of March 30, 2007. And in a similar sense, among many others, Nos. 108 at 09:40 hrs. of March 12, 2003, 2015-000399 at 09:00 hrs. of April 14, 2015, 2016-000011 at 09:45 hrs. of January 8, 2016 and 2016-000075 at 09:45 hrs. of January 27, 2016, all from the Second Chamber. No. 94-2013-I at 13:00 hrs. of August 28, 2013, from the Contentious-Administrative Tribunal, First Section. No. 18485 at 18 hours 2 minutes of December 19, 2007, Constitutional Chamber). And this is so, because in labor law, the agreement can only decide on those aspects not regulated by public policy rules or mandatory rules issued by the legislator when it is considered that there are fields of interest that warrant imposing the will of the State in the negotiation (Arts. 1, 11, 14 to 17 of the Labor Code); cases in which the principle of autonomy of collective will does not apply in its full extension, because those imperative laws lead to establishing, between employer and worker, certain principles or norms that are incorporated into the legal relationship and prevail over the will of the parties (Resolution No. 100 at 10:40 hrs. of March 29, 1995, Second Chamber). All of which evidences that the Law operates on a double channel: as an instrument that comes to configure another source of lesser law: the statutory collective agreement; with the obligation to provide it with a material space so that it can be real, existing, and effective; and secondly, the Law as a source concurrent with the collective agreement, a proper source of law that can directly regulate the matter regulated by the statutory agreement or even reserve for itself certain matters that are therefore excluded from collective bargaining; which implies that the collective agreement must conform to the provisions of the Law. It is not possible, then, to allege the immutability or unalterability of the collective agreement in the face of the Law, even if it is a supervening state norm, because by virtue of the principle of normative hierarchy, it is the collective agreement that must respect and submit to the Law, and not the contrary; especially when the legislator's unavoidable and permanent task of configuring, with a public policy character, the legal regime applicable to public officials and employees is at stake (Art. 191 constitutional), including the regulatory framework within which the right to enter into collective bargaining agreements must be exercised, especially in the Public Sector; whether with normative provisions of different imperative configurations, as explained; whether through imperative, dispositive, or dispositive norms that enable or not the concurrence of collective autonomy; legislating on this matter is a general, permanent competence, entirely available to the legislator, who discretionally may choose to maintain or not such regulations. So that, although collective agreements in the Public Sector have binding force between the parties that have signed them and constitute perhaps the most direct and specific norm regulating the legal-labor relations existing between them, the truth is that from a formal and material point of view, in the system of legal sources, it is always subordinated to the Law; which, as an undisputed source of law of a higher hierarchical rank than that other one, has the permanent capacity to, among other matters, regulate working conditions and, therefore, is automatically incorporated into the employment contract, and may even have, unlike the collective bargaining agreement, general efficacy. Therefore, in case of conflict, the Law imposes its primacy over the collective bargaining agreement. For all these reasons, even when the principle of collective autonomy in the regulation of labor relations in the public sector is inserted within the rights of freedom of association and collective bargaining; the latter understood – with some degree of conceptual narrowness – as the power of consensual regulation and ordering of labor relations as a whole that has been recognized to workers' representatives, with direct legal efficacy – force of law, as a special norm – over individual contracts (Arts. 54 and 55 of the Labor Code), the truth is that this binding force of the agreements does not make them immune to the provisions of the Law, even if it is subsequent to them and alters their internal equilibrium, because that right of collective bargaining and the binding force of the agreements is in no way opposable to the general normative competence of the legislator, which is an expression of the popular will in democratic systems and which cannot remain inert or inactive in the face of social reality and the transformations it imposes, regardless of its incidence on previous legal situations and the production of differentiated treatments over time (Arts. 105 and 121 constitutional). Thus, the collective agreement must conform to what is provided in the Laws. And consequently, there is no right whatsoever for what is established in the collective agreement to remain unaltered and be immune to the provisions of a subsequent law until the moment it ceases to be in force; the existence of collective bargaining agreements cannot, in any way, make it impossible for the effects established by the laws to take effect on the date set by them; which would be equivalent to contradicting the mandate of Article 129 constitutional, developed in Arts. 7 and 8 of the Civil Code… What has been exposed up to here ratifies that the prevalence of the law in our constitutional system is, therefore, solidly and unequivocally established in the sphere of public employment (Art. 191 constitutional). And consequently, we can do nothing more than affirm the primacy of rank of the normative provisions contained in Law No. 9635 over collective bargaining agreements and any other products of collective bargaining, as well as the inexorable subjection of the latter to the provisions of the former with the character of absolute necessary and imperative right5. And we must be clear and forceful in pointing out that with the legal modification operated by Law No. 9635, what is sought is not the negation, much less the suppression, of collective bargaining and its effective exercise as a negotiating power of the unions in our medium, nor is the collective agreement signed within that institutional sphere being rendered inoperative or without content – by dispensation or administrative non-application –, but rather the future adaptation of working conditions to the new prevailing circumstances that, by legislative order, require conjunctural measures of reorganization and rationalization, for the containment and reduction of personnel expenses of the Public Administrations, demanded by the process of fiscal consolidation and sustainability of public accounts, in order to curb the public deficit and achieve the gradual recovery of budgetary balance.* Which means that said legal precept is, in itself, <span style=\"font-style:italic\">compatible with the effectiveness of the agreed collective bargaining agreements."</span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span style=\"-aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Subsequently, the Minister refers to what was resolved in the advisory opinion on this bill and refers to the report issued by the PGR in the unconstitutionality action brought by the union of the Banco Nacional. </span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445427\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Arguments of the Coadjuvants</span></a><br data-mce-bogus=\"1\"></h3><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-weight:bold; font-style:italic\">Active Coadjuvants</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The Secretary General of SIBANPO, </span><span>Miguel Ernesto Carranza Dí</span><span>az </span><span>expressed himself</span><span> in favor of the petitioner's thesis. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The </span><span style=\"font-weight:bold\">Secretary General of SITUN</span><span>, regarding the payment of </span><span>severance pay (auxilio de cesantí</span><span>a), states that the reform contained in Law No.</span><span>9635 did not consider</span><span> the </span><span>last reform to the Worker Protection Law (Ley de Protecció</span><span>n al Trabajador) in which the right to severance pay (auxilio de cesantí</span><span>a) was stipulated as an effective right for workers without being</span><span> subject to a limit of years, according to what was provided in Art. 8 of Law No.</span><span>7983, therefore, in his opinion, the rule contained in Art. 3 of Law No.</span><span>9635 that added</span><span> Art. 39 of Law No.</span><span>2166 and the Transitory Provision XXVII challenged herein, would also be contrary</span><span> to Art. 7 of the Political Constitution (Constitució</span><span>n Polí</span><span>tica), this because the ILO Conventions are superior authority over the ordinary laws of Costa Rica in which it has been established that collective bargaining, labor relations in the public administration, and the right to unionization are acquired rights, and he recalls that Convention No. 98 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. He indicates that the arguments raised in the unconstitutionality action regarding severance pay (auxilio de cesantí</span><span>a) are fully applicable to the workers of the Universidad Nacional where, by way of collective bargaining agreement, the cap on severance pay (cesantí</span><span>a) has been fifteen years and this remains in force in the recently</span><span> extended IV Collective Labor Agreement UNA-SITUN, with a progressive and staggered increase up to twenty years as the maximum cap, its full application being effective as of the year 2017</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The </span><span style=\"font-weight:bold\">Secretary General of UNEBANCO</span><span> stated</span><span> that the cut in severance pay (auxilio de cesantí</span><span>a) to a maximum amount of eight years is incompatible with the evolution that the development of this right has had in Costa Rica and violates the principle of progressivity of fundamental rights, substantive due process, collective bargaining, and is openly discriminatory against unions. He refers that the questioned rules, instead of, as corresponds, developing and strengthening severance pay (auxilio de cesantí</span><span>a), diminish that right and instead of promoting the maximum effectiveness of that right, impose a regressive regulation, incompatible with the principle of progressivity. They violate reasonableness and proportionality because the regression of eight years lacks any basis and that cap </span><span style=\"font-style:italic\">ex lege</span><span> has no equivalence or proportional relationship with the average career or labor seniority of public servants.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The </span><span style=\"font-weight:bold\">Secretary General of UPINS</span><span> says that collective bargaining agreements have the force of law, which allows both the institution and the unions to have the legal certainty that what is agreed therein will be fulfilled, and, therefore, the challenged rules cannot limit or tacitly repeal the rights contained in a rule of a collective bargaining agreement without undermining its nature. The challenged rules are unconstitutional because they also contravene the provisions of Arts. 188 and 189 of the </span><span>Constitution (Constitució</span><span>n), according to which, autonomous institutions ‒</span><span>such as the case of the INS‒</span><span>, have administrative independence and are only subject to the law in matters of government, such that it is unconstitutional for Law No.</span><span>9635 to attempt to regulate and limit their </span><span>administrative independence, which threatens their autonomy.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The representative of </span><span style=\"font-weight:bold\">UNDECA </span><span>refers that the challenged Art. 39 and Transitory Provision XXVII are unconstitutional, firstly, due to the cap imposed on severance pay (auxilio de cesantí</span><span>a) to a maximum of eight years, which is totally incompatible with the evolution that the development of this right has had in Costa Rica and which implies a violation of the principle of progressivity of fundamental rights, of substantive due process, of the right to collective bargaining, and for being discriminatory against unions. He concludes that, regarding Transitory Provision XXXI, its second paragraph violates the principle of collective bargaining because it imposes the obligation that the agreements be submitted not only to provisions of this law, but also to any other regulation of the Executive Branch.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-weight:bold; font-style:italic\">Passive Coadjuvants</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The president of the Costa Rican Chamber of Industries Association (Asociació</span><span>n Cá</span><span>mara de Industrias de Costa Rica) reiterated</span><span> that </span><span>collective bargaining agreements are only applicable to public enterprises and to the economic services of the State governed by private law; therefore, the challenged regulation is applicable to all public servants since the signing of collective bargaining agreements in the state sphere is prohibited, and thus the legislator can modify the maximum amount of severance pay (auxilio de cesantí</span><span>a) for public servants without incurring a violation of the freedom to enter into collective bargaining agreements. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>The representatives of </span><span style=\"font-weight:bold\">UCCAEP </span><span>state that this Chamber has been reiterative in its jurisprudence that the relationship between public servants and the State is statutory in nature, and therefore it is not possible to obtain benefits from collective bargaining agreements signed in the state sphere </span><span>since that prerogative is only limited to public enterprises and the economic services of the State.</span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445428\" class=\""><span style=\"text-transform:uppercase; background-color:#ffffff\">Decision of the Constitutional Chamber (Sala Constitucional)</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><h2 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445429\" class=\"\"><span>Preliminarily</span></a><br data-mce-bogus=\"1\"></h2><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>As </span><span>was previously noted, many of the arguments in Action No.</span><span>19-004931-0007-CO filed by ANEP must be dismissed because they refer to municipal autonomy or that of decentralized entities, and it has already been established and defined that the petitioners' standing </span><span>‒</span><span>based on a corporate matter and the defense of the rights of the members of the union corporation</span><span>‒</span><span> is insufficient to challenge aspects pertaining to institutional autonomies. In the same vein, the argument of the alleged injury to the regulatory power of minor entities and the presumed injury to the principle of legality must be rejected. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Secondly, it was previously clarified that all arguments related to potential antinomies or discussions about the prevalence of certain rules such as collective bargaining agreements or internal labor statutes must be dismissed. Such</span><span> reproaches refer to ordinary legality analyses that fall within the purview of the competent instances. It is not for this Chamber to examine in a constitutional review process the particular situations of prevalence of alleged acquired rights in light of another particular legal framework. It is reiterated that everything related to the analysis of potential antinomies or the resolution of specific cases must be raised and resolved in the ordinary instances of legality. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Finally, many of the arguments raised by the petitioners and coadjuvants must be referred to what was said in the preceding recital (considerando) regarding the subject of severance pay (cesantí</span><span>a) and the alleged acquired rights to a severance pay amount greater than the limit established in the LFFP based on the precedents of this jurisdiction (maximum of twelve years).</span><span style=\"-aw-import:spaces\">&nbsp; </span></p><h2 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445430\" class=\"\"><span>What was ruled by this Court in advisory opinions </span><span>No.</span><span>2018-019511 and No.</span><span>2021-017098</span></a><br data-mce-bogus=\"1\"></h2><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>In advisory opinion </span><a href=\"https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-894553\" style=\"text-decoration:none\"><span style=\"-aw-bookmark-start:_Hlk193376646\"></span><span style=\"font-weight:bold; text-decoration:underline; color:#000000\">No.</span><span style=\"font-weight:bold; text-decoration:underline; color:#000000\">2018-019511</span></a><a name=\"_Hlk193376646\" class=\"\"></a><span style=\"-aw-bookmark-end:_Hlk193376646\"></span><span> the Chamber referred</span><span> to several doubts of constitutionality raised regarding Art. 55 of the LSAP added by virtue of Title III of the LFFP. On that occasion, the consultants questioned whether the rule in question affected </span><span>the right to collective bargaining contemplated in numeral 62 of the Political Constitution (Constitució</span><span>n Polí</span><span>tica) and Art. 690 subsections h), j), and m) of the Labor Code (Có</span><span>digo de Trabajo). Additionally, the consultants raised a supposed conflict with Art. 4 of </span><span>Convention No.</span><span>98, concerning the Right to Organise and Collective Bargaining of the ILO, which urges the adoption of measures appropriate to national conditions to encourage and promote the full development and utilization of machinery for voluntary negotiation, with a view to the regulation of terms and conditions of employment by means of collective agreements. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Likewise, the consultants raised doubts of constitutionality regarding the provisions of Transitory Provision XXXVI of the LFPP (in the bill it was identified as Transitory Provision L), which is the numeral that establishes the obligation for the heads of public entities to terminate (denunciar) collective bargaining agreements when they reach their expiration period. Furthermore, said rule warns that if it is decided to renegotiate the agreement, it must be adapted in all its respects to the provisions of that law and other regulations issued by the Executive Branch. In this regard, the legislators warned that such obligation possibly limited the right to renegotiation or automatic extension under the conditions stipulated in the Labor Code (Có</span><span>digo de</span><span> Trabajo).</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>When developing the topic, the Chamber, firstly, referred to the constitutional origins of the figure of collective bargaining, for which the following considerations were made: </span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">Collective bargaining agreements (Convenciones Colectivas), effectively, have their basis in </span><span style=\"font-style:italic\">Article 62 of the Political Constitution (Constitució</span><span style=\"font-style:italic\">n Polí</span><span style=\"font-style:italic\">tica). The legislative history of this numeral is found in the incorporation, in July 1943, of the Chapter on Social Guarantees (Capí</span><span style=\"font-style:italic\">tulo de Garantí</span><span style=\"font-style:italic\">as Sociales) into the Political Constitution of 1871 -then in force-, whose most important legislative development is the Labor Code (Có</span><span style=\"font-style:italic\">digo de Trabajo). With this, the Costa Rican State transforms into a true Social State of Law (Estado Social de Derecho).</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Later, in the National Constituent Assembly of 1949, in Act No.</span><span style=\"font-style:italic\"> 122, article 2, a motion was presented so that article 57 of the Political Constitution of 1871, which contained the matter relating to collective labor agreements and which was the text </span><span style=\"font-style:italic\">that served</span><span style=\"font-style:italic\"> as the basis for the current Magna Carta, would read as follows:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">In relation to article 57 of the 1871 Constitution, the Social Democratic faction (fracció</span><span style=\"font-style:italic\">n Social Demó</span><span style=\"font-style:italic\">crata) presented a motion for it to read as follows:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">"Collective labor agreements entered into between employers and legally organized workers, in accordance with the law, shall have the force of law." [62]</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">The previous motion, put to a vote, was approved".</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Later, in Act No.</span><span style=\"font-style:italic\"> 171, article 2, the following modification was made:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">"Deputy MONGE ALVAREZ presented a motion, which was approved, to add the concept "or employers' unions" (sindicatos de patronos) to article 63. Article 63 was approved and shall read: </span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Article 63.- "Collective labor agreements entered into between employers or employers' unions and legally organized workers' unions, in accordance with the law, shall have the force of law."</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">This text of the original constitutional regulation is the one maintained to date. With it, the Original Constituent Power guarantees not only that validly concluded collective bargaining agreements have the force of law, but also clearly establishes the right to the free conclusion of this type of collective bargaining </span><span style=\"font-style:italic\">–</span><span style=\"font-style:italic\">since to conclude (concertar) has the sense of a free agreement or pact of wills-, which implies that it is not possible to mandatorily impose collective bargaining, nor to impose its termination. Furthermore, this guarantee forms part of the freedom of association (libertad sindical). It must be borne in mind that collective bargaining is a process of dialogue and rapprochement between employers and workers that, eventually, can lead to an agreement on certain working or labor conditions. In such a way, that the parties must be completely free to negotiate a collective bargaining agreement, renegotiate it, or terminate it. </span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">In this regard, it should not be forgotten that the aforementioned Article 62 of the Political Constitution (Constitució</span><span style=\"font-style:italic\">n Polí</span><span style=\"font-style:italic\">tica) </span><span style=\"font-style:italic\">is part of Title V of the Constitution (Derechos y garantí</span><span style=\"font-style:italic\">as sociales), Article 74 of which states the following:</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-weight:bold; font-style:italic\">ARTICLE 74.-</span><span style=\"font-style:italic\"> The rights and benefits to which this Chapter refers are inalienable. Their enumeration does not exclude others arising from the Christian principle of social justice and as indicated by law; they shall be equally applicable to all factors involved in the production process, and regulated in a social and labor legislation, in order to procure a permanent policy of national solidarity."</span></p><p style=\"margin:0pt 2.55pt 0pt 35.45pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">The content and scope of the right to collective bargaining must be understood, consequently, in harmony with the cited numeral 74, Constitutional, and, additionally, with the Conventions of the International Labour Organization (ILO) No.</span><span style=\"font-style:italic\"> 87, concerning Freedom of Association and Protection of the Right to Organise (approved by Law No.</span><span style=\"font-style:italic\"> 2561 of May 11, 1960), No.</span><span style=\"font-style:italic\"> 98, concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (approved by Law No.</span><span style=\"font-style:italic\"> 2561 of May 11, 1960), No.</span><span style=\"font-style:italic\"> 135, concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking, (approved by Law No.</span><span style=\"font-style:italic\"> 5968 of November 9, 1976), and No.</span><span style=\"font-style:italic\"> 151, concerning Labour Relations in the Public Service (not yet ratified by Costa Rica).”</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"-aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Subsequently, this Chamber, echoing its own precedents, delimited the scope of the possibility of conducting collective bargaining in the public sector. In this regard, the Chamber stated the following: </span></p><p style=\"margin:0pt 2.55pt 0pt 28.35pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">On the other hand, the issue of collective bargaining agreements in the public sector has been recurrent in the pronouncements of this Court. In Judgment No.</span><span style=\"font-style:italic\"> </span><span style=\"font-style:italic\">2006-17441 of 19:39 hours on November 29, 2006, this Court ruled on the matter, in the following terms:</span></p><p style=\"margin:0pt 2.55pt 0pt 28.35pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">The possibility of collective bargaining for workers who do not participate in the public management of the Administration, the employees of state enterprises or economic services, entrusted with management subject to Common Law, has been repeatedly recognized by this Chamber since judgment number 03053-94, a criterion subsequently reaffirmed or ratified in judgments 2000-07730 and 2000-04453. It is admitted as a general theory of Collective Labor Law that it is integrated, principally, by a trilogy of rights that seek to realize and provide a solution to the need of workers to group together to compensate for the real inferiority in which they find themselves when acting alone, before the employer and in the face of the generic regulation of their rights in the Labor Code (Có</span><span style=\"font-style:italic\">digo de Trabajo); these are the right to unionization (sindicació</span><span style=\"font-style:italic\">n), to collective bargaining, and to the effective resolution of collective conflicts. There are two regimes in labor matters: one regulated by the Labor Code and the other by Public Law norms. This Chamber has therefore recognized that the relationship between the State and public servants, as a principle thesis, is a public or statutory employment relationship; in other words, the servant of the public employment regime is in a relationship with the Administration in a state of subjection; the latter can unilaterally impose the conditions of the organization and provision of the service to guarantee the public good. This conclusion implies that collective bargaining in the public sector cannot be tolerated, in accordance with constitutional articles 191 and 192.</span> Finally, in judgment number 1696-92 of this Chamber, the unconstitutionality of the mechanisms of direct arrangement, conciliation, and arbitration was declared for officials who perform public management, but recognizing that it is valid for laborers, workers, or employees who do not participate in the public management of the Administration to enter into collective labor agreements, such that entities with an employment regime of a labor nature (not public), such as, for example, State enterprises, may indeed bargain collectively in accordance with the provisions that inform Collective Labor Law.

Based on the recognition of a public employment regime, the jurisprudence of this Constitutional Court has been consistent regarding the conditions under which it is possible to apply Article 62 to State workers and regarding the content of the bargaining.

Once the foregoing was established, the Chamber reiterated that collective bargaining is a fundamental right that is provided for in favor of working persons for the purpose of improving labor and salary conditions:

"From the jurisprudential citations that precede, it is inferred that collective agreements not only have the force of law, but also a minimum content intangible for the legislator, among which is the improvement of minimum labor conditions and, therefore, also salary conditions. The foregoing based on the Christian principles of social justice and solidarity, which, as was indicated, are contained in Article 74 of the Political Constitution. (...) the right to collective bargaining arises from the possibility of free and voluntary bargaining; and, moreover, from a minimum or essential content, which is the possibility of bargaining over better socioeconomic conditions for workers." (The emphasis does not correspond to the original).

Later, the Chamber also pointed out that the possibility of entering into collective agreements is framed within freedom and the correlative trade union action. On the matter, the following was stated:

"Hence, as an essential part of trade union freedom—and of its counterpart, trade union action—is the right of workers to collective bargaining, as an instrument for the improvement of their socioeconomic conditions, through incentives, compensation, or salary bonuses. This is framed within the four rights that comprise trade union freedom: a) freedom to constitute trade union organizations; b) freedom to join a trade union organization; c) freedom to cease belonging to a trade union organization; and d) freedom of the member to participate democratically within the union; to which must be added the right of every trade union organization to develop freely with respect to the State and in relation to society, considered as a whole, always within the respective legal framework." Subsequently, the Chamber referred to the limits of collective bargaining. In this regard, it cannot be overlooked that, although it is a fundamental right, the constitutional text itself provides that these negotiations must be agreed upon "in accordance with the law." To the foregoing, it must be added that this Chamber, through its jurisprudence, has delimited that collective agreements must also be subject to the values and principles emanating from the Constitution itself. Now then, the limitations that are imposed on the possibility of entering into collective agreements and on their content must also be delimited and respect the Law of the Constitution, since it is likewise not lawful to empty the fundamental right under analysis of content. For this reason, the Chamber made the following statement:

"[S]aid capacity for bargaining cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must be in conformity with the Political Constitution and with the International Instruments relating to the matter." (The emphasis does not correspond to the original).

Specifically, regarding the limits, the Chamber reviewed its precedents to reach these conclusions:

"[T]he Chamber has indicated that the laws, regulations, or governmental directives in force must be respected, as well as the legal competencies of public entities, attributed on the basis of the normative hierarchy or the special conditions of the Public Administration in relation to its workers.

Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected, in the interest of the citizen’s right to the sound management of public funds, derived from numeral 11, Constitutional (see Judgment No. 2017-013443 of 9:15 a.m. on August 25, 2017).

It must also be understood that the faculty of bargaining is subject to legality and constitutionality controls, in consideration of the principles of reasonableness, proportionality, and good use and management of public funds." (The emphasis does not correspond to the original).

To these effects, the Chamber relied on its jurisprudential lines that make these reflections:

"[B]ecause these are decisions that entail financial consequences chargeable to the Public Treasury, it is clear that clauses such as those now challenged can be subject to review not only regarding compliance with the procedures for their creation, but even in relation to their adaptation to substantive constitutional norms and principles. The obligations contracted by public institutions and their employees can be subject to an analysis of reasonableness, economy, and efficiency, whether to prevent that, through a collective agreement, the rights of the workers themselves are limited or harmed, or to prevent an abusive use of public funds." (The Chamber cited on that occasion judgment no. 2006-17441, but it is a criterion sustained in subsequent resolutions, such as, for example, see judgments numbers 2013-007931, 2019-017398, 2020-012800, 2021-018421, 2022-016287 and 2023-010798, among others).

That is, collective agreements must be subject to some limits so that the bargaining conforms to the Political Constitution, constitutional principles, and the legal norms that regulate the matter. However, this Court has been emphatic in the sense that the limitations cannot be of such magnitude as to render the fundamental right nugatory. For this reason, the Chamber made these reflections:

"[I]t must be insisted, the fact that these controls exist cannot lead to emptying the minimum content of the right to collective bargaining, nor to obligating its denunciation. And, for this reason, it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally possible, only through a formal law, emanating from the Legislative Branch, can incentives or compensation, or salary bonuses be created, since that, according to what has been said, would empty that right of content and, therefore, would violate the principle of trade union freedom, which has been developed by this Chamber through its jurisprudence." (The emphasis does not correspond to the original).

Based on all the foregoing premises, the Chamber concluded that it is contrary to the Law of the Constitution—specifically to trade union freedom and the right to collective bargaining—for the legislator to prevent the terms related to salary components from being able to be agreed upon within collective bargaining and to reserve them only to formal law. In which case, the Chamber determined that Art. 55 should not be perceived as unconstitutional, under the understanding that it does not apply to those public sector workers who may indeed enter into collective labor agreements, all of which must be subject to the corresponding constitutionality and legality controls in consideration of the principles of reasonableness, proportionality, and the good use and management of public funds. In the operative part of the advisory opinion, the following was recorded:

"H) Concerning numeral 3 of Title III 'Amendment to the Public Administration Salary Law' of the bill that adds Article 55 of chapter VII 'General Provisions', the consultation is evacuated in the sense that it is not unconstitutional, as long as it is understood that this provision does not apply to employees of the Public Sector who may validly enter into collective agreements in accordance with the Constitution and the law; in this latter case, without prejudice to the legality and constitutionality controls over the result of the bargaining, in consideration of the principles of reasonableness, proportionality, and the good use and management of public funds. Judge Rueda Leal gives different reasons regarding this point, inasmuch as he considers that Article 62 of the Constitution, by referring to the law, and in the interest of guaranteeing the sound management of public funds, empowers the legislator to regulate the creation of incentives, compensation, or salary bonuses through the law, provided that by this means the right to collective bargaining is not emptied of content." (The emphasis does not correspond to the original).

Regarding the constitutionality of the Transitory Provision, the Chamber considered that the obligatory nature of the denunciation is contrary to the principle of free and voluntary bargaining. To these effects, this Court relied on criteria of the ILO that state the following:

"[T]he International Labour Organization (ILO), in Report No. 344, of March 2007, Case No. 2460, paragraph 990, expressed:

'990. As regards the court's ruling in the Atkins case, according to which the legal prohibition of collective bargaining is acceptable under the Constitution of the United States because it does not contain any provision—including the right of free association, enshrined in the First Amendment—that obliges a party to conclude a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith for the maintenance of a harmonious development of professional relations, wishes to emphasize that the voluntary negotiation of collective agreements and, therefore, the autonomy of the social partners in bargaining, constitutes a fundamental aspect of the principles of trade union freedom. Collective bargaining, to be effective, must have a voluntary character and does not imply recourse to measures of coercion that would alter the voluntary character of said bargaining. No provision of Article 4 of Convention No. 98 obliges a government to coercively impose a system of collective bargaining on a specific organization, government intervention that would clearly alter the character of such negotiations [see Digest, op. cit., paragraphs 925-927 and 934]. Therefore, while a legal provision that obliged a party to conclude a contract with another would be contrary to the principle of free and voluntary bargaining, provisions such as paragraphs 95-98 of the NCGS, which prohibit public authorities and public employees, including those who do not participate in the administration of the state, from concluding an agreement, even if they wish to do so, are equally contrary to said principle'." (The emphasis does not correspond to the original).

For the foregoing, the Chamber concluded that "a legal provision that obliged a party to conclude a collective agreement with another would be contrary to the principle of free and voluntary bargaining." Therefore, the Chamber concluded with the following reflection:

"Similarly, in relation to Transitory Provision L, of the bill consulted, it must be interpreted that each head of public entities has the authority to denounce or not the respective collective agreement, in accordance with the current legal system." The considerations made were taken up again in advisory opinion no. 2021-017098, relating to the analysis of constitutionality of the LMEP.

In that resolution, the Chamber conducted an analysis of the background:

*“2) Jurisprudential Background on the Fundamental Right to Collective Bargaining* *The trilogy of fundamental rights derived from Collective Labor Law are: the right to unionize (sindicación), the right to collective bargaining (negociación colectiva), and the right to the effective resolution of collective disputes (see judgment No. 2006-03002 of 10:40 a.m. on March 9, 2006). These rights seek to realize and provide a solution to the need of workers to group together to compensate for the real inferiority in which they find themselves when acting in isolation, vis-à-vis the employer and given the generic regulation of their rights in the Labor Code. Specifically, regarding collective bargaining agreements (convenciones colectivas), Article 62 of the Political Constitution contemplates their constitutional recognition, their force of law, and the need for such agreements to conform to what the law provides. Indeed, this constitutional provision states that:* *“Article 62. Collective labor agreements that, in accordance with the law, are entered into between employers or unions of employers and legally organized unions of workers shall have the force of law.”* *The placement of the provision in the Chapter on Social Rights and Guarantees of the Political Constitution and its content indicate that what is sought to be guaranteed is the right to “collective labor bargaining.” On this particular matter, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, this Court highlighted the three aspects that derive from this provision, namely: a) the recognition of collective bargaining as a constitutional right; b) that negotiations thus entered into have the character of force of law; and c) that such agreements must be reached in accordance with what the law provides. All of which is, moreover, ratified by the Inter-American Court of Human Rights, through Advisory Opinion OC-27/21 of May 5, 2021, when it states the following:* *“94. In consideration of the foregoing, and by way of corollary, the Court considers it pertinent to point out that the right to collective bargaining, as an essential part of freedom of association (libertad sindical), is composed of various elements, which include, at a minimum: a) the principle of non-discrimination against a worker exercising union activity, since the guarantee of equality is a prerequisite for negotiation between employers and workers; b) the non-interference, direct or indirect, of employers in workers' unions during the stages of constitution, functioning, and administration, since this can produce imbalances in the negotiation that undermine the objective of workers to improve their living and working conditions through collective bargaining and other lawful means; and c) the progressive encouragement of processes of voluntary negotiation between employers and workers, which allow for improving employment conditions through collective contracts.”* *Specifically regarding the right to collective bargaining in the public sector, first, judgment No. 1696-92 of 3:30 p.m. on August 23, 1992, can be cited, where the Chamber declared the unconstitutionality of the mechanisms of direct settlement, conciliation, and arbitration for officials who perform public management (gestión pública), but recognized that it is valid for laborers, workers, or employees who do not participate in the public management of the Administration to enter into collective bargaining agreements, such that entities with an employment regime of a labor nature (not public), such as, for example, State enterprises, can indeed bargain collectively. A criterion that is reiterated in several subsequent judgments (see No. 2000-07730 and No. 2000-04453). Then, in judgment No. 2020-008396 of 9:20 a.m. on May 6, 2020, this Court resolved the following regarding collective bargaining agreements in the public sector, ratifying that they are permitted only in the case of workers who do not perform public management:* *“V.- Regarding collective bargaining in the public sector.- As derived from the jurisprudence of this Chamber, as a principle thesis, the labor relationship established between the State (including Municipalities) and its workers is governed by Public Law – and not the Labor Code – a relationship that has been called public or statutory employment. That said, it is stated as a principle thesis that State workers are subject to a public employment regime because an exception has been made, namely, workers who do not participate in public management, being workers of State enterprises. Thus, it has been established that workers who do not participate in public management, being subject to common law, may resort to the procedures for resolving collective disputes of an economic and social nature provided for in the Labor Code (resolution No. 94-3053) and to arbitration under certain limitations (resolution No. 92-1696); and they may enter into collective bargaining agreements (resolution No. 00-4453), although also under certain limitations. Thus, the possibility of bargaining collectively for workers who do not participate in the public management of the Administration (the employees of State economic enterprises or services, charged with activities subject to common law), has been repeatedly recognized by this Chamber starting from judgment number 03053-94, a criterion which it reiterates or ratifies later in judgments 2000-07730 and 2000-04453. The rest of the State employees, who therefore do participate in public management (these being in general, not only the institutional heads and legal and financial control bodies as the Union representative states, but all those workers who exercise public powers), can neither resolve their collective labor disputes through arbitration (resolution No. 92-1696), nor can they enter into collective bargaining agreements (resolution No. 00-4453), it being unconstitutional for collective bargaining agreements entered into in the public sector when dealing with personnel governed by a statutory relationship to be celebrated. Which implies that collective bargaining in the public sector cannot be tolerated, in accordance with constitutional articles 191 and 192. In conclusion, collective bargaining agreements are not entirely prohibited in the public sector, but rather they are permitted only in the case of workers who do not perform public management, that is, those covered by articles 3, 111, and 112 of the General Law of Public Administration. The determination in each specific case of which workers are covered by said norms is a matter outside this constitutional jurisdiction and corresponds to legal operators.” (judgment No. 2013-14499)* *IV.- Regarding the challenged regulation. (…) it must be reiterated that there is no absolute prohibition on entering into collective bargaining agreements in the public sector or that these are per se unconstitutional, since, as already indicated, there is a group of public sector employees who can validly enter into collective bargaining agreements in accordance with the Constitution; specifically, it is “constitutionally possible for the institution of collective bargaining agreements to be applied…. in the so-called State economic enterprises or services and in those personnel groups of public institutions and entities where the nature of the services provided does not participate in public management” (vote No. 2000-004453. The highlighting does not correspond to the original). Thus, with respect to the collective bargaining agreements challenged in the present action, these are constitutionally valid with regard to the referred personnel groups who work or provide their services for the entities or institutions in question. However, as already indicated in the partially transcribed precedent, it corresponds to:* *“(…) each Public Administration to define which are those officials covered by the collective bargaining agreement or with the possibility of negotiating or agreeing upon this type of collective bargaining agreements, all in accordance with the criteria of the Public Administration, or that of the Courts of Justice, according to the corresponding decision.”(vote No. 2015-7221).”* *With respect to the content of collective labor bargaining, the Chamber has referred to the so-called normative clauses (cláusulas normativas) (regulating the interaction arising from the provision of the worker’s service and the payment of wages or remunerations by the employer), the configuration clauses (cláusulas de configuración) (specifying the personal, temporal, and spatial scope of the agreement and among which are included the employer's disciplinary power and the exercise of their right to organization and management), and the obligatory clauses (cláusulas obligacionales) (creating rights and obligations between the parties and which have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, installation of training centers), in the following terms:* *“Within the specialty of the matter, the parties can only validly agree upon what they can legally fulfill, due to the contractual nature of the collective agreement and as a principle thesis it is admitted that its scope be working or labor conditions, without this purpose being extended to regulate extra-labor issues. In other words, the collective bargaining agreement aims to regulate, on the one hand, the conditions to which individual labor relations must be subject, or what is the same, the so-called normative clauses, which regulate the interaction arising from the provision of the worker’s service and the payment of wages or remunerations by the employer, as affirmed by the majority of Labor Law doctrine, and this leads to the conclusion that anything that could be the subject of an individual labor contract can be the subject of a collective bargaining agreement; also, within this content, the so-called configuration clauses can be the object of collective bargaining, which are those that specify the personal, temporal, and spatial scope of the agreement and among which are included those that limit or establish procedures for the exercise of the employer's rights, especially regarding disciplinary power and the exercise of their right to organization and management. In second order, the obligatory clauses, which are those that create rights and obligations between the parties and which have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, the institution of employer benefits destined for social works within the labor community, installation of training centers, among others. By way of synthesis, we will say that collective bargaining agreements, by constitutional provision, have as their immediate purpose the revision, inter partes and with the character of law, of the minimum content of the legal benefits governing labor relations, all with the objective of improving or exceeding that essential minimum.” (see judgment No. 2007-18485 of 6:02 p.m. on December 19, 2007).* *On this same topic, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, the Chamber considered that a greater right than that recognized by law may be recognized:* *“Likewise, it is also not possible to argue that through collective bargaining, greater rights may be recognized for the parties, which is certainly the case, but it must be noted that this involves greater concessions regarding validly and legitimately recognized rights, which is not the case when limiting the free negotiation of either of the parties involved. In other words, a collective bargaining agreement may recognize a greater right than that recognized by law, but it cannot limit it. And, in any case, that greater recognition, in accordance with what was stated in the preceding recital (considerando), must equally be subject to the Law of the Constitution, to thus achieve the legal harmony upon which a legal system depends.” (the highlighting is not from the original).* *For its part, in judgment No. 2008-003935 of 2:48 p.m. on March 12, 2008, the Chamber noted that Public Administration entities may grant certain incentives or benefits to their workers, which will be constitutionally valid only when supported by objective reasons that also translate into a better provision of the public service. In this regard, it stated:* *“In other words, this Chamber has not questioned that any Public Administration entity may recognize certain incentives or benefits for its workers, since this may constitute a suitable measure to remunerate a special requirement of the job, implying certain professional qualifications or skills for those who perform it, or to compensate a particular risk characterizing the performance of such functions, be it a material risk (for example, physically dangerous work) or a legal one (for example, work susceptible to generating civil liability).”* *Now, while the right to collective bargaining in the public sector is recognized, through which rights or benefits may be granted or recognized more broadly than what is legally predefined, there are also limits to such negotiations, in that they must be reconciled with the exercise of the legal powers (competencias legales) of public entities, and respect the necessary limitations to harmonize public spending with budgetary availability and the sound management of public funds. On this particular matter, the Chamber has referred to the limits of collective bargaining, such as the constitutional principles of reasonableness, proportionality, economy, and efficiency, and the law:* *“It has also been indicated that, without any detriment to collective bargaining being a right recognized constitutionally and by international instruments of the International Labor Organization, the fact is that its content is also subordinated to constitutional norms and principles, insofar as the decisions taken therein, in many cases, imply consequences for public finances. Within this context, their adoption and validity are not solely subject to the mere verification of the adoption procedure, but also to an analysis on the merits, insofar as their content must conform to constitutional norms and principles because public funds are involved.”* In this way, the obligations agreed upon by public institutions toward their employees, as occurs in this type of negotiation, may be subject to an analysis of reasonableness, economy, and efficiency, with the aim of preventing the rights of the workers themselves from being disproportionately limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds” (see judgment No. 2021-009580 of 9:15 a.m. on May 12, 2021).

Of particular interest is judgment no. 2018-19511, not only because it compiles relevant constitutional jurisprudence on the matter, but because it ratifies that the right to collective bargaining is based on free and voluntary negotiation; and, furthermore, on a minimum or essential content, which is the possibility of negotiating better socioeconomic conditions for workers. The Chamber stated that (…)

Likewise, in judgment no. 2020-12800 of 11:01 a.m. on July 8, 2020, it was indicated, in what is relevant:

“Under this understanding, a norm in that sense would not only be contrary to the principle of free negotiation, but clearly would also be antagonistic to the principles of reasonableness and proportionality.

It is in this sense that, in the same judgment 2018-19511, the Chamber stated that:

“[E]ach head of public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the current legal system.” – emphasis added – Thus, if the norm now being questioned states, as it indeed does, that both parties to the Collective Labor Agreement of the National University commit not to unilaterally denounce said Agreement, it is imposing on both parties, not only on the University, but also on the union, a duty that contradicts the constitutional provision on collective bargaining, by preventing both from freely exercising the negotiation to which they are entitled within a framework of reasonableness and proportionality, and, on the claimant, obliging it to be unable to validate, together with the union, situations related to the proper use of public funds.

In this sense, the action must be granted, because the aforementioned phrase of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to Constitutional Law, in the terms indicated.

-Conclusion. - In short, since the first part of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to Constitutional Law, the appropriate course of action is to grant this action of unconstitutionality, annulling as unconstitutional the phrase “The parties commit not to unilaterally denounce this Agreement”.

Derived from the constitutional recognition of the right to collective bargaining in the public sector, as well as from the constitutional limits previously indicated, the jurisdiction of this court to exercise control over the content and scope of collective labor agreements is verified. Thus, in judgment No. 2020-024200 of 12:11 p.m. on December 16, 2020, the Court emphasized that there are no zones of immunity or public actions that escape constitutional subjection, even in the case of public enterprises, in the following terms:

III.- COLLECTIVE LABOR AGREEMENTS IN RELATION TO THE PARAMETER OF CONSTITUTIONALITY. This Constitutional Court has established solid jurisprudence to the effect that there is a need to subject collective labor agreements to the constitutionality control exercised by this Chamber. Since judgment no. 2006-17441, it was considered that whatever normative rank is recognized for these types of instruments, it is clear that they are subordinated to constitutional norms and principles. For this reason, despite the constitutional recognition of the right to collective bargaining and its development in various international instruments, there are no zones of “constitutional immunity” in the Costa Rican legal system, that is, public actions that escape subjection to the principle of constitutional regularity. Based on this, the Chamber has been consistent in that, although they have a constitutional origin, specific collective bargaining agreements can indeed be subjected to the assessment of their constitutional conformity, even in the case of public enterprises. Likewise, emphasis has been placed on the fact that the obligations contracted by public institutions and their employees can be the subject of an analysis of reasonableness, economy, and efficiency, whether to prevent the rights of the workers themselves from being limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds (see, among others, judgments 2019-008679, 2019-009222, 2019-016791 and 2019-017398).” From the broad jurisprudential compendium alluded to, it can be concluded that the right to collective bargaining is a constitutional right recognized in Article 62 of our fundamental charter whose immediate purpose is the review, between the parties and with the force of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or exceeding that essential minimum. This Chamber has recognized that collective bargaining in the public sector can only be admitted for those workers who do not perform public management, employees of state economic enterprises or services, and those in charge of activities subject to ordinary law. Regarding the content of collective bargaining in the public sector, it has been pointed out that the parties can only validly agree on what they can legally fulfill, due to the contractual nature of the collective agreement, and it is admitted that its scope is working or labor conditions, without this purpose being able to be extended to regulate extra-labor issues. In this way, a collective bargaining agreement can cover everything that could be the subject of an individual employment contract (that is, those that regulate the interaction arising from the provision of the worker's service and the payment of wages or remuneration by the employer), as well as norms that limit or establish procedures for the exercise of the employer's rights, especially regarding disciplinary power and the exercise of its right to organization and direction, and norms that create rights and obligations between the parties that have to do primarily with social peace and the duty to execute the agreement, such as the creation of labor relations boards. It is not about recognizing other rights distinct from those validly and legitimately recognized, but about seeking greater concessions on those validly and legally recognized rights, hence a collective bargaining agreement can recognize a greater right than that recognized by law, but cannot limit it. In this sense, the possibility of recognizing salary incentives or supplementary wages has been admitted, as instruments to encourage greater quality, permanence, efficiency in service, loyalty, and suitability; hence, it is contrary to Constitutional Law, specifically to union freedom and the right to collective bargaining, for the legislator to prevent those aspects from being agreed upon within a collective bargaining agreement and reserved only for formal law. Thus, the Public Administration may grant certain incentives or benefits to its workers, when these are supported by objective reasons that seek a better provision of the public service. There is “a constitutional doctrine of collective bargaining agreements in the public sector (indispensable in the absence of a formal law regulating them), which can be summarized in that all the rights, benefits, and advances in legal minimums (that proceed from social legislation from the middle of the last century) contemplated in a collective labor negotiation must be based on objective reasons that seek a better provision of the public service, while signifying joint and solidary social progress for public servants and the Administration, respectful, of course, of an adequate and reasonable management of public funds.” And that “collective bargaining agreements not only have the force of law, but also an intangible minimum content for the legislator, among which is the improvement of minimum labor conditions and, therefore, also salary conditions. The foregoing based on the Christian principles of social justice and solidarity, which, as indicated, are contained in Article 74 of the Political Constitution…” (judgment No. 2012-08891 of 4:02 p.m. on June 27, 2012). As public entities that administer public funds are involved, their content is also subordinated to constitutional norms and principles. In this way, the validity of collective bargaining in the public sector is not only subject to the mere verification of the adoption procedure, but also to a substantive analysis of legality and constitutionality controls, in attention to the principles of reasonableness, proportionality, and proper use and management of public funds, with the aim of preventing the rights of the workers themselves from being disproportionately limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds. In the Public Administration, the authorization to bargain collectively cannot be unrestricted, that is, comparable to the situation in which any private employer would find themselves, since current laws, regulations, or governmental guidelines must be respected, as well as the legal competences of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. In this way, the obligations contracted by public institutions and their employees can be the subject of an analysis of reasonableness, economy, and efficiency, whether to prevent the rights of the workers themselves from being limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds. The right to collective bargaining is subject to the jurisdictional control of the Chamber, because as indicated, it is subordinated to constitutional norms and principles.” (The emphasis does not correspond to the original).

Based on what the Chamber has stated, in the sub lite it must be reiterated that Article 55 (legislative reserve in the creation of salary incentives and compensations) —and, therefore, all the provisions related to the questioned bonuses, namely Articles 39 (severance pay assistance), 50 (incentive for years of service), 54 (incentives transferred to fixed nominal amounts) and Transitory Provision XXVII (recognition of the severance pay assistance covered and respected by the current collective bargaining agreements)— must be understood as constitutional, because the legislator can perfectly establish the general regulations for relationships subject to the public employment regime. The foregoing, under the understanding that the restriction on negotiating certain salary improvements does not apply to employees of the Public Sector who can validly enter into collective bargaining agreements in accordance with the Constitution and the law. This Court was emphatic and warned that for those persons who legitimately can participate in a collective negotiation, their fundamental right to negotiate certain salary benefits cannot be emptied of content —within the margins of the Constitution and the law, as well as the financial possibilities, reasonableness, proportionality, and the constitutional principles emanating from the jurisprudence of this Chamber—. Due to its importance, what was stated by this Court is reiterated, to the effect that it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally possible, only through a formal law emanating from the Legislative Branch can incentives or compensations, or salary bonuses, be created, because said absolute limitation would empty that right of content and, therefore, would violate the principle of union freedom, which are fundamental rights recognized by our Political Constitution.

In a second line of thought, following what was established in the advisory opinion, this Chamber must declare the unconstitutionality of the provision in paragraph 1 of Transitory Provision XXXVI of the LFFP, because said numeral disregards the free and voluntary nature of collective bargaining and, quite the contrary, establishes the obligation for all heads of public entities to denounce the collective bargaining agreements once their expiration date arrives. The interpretation proposed by the Chamber in the advisory opinion is incompatible with the express text of the norm adopted by the Legislative Assembly. Therefore, it is imperative to declare the unconstitutionality of the provision contained therein in the sense of subjecting the heads to the obligation to denounce the collective bargaining agreements, to the detriment of the fundamental rights examined here.

Regarding the alleged violation of the principle of equality for distinguishing with respect to solidarity associations In relation to the right to collective bargaining, the possibility of negotiating higher severance pay caps, and union rights, both the claimants and active coadjuvants accuse an alleged violation of the principle of equality. They question an unequal and unjustified treatment to the detriment of unions, since through the Worker Protection Law, the payment of severance pay without a limit of years was established, while in the case of unions there is no such possibility, generating a disparity of conditions regarding these organizations and violating Article 7 of the Political Constitution due to the disregard of international instruments that recognize the right to voluntary bargaining.

In this regard, the PGR explained that it is not possible to compare unions with solidarity associations, as they are very different figures with their own characteristics that are very different from each other and recalls, for example, that solidarity associations have not been recognized the right to collective bargaining or to strike, without this constituting alleged discrimination.

In this Chamber's opinion, the allegations barely raised and not developed are insufficient to examine an alleged violation of Constitutional Law, because the characteristics of both organizations are not detailed to distinguish where the unconstitutional differences lie, nor is it explained how Article 7 of the Political Constitution is violated. However, and given that the matter in question is related to the payment of severance pay negotiated through collective bargaining agreements, it is necessary to return to and recall the considerations made by this Chamber in judgment no. 2018-008882 in which this Chamber reconsidered the constitutionality of severance pay exceeding twelve years and, furthermore, the existing differences with other forms of labor organization were highlighted. In this regard, the following arguments were made:

“XX.- Seemingly, the first of the arguments (the link of the benefit to the employee's seniority) would appear to be barely debatable, as long as the conventional clauses in general and the one contained in the Collective Bargaining Agreement of Bancrédito, establish a benefit that recognizes the payment of severance pay assistance to the favored workers, linked to their seniority at the service of the institution and, therefore, directly proportional to it.

The problem that the majority of the Chamber finds here—and which does not appear to have been specifically addressed previously—arises when the magnitude of the benefit is contrasted, not only internally among the group of employees favored by the Convention, as was done in the cited rulings, but when the magnitude of that severance pay (auxilio de cesantía) is analyzed within the complete universe of public employees in the broad sense; this extension of the comparative framework is justified insofar as for all employees in the service of state institutions, the source of funding for that severance pay is one and the same: the taxes and public prices paid by all persons inhabiting the Republic. And it is no obstacle that, both in this case and in many others, these are state enterprises operating in a competitive market and administering funds from consumers, savers, and borrowers, for, insofar as such institutions belong to the State and have its backing, their financial health and practices can be—and in fact are—extremely relevant to public finances, as is clearly demonstrated by the well-known current condition of Bancrédito and the estimates that have been given regarding the impact its closure will have on the national budget.

Thus, it must be stated that provisions of an economic nature agreed upon by the administrators of public institutions when they collectively bargain with their workers cannot evade the necessary coherence and proportionality in relation to what constitutes the general framework of economic benefits that the State (in its broad concept) has been recognizing over time, in favor of its workers, nor can they fail to take into account the financial possibilities of the entities in general and the manner in which these provisions will affect state expenses and economic obligations, given that such commitments determine, and are simultaneously determined by, the various economic variables and situations and directly impact the general economic situation of the country.

By adopting this approach, the majority of the Chamber verifies the existence of an extremely wide gap between the severance pay (auxilio de cesantía) applicable to the enormous majority of public employees, whose cap is 8 years, and the payment that the workers of Banco Crédito Agrícola and other state workers also covered by collective bargaining agreements will receive, who, under identical circumstances, could receive a direct disbursement in their favor of up to 20 months' salary for the same severance pay. This is a difference of one hundred fifty percent (150%), which from the perspective of the majority of us who make up this Chamber, is abysmal and therefore, it should have clear and incontestable arguments to justify it, but it rather lacks them and proves disproportionate and unsustainable in such magnitude.

It must be remembered, on the one hand, that this Chamber, in line with the development of fundamental rights linked to the labor environment, has exercised its constitutional review function in this matter with great restraint, understanding that the fundamental nature of the right to collective bargaining—one of the fundamental pillars of the right to work—has as its legitimate purpose the improvement of the working conditions of workers, and this necessarily entails the generation of differentiations and disparities that are in no way unjust or illogical in themselves and even less can be branded as unconstitutional, by the mere fact of benefiting a group of people who have achieved such gains through the instrument of collective bargaining. But the foregoing cannot completely disable the need for the improvements to which the State commits itself to be proportionate and reasonable, not only with respect to the condition in which other state workers not protected by collective bargaining agreements are left, but also regarding the burden that society must bear to cover such sums. In this way, a difference of 150 percent (that is, a difference halfway between double and triple the normal sums) between what may correspond to some public employees above all others for the same concept lies far beyond what can be understood as proportionate and acceptable as a legitimate gain in the condition of state workers.

On the other hand, and in relation to this same issue of disproportionality in this particular form of disposition of sums from the public treasury, it must be noted that another reason for considering this 20-year cap disproportionate is that said expense presents the characteristic of being a mere transfer of funds from the public coffers directly to the worker's patrimony, without such transfer being nuanced by options for economic improvement or advantages for third parties or for the country's economy as a whole. This last alternative, in which resources from different sources, including state ones, are gathered to finance, among other economic improvements, those related to the payment of severance pay (auxilio de cesantía), is what characterizes the so-called savings and retirement funds, the solidarist associations (asociaciones solidaristas), and even the figures of the Worker Protection Law, which—for that very reason—can be clearly distinguished from the figure of the simple increase in the severance pay (auxilio de cesantía) payment cap that is analyzed here. For the Court, these figures incorporate mechanisms for improvement in the condition of workers, but they do so through the use of much more sophisticated wealth redistribution mechanisms and with more moderate participation from the public coffers. Furthermore, it must be pointed out that many of the Savings Funds and, of course, all the solidarist associations (Asociaciones Solidaristas) and the advantages of the Worker Protection Law, have undergone legislative scrutiny and approval, which grants them—from the outset—much greater legitimacy compared to the financial commitments acquired by the State that affect the community. For all of the foregoing, adjustment to the principles of proportionality and reasonableness of state resources delivered to workers, under the shelter of these recently mentioned legal figures, cannot be judged by the same measure as simple breaches of the cap for severance pay (auxilio de cesantía) payments, which are nothing more than mere transfers, as was explained, and which therefore require a much stricter scrutiny, which cannot be overcome when we are facing a cap of 20 months' salary.” (The highlighting does not correspond to the original). See in the identical sense rulings numbers 2020-11168, 2020-24200, 2019-8679, 2019-9222, 2021-15419, 2023-012086, among many others.

In accordance with the foregoing, it is seen that this Chamber expressly distinguished between the mere transfer of funds for severance (cesantía), from those forms of organization in which, with the contributions of the workers, capitalization funds are constituted for the better performance of the amounts collected.

Likewise, for several years now this Court has been reiterating that solidarist associations (asociaciones solidaristas) and unions differ substantially, so it would be valid for the legislator to establish differentiated regulations:

“Solidarist associations (asociaciones solidaristas) are clearly distinguished from the other two types of forms of social organization with express constitutional mention: Unions and Cooperatives. They differ substantially from the former, insofar as, according to the provisions of article 339 of the Labor Code (Código de Trabajo), Law No. 2 of August 23, 1943, the '(...) Union is any permanent association of workers or employers or of persons of an independent profession or trade, constituted exclusively for the study, improvement and protection of their respective common economic and social interests (...)'. Union prerogatives are special, guaranteed by international conventions (Nos. 87 and 98 of the International Labor Organization) and irreplaceable in matters of collective bargaining (…)

Despite the fact that these are different forms of organization with purposes of social advancement, truly, each one has its own nature translated into its form of integration and separate fields of action, which necessarily caused the legislator to enact independent regulation for each one of them, as well as prohibitions of interference, expressed in article 8 of the Law of Solidarist Associations, No. 6970 of November 7, 1984. In a truly democratic society, these three forms of social organization must exist in fullness.” (Advisory opinion no. 2010-009927). See equally ruling no. 2023-014796.

In light of the foregoing considerations, it is not seen that, from the merely generic and enunciative arguments made by the claimants and active coadjuvants, an injury to the invoked principles of equality or to Article 7 of the Political Constitution is verified. Regarding the latter, it is not even explained in what way it would be injured. In which case, it is appropriate to dismiss these reproaches.

On the constitutionality of Transitory Provision XXXVI, second paragraph As has been indicated, in general terms, the claimant parties questioned the unreasonable limitations on collective bargaining and the possibility of agreeing to salary improvements through said instrument. Additionally, it is seen that claimants and coadjuvants challenged what is regulated in Transitory Provision XXXVI, second paragraph of the LFFP. It is alleged that the right to collective bargaining is injured because through a transitory norm—but with a vocation for permanent and definitive effects—it is established that in the event that a decision is made to renegotiate a collective bargaining agreement, it must be adapted in all its extremes to what is established in the law and “other regulations enacted by the Executive Branch”. It is debated that “the door is left open” for the Executive Branch to be able to establish any content in those regulations. Therefore, it is alleged that collective bargaining agreements must no longer only submit to legal provisions, but to any other regulation of the Executive Branch.

As we have just recently mentioned, in the advisory opinion issued through resolution no. 2018-19511, the Chamber referred extensively to the right to collective bargaining—which is not unrestricted—to collective bargaining agreements in the public sector and, specifically, to the limits and control of the content of collective bargaining agreements. Of importance for the resolution of this point, the following must be emphasized:

“2.4.- On the limits and control of the content of collective bargaining agreements: It is clear, that said bargaining capacity cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must be in conformity with the Political Constitution and the International Instruments relating to the matter.

In this sense, what was resolved by this Chamber in Ruling No. 2000-004453 of 2:56 p.m. on May 24, 2000, must be understood, in which it was stated:

“Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector in which the application of the institution of collective bargaining agreements is constitutionally possible, that is to say, in the so-called economic enterprises or services of the State and in those personnel nuclei of public institutions and entities in which the nature of the services provided do not participate in public management, in the terms of subsection 2 of article 112 of the General Law of Public Administration (Ley General de la Administración Pública), the Chamber repeats and confirms its jurisprudence in the sense that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since by that means, laws, regulations or current government directives cannot be dispensed with or excepted, nor can laws that grant or regulate the competencies of public entities, attributed due to normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion that is inferred from article 112 subsection 3) of the General Law of Public Administration (Ley General de la Administración Pública) and from considering clause XI of ruling No. 1696-92 of this Chamber”. (See in the same sense rulings numbers 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 and 2006-17436). (…)

Thus, with respect to public sector agreements, the Chamber has indicated that laws, regulations or current government directives must be respected, as well as the legal competencies of public entities, attributed based on normative hierarchy or on the special conditions of the Public Administration in relation to its workers. Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected for the sake of the citizen right to the sound management of public funds, derived from numeral 11, Constitutional (see Ruling No. 2017-013443 of 9:15 a.m. on August 25, 2017).

It must be understood, moreover, that the bargaining faculty is subject to legality and constitutionality controls, in attention to the principles of reasonableness, proportionality, and good use and management of public funds.” (The highlighting does not correspond to the original).

Echoing these considerations, this Chamber examined the legitimacy of the Commission on Policies for the Negotiation of Collective Bargaining Agreements in the Public Sector (Comisión de Políticas para la Negociación de Convenciones Colectivas en el Sector Público). This through ruling no. 2021-005668 in which it was concluded that the challenged regulations are not unconstitutional provided it is interpreted that the guidelines issued by said Commission—article 3 subsections b) and c) of the Regulation for the functioning of the Commission on Policies for the Negotiation of Collective Bargaining Agreements in the Public Sector, no. 41553-MTSS, of November 30, 2018—are not binding. Of importance for the sub lite, it is relevant to highlight that this Court was emphatic that “the employer entity being a public authority and dealing with the disposition of public funds, these negotiations must be bounded and sustained by constitutional principles (reasonableness, proportionality, continuity of public services), as well as by provisions of legal and regulatory rank that make what is agreed upon by the parties coincide with the principle of legality”. In fact, if one examines the Labor Code (Código de Trabajo) in detail, one can easily conclude that within the parameters of regularity are found not only laws, but also the provisions of the Executive Branch that are legitimately issued. Article 690 of the Labor Code (Código de Trabajo) states the following:

“Article 690.- With the limitations to which reference will be made, the following matters can be the object of a solution in the manner described:

• a)The union rights and guarantees both for the leaders of the organizations and for the unions themselves as legal entities of indefinite duration. These rights and guarantees include those of assembly, facilities for the use of premises, leave for leaders with and without pay, facilities for the dissemination of activities, as well as any other contained in Recommendation Number 143 of the International Labor Organization or in the specific recommendations of the Committee on Freedom of Association of this latter organization.

It is understood that the application of the guarantees mentioned herein must not seriously or recklessly alter the efficient functioning or the continuity of the essential services of each institution or agency.

**b)** Everything related to the application, interpretation, and regulation of current collective law norms.

**c)** The disciplinary regime, provided there is no express or tacit waiver or delegation of the legal or regulatory powers granted in this matter to the heads of the institutions or agencies.

**d)** The regulation and oversight of entry, promotion, and professional career regimes, without prejudice to what is established by the legal and regulatory norms that exist in each institution or agency, which shall be of mandatory compliance.

**e)** The internal preparation of descriptive job manuals and the application of internal procedures for the assignment, reassignment, reclassification, and restructuring of positions, within the limits established by the general directives of the Executive Branch, the norms of the Civil Service Statute and its regulations, or other statutory norms. It is understood that any decision adopted in this field, which does not expressly contravene what is provided by the general directives of the Executive Branch, may not under any circumstances be objected to by external oversight authorities or by the Budgetary Authority.

**f)** Safety and hygiene and occupational health measures, as well as precautionary measures in the event of natural disasters. Union organizations and the heads of each institution or agency may create bipartite and parity bodies for the purpose of determining the needs of the latter and of their workers in the field of occupational safety and health.

**g)** Procedures and policies for the allocation of scholarships and work incentives.

**h)** The establishment of salary incentives for productivity, provided they are agreed upon within the framework of the policies that the boards of directors of each entity or the Executive Branch itself have previously designed regarding their general objectives and public spending limits.

**i)** Matters related to salaries and the assignment, calculation, and payment of all types of salary bonuses (pluses salariales), such as exclusive dedication, availability, travel, zoning, hazardous duty, and any other economic claim, provided it does not contravene any prohibitive legal or regulatory provision or the consistency of salary structures, and subject to the provisions of Article 695.

**j)** The creation and operation of bipartite and parity bodies, provided that public law competencies or attributions, corresponding to the heads of each institution, defined by law or regulation, are not delegated to any of them.

**k)** The right of workers and their organizations to have timely and truthful information about the projects or decisions of the collegiate bodies and managements of each institution or agency, when they directly affect them or may represent a public interest.

**l)** The right of workers' organizations and their leaders to have their requests addressed and answered, in the shortest possible time, by the heads of each institution or agency, with the sole exception of requests that are openly impertinent or unnecessary.

**m)** Other matters, benefits, or supplementary labor collective bargaining incentives that, in accordance with the law, do not exceed the competence of administrative bodies. (Thus added by Article 2 of Law No. 9343 of January 25, 2016, "Labor Procedural Reform".)" (The highlighting does not correspond to the original).

More forcefully, Article 692 of the Labor Code, regarding negotiations in the public sector, provides the following:

"**Article 692.-** Likewise, dispensing with or making exceptions to current, duly enacted laws or regulations, through the resolution mechanisms, is absolutely prohibited.

It is understood that when it concerns expenditures that affect the national budget or that of a particular institution or company, the decisions issued by the hierarchies and arbitral bodies must be subject not only to the restrictions resulting from this regulation, but also to the constitutional norms regarding the approval of public budgets, which, in the event of having been disrespected, shall imply the absolute nullity of what is provided." (The highlighting does not correspond to the original).

Additionally, Article 695 orders the following:

"**Article 695.-** The collective bargaining agreements (convenciones) and agreements (acuerdos) adopted in any type of collective bargaining with employees under a public employment regime shall be subject, for their validity and efficacy, to the approval of the hierarchical body of the institution or company with the competence to bind it, after verification of the limits and validity requirements.

The respective act must be issued within one month following the agreement.

The non-approval of the agreement by the Administration does not constitute an infraction sanctionable through repressive means.

In the case of norms that, by their nature or their impact on the principle of budgetary legality, require legislative or regulatory approval, their efficacy shall be conditional upon inclusion in the budget law or in the respective regulations, as well as upon approval by the General Comptroller of the Republic, when it affects the budgets of institutions whose ordinary and extraordinary budgets or budgetary modifications require the approval of this latter entity. In any case, the agreements reached through the Public Sector Salary Negotiating Commission shall be binding on the parties and, to this effect, the administrations shall issue the necessary administrative acts to make them effective throughout the centralized and decentralized public sector." Thus, it is observed that when authorizing collective bargaining in public employment, reasonable limitations were included in consideration of legal and regulatory provisions, since it is reiterated that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since by that means general laws, regulations, or current governmental directives cannot be dispensed with or excepted. This naturally responds to the principle of legality that prevails throughout the Public Administration (Article 11 of the Political Constitution), in concordance with the mandate that a civil service statute shall regulate the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the administration (Article 192 of the Political Constitution) and with the principles of budgetary coverage and balance derived from the provisions of Article 176 of our Constitution, according to which:

"Article 176- Public management shall be conducted in a sustainable, transparent, and responsible manner, which shall be based on a multi-year budgeting framework, in pursuit of the continuity of the services it provides.

The ordinary budget of the Republic includes all probable revenues and all authorized expenses of the Public Administration, throughout the entire fiscal year. In no case may the amount of budgeted expenses exceed that of probable revenues.

The Public Administration, in a broad sense, shall observe the foregoing rules when issuing its budgets.

The budget of the Republic shall be issued for a term of one year, from January first to December thirty-first." (The highlighting does not correspond to the original).

Based on the considerations made, it must be reviewed that in the sphere of public function, the legislator itself left a space to permit collective bargaining and, within that framework, to aspire to salary improvements, since the contrary would be to empty a fundamental right enshrined in the Political Constitution of its content. However, the possibility of negotiation must be nuanced in the public sector, since the bargaining capacity has a limited scope, as it cannot be compared with the bargaining capacity of a private employer and, in addition, the negotiation must occur within the mentioned constitutional margins. Within the cited margins is precisely the principle of legality, which is derived even from Article 62 itself of the Political Constitution. Within that framework of legality, regulatory-rank provisions can be included, just as the Labor Code itself foresees. Thus, the challenged norm is not unconstitutional in and of itself. That is, the provision that at the time of renegotiating the collective bargaining agreements (convenciones colectivas) their content must be adapted to the provisions of the Executive Branch is not unconstitutional because it is a norm that reflects what is regulated in the Labor Code and the principle of legality.

Now, this generic determination by the Chamber does not prevent the provisions issued by the Executive Branch for the purpose of regulating this matter from being subsequently subjected to a constitutionality review. Note that what is being questioned here is the norm that requires renegotiations to be subject to the law or the regulations issued by the Executive Branch. However, no specific provision has been questioned or listed that would allow a particularized examination in order to determine a presumed injury to the fundamental right to collective bargaining, in which case the grievance raised must be dismissed.

Conclusions

Based on the considerations made, it must be concluded that the objections raised against the questioned norms —namely, Articles 39, 50, 54, 55 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP in the sense that the fundamental right to collective bargaining is harmed and no space is left for matters related to salary bonuses (pluses salariales) to be eventually improved through said negotiation— must be dismissed under the understanding that they be interpreted in the terms explained. In the advisory opinion concerning this regulation, it was already established that public servants are subject to a statutory relationship that regulates the majority of issues related to salary aspects and, in such cases, the legislator has sufficient legitimacy to, within the margins of reasonableness and proportionality, regulate matters corresponding to salary incentives and establish rules for their recognition and payment. However, there is a space where certain workers of the Public Administration can validly exercise union action through collective bargaining and, in such cases, the restriction established in Article 55 of the LSAP would not be applicable, since the contrary would be equivalent to admitting an emptying of the fundamental right enshrined in Article 62 of the Political Constitution. Consequently, Article 55 —and, therefore, all the provisions related to the questioned bonuses (pluses), namely, Articles 39, 50, 54 of the LSAP and Transitory Provisions XXVII and XXXI of the LFFP— must be deemed constitutional under the understanding that the restriction on negotiating does not apply to Public Sector employees who can validly enter into collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law. All the foregoing, without prejudice to the legality and constitutionality controls over the result of the negotiation, in consideration of the constitutional principles of reasonableness, proportionality, and the good use and management of public funds.

Finally, the unconstitutionality of the provision in Transitory Provision XXXVI, paragraph 1 of the LFFP is declared, as said article disregards the free and voluntary nature of collective bargaining and, quite to the contrary, establishes the obligation for all heads of public entities to denounce the collective bargaining agreements (convenciones colectivas) once the expiration date arrives. Regarding the second paragraph of said transitory norm, the action must be declared without merit.

Judge Cruz Castro partially dissents and declares Articles 54, 55 and Transitory Provisions XXVII and XXXI unconstitutional.

Judge Cruz Castro records additional reasons regarding Transitory Provision XXXI.

Grievances of Action No. 19-004931-0007-CO In the resolution that admitted the unconstitutionality action and accumulated it to this process, it was established that the norms subject to challenge and which are admissible for such effects are Articles 28, paragraphs 2 and 4, 30, 31 clause 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 52, 53, 54, 55, 57 clauses f), g), h), i), m), n), o) and p), added to Law No. 2166, Title IV of the LFFP No. 9635 of December 5, 2018, Articles 23, 24, 25 and Articles 1, clause a), 3, 4, 7, 9, 14, 15, 16, 17, 21 and 22 of Executive Decree No. 41564-MIDEPLAN-H, the latter by connection.

GRIEVANCES THAT PRIMA FACIE MUST BE DISMISSED XVI.- Art. 3 of Executive Decree No. 41564-MIDEPLAN-H, Regulation of Title III of the LFFP, Law No. 9635 concerning Public Employment The claimant challenged Art.

26 </span><span>added to the LSAP and Article 3 of Regulation No. 41564-MIDEPLAN-H for violating the principle of municipal autonomy (autonomía municipal) and Articles 11, 169, 170, and 188 of the Political Constitution. All arguments revolve around the alleged injury to the autonomy of autonomous corporations to set their own salary policies.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In this regard, it must be noted that these arguments related to municipal autonomy and the possibility of autonomous entities setting their own salary policies were dismissed in the interlocutory judgment (sentencia interlocutoria) <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-921416" style="text-decoration:none"><span style="font-weight:bold; text-decoration:underline; color:#000000">No. 2019-010635</span></a><span style="font-weight:bold"> </span><span>of <span style="font-weight:bold">June 12, 2019</span></span>. Consequently, the matters pertaining to Article 26 were dismissed by this Chamber:</p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“II.- ON THE PARTIAL INADMISSIBILITY OF THE ACTION. From the foregoing, <span style="font-weight:bold; text-decoration:underline">the action is not admissible regarding the violation of the principle of autonomy</span> and, therefore, is flatly rejected with respect to Article 26 of Law No. 2166 and Articles 5 and 11 of Law No. 9635. Additionally, the alleged violation of this principle is flatly rejected in relation to Articles 28, paragraphs 2 and 4, 40, 46, 47, 48, 50, 52, 53, 54, and 55 of Law No. 2166, 17, 23, 24, and 25 of Law No. 9635, and 1 c) 1°, 6, 15, 16, 17, 21, 22 of Executive Decree No. 41564-MIDEPLAN-H. Finally, the violation of Articles 169, 170, 188, and 189 of the Political Constitution by Articles 26 and 55 of Law No. 2166 and Articles 5, 11, and 17 of Law No. 9635 is flatly rejected”.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>However, the alleged challenge to Article 3 of the regulation for Title III of the LFFP, Law No. 9635 on Public Employment (Empleo Público), Decree No. 41564-MIDEPLAN-H, remains. This provision was included in interlocutory resolution No. 2019-010635 as an admissible norm subject to the action, despite the fact that Article 26 of Law No. 2166 was flatly rejected and that matters relating to municipal autonomy, as well as the autonomy of decentralized entities, were also flatly rejected in that resolution. Likewise, it is observed that it was included as a challenged norm for study in the resolution on the expansion of proceedings (ampliación de curso).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Nevertheless, this Court, upon better consideration, must dismiss this aspect of the action. In the first place, its inclusion in the filing brief (libelo de interposición) was done alongside Article 26, a grievance already rejected by this Chamber because the plaintiff lacks standing (legitimación) to claim representation of the autonomous institutions. The regulatory norm challenged by the plaintiff precisely refers to the scope of application of the law, and no additional concrete or specific argument was made regarding this article; rather, it is titled on the basis of the alleged infringement of the aforementioned autonomy, which, as noted, must be dismissed.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Consequently, due to a lack of specific substantiation and because the plaintiff's standing regarding an alleged infringement of the principle of autonomy was rejected, the stated—but not developed—unconstitutionality of Article 3 of the regulation for Title III of the LFFP, Law No. 9635 on Public Employment, Decree No. 41564-MIDEPLAN-H, must likewise be dismissed.</span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445437" class=""><span style="text-transform:uppercase">XVII.- </span></a>Articles 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation for Title III of the LFFP, Law No. 9635 on Public Employment<br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Due to a material error in the interlocutory judgment <span style="font-weight:bold">No. 2019-010635</span>, Articles 4, 9, and 14 of the regulation were included as admissible norms for study in the “<span style="font-style:italic">object of the action</span>” (see Considering IV).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>However, upon a careful review of the brief in which the plaintiff responded to the preliminary warning (prevención) issued by the Presidency of this Chamber, those articles were not included as challenged, nor were any concrete arguments made regarding their unconstitutionality. By virtue of the foregoing, said provisions were not included in the resolution expanding the proceedings (resolución de ampliación de curso) of the unconstitutionality action (acción de inconstitucionalidad).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Therefore, as they were not expressly challenged by the plaintiff and there is no concrete and substantiated argument against them, the Chamber must dismiss the action against Articles 4, 9, and 14 of Executive Decree No. 41564-MIDEPLAN-H, Regulation for Title III of the LFFP.</span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445438" class=""><span>XVIII.- ON THE FISCAL RESPONSIBILITY RULES. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC</span></a><span> </span></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445439" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged Norms</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:8pt"><span>The plaintiff challenges Articles 15, 23, 24, and 25 of Title IV on Fiscal Responsibility of the LFFP, No. 9635. In the plaintiff's opinion, Articles 7, 11, and 50 of the Constitution and the principle of progressiveness of fundamental rights are violated by granting the Executive Branch powers to alter specific allocations (destinos específicos) in a clear deviation of power (desviación de poder) that would affect institutional goals and neglect fundamental rights. The challenged norms are the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">“</span><span style="font-weight:bold; font-style:italic">Art. 15- Specific Allocations</span><span style="font-style:italic">. If the Central Government's debt exceeds fifty percent (50%) of nominal GDP, the Ministry of Finance may budget and transfer the legal specific allocations considering the availability of current income, the levels of budget execution, and the free surplus of the beneficiary entities.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 23- Criteria for Budgetary Allocation</span><span style="font-style:italic">. The Dirección General de Presupuesto Nacional shall make the budgetary allocation of transfers based on the following criteria:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">a) The Government's priorities, according to the National Development Plan.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">b) The commitments established in the multi-year programming.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">c) The social purpose of the benefited institution in the provision of public services of collective benefit, such as education boards, development associations, and associations administering community aqueduct and sewer systems.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">d) The fulfillment of institutional objectives and goals.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">e) The budget execution of the three periods prior to the year of budget formulation.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">f) The accumulated resources from previous fiscal years in the single treasury account (caja única) of the State.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">g) The availability of financial resources.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">h) Variations in the consumer price index.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">i) The effective fulfillment of the rights intended to be financed and the principle of progressiveness of human rights.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">j) Other criteria used by the Dirección General de Presupuesto Nacional in the exercise of its constitutional powers.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 24- Budgetary Allocation</span><span style="font-style:italic">. The Dirección General de Presupuesto Nacional shall make the budgetary allocation of transfers using the criteria of the preceding article. Said allocation may not be less than the budget in force at the time this law is approved, including the specific allocations established for the regional campuses of public universities repealed in this law.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus amended by the sole article of Law No. 9732 of November 19, 2019)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 25- Administrative Management of Specific Allocations</span><span style="font-style:italic">. In the case of specific allocations that are not expressly provided for in the Political Constitution, or whose financing does not come from a special revenue created to exclusively finance the social service, the Ministry of Finance shall determine the amount to be budgeted, based on the state of public finances for the respective budget period and the criteria set forth in Article 23 of this law”.</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>The original version of Article 24 provided the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Art. 24- Budgetary Allocation. The Dirección General de Presupuesto Nacional shall make the budgetary allocation of transfers using the criteria of the preceding article. Said allocation may not be less than the budget in force at the time this law is approved”.</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445440" class=""><span style="text-transform:uppercase; background-color:#ffffff">Arguments of the Plaintiff</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The plaintiff states that Article 15 violates Articles 7, 11, 50, and 74 of the Political Constitution and the principle of progressiveness of fundamental rights.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Specifically, regarding Article 15, the plaintiff says that the Constitutional Chamber has recognized the obligation of the State to respect the amounts of specific allocations established by legal norm, especially when they are aimed at financing social welfare programs, serving vulnerable populations, or fulfilling fundamental rights in general. Granting the Executive Branch the power to vary these amounts or allocations is a clear deviation of power and a serious violation of fundamental rights that the State must guarantee. The omission of the Ministry of Finance to transfer special funds in such an open-ended manner, without the norm making any exception, is irrational and violates the Constitution's Law. It is not possible for the State, due to the fiscal crisis, to stop attending to its obligations.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In relation to Articles 23, 24, and 25 of Law No. 9635, the plaintiff says that these violate the principle of progressiveness of human rights, according to which “<span style="font-style:italic">as the level of development of a State improves, the level of commitment to guarantee rights improves</span>”.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Article 23, the source of unconstitutionality invoked for all three norms, contains a list of criteria for the budgetary allocation of the Costa Rican State. The budgetary allocation places the protection of rights and their progressiveness in the ninth position, behind even the availability of financial resources, the fulfillment of institutional goals, and the priorities of the government in power. The order of state priorities set forth in this law will allow any public law institution to invoke a lack of budget in order not to finance the human rights that the State is obligated to protect, or allow the State to establish budgets neglecting or minimizing the fulfillment of human rights.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Articles 24 and 25 are closely related to Article 23, on the understanding that the Dirección Nacional de Presupuesto must use those criteria to budget transfers to State institutions.</span><br><span style="font-weight:bold; text-transform:uppercase">Report of the PGR</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>For the PGR, the arguments raised by the plaintiff are entirely unfounded. In the first place, the PGR refers to the legitimacy of the fiscal rule (regla fiscal) — a figure that, as such, is not challenged in this unconstitutionality action — to make an analysis of the legitimacy of the State adapting to certain fiscal rules that derive from the constitutional norms themselves. The PGR states the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Reiterating the considerations we have made in various reports before this Chamber (case files Nos. 19-0011540-0007-CO and 19-013318-0007-CO), the establishment of fiscal rules by Western States has become a popular vehicle for imposing a certain fiscal discipline, in the face of the problems of fiscal deficit and increase in public debt, especially since the economic crisis that devastated the most developed economies of the planet about a decade ago and whose aftermath is still being felt. In the case of the Member States of the European Union — following the American example — the path used has been to elevate those rules to the highest legal rank, incorporating, through constitutional reform, a series of mechanisms to limit fiscal and budgetary power that go beyond budgetary stability per se, to the point that some authors have called it the "constitutionalization of the economic crisis". In this way, the intervention of the Federal Government or Central Administration is legitimized — as guarantor of the general economic stability of the State itself — imposing budgetary limits on the various subnational territorial organizations endowed with political and financial autonomy and, therefore, with the freedom to prepare their own budgets (case of Federated States, Autonomous Communities, and Local Governments), to the extent that budgetary policy is conceived as an instrument of general economic policy, whose ordering is attributed to the State.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The need to maintain a certain balance between public revenues and expenditures, which summarizes the principle of budgetary stability, finds an answer in our environment in the first paragraph of Article 176 of the Political Constitution.</span></p> (…)</span><span style="font-style:italic">)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">From the foregoing provision, the case law of this Chamber has extracted the foundation of the constitutional principle of financial or budgetary equilibrium, as recently reaffirmed in the well-known ruling no. 2018-19511, of 21:45 hours on November 23, 2018, and which the legislator defined in Article 5, subsection c), of the Financial Administration of the Republic and Public Budgets Law, in the following terms:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“c) Principle of budgetary equilibrium. The budget must reflect the balance between revenues, expenditures, and sources of financing.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">We are, therefore, faced with a constitutional mandate that, as such, binds all public powers and which, therefore, in its principal sense, is beyond the availability or competence of the State and other public entities, regardless of their degree of autonomy.”</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>After that general reference to the fiscal rule, the Attorney General's Office explains that the Law to Strengthen Public Finances (Ley de Fortalecimiento de las Finanzas Públicas, LFFP) entails a paradigm shift regarding the regulation of earmarked revenues (destinos específicos) and the establishment of a floor for the budgeting of public resources. The Attorney General's Office cites its own administrative case law to indicate the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“The Republic's budget has been affected by the creation of earmarked revenues (destinos específicos) through ordinary laws, which hinder the programming and allocation of budgetary resources according to public needs, economic and social development priorities, the availability of existing resources, and, therefore, make it difficult for the Executive to allocate resources and decide on their execution.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The Law to Strengthen Public Finances produces a substantial modification to the relationship between ordinary law and budget law from two points of view: Firstly, by repealing certain earmarked revenues (destinos específicos) created by law. Secondly, because it authorizes the Budget Law to affect spending obligations provided for by ordinary law, so that they are adjusted according to the country's fiscal conditions, in order to achieve the objective of budgetary equilibrium.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Thus, the Executive Branch when drafting the budget bill and the Legislative Assembly when approving it can adjust the resource allocations to which it is obligated by virtue of laws that create earmarked revenues (destinos específicos), according to fiscal conditions. From strict subjection to the percentages and sums established by the legislator, there is a shift to a possibility of assessing the financial resources available to give content to the spending obligation established by law, as well as other public policy imperatives, in order to, where appropriate, budget a lesser amount than would correspond under application of that law creating the obligation.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">We emphasize that various provisions of the Law determine that, under certain conditions, the Budget Law will not contemplate or, once it is approved, the Ministry of Finance will not transfer, the budgetary transfers or the earmarked revenues (destinos específicos) originating from ordinary laws that are in force. This implies that the budget allocation will not be determined by the ordinary law creating the earmark; in other words, the entity benefiting from the earmark will not see the resources provided by the ordinary law as guaranteed.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">This possibility is even considered a provision of Fiscal Responsibility. Indeed, Chapter III of the Law establishes the provisions on Fiscal Responsibility, stipulating among them:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“ARTICLE 15- Earmarked revenues (Destinos específicos). If the Central Government's debt exceeds fifty percent (50%) of nominal GDP, the Ministry of Finance may budget and transfer legal earmarked revenues (destinos específicos) considering the availability of current revenues, the levels of budget execution, and the free surplus of the beneficiary entities.”</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">In that case, the budgeting of earmarked revenues (destinos específicos) would depend on the availability of revenues, the levels of budget execution, and, where appropriate, the existence of free surplus.” (Legal Opinion C-099-2019, of April 5, 2019. In a similar sense, legal opinion C-292-2019, of October 8, 2019).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:spaces"> </span><span>The Attorney General's Office explained that a previous legal opinion — OJ-064-2019, of June 12, 2019 — referred to the provisions of the challenged Art. 15:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Even though the consulting party develops the eventual application of Article 15 of Title IV 'Fiscal Responsibility of the Republic' as an argument for the unconstitutionality of subsection c) of numeral 31, prima facie, no contradiction between that article and our Fundamental Charter is observed. On this point, the deputies argue that Article 15 allows the Ministry of Finance to budget (in the budget formulation process) amounts lower than those indicated in legal earmarked revenues (destinos específicos) (such as the legal earmark of numeral 24 of the bill itself) and, even if they were already budgeted, to transfer (in the execution process) amounts lower than those indicated in the Budget Law; however, that article constitutes a manifestation of the constitutional principle of Budgetary Equilibrium, and therefore, a priori, no incompatibility in its wording is evident.” </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Subsequently, the Attorney General's Office extensively cites Legal Opinion C-099-2019 to make the following conclusions:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Hence, contrary to what is alleged, the Law to Strengthen Public Finances, No. 9635 of December 3, 2018, as a legitimate manifestation of the constitutional principle of Budgetary Equilibrium, allows the Ministry of Finance to budget the allocation of resources provided by laws that create earmarked revenues (destinos específicos) based on the assessment of fiscal conditions and other public policy imperatives. Therefore, it allows adjusting that allocation to the financial resources available.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">And in the exercise of these new powers, the Executive Branch's limits are the earmarked revenues (destinos específicos) created by the Constitution, as well as those created by law to finance a social service exclusively. On the contrary, earmarks referring to taxes intended to finance public spending in general, such as those from taxes like income tax or now value-added tax, do not constitute a limit.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">In any case, as ordered by Article 24 of the Law to Strengthen Public Finances, the Ministry of Finance and the Executive Branch are obligated to allocate a sum no less than the sum allocated in the 2019 budget. Therefore, that allocation in the current budget constitutes the minimum amount that must be granted. Consequently, the Ministry of Finance may allocate a greater amount of resources than budgeted in 2019, but it may never reduce the sum allocated in the budget currently in force, in order to guarantee the non-affectation of associated benefit services.”</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:spaces"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445441" class=""><span style="text-transform:uppercase; background-color:#ffffff">Resolution of the Constitutional Chamber</span></a><span style="text-transform:uppercase; background-color:#ffffff"> </span></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>In summary, the plaintiff's allegations regarding Arts. 15, 23, 24, and 25 of Title IV on Fiscal Responsibility of the LFFP, No. 9635, concern the claim that the order of state priorities set forth in the law “will allow any public-law institution to invoke a lack of budget in order not to finance the human rights that the State is obligated to protect.”</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In the judgment of this Chamber, the standing (legitimación) invoked by the plaintiff — as a representative of the Union of the National Association of Public and Private Employees — is the representation of the conglomerate of public officials affiliated with said union. However, its standing cannot encompass the intended protection of all fundamental rights of the inhabitants of our country for an alleged injury to the principle of progressivity regarding budget allocation. The union standing invoked cannot become an actio popularis through which any other norm that may indirectly affect the national community is questioned, for example, the right to education, as invoked by the plaintiff in the filing brief for this action of unconstitutionality. In fact, if the ruling No. 2019-010635 that allowed this process to proceed is examined in detail, the Chamber expressly warned of the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“In the case under study, the plaintiff states that the standing (legitimación) of the party he represents to file this action derives from the defense of diffuse interests, as he defends the interests of public officials and their families, which constitute a more or less determined group. He also claims to defend a larger collectivity, formed by taxpayers, those subject to the municipal regime, local governments, and public officials who work in diverse public institutions that hold a certain level of autonomy. The Chamber does not share the plaintiff's criterion regarding his standing for defense of diffuse interests. The plaintiff is a legally constituted association, whose objectives include, among others, 'b. Safeguarding the rights and interests of all members; 'c. Studying, advocating for, and defending better working conditions for workers affiliated with the union' (articles 2 and 3). It is clear that we are in the presence of corporate interests, also derived from collective interests, which are those the plaintiff Association intends to defend. There is a clear relationship between the challenge to the norms and the interests of its members, which confers standing to file the action. However, that relationship is not sufficient to protect the rights of its members' families or an even larger collectivity, formed by taxpayers, those subject to the municipal regime, local governments, and public officials who work in diverse public institutions that hold a certain level of autonomy. Accepting that the Association has standing to defend the interests of that broader, more general, and diverse group would mean accepting the existence of a kind of actio popularis, which is reserved to law in our legal system, and therefore must be expressly provided for by law, which is not the case.”</span><span> (The highlighting is not from the original).</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Thus, these grievances must be dismissed on the grounds that the plaintiff lacks standing (legitimación).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents and admits standing.</span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445442" class=""><span>XIX.- FISCAL RESPONSIBILITY. USE OF FREE SURPLUSES</span></a><br data-mce-bogus="1"></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445443" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged Norm</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The plaintiff challenges Article 17 of Title IV on Fiscal Responsibility of the LFFP, No. 9635, which reads as follows:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“Art. 17- Use of free surpluses (superávit libres) generated by the application of the fiscal rule. In the event that public entities that have liabilities generate a free surplus (superávit libre) at the end of the budget year, this shall be used to amortize their own debt. In the case of free surplus (superávit libre) generated by entities that receive transfers from the national budget as a consequence of the application of the fiscal rule, such surplus must be returned to the national budget in the year following that in which said surplus was generated, to be used for debt amortization or public investment.” </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445444" class=""><span style="text-transform:uppercase; background-color:#ffffff">Grievance of the Plaintiff</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>According to the plaintiff, this norm violates the independence of autonomous institutions in fulfilling their purposes; it is not valid that they be ordered to cover the Central Government's debt with resources that are their own and that are earmarked to fulfill specific purposes.</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445445" class=""><span style="text-transform:uppercase; background-color:#ffffff">Report of the Attorney General's Office</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding Article 17 of the LFFP, they do not consider that the norm can be deemed unconstitutional for the alleged defects, especially when they reiterate, as in other reports (19-0011540-0007-CO), its conforming interpretation, in the sense that it can only be applied to free surpluses (superávits libres), and not to resources with earmarked revenues (destinos específicos) determined by the Constitution, which could only give rise to specific, non-free surplus, or tied, in the language of the Constitution, unavailable to the ordinary or budget legislator.</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445446" class=""><span style="text-transform:uppercase; background-color:#ffffff">Resolution of the Constitutional Chamber</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>Due to a material error, this provision was included in the expansion of the admissibility of the action of unconstitutionality.</span></p> However, given that the grievance revolves around the alleged injury to the autonomy of autonomous institutions, it must be dismissed by virtue of the fact that, as has been reiterated, the claimant lacks standing to assume the representation of municipalities or any other autonomous institution (see ruling of this Chamber no. 2019-010635). In said resolution, it was noted that the claimant acts in his capacity as representative of a workers' organization, for which reason he is not legitimized to act in defense of municipal autonomy or that of any other autonomous entity. By virtue of the foregoing, this aspect of the action must be dismissed, given that the claimant lacks standing.

Judge Cruz Castro dissents and admits standing.

ANALYSIS OF THE RULES RELATING TO PUBLIC EMPLOYMENT THAT ARE HEARD ON THE MERITS XX.- ON EXCLUSIVE DEDICATION CONTRACTS Challenged Norms Article 28, paragraphs 2 and 4 of the LSAP are challenged, as well as Article 6 of regulation no. 41564-MIDEPLAN-H. The aforementioned norms read as follows:

"Art. 28- Exclusive dedication contract. The additional payment for exclusive dedication shall be granted, exclusively, by means of a contract between the granting Administration and the official who accepts the conditions to receive the economic compensation, in accordance with this law.

The term of this contract may not be less than one year, nor more than five.

Once the contract is signed, the payment for exclusive dedication shall not constitute a permanent benefit nor an acquired right; therefore, upon the expiration of its validity, the Administration shall have no obligation to renew it.

Not signing an exclusive dedication contract does not exempt the official from the duty to refrain from participating in activities that compromise their impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest. (As added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)". (The highlighted portions are those specifically challenged by the claimants).

And the regulation reads as follows:

"Art. 6.- Terms of the exclusive dedication contract. The maximum term of the exclusive dedication contract may not be less than one year, nor more than five.

Once the respective term has ended, the contract may be renewed when the Administration, after reviewing and analyzing the existing conditions, certifies by means of a reasoned and duly justified administrative resolution, the institutional need to proceed with the extension, as indicated in Article 29 of Law No. 2166, added by Article 3 of Law No. 9635. Extensions may not be less than one year nor more than five.

In those cases where it is legally appropriate to hire personnel for fixed terms, substitutions, replacements, or any other figure that is not for an indefinite term, the exclusive dedication contracts shall be signed for the same term as the appointment".

Grievances of the Claimant Party The claimant party indicates that the questioned norms injure the principles of autonomy, legal certainty, reasonableness and proportionality, progressivity of rights, and autonomy of will, as well as the content of Article 28 of the Constitution. The challenged norm is unconstitutional to the extent that it imposes on public institutions in general, and mainly on autonomous and decentralized ones, an obligation to sign exclusive dedication contracts for a time determined in this law, violating the autonomy of the institutions to decide under what terms, according to their interests and particular conditions, for how long (duration of the contract) they may sign this type of contract with their collaborators. Establishing in this article the obligation to sign exclusive dedication contracts within the indicated temporal range (from one to five years maximum) also makes it impossible for provisions on the matter, more beneficial for the worker or more in line with institutional needs, to be established through specific norms such as collective bargaining agreements or internal labor regulations, which injures the principles of progressivity of labor rights and the protective principle of labor law.

Paragraph 4 of the norm has defects of unconstitutionality to the extent that it violates the principle of legal certainty, by establishing in an ambiguous manner the express prohibition for officials who, without having an exclusive dedication contract nor receiving economic compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over the public interest. It considers this prohibition to be completely confusing, ambiguous, and, therefore, violates the principles of rationality insofar as there is no certainty as to what should be understood by public interest, its scope, and effects.

Report of the PGR The PGR prepared a report, in general terms, in which it referred to the exclusive dedication regime and, additionally, the characteristics of public servants, together with the Administration's powers to establish rules to avoid conflicts of interest. In general, the PGR states that the exclusive dedication regime is of legal and not constitutional creation, and therefore, the defects are untenable. To the extent relevant, the following was reported:

"Through the exclusive dedication regime, the Administration seeks, for reasons of public interest, to have personnel dedicated exclusively and permanently to the state function, making it a suitable and more efficient workforce, by contracting the exclusive services of a professional-level official, in exchange for a salary bonus. In this regime, the servant assesses whether or not it suits them to avail themselves of it, being able to agree with the Administration, if it is also in its interest, on the payment of the salary bonus or to continue practicing their profession freely." (Resolution No. 2011-000174 of 09:35 hrs. on February 23, 2011, Second Chamber).

Then, conceptually and legally, the so-called "exclusive dedication" is conventional in our system; that is, a product of the formal agreement between the employing entity (Public Administration) and the professional public servant, in the sense that the latter shall dedicate themselves exclusively to the exercise of the functions of the public position they hold, renouncing the private practice of their profession, and for which the former shall economically compensate them, by way of a bonus –not as a permanent salary component– a specific additional percentage calculated on the base salary of that specific position.

And it should be noted that at the judicial level, it has been recognized that the signing or not of that exclusive dedication contract by the Public Administrations involves an undeniable discretionary power; that is, a freedom in the sense that the basis or not of its granting is openly discretionary (See rulings Nos. 019-2015-VI of 08:30 hrs. on February 6, 2015 and 2432-2009 of 09:45 hrs. on November 3, 2009, both from the Contentious-Administrative Tribunal, Sixth Section).

Now, that inter partes agreement is materialized in a contract that, according to the rules established –before the legal reform introduced by the Law for the Strengthening of Public Finances, said regime was regulated by sub-legal provisions issued by the General Directorate of Civil Service, in the case of servants attached to the merit regime of the Central State Administration (ministries and attached bodies)–, had to be "approved" by the Human Resources Departments of each institution (Art. 145 LGAP) and once approved, it would take effect during the agreed term; which, once expired or elapsed, renders said agreement ineffective, without it being possible to affirm that there is a right in favor of the servant, with a correlative obligation of the Administration, to sign a new contract or to extend the previous one, because, as stated, the signing or not of that agreement involves discretionary powers of the Administration.

There is therefore no obligation to grant that type of salary bonus (Resolution No. 2016-001113 of 10:25 hrs. on October 19, 2016, Second Chamber) or to maintain it when the original term has expired. Thus, there is no subjective right to the extension of that contract nor to the perpetual maintenance of the salary conditions derived from that bonus. And therefore, it cannot be affirmed either that there is a consolidated situation for the extension of that contractual link, as is unfoundedly claimed, and even less that this can be understood as derived from Constitutional Law.

In the context explained, many of the accused defects would lack constitutional relevance, since in reality the exclusive dedication regime is a matter of legal regulation.

Undisputedly, the regulation of the "exclusive dedication" regime established by the Law for the Strengthening of Public Finances, and specifically its Title III, referring to the Modification of Law No. 2166, Law of Salaries of the Public Administration, of October 9, 1957, and its amendments, and other applicable Transitory provisions, forms part of the compensation regime characteristic of the so-called civil service "Statute", over which there is an express constitutional authorization for the legislator, in the exercise of its inexhaustible power, to configure and regulate the employment conditions that must prevail in the entire Public Sector (Articles 105, 121.1, and 192 of the Political Constitution); especially with regard to its professional stratum.

With said legal regulation, the aim is not to establish, by way of artificial homogeneity, a unitary statute in formal terms; that is, a single normative instrument–, but rather to establish a series of postulates and norms on compensation matters that, in general terms and with a clear intention of generality, tend towards the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, regardless of the degree of autonomy of each institution, or the type of services provided to the State.

And in accordance with hermeneutical rules duly and reasonably applied, the Attorney General's Office recently, in the exercise of its binding advisory function, determined that given its general scope of application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option to regulate the compensation conditions of employment throughout the public sector (Article 192 of the Constitution), the provisions on public employment contemplated in the Law of Salaries of the Public Administration related, among other topics, to the way in which salaries and their components must be calculated in the Public Sector, and why not regarding exclusive dedication, prevail over any other provision of legal or lower rank pre-existing at the sectoral level; this by way of tacit repeal –total or partial– by normative incompatibility of their contents (Opinion C-281-2019, of October 1, 2019); recognizing even its supervening prevalence with respect to pre-existing collective bargaining agreements, especially when that law is expressly aimed at repealing (with future effect, consequently respecting acquired rights and consolidated legal situations) the conventional norms that have a specific content incompatible with it (Opinion C-060-2019, of March 5 just past).

And starting from the concept of «Statute of public officials» and its scope, it is worth remembering that what has traditionally characterized the legal regime of the public function in general is that employment conditions are not established in a contract or by collective agreement, but are meticulously determined by objective norms, laws, or regulations, which, depending on their nature and hierarchy, can be modified unilaterally by the competent body. Hence, it is rightly affirmed that the official does not have a contractual relationship with the Administration, but a statutory one. An idea omnipresent even in our original constitutional framework of the public function, according to which: "A civil service statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the administration" (Article 191). Therefore, the sub-principles derived from the protective principle of labor law invoked by the claimant are not applicable in the dimension that is erroneously argued.

And what the claimant incorrectly qualifies as discrimination for an alleged imposition of exclusive dedication without compensation is, in reality, a misunderstood functional incompatibility regime, which, as part of the essential ethical content of the public employment relationship, seeks to enhance the principles of impartiality and independence that must govern the exercise of the public function.

From the foregoing, it can be deduced that the principle of impartiality, together with that of independence in public management, constitutes the pillar on which all legislation on incompatibilities is based.

Indeed, to obviate or rather avoid conflicts of interest and safeguard the public interest, the legislator has elaborated a set of ethical rules that must be observed by all public officials in the exercise of public function.

Thus, within the diffuse regime of incompatibilities of the Costa Rican public function, we find the duty of impartiality, which has a direct connection—according to the doctrine—with the institutional purpose of Public Administrations to serve the general interests with objectivity; which implies, first of all, political neutrality or independence, also called indifferent efficacy of administrative action, according to which every public servant is obliged to exercise their functions observing the strictest ideological neutrality, without favoritism towards persons or groups; that is, without favoritism or discrimination (Among many others, I refer to resolutions Nos. 932-95 of 15:33 hours on July 18, 1995, 2883-96 of 17:00 hours on June 13, 1996, and 11524-2000 of December 21, 2000, 1749-2001 of 14:33 hours on March 7, 2001, from the Sala Constitucional).

But that impartiality is not exhausted in the aforementioned duty of political neutrality; rather, it also manifests itself in the official's relations with society in the performance of their duties. This means that, as a derivation of the principle of legal equality and non-discrimination of administered persons (Articles 4, 8, and 10 of the Ley General de la Administración Pública and Article 33 of the Constitution), every public servant must refrain from any action that involves illegally or illegitimately favoring themselves or third parties, social organizations, or private groups.

It is for this reason that, as the Sala itself states, based on a moral and ethical demand from society regarding the concrete provision of the public service and under the aegis of the constitutional principles of legality, responsibility, transparency, equal treatment for all administered persons, and the requirement of suitability and efficiency in public employment (In this regard, see resolution No. 2883-96 of 17:00 hrs. on June 13, 1996), the official is not permitted to place themselves in situations or circumstances that could compromise their official impartiality or independence, or because they could impede or undermine the strict fulfillment of their duties and even harm the general interests—cases of conflict or opposition of direct and immediate interests. All in order to ensure that the Administration makes its decisions solely in accordance with the legal system and with the purpose of the general interest that motivates it; that is: "(...) the achievement of objective, impartial, independent, and crystalline justice, typical of democratic and rule-of-law regimes" (Resolution No. 7531-97 of 15:45 hours on November 12, 1997, Sala Constitucional)". (The highlighting does not correspond to the original).

### Report of the Ministerio de Hacienda The Minister requests that these aspects of the acción de inconstitucionalidad be declared without merit, since, in her opinion, the issue of public sector salaries and employment is dynamic, and the adjustments made do not harm the principles of progressivity and non-regression:

"In this regard, the petitioner's claims are unfounded, because as has been demonstrated since its very granting, exclusive dedication (dedicación exclusiva) is not a right of the servant, but rather it is conferred when, for certain functions, the Administration assesses that it requires the official not to work privately. Precisely, in relation to the final paragraph of Article 4 of the Reglamento del Título III and its reforms, the Procuraduría General de la República recently stated: '...The same does not occur with what is established in the last paragraph of Article 4 of the Reglamento al Título III of the Ley de Fortalecimiento de las Finanzas Públicas, according to which it is necessary to "accredit an institutional need to sign the contract of exclusive dedication (dedicación exclusiva)," as well as "verify the full compliance of the applicable legal and academic requirements," because those requirements are deduced, in themselves, from the figure of exclusive dedication (dedicación exclusiva), and are reasonable and consistent with the purposes of the law...' (See Dictamen C-166-2019 of June 13, 2019). It is striking that a constitutional violation is invoked because one of the challenged rules provides that Exclusive Dedication (Dedicación Exclusiva) contracts be subject to a term and that the possibility of automatic or tacit renewals be excluded, as the petitioner states. On this matter, like any contract, for reasons of legal certainty and security, the Exclusive Dedication (Dedicación Exclusiva) contract must have its validity clearly established, as well as the procedures or formalities required to extend it; hence, the promulgation of a regulation that contemplates these aspects, far from violating the principles of legal certainty, reasonableness, and proportionality, on the contrary fulfills them, and does not imply any regression that would support the claim that there is a retreat in the recognition of an already established labor right. V- In this same vein, the petitioner points out that the Principle of Progressivity implies that gradual progress only occurs when there is an increase, an assertion that is not entirely true, because for example, when a labor right is regulated in a diffuse manner and rules are issued which, although they do not imply an increase either economically or in the scope of the right, but which do manage to standardize and concentrate the regulatory framework, this contributes to that progress." Subsequently, a violation of the principle of legal certainty is rejected, because the rules establish the guidelines under which the renewal of exclusive dedication (dedicación exclusiva) contracts would operate, as well as the recognition of said contracts in their various variants.

She denies a violation of the principle of equality, because, as the PGR explained, the general parameters contained in Title III of Law No. 9635 and its reform apply to all employment relationships in the public sector, since the legislator is empowered to regulate generally the conditions of employment throughout the public sector.

### Resolution of the Sala Constitucional Firstly, it is necessary to note that the issue of the autonomy of the institutions cannot be alleged in this constitutional review process. In the resolution partially rejecting the acción de inconstitucionalidad No. 19-004931-0007-CO, the Sala resolved that "a person who does not have the judicial and extrajudicial representation of an institution lacks standing to defend that institution's autonomy. In this case, it must be made clear that the defense of any fundamental right of the petitioner is not being sought, but rather, it is repeated, solely the defense of the institutional autonomy of an entity for which some of its associates work" (sentence No. 2019-010635). Therefore, it is necessary to reiterate that in the sub lite the petitioner acts in their capacity as a union representative, and therefore they are not legitimized to act in defense of the autonomy of municipal entities, or any other autonomous entity. Consequently, the grievances related to the supposed illegitimate imposition on autonomous entities to sign contracts for the term defined in the law, as well as the duration of the contract, are dismissed—aspects that, in the petitioner's opinion, could be regulated in other types of provisions more consistent with institutional needs (Article 28, paragraph 2 of the LSAP and Article 6 of the regulation).

Regarding the perspective of the public servant, the petitioner alleges that the principles of progressivity of labor rights and the protective principle are violated. However, in the judgment of this Sala, that mere statement, without an adequate analysis of the rules and the impact they may have on the workers' labor rights, prevents an appropriate constitutional analysis from being carried out. Such statements must be dismissed due to improper and insufficient substantiation by the petitioner.

In a second line of thought—regarding the perspective of the public servant—the petitioner does not explain to what extent the rule harms the principle of legal certainty. They only point out a supposed confusion or ambiguity in the sense that the servant, despite not receiving economic consideration, must refrain from participating in activities that compromise their impartiality or favor private interest over the public interest (Article 28, paragraph 4 of the LSAP). In this regard, it is appropriate to clarify the concept and scope of the figure of the exclusive dedication (dedicación exclusiva) contract. This Sala, in reiterated jurisprudence, has examined that matters relating to the figure of exclusive dedication (dedicación exclusiva) are mostly matters of ordinary legality because its origin has a contractual vocation between the parties. Since 1995, this Sala has referred to this contractual figure in the following terms:

"IV.- THE EXCLUSIVE DEDICATION REGIME: Before rendering the judgment of constitutionality on the rule challenged here, it is necessary to describe generally the exclusive dedication (dedicación exclusiva) regime and point out the modifications it has undergone. In that sense, it is understood that exclusive dedication (dedicación exclusiva) is defined as the regime of reciprocal benefits agreed between the State and its professional-level servants, the purpose of which is to allow the servant to opt not to practice their profession outside the position they hold, in exchange for additional financial compensation on top of their salary. In turn, the Administration obtains the servant's complete dedication to the public function. (...)

From a simple reading of the challenged rule, it is clear that its purpose is to define what should be understood by exclusive dedication (dedicación exclusiva), that is, the obligation acquired by the professional who commits, through a contract, to work exclusively for a public institution. The rule establishes a general scope of application: any professional who agrees to dedicate themselves exclusively to working for the State. This general vocation of the rule is not harmful to the principle of equality as it has been presented, because the professions held by a given official do not constitute a relevant element to be considered for the purposes of being granted different treatment. This is because the rule regulates a general situation, namely, the possibility for an official to voluntarily bind themselves to work exclusively for the State. Regarding the right to equal pay, the Sala considers that it is not applicable to the case, since the challenged rule does not generate a difference in treatment regarding salary matters and, on the contrary, independently of the official's personal conditions, it establishes a specific general percentage as payment for exclusive dedication (dedicación exclusiva). It remains to analyze now in this section whether the application of the rule generates the alleged discriminatory treatment. The Sala considers that the challenged provision, by defining a general scope of application—any professional who signs an exclusive dedication (dedicación exclusiva) contract with the State—and by making it possible for the official to voluntarily place themselves within the factual presupposition of that provision, excludes the possibility of an arbitrary exclusion or an improper inclusion. At this point, it is worth pointing out that it is the official, in association with the Administration, who decides to bind themselves not to practice the professions they hold outside the institution for which they work. Consequently, it is not the rule that strictly establishes that prohibition. Regarding the reservation of law in matters of imposing obligations and limiting the right to work, it is pertinent to note that legal rules, regardless of the hierarchy to which they correspond, are capable of imposing obligations on individuals. Therefore, the argument put forward by the petitioner in that regard would lack all support. What does require a reservation of law is the limitation of fundamental rights, so it is appropriate to correct the petitioner's perspective and analyze the point as a supposed problem of limiting the right to work through a rule of a hierarchy lower than law. In that sense, it is pertinent to specify what was pointed out by the Procuraduría General de la República regarding the contractual nature of the obligation not to practice the professions held when an exclusive dedication (dedicación exclusiva) contract has been signed with the State. From the contract, which is understood as a voluntary agreement between parties, arises the limitation on the exercise of professions outside the institution for which one works. From this, it is inferred that it is not the rule that generates the described obligation, but rather that it results from the signing of the contract between the official and the institution. Consequently, it is not appropriate to allege the unconstitutionality of the challenged rule on the grounds stated. (...)

From that perspective, it is understood that through the exclusive dedication (dedicación exclusiva) regime, the Administration seeks, for reasons of public interest, to have personnel exclusively and permanently dedicated to the state function, making it a suitable and more efficient workforce, by contracting with the professional-level official for their exclusive services, in exchange for a salary bonus. Thus, the system allows the servant to calculate whether the benefit of the private practice of their profession is greater or less than the salary compensation the State provides in exchange for the exclusive provision of their services. Consequently, the servant evaluates the situation and voluntarily decides to arrange with the Administration (if the latter also agrees) the payment of the salary bonus or to continue freely practicing their profession. This system is not irrational, and it differs from the prohibition regime which, by legal impediment, limits the official from freely practicing the profession. In this latter case, the servant is not empowered to decide about the economic compensation, because it is part of the salary and inherent to the employment relationship. The reasonableness of the exclusive dedication (dedicación exclusiva) regime, in the way it is defined by the challenged rule, thus results from its contractual or conventional nature, which gives the official the possibility of requesting or renouncing it according to their convenience." In consideration of the foregoing, and since no violation of fundamental rights is observed on the part of the challenged regulation, the action is declared without merit.” (Judgment n.° 2312-1995. The underlining does not correspond to the original).

In echoing that resolution, this Chamber has stated the following:

“[I]t is a facultative agreement, whose scope and fulfillment constitute a matter of mere legality. Indeed, the payment of exclusivity (dedicación exclusiva) claimed by the protected party implies the granting of a benefit that may or may not be agreed upon by the parties, as the service relationship can subsist with or without it, being an element foreign to the essential obligations that make up the employment contract (see in this regard, judgment number 2725-97 of ten hours forty-eight minutes of the sixteenth of May of nineteen ninety-seven).” (Judgment n.° 2002-04003. The underlining does not correspond to the original).

And more recently, it resolved that:

“For its part, in this regard, the Chamber has also established that the determination of the appropriateness or not of the payment of this salary item is a matter of mere legality that must be aired in the ordinary jurisdiction:

"III.- (…) However, determining when this item is appropriate or not is a matter of mere legality that must be aired before the common courts." (Judgment No. 03502-94, of fifteen hours eighteen minutes of the twelfth of July of nineteen ninety-four).

In this regard, see also judgments No. 95-0893, of seventeen hours of the fifteenth of February; No. 95-04160, of ten hours three minutes of the twenty-eighth of July, both of nineteen ninety-five; and No. 96-01536, of ten hours fifty-one minutes of the twenty-ninth of March of nineteen ninety-six.)” It should be added that in judgment N° 2019-018480 of 09:30 hours of the 24th of September, 2019, the Chamber declared the following:

"(...)disputes regarding the payment of salary supplements (pluses salariales) do not affect the essential content of the right to a salary, from a constitutional perspective (article 57 of the Political Constitution), and are therefore conflicts that must be resolved in a legality venue. For this reason, in judgment N° 2011014174 of 09:58 hours of the 21st of October 2011, the Chamber held:

“(…) This Court has repeatedly stated that claims and grievances regarding salary supplements –such as double working hours (doble jornada laboral) and exclusivity (dedicación exclusiva)- are matters whose cognizance corresponds to the legality channel, since this does not affect the essential content of the right to a salary from a constitutional perspective.” Thus, if the appellants consider it arbitrary and improper that the respondent authority decided not to pay them the amount corresponding to exclusivity for this year, this is a matter they may raise and discuss, if they so choose, in the corresponding legality channel through the means of challenge granted to them by the legal system, given that by its contractual nature, it proves to be a problem of ordinary legality and not of constitutionality. (See in a similar sense judgments No. 2022-8002 of 09:50 hours of the fifth of April 2022 and No. 2022-4883 of 09:15 hours of the twenty-fifth of February 2022).” (Judgment n.° 2023-002002. The underlining does not correspond to the original).

Likewise, of special importance for this section and the following ones, it is pertinent to cite judgment n.° 2004-07764 in which the following considerations were made:

“III.- On the merits. According to the criterion repeatedly expressed by this Chamber (see, for all, judgments number 1995-02312 of 16:15 hours of the 9th of May 1995, 1995-04160 of 10:03 hours of the 28th of July 1995, 1996-04494 of 11:18 hours of the 30th of August 1996 and 2000-00444 of 16:51 hours of the 12th of January 2000) exclusivity constitutes a regime of reciprocal benefits for public servants and the Administration, through which the Administration decides, for reasons of public interest, to exclusively contract the services of one or several of its professionals and attempts to agree with them on the payment of an economic remuneration for the benefits they will cease to receive by being unable to practice their profession privately. Hence, it is clear that exclusivity has a consensual or conventional nature, because it arises from an agreement between parties. This implies, for the time being, that both the obligation of the servant not to practice their profession outside the institution for which they work, and that of the Administration to pay the economic remuneration, arise from the agreement between both parties. Therefore, the servant is free to choose whether or not to avail themselves of this benefit and provide their services exclusively to the Administration, just as the latter, in exercise of its discretionary authority, is free to choose whether or not to agree with the servant on the granting of that salary supplement. From the foregoing it also follows that exclusivity is a matter negotiable for both parties, since in exercise of its discretionary authority the Administration has a greater margin of decision in this case, just as the servant has the possibility of assessing whether the remuneration compensates for the benefit produced by the private practice of their profession and deciding whether or not to accept its recognition. As a consequence of the conventional or contractual nature of exclusivity, its condition as an element not inherent or consubstantial to the public employment relationship also arises, a situation that reinforces the idea that under these conditions the Administration is not legally obligated to contract or agree on exclusivity with all professional servants. It will simply be a decision it will make within the framework of the existence or not of a true public need to have all or part of the professional staff dedicated exclusively and permanently to the state function. It is understood that since it is not an essential obligation of the public employment relationship, if an agreement between the parties is not reached regarding the recognition of exclusivity, said relationship is not affected at all.

IV.- In the instant case, the plaintiff exclusively accuses an injury to the right to equality because the recognition of exclusivity has been denied to her despite being in equal conditions with other fellow servants who receive said benefit. From the reasons set forth in the preceding recital (considerando), it is clearly deduced that in the case of exclusivity, given its condition as a non-substantial element of the public employment relationship and, consequently, a matter negotiable for the contractual parties (the Administration and the servant), one cannot be facing a problem involving the right to equality, above all because the Administration in this case has the possibility, in exercise of its discretionary authority, of agreeing or not with professional servants on the recognition of that salary benefit. Hence, the Administration is not legally obligated, at all times, places, and circumstances, to agree on the payment of exclusivity with all or some professionals of a given institution, because that economic compensation does not form part of what could be called the essential core of the public employment relationship (a set of essential obligations, in principle, not negotiable). Under these conditions, one cannot allege an infringement of the right to equality, because the Administration could, in exercise of its discretionary authority, deny the recognition of exclusivity to some servants and grant it to others for reasons of public interest, institutional convenience, and opportunity. On the other hand, if what the plaintiff intends with this amparo is for the Chamber to review the conditions under which the recognition of exclusivity was denied to her, she must understand that since this is a matter of ordinary legality, this Court does not issue any pronouncement in this regard as it is not within its competence. The foregoing, of course, without prejudice to the possibilities the appellant has to resort to the corresponding administrative and judicial channels of challenge in defense of her rights and interests. In light of the reasons set forth, it is necessary to declare the appeal without merit.” (The highlighting does not correspond to the original).

In the Integrated (Legal) Report **No. AL-DEST-IJU-110-2018** of the Department of Studies, References and Technical Services, dated March 21, 2018, regarding the bill processed in file No. 20.580, concerning the LFFP bill, the following analysis was conducted in relation to exclusive dedication (dedicación exclusiva) contracts:

“For its part, exclusive dedication (dedicación exclusiva) has a contractual basis, through a contract signed between the public official and the Administration, in which the former agrees to dedicate their professional services exclusively to the institution, and the latter grants them compensation for that exclusivity.

Regarding exclusive dedication (dedicación exclusiva), the Office of the Attorney General (Procuraduría General de la República), in Opinion C-294-2014, stated:

‘For its part, the exclusive dedication (dedicación exclusiva) regime is a regime of a contractual nature, which arises from the agreement of wills between the administration and the official, for the purpose of achieving greater efficiency in public service. “Such an institution (referring to exclusive dedication (dedicación exclusiva)), is permissible in the Public Administration through a contract signed between it and the official, who by virtue of the profession they hold, their exclusivity is required in the position they occupy, and consequently it is necessary that they do not practice the profession or professions or trade, in any other public or private institution. The foregoing, in exchange for receiving a constant salary supplement. With this, it is also intended to incentivize the servant (who does not receive any emolument similar to exclusive dedication (dedicación exclusiva), such as the prohibition on practicing the profession established by Law No. 5867 cited above) so that they not only perform their functions more efficiently but also guarantee their permanence in the provision of their services. In that sense, the Constitutional Chamber has repeatedly pronounced itself. By way of example, in Resolution No. 2312-95 of 10:15 a.m. on May 9, 1995, it said: ‘...through the exclusive dedication (dedicación exclusiva) regime, the Administration intends, for reasons of public interest, to have personnel dedicated exclusively and permanently to the state function, making them a suitable and more efficient workforce, to contract with the professional-level official their exclusive services, in exchange for a salary supplement. Thus, the system allows the servant to calculate whether the benefit of the private practice of their profession is greater or lesser than the salary compensation that the State gives them in exchange for the exclusive provision of their services. Consequently, the servant evaluates the situation and decides voluntarily to arrange with the Administration (if it in turn agrees to it) the payment of the salary supplement or to continue freely practicing their profession (…)’.’ The Office of the Attorney General established in the aforementioned opinion the characteristics of the exclusive dedication (dedicación exclusiva) contract, pointing out that it is: public, synallagmatic, and commutative. On this matter, it comments as follows:

‘It is concluded then that the contract under analysis presents three fundamental characteristics: // It is public. Inasmuch as the employer subject that authorizes and signs the bond is precisely the Administration, having as counterpart an official of the same nature, the only one possible to sign a contract that grants such benefit. It becomes synallagmatic, since it imposes obligations on both parties, in this case, on the professional not to practice their career on behalf of third parties and on the Administration to remunerate them with a salary supplement. Furthermore, the obligation on the part of one correlatively becomes a right for the other. That is to say that the Employer has the right to demand that the official not serve as a professional on behalf of others, and the latter has the right to require the former to pay the agreed amount. It is commutative, because the benefit in favor of each stipulator in exchange for what they give consists of a certain advantage. For the servant, a salary-type asset increase, and for the State, the exclusivity of the official. “(Opinion C-206-2009 of July 23rd, 2009)’ Likewise, an important aspect that the Office of the Attorney General pointed out in its Opinion No. C-294-2014 -cited above- is that currently exclusive dedication (dedicación exclusiva) does not only apply to liberal professionals, but also applies to any professional. The foregoing, since Decree 23669 of October 18, 1994, Rules for the Application of Exclusive Dedication (Dedicación Exclusiva) by Public Business Institutions covered by the scope of the Budgetary Authority, does not establish that the contractual object must be solely the practice of liberal professions, but refers in generic terms to the practice of the profession.

For its part, the General Directorate of Civil Service (Dirección General de Servicio Civil), according to resolution DG-254-2009 of one o’clock in the afternoon of August twelfth, two thousand nine, regulates exclusive dedication (dedicación exclusiva) for the purposes of officials subject to the Civil Service, as follows:

**“Article 1.-** “Exclusive Dedication” is understood as the professional practice of the official solely for the public body that contracts their services, which demands that the same hold a university degree with the corresponding academic degree and that it be duly accredited”.

**“Article 2.-** Exclusive Dedication under the Civil Service Regime, due to its contractual nature, requires that it be agreed upon for a determined period and obliges the servant to practice professionally only on behalf of the public body with which they work and where it assigns them. The servant may not practice privately, in a paid or ad honorem manner, the profession they hold and which constitutes a requirement to perform the position they occupy, nor any other activity related to it, with the exceptions that will be indicated. The Exclusive Dedication regime allows an economic remuneration in favor of the servant, agreed upon and in agreement with the Administration, for which the latter must ensure that it has the budgetary availability that supports it, for the period expressly provided for within the contract or respective extension”.

***(…***) In exclusive dedication (dedicación exclusiva), there is no prohibition on liberal practice, but rather what exists is an agreement for exclusivity in the practice of the profession with respect to a body or entity.

Likewise, it is recommended to elaborate the definition of “exclusive dedication” according to its nature, object, and characteristics, for which it must be considered that it does not necessarily imply the legal prohibition of practicing the profession, but rather it is about a decision to dedicate oneself exclusively to their position, a decision that proceeds from an agreement between parties, that is, from the employer and worker and not from the law, where the worker decides to request payment of that salary compensation for the exclusivity and the employer decides, within its discretion, if the occupied position requires that exclusive dedication. This definition must include some other aspects, such as the term of the exclusive dedication (dedicación exclusiva) contract, whether its payment will proceed only for liberal professions or for all professions, as well as the form of termination since it is waivable and does not constitute an acquired right.

(…)” In the LSAP we can find the definition of what is understood by exclusive dedication, in the following terms:

“art. 27. 1. Exclusive dedication: regime of a contractual nature that arises on the initiative of the Administration when the need is identified for whoever holds a public office to perform in that position exclusively, which implies that they do not practice their liberal profession or professions related to said position in any other public or private institution, for a defined period of time. It is optional in nature and may only be granted to public sector officials who sign the respective contract. Its economic compensation is granted depending on the academic degree and the characteristics of the position”.

In turn, the regulation defines that it is a contractual salary supplement that arises on the initiative of the Administration when the need is identified for whoever holds a public office to perform in that position exclusively, which implies that they do not practice their liberal profession or professions related to said position in any other public or private institution, for a defined period of time. It is optional in nature and may only be granted to public sector officials who sign the respective contract. Its economic compensation is granted depending on the academic degree and the characteristics of the position (art. 1° subsection d)).

On the other hand, it is appropriate to refer to the general postulates that must characterize the public servant of the entire Public Administration, centralized or decentralized. In this regard, it must be kept in mind that the employment relationship of public employment is subject to certain specificities and principles, such as those of merit and capacity in access, and also to certain rules of public law, such as the incompatibilities regime, which guarantee objectivity and impartiality in the provision of public service. In that sense, it must not be forgotten that the constitutional mandate is that the public servant be appointed based on proven suitability in order to always aspire to efficiency in the Public Administration (arts. 191 and 192 of the Political Constitution). Furthermore, art. 11 of our Constitution establishes the following:

“Art. 11.- Public officials are mere depositaries of authority. They are obliged to fulfill the duties that the law imposes on them and cannot arrogate powers not granted therein. They must swear an oath to observe and comply with this Constitution and the laws. The action to demand penal responsibility for their acts is public. The Public Administration in a broad sense shall be subject to a procedure for evaluating results and accountability, with the consequent personal responsibility for officials in the fulfillment of their duties. The law shall indicate the means so that this control of results and accountability operates as a system covering all public institutions.

(Thus amended by the sole article of law No. 8003 of June 8, 2000)”. (The highlighting is not from the original).

Which is reiterated in art. 194 of the Constitution regarding the constitutional oath that public officials must take.

Additionally, the United Nations Convention against Corruption, law No. 8557 of November 29, 2006, part of the international concern about “the seriousness of the problems and threats posed by corruption to the stability and security of societies by undermining institutions and the values of democracy, ethics, and justice and by compromising sustainable development and the rule of law” and calls on States to take preventive measures in order to ensure the proper management of the public interest. Therefore, art. 5 states the following:

“Each State Party, in accordance with the fundamental principles of its legal system, shall formulate and apply or maintain in force coordinated and efficient policies against corruption that promote the participation of society and reflect the principles of the rule of law, the proper management of public affairs and public property, integrity, transparency, and the obligation to render accounts”. (The highlighting is not from the original).

Furthermore, said Convention, in art. 7 paragraph 4°, calls on each State Party, in accordance with the fundamental principles of its domestic law, to endeavor to adopt systems aimed at promoting transparency and preventing conflicts of interest, or to maintain and strengthen such systems. The Inter-American Convention against Corruption, law No. 7670 of April 17, 1997, in its article 3, for its part, establishes the following:

“Preventive Measures For the purposes set forth in Article II of this Convention, the States Parties agree to consider the applicability of measures, within their own institutional systems, designed to create, maintain and strengthen:

1.- Standards of conduct for the correct, honorable, and adequate fulfillment of public functions. These standards shall be oriented to preventing conflicts of interest and ensuring the preservation and proper use of the resources assigned to public officials in the performance of their functions”. (The highlighting is not from the original).

To which corresponds adding what is expressly established in arts. 113 and 114 of the LGAP, which expressly provide the following:

“Art. 113.- 1. The public servant shall perform their functions in a way that primarily satisfies the public interest, which shall be considered as the expression of the coinciding individual interests of the administered parties. 2. The public interest shall prevail over the interest of the Public Administration when they may be in conflict. 3.

In assessing the public interest, the values of legal certainty and justice for the community and the individual shall be taken into account, first and foremost, and mere convenience may under no circumstances be placed above them.

Art. 114.- 1. The public servant shall be a servant of the administered, in general, and in particular of each individual or administered who interacts with him by virtue of the function he performs; each administered must be considered in the individual case as a representative of the community upon which the official depends and for whose interests he must watch.

2. Without prejudice to what other laws establish for the servant, any act, deed, or omission that through his fault or negligence causes unjustified or arbitrary hindrances or obstacles to the administered shall be considered, in particular, irregular performance of his function.” (Emphasis is not from the original).

On the other hand, the Law against Corruption and Illicit Enrichment in Public Office, Law No. 8422 of October 6, 2004, establishes the duty of probity and reiterates that the public servant is obligated to orient his work toward satisfying the general interest:

“Art. 3.- Duty of Probity. The public official shall be obligated to orient his management toward the satisfaction of the public interest. This duty shall manifest itself, fundamentally, by identifying and attending to priority collective needs, in a planned, regular, efficient, continuous manner and under conditions of equality for the inhabitants of the Republic; likewise, by demonstrating rectitude and good faith in the exercise of the powers conferred upon him by law; ensuring that the decisions he adopts in fulfillment of his duties conform to impartiality and the specific objectives of the institution in which he serves and, finally, by administering public resources in accordance with the principles of legality, effectiveness, economy, and efficiency, rendering accounts satisfactorily.” (Emphasis is not from the original).

Finally, the General Law of Internal Control, Law No. 8292 of September 4, 2002, establishes “the minimum criteria that the Contraloría General de la República and the entities or bodies subject to its oversight shall observe in the establishment, operation, maintenance, improvement, and evaluation of their internal control systems.” Among these, “maintaining and demonstrating integrity and ethical values in the exercise of their duties and obligations” (art. 13 subsection a)).

Consequently, being a public servant implies a series of responsibilities and commitments to the office and the public interest. Thus, the challenged rule – art. 28 of the LSAP – is not unconstitutional, since the prohibition against participating in activities that could compromise impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest is practically intrinsic to the public office. The rule is consistent with the aforementioned postulates in the sense that although it is optional for the Administration to enter into exclusive dedication (dedicación exclusiva) contracts because it is an agreement for exclusivity in the practice of the profession with respect to a body or entity, this does not detract from the principle and duty of probity in public office, nor from the constitutional bases of the duty of objectivity and impartiality of public officials. By the very nature of public office, the servant cannot place himself in a situation where there is a conflict or collision between public interests and his private interests. In this regard, this Chamber – when examining in general the incompatibility regime of public servants – has stated the following:

“Undoubtedly, this matter contains a deep content of the democratic values that inform the Costa Rican State – Article 1 of the Political Constitution – insofar as they impose the need for impartiality in the functioning of the State, as derived from the principle of legality, objectivity, and respect for the fundamental rights of citizens (…)

[I]n accordance with Article 192 of the Political Constitution, the proven suitability required for the appointment of public officials leads to the prohibition of undue favoritism that harms or puts at risk the correct exercise of public office.” (Judgment No. 2013-011454).

Furthermore, since Judgment No. 1995-3932, it has been stated that:

“It must be pointed out that Article 11 of the Political Constitution establishes the principle of legality, and also lays the constitutional bases for the duty of objectivity and impartiality of public officials, by indicating that they are subject to the Constitution and the laws; herein lies the foundation of incompatibilities, the public official cannot be in a situation where there is a collision between public interest and private interest.” In said judgment, a presumed injury to the principle of equality was even examined, which was argued to have been damaged because, in accordance with art. 5 of the Family Code, some servants of the Patronato Nacional de la Infancia are prohibited, under penalty of losing their respective positions, from sponsoring, directly or indirectly, in the exercise of their profession, before judicial or administrative instances, in their respective jurisdictions, family matters in which there are interests of minors. On that occasion, it was questioned that such servants have said obligation, despite not necessarily having an exclusive dedication contract. In this regard, this Chamber resolved as follows:

“In the case under review, the plaintiff alleges the violation of the right to equality and the principle of human dignity, arguing that this occurs when the PANI demands the same professional and labor obligations and responsibilities, both from officials covered by the exclusive dedication (dedicación exclusiva) regime – who receive payment of that economic compensation – and from officials not covered by said regime. The Chamber considers that there is no such discrimination here, by virtue of the fact that the employment contract entails a series of duties and responsibilities, which, regardless of whether or not the official has accepted the exclusive dedication regime, the servants of said institution must fulfill, as they are duties intrinsic to the position. On the other hand, it is neither logical nor reasonable to think that human dignity is undermined when a servant is required to fulfill the duties of the position he voluntarily performs, as long as the working conditions respect the worker's dignity. Human dignity is the due respect owed to every human being, by their very condition as such; which prevents, due to diverse circumstances, an impairment in the exercise of their fundamental rights. A contrario sensu, if a fundamental right is not threatened or violated, therefore, human dignity is not undermined.” (Emphasis does not correspond to the original).

Consequently, it is in no way apparent that the challenged rule (art. 28, paragraph 4) is injurious to the principle of legal certainty. It is a provision of a general nature that gathers and summarizes the provisions concerning the public office enunciated herein. In this Tribunal's judgment, it is impossible to list in a law all the possible conducts that could justly compromise the impartiality of the public servant and generate a conflict of interest that tends to favor a private one over the public interest. But the rule does gather general principles in the sense that, regardless of the signing of a contract, all public servants are bound by the principle of legality, which imposes respecting the duties of objectivity and impartiality and, in contrast, avoiding activities or conducts that compromise impartiality, enable a conflict of interest, or favor private interest to the detriment of the public interest. Consequently, in the opinion of this Chamber, there is no injury to the principle of legal certainty. In any case, it will be in specific and punctual cases where the adequate and reasonable exercise of disciplinary action for eventually damaging these principles pertaining to the public office can be assessed in a particularized manner.

Magistrate Cruz Castro records a note regarding the exclusive dedication contract (art. 28 of the Public Administration Salary Law).

XXI.- ON THE EXTENSION OF EXCLUSIVE DEDICATION CONTRACTS Challenged Rules The plaintiff challenges art. 30 of the LSAP, added by the LFFP, which reads as follows:

“Art. 30- Extension of the contract.

Sixty calendar days before its expiration, the official must request the extension from the immediate superior so that the Administration reviews the request, in order to determine the institutional need for the extension, by means of a duly reasoned resolution established in Article 29 above, an extension that may not be less than one year, nor more than five.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).” As well as art. 7 of the regulation of Title III of the LFFP, Law No. 9635 regarding Public Employment, No. 41564-MIDEPLAN-H, which states:

“Art. 7.- Extension of exclusive dedication contracts. No payment whatsoever shall be appropriate for the concept of exclusive dedication (dedicación exclusiva) in those cases where the contracts entered into, whether or not prior to the entry into force of Law No. 9635, are not extended by the Administration.” Grievances of the Plaintiff The plaintiff states that the provisions under analysis injure the principles of legal certainty, reasonableness, the protective principle and non-regressivity of labor rights, as well as Article 34 of the Constitution. Both rules contain vices of unconstitutionality insofar as they represent a regression of rights and guarantees for the most vulnerable party in the labor relationship, which is the worker. The fact that through these normative provisions a situation of legal uncertainty is generated for officials whose contracts have not been extended, including those contracts that were entered into before the entry into force of Law 9635, and by prohibiting tacit extension, creates a situation of disadvantage and uncertainty, violating the protective principle. He alleges a possible injury to the principle of non-retroactivity – by virtue of what is provided in the regulation – because contracts entered into prior to the law are disregarded. He refers, finally, to an injury to the principle of autonomy so that the parties may agree on their salary conditions.

Report of the PGR As previously stated, the PGR suggests dismissing the grievances related to the issue of payment for exclusive dedication contracts because the alleged vices lack constitutional relevance, being a matter of legal regulation.

Resolution of the Constitutional Chamber In the judgment of this Chamber, the challenged rules are not unconstitutional. It has already been stipulated that the regulation of this type of contracts is a matter of law, so the aspects related to the renewal procedure or the term of the contracts are not a matter of constitutional relevance, but rather fall within the aspects of opportunity and convenience that the legislator can define. Perhaps the plaintiff could be right in that it is a burden for the worker to have to manage the renewal of his contract by himself, but this falls within the margin of discretion that the legislator has in regulating this type of contract, and it is not discerned that such a requirement or the condition that the Administration substantiate the need to extend the contract – which, moreover, must be subject to a term – is contrary to the fundamental rights of public servants. Moreover, no injury to Article 34 of the Political Constitution is discerned, since, dealing with contractual benefits, these should be linked to an effective period, and from the content of the rules it is in no way apparent that contracts that were in force would be disregarded. What the rules provide is the obligation to process the extension of the contract and that, before an eventual decision not to extend it by the will of any of the parties (employer or worker), there is no obligation to make any payment, which is reasonable considering the very characteristics of the figure – examined supra –, that is, a consideration in exchange for a contractual commitment that, dealing with public funds, must be reasonably substantiated – a contractual nature regime that arises on the Administration’s initiative when the need is identified for whoever holds a public position to perform in that post on an exclusive basis –. To that extent, it is reasonable that the contracts must be subject to a term and that, in each case, the extension and the duration period of the contract be assessed considering the qualities of the servant, the position he holds, and the institutional needs; whereas, the opposite, tacit extensions without adequate assessment, could indeed imply an improper lack of control of the public office, the principle of legality, and the adequate management of public funds. It should be remembered that this is a contractual matter where the servant and the employer decide, on one hand, to restrict their professional activities and dedicate themselves completely to public service and, on the other hand, to compensate for that restriction. If there is no contract, the servant, while it is true he must submit to general rules of probity and prevalence of the public interest over private interest, could well perform professional activities during hours that do not imply a schedule overlap. All of this must be valued and weighed by the Administration and by the public servant himself.

The rest of the plaintiff's arguments lack adequate substantiation because he does not explain in what way the rules in question cause uncertainty, or in what way they prohibit agreeing on labor relations. Such reproaches, lacking adequate substantiation, must be dismissed.

XXII.- REGARDING THE PUBLIC SERVANTS WHO MAY BE GRANTED EXCLUSIVE DEDICATION OR PROHIBITION **Challenged Provisions** The appellant claims to challenge Article 31, subsection 1) of the LSAP, as added by the LFFP, which regulates the requirements for public servants seeking to enter into exclusive dedication (dedicación exclusiva) or prohibition (prohibición) contracts. As relevant, the challenged provision regulates the following:

*“Art. 31- Requirements for officials. Officials who sign an exclusive dedication contract and those indicated in the law as possible beneficiaries of the additional payment for prohibition must meet the following requirements:* *1. Be appointed or designated by a formal act of appointment as a permanent employee, interim, substitute, or a position of trust”.* **Grievances of the Claimant** It is questioned that the provision does not include, among the positions that could be subject to the payment of the bonus for exclusive dedication and prohibition, all possible modalities of contracting within the Public Administration. The provision, insofar as it establishes a *numerus clausus* of persons who may be subject to the payment of exclusive dedication and prohibition within the Public Administration, generates clear inequality and a situation of legal uncertainty, in relation to other officials whose categories are not contemplated.

**Report of the PGR** As has been pointed out, the PGR suggests dismissing the grievances related to the issue of payment for exclusive dedication contracts because the alleged defects lack constitutional relevance, being a matter for legal regulation.

**Report of the Ministry of Finance** In relation to Article 31, the Minister says she does not understand the criticisms of the claimant, given that said article merely enumerates the requirements or conditions for opting for the salary benefit in question:

*“With respect to Article 31, in his assertions the claimant states that this provision violates rights, given that it does not include all modalities of contracting, causing, in his opinion, inequality and uncertainty for those not in those categories, a criterion with which we disagree, given that this provision contains the requirements that officials must meet to sign the Exclusive Dedication contract or to be possible beneficiaries of the prohibition. From reading the requirements set forth in Article 31, the claimant's considerations are not understood, since, for example, subsection 1) refers to those appointed as permanent employees, interim, substitutes, or positions of trust; thus, it is unknown which modality of the employment relationship would be excluded. On the other hand, in order to practice privately, one must meet the academic requirements inherent to the profession and, if a Professional Association exists, be incorporated into it; therefore, it is not considered that the enunciation of these requirements conflicts with Article 33 of the Constitution”.* **Resolution of the Constitutional Chamber** In the Chamber's view, the grievance must be rejected because, as has already been established, the requirements and conditions for signing exclusive dedication or prohibition contracts are matters of ordinary legality and not of constitutionality. To this effect, the LGAP precisely defines in its Articles 111, 112, and 113 who the public servants are who provide their services on behalf of the Public Administration, which coincides with the investiture referred to in the challenged provision: *“be appointed or designated by a formal act of appointment as a permanent employee, interim, substitute, or a position of trust”*.

The claimant questions that the challenged provision omits other types of special contracts that the Administration may enter into, such as—according to his claim—contracts for special services or occasional services. From the foregoing, it must then be inferred that these are precisely special contracts that the Public Administration can validly arrange for special tasks, and in whose contract the specific conditions of the work or task entrusted and the corresponding remuneration must be agreed upon, it being in no way illegitimate that these services—as they have a different contractual modality—are excluded from the fixed salary remuneration that the LSAP precisely establishes for public servants who provide services to the Administration or on behalf of and for it as part of its organization by virtue of a valid and effective act of investiture.

On the other hand, it is worth insisting that, when a violation of the principle of equality and alleged legal uncertainty among public servants is claimed, as occurs in this case, the claimant has the duty to provide a parameter of comparison, along with the corresponding analysis. Hence, whoever invokes that type of breach is obliged to provide elements that allow for a full comparison between the subjects treated differently, making it possible to verify whether the alleged inequality occurs or not. In the *sub examine*, the claimant of the consolidated action did not provide, nor did he develop, a parameter of comparison that would allow this Court to carry out the corresponding analysis; he only questioned a differentiated treatment with respect to other officials or other types or modalities of contracting, without referring to which other one specifically and how the articles of the challenged regulations cause a supposed harm. It is true that *supra* the Chamber explained that this matter is within the legislator's discretion but that when regulating it, they must do so in reasonable terms. However, in this section, the claimant does not enumerate or reasonably justify which other public servants are being harmed or threatened by this provision. Consequently, the allegations must be dismissed.

XXIII.- REGARDING THE OBLIGATIONS IMPOSED ON PUBLIC SERVANTS BY VIRTUE OF THE EXCLUSIVE DEDICATION AND PROHIBITION CONTRACT **Challenged Provisions** Articles 32 and 33 of the LSAP, as added by the LFFP, are challenged, which regulate the following:

*“Art. 32- Obligations of officials. The official subject to an exclusive dedication contract who holds more than one profession may not practice, privately or ad honorem, the profession or professions that are related to the position they hold and that constitute a requirement to hold the position they occupy, nor any other activity related to the contractual commitment of exclusivity in the function.* *The signing of the contract will be based on the profession required for the position. **Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become entitled to the compensation for this concept.*** *(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)* **Art. 33- Extension of the limitation.** *If the official holds more than one profession and has signed an exclusive dedication contract with the Administration, they may practice the profession or professions that have not been covered by the signed contract, provided that those related to the position the servant holds do not contravene the institution's schedule, nor the interests of the State. **For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice in a private manner, whether remunerated or ad honorem, the profession or professions they hold.*** *(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018)”*.

**Grievances of the Claimant** The claimant alleges a presumed harm to the principles of legal certainty, equality, reasonableness, proportionality, the prohibition of arbitrariness, and Article 33 of the Constitution. Establishing limitations such as those indicated in Articles 32 and 33 creates a clear situation of inequality between officials who have an exclusive dedication or prohibition contract and, therefore, are paid the corresponding item, compared to officials who do not have this salary incentive and, even so, the State prohibits them from practicing their profession, according to the cited provisions, which is patently unconstitutional.

**Report of the PGR** The PGR warned that the principle of impartiality, together with that of independence in public management, constitutes the pillar upon which all legislation on incompatibilities rests. Indeed, to obviate or avoid conflicts of interest and safeguard the public interest, the legislator has developed a set of ethical rules that must be observed by all officials in the exercise of public function. Furthermore, it insists that the public function is governed by a set of values, principles, and norms of high ethical and moral content, for the purpose of guaranteeing impartiality and objectivity (see, among others, rulings number 1749-2001 and 5549-99 of the Constitutional Court, which, although referring to incompatibilities, have a general scope), independence, and even avoiding nepotism in the exercise of public function, as a typical manifestation of conflict of interest. And from this perspective, the aim is to *“provide public servants with independence, in order to place them in a position of impartiality to avoid conflict of interest and unfair competition”* (judgment No. 1995-3932). In this matter, evidently, the public interest prevails over the private interest, so the claimant's grievances are untenable.

**Report of the Ministry of Finance** Regarding Articles 32 and 33, the grievances are rejected by appealing to the very definition of the bonuses in question:

*“The limitations contained in the provisions cited above have their reason for being in preventing officials from compromising their impartiality and even practicing their other professions during the time they are in the work day. Recall, in this regard, the concept of overlapping schedules, which has been maintained over time and to which it is considered the previously cited provisions conform”.* In relation to an alleged harm to the principle of legal certainty by subjecting public servants to principles of impartiality, it rejects the claim. On that specific point, the following is reported:

*“This Office does not understand the claimant's assertion that, by ambiguously establishing the express prohibition for officials who, without having an exclusive dedication contract nor receiving economic compensation for it, must refrain from participating in activities that compromise their impartiality or favor private interest over public interest, the principle of legal certainty is violated. In this regard, said provision is not ambiguous and, on the contrary, it conforms to other bodies of the legal system that refer to that impartiality, which itself is based on Article 11 of the Political Constitution”.* The Minister reiterates the will for uniformity in the system and the safeguarding of acquired rights:

*“Finally, it is necessary to indicate that, in order to safeguard acquired rights, and because Transitory Provision XXV of the Law for Strengthening Public Finances so provided, the total salary of public servants who were active as of December 4, 2018, the date on which that law came into force, cannot be reduced…” The arguments developed by the Office of the Attorney General of the Republic in its repeatedly cited Legal Opinion, unlike what was expressed by the claimant, become clearly substantiated, demonstrating that the regulations set forth in Law No. 9635 and its reform, far from entailing arbitrary, discriminatory, disproportionate, and irrational actions, are directed at establishing a uniform regulatory framework, through legal means, for all employment relationships in the public sector”.* **Resolution of the Constitutional Chamber** In the first place, the questioning is general and covers both public servants who have an exclusive dedication contract and public servants covered by the prohibition. However, the challenged provisions directly allude to the fact that public servants who are possible beneficiaries of economic compensation for prohibition may not privately practice the profession they hold. The questioned excerpts state *“Officials subject by law to the prohibition regime may not practice their profession or professions, **regardless of whether or not they meet the requirements to become entitled to the compensation for this concept**”* (Art. 32 para. 2 *in fine*) and *“**For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice in a private manner, whether remunerated or ad honorem, the profession or professions they hold**”* (Art. 33 *in fine*). Therefore, it is appropriate to examine the criticisms only from the perspective of the “prohibition”.

To examine these claims, it is necessary, again, to refer to conceptual aspects and the reason for and constitutionality of the prohibition regime.

In accordance with the LSAP, the prohibition is defined in the following terms:

"*restriction legally imposed on those who hold certain public positions, with the purpose of ensuring the absolute dedication of such servants to the public duties and responsibilities entrusted to them. Any public official who receives payment for the prohibition shall be unable to practice their profession or professions in any other position, in the public or private sector, whether or not related to their position, whether remunerated by wage, salary, per diems (dietas), fees (honorarios), or any other form, in money or in kind, or even ad honorem.*" "*Officials under the prohibition regime shall obtain economic compensation for the limitation on the liberal practice of their profession or professions in the terms set forth in this law*". (The highlighting does not correspond to the original).

A definition that is replicated in the regulation, when it provides the following:

"***Prohibition**: restriction legally imposed on those who hold certain public positions, with the purpose of ensuring the absolute dedication of such servants to the public duties and responsibilities entrusted to them. Any public official who receives payment for the prohibition shall be unable to practice their profession or professions in any other position, in the public or private sector, whether or not related to their position, whether remunerated by wage, salary, per diems, fees or any other form, in money or in kind, or even ad honorem*".

This Chamber has examined the constitutionality and the origins of the prohibition figure. In judgment no. 3369-1996, the following analysis was conducted:

"*III).- Article one of Law number 5867, questioned here, establishes the payment of economic compensation for the personnel of the Tax Administration who are subject, by reason of their positions, to the prohibition contained in Article 113 -118 according to the current numbering- of the Code of Tax Norms and Procedures, and extends said compensation to a series of officials, among them, the "technicians" and "professional technicians" of the National Budget Office, the National Treasury, the Mechanized Technical Office of the Ministry of Finance, the General Directorate of Industries of the Ministry of Industry, Energy and Mines, and those of the General Forestry Directorate of the Ministry of Agriculture.- The prohibition referred to in Article 118 of the aforementioned legal body is set forth as follows: (...)*" "*The foregoing means that the officials or employees subject to that prohibition are absolutely disabled not only from holding other public positions, but also from performing, in the private sector, activities related to the positions they hold in the State, except, of course, in the exceptions that the norm itself establishes, based either on the nature of the activity -teaching- or when it involves the defense of personal interests or those of their close relatives.- Said limitation is imposed, as recognized by all those involved in this process, when the liberal practice of the profession or activity is incompatible with the public position held, that is, when it could generate serious harm to the interests of the Public Administration, so that the impediment carries with it an additional payment for the official as compensation, in order to avoid not only the flight of personnel, but also an unfair exercise of the function.- It is clear, from what has been said, that only those activities whose private practice is incompatible with the function the servant performs are subject to the prohibition under analysis and therefore, are subject to the compensation established by article one of Law number 5867, whose constitutional validity is in question.- The non-existence of said incompatibility, on the contrary, empowers the public servant to practice their profession or trade privately, subject to the responsibilities of the case if they thereby incur any labor fault*; and therefore, the Administration is also not obliged to grant any economic compensation, as sought in the case file. (...)" "*It must be noted, in the first place, that for this Chamber the payment of the aforementioned compensation does not constitute, under any circumstance, an unwarranted benefit or a privilege for a specific group of servants; rather, it is the just recognition for those who, by reason of the function they perform and for the protection of the highest public interest, have no possibility of practicing their profession or trade beyond the administrative unit in which they work, so the existence of an alleged discrimination must be dismissed from now on, based on the allegation that said payment is a form of privileged treatment for a few public servants.* ***It is a limitation on the private practice of the profession or trade, for whose establishment the State arranged to make an economic recognition on the base salary of its employees***. *It would seem that fundamentally, and in order to obtain a percentage increase in salaries, the desire is to force the State to prohibit public servants from performing any private work, despite there being no incompatibility whatsoever with the public function exercised, a situation which would indeed constitute an unwarranted and therefore illegitimate payment, given that if the servant is free to practice their profession or activity outside office hours, there is no logical, legal, much less constitutional reason to argue that the non-payment of the "professional prohibition" in such cases constitutes unreasonable discrimination. In any case, it is clear that these are not identical situations that require equal treatment in the terms intended: firstly, there are, on the one hand, public servants subject to a legal prohibition on the private practice of a specific profession or activity, and on the other, servants not subject to it; furthermore, there is certainly no identity of functions, even though it may involve the same class of position ("technicians" and "professional technicians")*". (The highlighting does not correspond to the original).

Subsequently, in judgment no. 2008-00591, the indemnifying nature of the prohibition was justified by virtue of the impossibility of engaging in the liberal practice of the profession. In this regard, the following was resolved:

"*Thus, as indicated, the petitioner's assertion that it is some kind of perquisite or privilege of the upper hierarchy of the public sector is patently incorrect. Rather,* ***the act that declares a specific public position subject to the incompatibility regime -understood as prohibition in this case- constitutes a typical act of burden and not -as is often believed- a benefit***. *Indeed, we are not in the presence of acts declaratory of rights, but rather of* ***a determination that reduces, deprives, or extinguishes the right or faculty that, otherwise, the public officials in question would have for the liberal practice of their respective professions. In this way, the compensation provided for by Article 15 of Law 8422 is, in reality, strictly of an indemnifying nature***, *precisely because that limitation imposed on the liberal practice of the profession carries the possibility of generating a harm, which is the opportunity cost that it implies for the affected servant not to be able to practice their profession privately*". (The highlighting does not correspond to the original).

More recently, the Chamber reiterated those considerations in the sense that the prohibition "*is a limitation on the private practice of the profession or trade, for whose establishment the State arranged to make an economic recognition on the base salary of its employees*" and ruled on the constitutionality of Art. 15 of the Law against Corruption and Illicit Enrichment in the Public Function, Law No. 8422, in which the following was resolved:

"*In which case, the petitioner's reproach requires clarifying, preliminarily, that the payment of the economic compensation provided for in Article 15 of Law No. 8422 does not constitute, as the petitioner seems to understand it, a mere additional or accessory payment to the salary to guarantee "economic stability" for the public official, but rather* ***constitutes economic compensation as a specific consequence of the imposition of a prohibition on the practice of a liberal profession***. *Likewise, this Tribunal has indicated that this type of prohibitions or incompatibilities, in the sense of preventing or limiting certain public officials from the private practice of their profession or from carrying out private activities related to the position they hold, aims to guarantee the duty of objectivity and impartiality in the exercise of the public function, that is, to prevent the public servant from being in a situation where there is a conflict or collision between public and private interests and, in such a case, they could act for their own benefit in the exercise of their public powers.* ***Moreover, if there is no norm establishing the respective prohibition or incompatibility, then the public official has the freedom to practice their profession or trade privately once their workday has concluded***. *To which it is added that this Chamber has resolved that it cannot be considered that there exists a sort of general obligation of the State to prohibit its public servants from practicing any particular labor or activity, with the subsequent recognition of economic compensation*". (The highlighting does not correspond to the original. Judgment no. 2018-008127).

This conception, that is, that it is an ***indemnifying economic compensation for the restriction on a personal liberty***, has also been recognized in the jurisprudence of the Second Chamber of the Supreme Court of Justice where the following has been reiterated:

"*II.- A distinction must be made between the economic compensations known as prohibition and exclusive dedication (dedicación exclusiva). The first was formulated as a way to* ***compensate the worker for the impossibility dictated by law of practicing their profession outside the position held, which is why it operates automatically and it is neither within the employee's or official's powers to request it, nor does the employer have discretion to pay it. The mere acceptance of the permanent position implies its payment***. *It began to be granted for the first time in the Public Sector through Law No. 5867 of December 15, 1975, which contemplates additional salary benefits or bonuses (sobresueldos) for Tax Administration officials, who are subject, by reason of their employments, to the prohibition contained in Article 113 of the Code of Tax Norms and Procedures*". (The highlighting does not correspond to the original. See judgments numbers 171-1989, 58-1991, 2019-000293 and 2023-000749, among many others).

Finally, it is worth noting that even the PGR in opinion no. 421 of December 7, 2005, also justified that it is a regime that imposes limitations on the exercise of a liberty.

The following considerations arise from said opinion:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">In any event, it cannot be overlooked that</span><span style="font-style:italic"> </span><span style="font-style:italic">the regime of fundamental rights is characterized by the principle of legal reserve in its regulation,</span><span style="font-style:italic"> as well as by the principle</span><span style="font-style:italic"> </span><span style="font-style:italic">"pro</span><span style="font-style:italic"> </span><span style="font-style:italic">libertatis"</span><span style="font-style:italic"> </span><span style="font-style:italic">that informs its interpretation, the latter determining that every legal</span><span style="font-style:italic"> rule must be interpreted in a way that favors liberty. Under that basic premise, </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">it must be understood that the prohibition</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> on the private practice of liberal professions</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">constitutes a regime</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> that imposes limitations on the exercise of a liberty,</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">hence</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> its interpretation</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> must necessarily be restrictive</span><span style="font-style:italic">,</span><span style="font-style:italic"> and consequently, its application cannot be intended to be extended to situations not contemplated in the rule.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:spaces"> </span><span style="font-style:italic">It is for this reason that, referring</span><span style="font-style:italic"> specifically to the prohibition</span><span style="font-style:italic"> on the private practice of the profession</span><span style="font-style:italic">, we have pointed</span><span style="font-style:italic"> out that:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">‘</span><span style="font-style:italic">we must be clear and unanimous in warning that in no way could</span><span style="font-style:italic"> one attempt to broaden by analogy</span><span style="font-style:italic"> the scope of action</span><span style="font-style:italic"> of burdensome or restrictive provisions that impose the prohibition</span><span style="font-style:italic"> under discussion, because we are undoubtedly faced with</span><span style="font-style:italic"> what the doctrine knows as "odious matter," as it restricts the natural faculties or freedom of individuals (BRENES CÓ</span><span style="font-style:italic">RDOBA, Alberto. "Tratado de las personas", Editorial Costa Rica, San José</span><span style="font-style:italic">, 1974,</span><span style="font-style:italic"> </span><span style="font-style:italic">p.</span><span style="font-style:italic"> </span><span style="font-style:italic">44); an</span><span style="font-style:italic"> area that is reserved to l</span><span style="font-style:italic">aw </span><span style="font-style:italic">–</span><span style="font-style:italic">in the formal and material sense- or a norm superior to i</span><span style="font-style:italic">t.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Admitting the contrary would lead us</span><span style="font-style:italic"> to commit a flagrant arbitrary</span><span style="font-style:italic"> action, which would violate not on</span><span style="font-style:italic">ly administrative legality but the very Law of the Constitution</span><span style="font-style:italic">. And for this reason, the Constitutional Chamber itself has determined that if the Law has not es</span><span style="font-style:italic">tablished a prohibition</span><span style="font-style:italic"> on the private exercise of the profession</span><span style="font-style:italic"> or on carrying out</span><span style="font-style:italic"> private activities related to the position held, or no incompatibility exists, the official is free to decide to exercise such profession</span><span style="font-style:italic"> or to carry out such </span><span style="font-style:italic">ac</span><span style="font-style:italic">tivities (See in this regard, resolutions</span><span style="font-style:italic"> </span><span style="font-style:italic">Nos.</span><span style="font-style:italic"> </span><span style="font-style:italic">2312-95 of 4:15 p.m. on May 9, 1995, and 3369-96 of 10:27 a.m. on July 5, 1996); that is, in the absence of a rule referring to a speci</span><span style="font-style:italic">fic profession</span><span style="font-style:italic">, or in the absence of incompatibility,</span><span style="font-style:italic"> it must be understood that the professional is free to work privately.”</span><span style="font-style:italic"> </span><span style="font-style:italic">(legal opinion</span><span style="font-style:italic"> </span><span style="font-style:italic">No.</span><span style="font-style:italic"> </span><span style="font-style:italic">OJ-200-2003 of October 21, 2003)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Therefore, it would be</span><span style="font-style:italic"> openly improper to attempt to subject to the prohibition</span><span style="font-style:italic"> regime</span><span style="font-style:italic"> the generality of the director-level</span><span style="font-style:italic"> positions that exist in the institution</span><span style="font-style:italic">, when it concerns a regime</span><span style="font-style:italic"> that limits the exercise of a fundamental liberty</span><span style="font-style:italic"> and therefore the limits</span><span style="font-style:italic"> established by the law that regulates it must be strictly observed, as</span><span style="font-style:italic"> has been explained.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Likewise, it is important to draw attention</span><span style="font-style:italic"> to the fact that the compensation</span><span style="font-style:italic"> provided for in article</span><span style="font-style:italic"> 15 of Law</span><span style="font-style:italic"> </span><span style="font-style:italic">No.</span><span style="font-style:italic"> </span><span style="font-style:italic">8422,</span><span style="font-style:italic"> </span><span style="font-style:italic; text-decoration:underline">is strictly compensatory in nature</span><span style="font-style:italic">, precisely because that limitation</span><span style="font-style:italic"> imposed on the private practice of the profession</span><span style="font-style:italic"> entails the possibility of generating harm, which is the opportunity cost of not practicing the profession</span><span style="font-style:italic"> privately”</span><span style="font-style:italic">. </span><span>(The highlighting is not from the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In light of such explanations, in the specific case, it is appropriate to declare the unconstitutionality of the challenged provisions. It must be reiterated that the legislator is</span><span> empowered to regulate the aspects related to the public</span><span> function, but always with</span><span>in the boundaries of the Law of the Constitution</span><span> (values, principles, and norms). In the specific case, it is observed that, on one hand, the figure of the prohibition</span><span> is regulated and contemplated as a restriction</span><span> on a liberty so that certain servants</span><span> </span><span>perform</span><span> their profession</span><span> with an </span><span style="font-style:italic">“</span><span style="font-style:italic">absolute dedication (dedicación absoluta)”</span><span> being intrinsic</span><span> to said restriction</span><span> the </span><span style="font-style:italic">“</span><span style="font-style:italic">economic compensation for the limitation</span><span style="font-style:italic"> on the private practice of their profession</span><span style="font-style:italic"> or professions”</span><span style="font-style:italic"> </span><span>(see the legislative definition</span><span> of the figure of the prohibition</span><span>). But, on the other hand, it is intended to include an identical</span><span> restriction</span><span>, but </span><span style="font-style:italic">“</span><span style="font-style:italic">regardless of whether or not they meet the requirements to become eligible for the compensation</span><span style="font-style:italic">”</span><span>. At the very least, the rule is unintelligible, as its wording</span><span> is unclear. But the claimant</span><span> is correct</span><span> in the sense that it imposes an identical</span><span> </span><a name="_Hlk193376085" class=""><span>restriction</span><span> of being subjected to the prohibition</span><span> regime, establishing limitations on professional practice and, on the other hand, seems to ignore the compensation</span><span> corresponding to such restrictions. </span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The terms of the questioned norms lack reasonableness and proportionality because, it is repeated, they cause a situation</span><span> of inequality between servants with identical</span><span> restrictions, but in some cases, they do</span><span> access the compensation</span><span> and in other cases, they</span><span> do not. Therefore, the appropriate course is to declare the unconstitutionality of the following paragraphs:</span><span style="font-style:italic"> “</span><span style="font-style:italic">Officials subject by law to the prohibition</span><span style="font-style:italic"> regime may not</span><span style="font-style:italic"> exercise their profession</span><span style="font-style:italic"> or professions, </span><span style="font-style:italic; text-decoration:underline">regardless of whether or not they meet the requirements</span><span style="font-style:italic; text-decoration:underline"> to become eligible for</span><span style="font-style:italic; text-decoration:underline"> the compensation</span><span style="font-style:italic; text-decoration:underline"> for this concept</span><span style="font-style:italic">”</span><span> (art. 32 para. 2 </span><span style="font-style:italic">in fine</span><span>) and </span><span style="font-style:italic">“</span><span style="font-style:italic">For officials designated</span><span style="font-style:italic"> in the law </span><span style="font-style:italic; text-decoration:underline">as possible beneficiaries of economic compensation</span><span style="font-style:italic; text-decoration:underline"> for prohibition</span><span style="font-style:italic; text-decoration:underline">, they may not</span><span style="font-style:italic; text-decoration:underline"> exercise privately, in a remunerated or ad honorem capacity, the profession</span><span style="font-style:italic; text-decoration:underline"> or professions they hold</span><span>”</span><span> (art. 33 </span><span style="font-style:italic">in fine</span><span>).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>It is appropriate to conclude this section by explaining that here</span><span> there is no contradiction</span><span> between these considerations and those made </span><span style="font-style:italic">supra,</span><span> in relation</span><span> to the general incompatibilities regime on impartiality, avoidance</span><span> of conflicts of interest, and probity. Such qualities are intrinsic</span><span> to all public servants</span><span>. Here</span><span> what is questioned is not the respect for such principles</span><span>, which must always prevail in public service</span><span>; but the prohibition</span><span> on exercising the profession</span><span> in other areas</span><span> where there are</span><span> no conflicts of interest or schedule overlap</span><span>. If the legislator has made the determination</span><span> to indemnify the restriction</span><span> on a professional freedom, it must be done under equivalent conditions for all public servants</span><span> and not merely impose</span><span> the restriction</span><span> without the consequent remuneration</span><span>, as this implies an unreasonable regulation and one harmful to the rights of the servants who have the restriction</span><span> but not the compensation</span><span>. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Consequently, this aspect of the action</span><span> must be declared with merit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Magistrate Rueda Leal issues a dissenting vote and declares the action with merit in relation</span><span> to the paragraphs: “</span><span style="font-style:italic">Officials subject by law to the prohibition</span><span style="font-style:italic"> regime may not</span><span style="font-style:italic"> exercise their profession</span><span style="font-style:italic"> or professions, regardless of whether or not they meet the requirements to become eligible for the compensation</span><span style="font-style:italic"> for this concept</span><span>”</span><span> (art. 32 paragraph 2</span><span> </span><span style="font-style:italic">in fine</span><span>) and “</span><span style="font-style:italic">For officials designated</span><span style="font-style:italic"> in the law as possible beneficiaries of economic compensation</span><span style="font-style:italic"> for prohibition</span><span style="font-style:italic">, they may not</span><span style="font-style:italic"> exercise privately</span><span style="font-style:italic">, in a remunerated or ad honorem capacity, the profession</span><span style="font-style:italic"> or professions they hold</span><span>”</span><span> (art. 33 </span><span style="font-style:italic">in fine</span><span>), both of the Public Administration Salaries Law, added by article 3</span><span> of Title III of the law on "Strengthening of Public Finances (Fortalecimiento de las finanzas públicas)", No. 9635 of December 3, 2018. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445471" class=""><span>XXIV.- ON THE NEW PERCENTAGES FOR EXCLUSIVE DEDICATION (DEDICACIÓN EXCLUSIVA) AND PROHIBITION (PROHIBICIÓN).</span></a><span> </span></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445472" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged norms</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:8pt"><span>The questioned norms are the following: </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 35- Compensation percentages for exclusive dedication (dedicación exclusiva)</span><span style="font-weight:bold; font-style:italic">. </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The following economic compensations are established on the base salary of the position held by professional officials who sign exclusive dedication contracts with the Administration:</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1. Twenty-five percent (25%) for servants with a licentiate degree level or another higher academic degree.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">2. Ten percent (10%) for professionals with a university bachelor's degree level.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus</span><span style="font-style:italic"> added by </span><span style="font-style:italic">article 3</span><span style="font-style:italic"> of</span><span style="font-style:italic"> </span><span style="font-style:italic">Title III of the Law for the Strengthening of Public Finances, No.</span><span style="font-style:italic"> 9635 of December 3, 2018)</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 36- Prohibition (prohibición) and compensation percentages. </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Public officials on whom the restriction on the private practice of their profession, called prohibition (prohibición), has been imposed by law, and who meet the requirements established in article 31 of this law, shall receive economic</span><span style="font-style:italic"> compensation</span><span style="font-style:italic"> calculated on the base salary of the position they hold, in accordance with the following rules:</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1. Thirty percent (30%) for servants at the licentiate degree level or another higher academic degree.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">2. Fifteen percent (15%) for professionals at the university bachelor's degree level.</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(Thus </span><span style="font-style:italic">added by article 3</span><span style="font-style:italic"> of</span><span style="font-style:italic"> </span><span style="font-style:italic">Title III of the Law for the Strengthening of Public Finances, No.</span><span style="font-style:italic"> 9635 of December 3, 2018)</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><span style="text-transform:uppercase; -aw-import:ignore"> </span></h3><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445473" class=""><span style="text-transform:uppercase; background-color:#ffffff">Grievances of the claimant</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The claimant alleges that the norms violate the principles of progressivity of rights, equality, efficiency and effectiveness, reasonableness, proportionality, and constitutional articles 7, 33, 50, 56, 57. It is questioned that the new recognition percentages for salary supplements of exclusive dedication (dedicación exclusiva) and prohibition (prohibición), under less beneficial conditions, harm the principle of progressivity of rights, mentioned previously. The approved regulation worsens labor conditions within the public</span><span> sector</span><span>, justified by the poor fiscal situation of the country, which cannot be permanent. However, the approved reforms do not foresee that the workers' situation will change if the economic situation of the country is reestablished, thereby transforming it into a permanent sanction. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The new compensation rules for public officials harm the principles of progressivity of rights and of efficiency and effectiveness in the Public Administration. This will generate, in the short term, a flight of experienced professionals,</span><span> given the lack of attractive salary conditions to keep them within the system. The reduction applied to the salary supplements for exclusive dedication (dedicación exclusiva) and prohibition (prohibición) is irrational and lacks a technical study to support that impairment of labor</span><span> conditions</span><span>, without any certainty that it is the cause of the country's fiscal problem, when it has been noted that the causes of the fiscal deficit derive from more complex problems such as tax evasion and avoidance. In the near future, there will be of</span><span>ficials performing equal or similar functions, but receiving a totally different income. The set of norms challenged in this section makes it clear that the purpose of the law to “</span><span style="font-style:italic">standardize and unify</span><span>”</span><span> public employment regimes is false, and that the State is</span><span> creating gross and unjustified differences between officials of the same category, promoting the violation of the constitutional principle of equality. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The claimant details that the reduction by more than half of the salary supplements for exclusive dedication (dedicación exclusiva) and prohibition (prohibición) to practically half of the amounts that had been paid is irrational, given that there is no technical study to support that impairment of labor conditions, there cannot be full certainty that by worsening the salary conditions of public officials the country's fiscal problem is resolved. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The reduction of percentages, both in exclusive dedication (dedicación exclusiva) and prohibition (prohibición) contracts, generates a clear inequality of conditions among the officials themselves, both those who were hired by the Administration before the entry into force</span><span> of Law 9635, with respect to new hires. That is, officials who would be performing the same functions under equal conditions, are limited in the exercise of their profession, but with completely different salary conditions. This</span><span>, </span><span>in the opinion of the claimant, harms the principle of equality enshrined in article 33 of the Political Constitution by generating odious discrimination. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>It notes a situation of inequality in the law and in the repeals contained in article 57 subsections g), i), l), m), n), o), and p) and article 58 subsection a), specifically on the issue of the recognition percentages for prohibition (prohibición), wherein a serious inequality is c</span><span>reated by having repealed the norms that regulated the compensation payment for prohibition (prohibición) across the entire public sector, except article</span> 1°</span><span> subsection a) of the Law for compensation payment for prohibition (Law 5867), which is applicable only to officials of the Hacienda Regime and a few others, increasing inequalities in the public sector in a disproportionate and unjustified manner because it is the only sector that maintains the prohibition payment at 65% of salary, compared to all other public servants whose corresponding item is reduced. </span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445474\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Report of the PGR</span></a><br data-mce-bogus=\"1\"></h3><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>Regarding the new compensation amounts, the PGR reported the following: </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">In relation to that argument, as we indicated in the report rendered in the unconstitutionality action processed under case file No. 19-6416-0007-CO, belonging to the full-time exclusive dedication regime (régimen de dedicación exclusiva) does not constitute a fundamental right, as the petitioner seems to understand. Full-time exclusive dedication is based on an agreement or contract between the public employer and the public servant, such that, if the latter considers that the economic compensation to be granted for refraining from the private practice of their profession is very low, they are able not to sign the respective contract.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">In any case, the Law for the Strengthening of Public Finances respected the acquired rights and consolidated legal situations of officials who already had a signed and effective full-time exclusive dedication contract. This provision occurred in two ways: ensuring that the total salary of active public servants as of December 4 would not be decreased (Transitional Provision XXV of Law No. 9635); and establishing that those with effective full-time exclusive dedication contracts would maintain the percentages granted by the previous regulations (Transitional Provisions XXVI and XXVIII of Law No. 9635).</span><span style=\"font-style:italic; -aw-import:spaces\">&nbsp; </span><span style=\"font-style:italic\">(…)</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Subsequently, through the cited Decree No. 41564, the Executive Branch issued the “Regulation to Title III of the Law for the Strengthening of Public Finances, Law No. 9635 regarding Public Employment” (Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley N° 9635 referente al Empleo Público). Articles 4 and 5 of that regulation also preserved the acquired rights and consolidated legal situations of officials active on the date Law No. 9635 entered into force (…)</span><span style=\"font-style:italic\"> </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Based on the foregoing, this Office of the Attorney General does not consider that the changes introduced by Law No. 9635 regarding full-time exclusive dedication violate the Constitution, especially if it is taken into account that said changes did not affect officials who had entered the regime before the entry into force of that law.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:spaces\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-weight:bold; font-style:italic; text-decoration:underline\">If the petitioning Union estimates that the percentages of economic compensation for full-time exclusive dedication applicable to officials who entered public service after the effectiveness of Law No. 9635 violate the principle of reasonableness, they must have demonstrated it, for as that Chamber has indicated, it is not enough to allege the unreasonableness of a rule, but it is necessary to demonstrate it</span><span style=\"font-style:italic\">. Compliance with this requirement, according to reiterated rulings of that Chamber, is indispensable for examining the validity of the challenged provision (…)</span><span style=\"font-style:italic\"> </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">In this case, the petitioners do not provide technical evidence or solid arguments that would allow it to be accepted as true that the percentages of economic compensation for full-time exclusive dedication established in Article 35 of the Public Administration Salary Law are unreasonable. </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Furthermore, this Advisory Body does not consider that the new regulation on full-time exclusive dedication makes the salary ruinous for professionals who enter to work in the public sector after December 4, 2018, since it involves, as we have already indicated, an accessory compensation to the salary, which is based on a figure that is contractual and, therefore, renounceable by the worker. That is, if the worker considers that the economic compensation is not sufficient to replace the income they could receive from the private practice of their profession, they are able to decline to sign the full-time exclusive dedication contract and procure, in private practice, the respective economic resources.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">From that perspective, it is not possible to support the claim of the petitioning Union to the effect that the amount of economic compensation for full-time exclusive dedication constitutes a human right, nor that its reduction (for persons hired after the entry into force of Law No. 9635) affects the principle of progressivity, given that persons already assigned to the full-time exclusive dedication regime prior to the entry into force of Law No. 9635 maintain the percentages previously provided, and those who entered after that date have the right to decide whether or not to join the regime, in any case increasing their total salary. If they decide not to join, they could in any case practice their profession privately and earn the additional economic compensation for it, which would complement their total income.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">Thus, it is not true that Law No. 9635 produced excessive, disproportionate, and unreasonable reductions in professionals' salaries, because as we already indicated, said law took the precaution of not affecting the total salary of officials active as of December 4, 2019; for whom the percentages for full-time exclusive dedication were maintained provided that on that date they had effective full-time exclusive dedication contracts.</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">And in any case, we must highlight that the legal regulation of the public service regime is an express power of the legislator (Art. 191 of the Constitution), in relation to which the Legislative Assembly exercises its legislative power at its discretion, which is moreover inexhaustible (Arts. 105 and 121.1 of the Constitution).</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">The alleged unconstitutionality defects are not receivable.”</span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><span style=\"text-transform:uppercase; -aw-import:ignore\">&nbsp;</span></h3><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445475\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Report of the Ministry of Hacienda</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>The Minister, when referring to the percentages in question, states that they may be reviewed and adjusted, as occurred with the enactment of Law No. 9635, and this does not violate the constitutional framework. She affirms that the variants provided in Title III of the LFFP regarding the percentages for the Full-time Exclusive Dedication, in the view of this Ministry, do not conflict with the provisions contained in the Political Constitution. An assessment also applicable to the variants in the percentages for the economic recognition of the prohibition.</span></p><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445476\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Ruling of the Constitutional Chamber</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>What pertains to these points must be rejected. The petitioner affirms that these provisions were adopted in light of a specific fiscal situation, but result in a kind of “</span><span style=\"font-style:italic\">permanent sanction</span><span>”</span><span>. It is generically alleged that the principles of reasonableness, proportionality, progressivity, efficiency, and effectiveness in the Public Administration are violated, and it refers to supposed hypothetical harms: professionals leaving and the impact on the functioning of the Public Administration. It is invoked that the reduction is unreasonable, without there being certainty that the salary issue is the cause of the fiscal problems, and alleged differences between officials of the same category. This Chamber considers that the petitioner's allegations lack adequate substantiation and demonstration of the grievances stated. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>First, it is not observed that this is a kind of sanction, but rather a legal definition of the amounts that may henceforth be recognized for new public servants. This, in view of the serious fiscal situation of our country. An extensive recital was already provided detailing the reasoning for the legislative proposal, which not only contemplates salary aspects, but it was an urgent element to address. The Chamber previously emphasized that compliance with the principle of financial or budgetary balance is an objective and reasonable justification for regulating salary aspects and that </span><span style=\"font-style:italic\">“</span><span style=\"font-style:italic\">in the face of a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of services of constitutional relevance, the decision of the competent authorities to define and apply measures capable of alleviating or solving the problem is not only reasonable, but, even more so, is unavoidable”</span><span> (Advisory Opinion No. 2018-18505).</span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>It is true that the salary aspects of public servants should not be frozen indefinitely or result in insufficient salaries to guarantee conditions of dignity and well-being for public servants (see recital VII). However, the petitioner's allegations are based on mere premises and statements lacking adequate substantiation. In this regard, </span><span>it is necessary to reiterate and refer the petitioner to this Chamber’s ruling </span><a href=\"https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193\" style=\"text-decoration:none\"><span style=\"font-weight:bold; text-decoration:underline; color:#000000\">No. 2024-007057</span></a><span>, in the sense that these generic statements without adequate substantiation and without proof of their claims must be rejected. Given their relevance, it is fitting to reiterate:</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">“In this sense, </span><span style=\"font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff\">the Chamber considers that the petitioners' approach is abstract and general, as it is limited to mentioning that a salary detriment to workers occurs which they consider disproportionate and irrational through a rule that, subjectively, is considered not reasonable;</span><span style=\"font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff\">&nbsp;</span><span style=\"font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff\">however, the reasons are not specified, solid data or evidence or elements of judgment are not presented that allow an analysis of the reasonableness of the decision taken by the Executive Branch, as required by the case law of this Chamber</span><span style=\"font-style:italic; background-color:#ffffff\">. </span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">(…)</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-family:Arial; font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">Likewise, regarding the alleged</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">violation of the principle against arbitrariness and the principle against misuse of power, in the initial brief, no adequate substantiation is provided of the reasons, on constitutional grounds, for which the potential violation of these principles is considered, but rather they refer to criteria that must be verified through ordinary legality review.</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">With specific regard to the principle of equality and non-discrimination, simply invoking its violation is not enough. In this regard, it is timely to remind the petitioning party that it has been a jurisprudential line of this Tribunal that, when the violation of the principle of equality or proportionality is alleged, as in this case, the party</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">has a duty to provide a parameter for comparison, along with the corresponding analysis. Hence, anyone invoking this type of infringement</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">is obligated</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">to provide elements that allow a full comparison between the subjects treated differently, which permits checking whether the alleged inequality occurs or not.</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">(…)</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic; -aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">Consequently, the lack of substantiation of the action regarding these points prevents even assessing the violation of the indicated principles. As already stated, the Chamber’s case law is conclusive in pointing out this duty to substantiate the arguments of unconstitutionality (see also ruling No. 2023-31744, of 9:30 a.m. on December 6, 2023, in this regard).</span><span style=\"font-style:italic; background-color:#ffffff\">&nbsp;</span><span style=\"font-style:italic; background-color:#ffffff\">In the case under study, the petitioning party limits itself to pointing out the constitutional principles allegedly affected by the regulations it seeks to challenge, without detailing or weaving together concrete argumentation that allows assessing whether, in effect, the stated defects are present.</span></p><p style=\"margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic; background-color:#ffffff\">It is inappropriate, then, for this Chamber to rule on the merits of the rules challenged in an action, when the petitioner does not substantiate the reasons why they contest them, since this would imply carrying out abstract constitutional review as an academic exercise, which is not compatible with the purpose of a process of this nature.”</span><span style=\"background-color:#ffffff\"> (The highlighting is not in the original). </span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span style=\"-aw-import:ignore\">&nbsp;</span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>These considerations are applicable to the specific case, given that the substantiation provided by the petitioner is insufficient to conduct an examination of the reasonableness of the provisions (alleged unreasonableness of the new amounts, professionals leaving, and potential impact on the functioning of the Public Administration), as well as the alleged violation of the principle of equality. It is insisted, to these effects, that they do not present solid data or evidence or elements of judgment that allow contrasting and conducting an analysis of reasonableness of the decision taken by the Legislative Assembly, and it is not incumbent upon this Chamber to remedy the noted omissions. </span></p><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>Judge Cruz Castro issues a dissenting vote and declares Articles 35 and 36 of the Public Administration Salary Law unconstitutional. </span></p><h2 style=\"margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Hlk193103854\" class=\"\"></a><a name=\"_Toc193445477\" class=\"\"><span style=\"-aw-bookmark-end:_Hlk193103854\"></span><span>XXV.- ON THE PROHIBITION OF ADDITIONAL INCENTIVES</span></a><span> </span></h2><h3 style=\"margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt\"><a name=\"_Toc193445478\" class=\"\"><span style=\"text-transform:uppercase; background-color:#ffffff\">Challenged norms</span></a><span style=\"text-transform:uppercase; background-color:#ffffff\"> </span></h3><p style=\"margin-top:0pt; margin-bottom:8pt\"><span>The norms being challenged are Article 40 of the LSAP, regulations added by the LFFP, and also Article 16 of the Regulation to Title III of the LFFP, Law No. 9635 regarding Public Employment, No. 41564-MIDEPLAN-H, which state the following: </span></p><p style=\"margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt\"><span style=\"font-style:italic\">“</span><span style=\"font-weight:bold; font-style:italic\">Art. 40- Inadmissible additional incentives.

The creation, increase, or payment of compensation for "discretion and confidentiality" (discrecionalidad y confidencialidad) is not allowed, nor is the payment or recognition for biennial bonuses (bienios), quinquennial bonuses (quinquenios), or any other compensation for the accumulation of years of service other than annual bonuses (anualidades), in any of the institutions contemplated in article 26 of this law.

(Thus added by Article 3° of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018).

**Art. 16.- Inadmissible additional incentives.** The payment of benefits for confidentiality and discretion, biennial bonuses, quinquennial bonuses, or any other accumulation of years of service other than annual bonuses, may not be granted in any case to public servants who are appointed for the first time in one of the institutions that recognize such incentives, after the entry into force of Law No. 9635".

**Grievances of the claimant** The norm, in the judgment of the claimant, constitutes an interference by the State that is unconstitutional, as it affects the self-governance possibilities of the Municipal regime. It is a prohibitive norm that eliminates the ability of local governments to determine their own needs and possibilities in salary matters and to establish incentives for work personnel to remain in their jobs. He affirms that it violates the principle of progressivity of labor rights, as it causes regression in some institutions that already pay the quinquennial bonus incentive, whether through legal means (art. 90 subsection c) of the General Police Law, art. 27 of the Legislative Assembly Personnel Law) or regulatory means (arts. 99 and 100 of the Autonomous Regulation of the Costa Rican Tourism Institute) or through collective bargaining (Social Protection Board of San José).

**Report of the PGR** The PGR suggests dismissing the allegations raised. To this effect, it makes the following observations:

*“From the analysis of law No. 9635 and its Regulation (issued by decree No. 41564 of February 11, 2019), it does not follow that the legislator's intention, using the broad configurative powers over the Public Service Statute granted by the Constitution (arts. 105, 121.1, and 191), was to repeal the provisions, of different ranks, that governed the compensation of public servants (except in cases expressly provided for in the law itself) but rather to adapt that regulation to a general and transversal framework applicable to each of the existing salary components, in what is normatively incompatible with it.* *The foregoing is evident, for example, with the provisions of article 54 of the Public Administration Salary Law, according to which, "Any other incentive or compensation* ***existing*** *that upon entry into force of this law is expressed in percentage terms, its future calculation shall be a fixed nominal amount...". This norm does not repeal the incentives or compensations existing before the Public Finance Strengthening Law, but rather establishes the form in which they shall be calculated in the future, no longer as a percentage, but rather through a fixed nominal amount.* *The fact that article 40 of the Public Administration Salary Law, in relation to 16 of the regulation to Title III of law No. 9635, has decided to leave without effect some specific salary supplements such as those for confidentiality and discretion, biennial bonuses, quinquennial bonuses, and any other related to the accumulation of years of service other than the annual bonus, supports the assertion that the salary supplements existing before the entry into force of that law, and which are not those mentioned in the aforementioned article 40, remain in force and are applicable to the personnel of the institutions referred to in article 26 of the Public Administration Salary Law, including personnel appointed in the future, but nominalized.* *On the other hand, with regard to the legal reserve for the creation of new salary supplements, such reserve applies as of the entry into force of law No. 9635 and hereafter. This follows from the express text of article 55 of the Public Administration Salary Law, according to which, "The creation of incentives or compensations, or salary pluses* ***may only be carried out by means of law.**" * (The underlining is ours).* *Although we know that in resolution No. 2018-019511 at 9:45 p.m. on November 23, 2018, the Chamber indicated that the cited article 55, insofar as it imposes the creation of incentives and compensations only through a formal law, is not unconstitutional, as long as it is understood that it does not apply to public employees and workers who can enter into collective bargaining agreements, in accordance with the reform introduced by the Labor Procedural Reform, Law No. 9343, to article 112, subsection 5) of the General Law of Public Administration (LGAP), according to the inverse determination or* *contrario sensu* *that articles 683 and 689 make of these, since those articles rather define who participates in public management; all other public servants, except those stated therein, are then enabled to conclude collective agreements. This is in order not to empty the content of the right to enter into collective bargaining agreements and union action itself.”* **Resolution of the Constitutional Chamber** With respect to the alleged injury to municipal autonomy, the claimant must abide by what has already been resolved by this Chamber in judgment n.° 2019-010635, which partially admitted this action and dismissed the allegations raised regarding a presumed injury to the principle of autonomy:

*“II.- ON THE PARTIAL INADMISSIBILITY OF THE ACTION. Based on the foregoing, the action is not admissible in relation to the violation of the principle of autonomy and, therefore, is rejected outright regarding article 26 of Law No. 2166 and articles 5 and 11 of Law No. 9635.* ***Additionally, the presumed violation of this principle is rejected outright in relation to articles 28, paragraphs 2 and 4, 40, 46, 47, 48, 50, 52, 53, 54, and 55 of Law No. 2166, 17, 23, 24, and 25 of Law No. 9635 and 1 inc) 1°, 6, 15, 16, 17, 21, 22 of Executive Decree No. 41564-MIDEPLAN-H.** *Finally, the violation of articles 169, 170, 188, and 189 of the Political Constitution by articles 26 and 55 of Law No. 2166 and articles 5, 11, and 17 of Law No. 9635 is rejected outright”.* (The highlighting does not correspond to the original).

In which case, only the allegation regarding possible injuries to the constitutional principles of progressivity and non-regressivity subsists because a "regression" is caused in those cases where, through legal, regulatory means or collective bargaining agreements, these pluses are already recognized. Under this panorama, it is observed that in reality we are not facing a duly substantiated conflict of constitutionality, but rather a dispute of ordinary legality regarding the prevalence of general or special norms in those cases where different salary items or incentives are paid. This analysis of eventual antinomies in different specific cases must be carried out, examined, and resolved in the competent legality venues. In this regard, for example, in judgment n.° 2024-009406, the following was resolved:

*“In which case, although an alleged infringement of a constitutional norm is claimed, the truth is that the underlying conflict raised by the claimant constitutes a dispute of ordinary legality, pertaining to the correct interpretation and application of what is provided in articles 333, 339, and 340, subsection 2), of the Labor Code and its eventual confrontation with what is provided in clauses 8 subsections c) and i), 10, 13 subsection b), 15, and 17 of the Statutes of the Union of Health Workers of Public and Private Institutions (SITHOSAJUDI-SINTRASALUD). A conflict that, prima facie, should not be resolved through an unconstitutionality action. Thus, for example, in vote No. 2018-000521 at 9:15 a.m. on January 17, 2018, this Chamber resolved:* *“What the claimant raises, on the contrary, is* ***a discussion on the adequate interpretation and application of various infra-constitutional norms and on an eventual collision between said regulations. This refers to a conflict of ordinary legality that should not be resolved by this Chamber***. *This Tribunal has indicated, firstly, that “the improper application of the law or its erroneous interpretation in the specific case” is not a matter suitable to be known through the unconstitutionality action (judgment No. 5966-94 at 3:54 p.m. on October 11, 1994). To which it is added that it is also not competent to resolve eventual antinomies between norms of legal rank.”* *Meanwhile, in vote no. 2021-020701 at 10:15 a.m. on September 16, 2021, this Chamber also indicated:* *“(...)* ***the argument regarding a collision of laws or infra-constitutional regulations, as well as the erroneous interpretation and improper normative application, is a legality conflict that must be analyzed in the ordinary venue and not as a constitutionality argument in this forum***. *The action process is intended to exercise constitutionality control over norms and not to control the correct application of the law.”* *Therefore, definitively, it is not the competence of this Chamber to elucidate whether what is provided in the cited statutory clauses fully conforms or not to the provisions of the Labor Code. Such points must be resolved in the common venues”.* (The highlighting does not correspond to the original).

In which case, the discussion presented to us by the claimant regarding whether the regulations of the LSAP or special provisions such as the General Police Law, the Legislative Assembly Personnel Law, regulatory law, or collective bargaining agreements prevail, is one of legality and not of constitutionality.

The matter concerning the alleged injury to the principles of efficiency and efficacy, legal certainty, the right to collective bargaining, and the protective principle, must be rejected. In this regard, the statement was made, but it was not substantiated how such constitutional rights and principles are injured. It was already warned supra that it is not the responsibility of this Tribunal to fill in the omissions in the argumentation required from whoever affirms the unconstitutionality of a norm.

**XXVI.- ON THE STEERING ROLE OF MIDEPLAN** **Challenged Norms** The norms questioned are art. 46 of the LSAP, regulation added by the LFFP, and also art. 22 of the Regulation of Title III of the LFFP, Law No. 9635 referring to Public Employment, No. 41564-MIDEPLAN-H, which provide the following:

**Art. 46- Steering Role of Public Employment.** All public sector employment matters shall be under the steering role (rectoría) of the Minister of National Planning and Economic Policy, who must establish, direct, and coordinate general policies, coordination, advisory services, and support to all public institutions, and define the guidelines and administrative regulations aimed at the unification, simplification, and coherence of employment in the public sector, ensuring that public sector institutions respond adequately to the defined objectives, goals, and actions.

Furthermore, they must evaluate the public employment system and all its components in terms of efficiency, efficacy, economy, and quality, and propose and promote the necessary adjustments for the better performance of public officials and institutions.

(Thus added by Article 3° of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018) **Art.

22.- Application of provisions of Law No. 9635.

It shall be the responsibility of the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, MIDEPLAN) to advise and provide support to all public institutions that fall within the scope of the provisions of Title III of Law No. 9635, regarding the application of said regulatory body and what is indicated in these regulations.

Likewise, regarding the performance evaluation (evaluación del desempeño) of public servants, said Ministry, in its steering role (rectoría), shall provide the corresponding methodological instruments to coordinate its effective implementation with the different institutions.

It is worth mentioning that the recently cited rule, with that wording, was in force for only a few months, as it was subsequently amended by Article 1 of Executive Decree No. 41729 of May 20, 2019. The rule currently reads as follows:

“**Article 22.- Application of provisions of Law No. 9635 and institutional competences**. It shall be the responsibility of the Ministry of National Planning and Economic Policy, in coordination with the Directorate General of the Civil Service (Dirección General del Servicio Civil) and the Ministry of Labor and Social Security (Ministerio de Trabajo y Seguridad Social), according to their scope of competence and technical expertise, to advise and provide support to all public institutions that fall under the scope of the provisions of Title III of Law No. 9635, with respect to the application of what is indicated in these regulations.

For this purpose, each institution must submit its query accompanied by the legal opinion (criterio legal) of its Legal Advisory Unit (Unidad de Asesoría Jurídica) and the technical opinion of its Human Resources Office (Oficina de Recursos Humanos), when the latter is necessary, in order to resolve it. Queries that are not accompanied by the corresponding legal opinion will not be addressed.

The Directorate General of the Civil Service shall continue issuing technical resolutions on job evaluation (valoración de puestos), in accordance with the provisions of Articles 13 and 48 of the Civil Service Statute (Estatuto de Servicio Civil), as well as Articles 1, 4, and 11 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), being the sole body within the Executive Branch with the authority to evaluate positions within the Civil Service Regime, as well as other resolutions it is responsible for issuing according to its scope of competence.

The Ministry of Finance (Ministerio de Hacienda), in accordance with Article 28, subsection a) of the Law of the Financial Administration of the Republic and Public Budgets No. 8131, is the Governing Body of the Financial Administration System, and therefore is responsible for directing, coordinating, and supervising everything related to the required adjustments and the proper functioning of the INTEGRA 1 and INTEGRA 2 Payment Computer Systems by virtue of the entry into force of Title III of Law No. 9635.

The Ministry of Labor, in accordance with the provisions of the Organic Law of the Ministry of Labor and Security No. 1860, shall address everything related to union matters, collective bargaining agreements (convenciones colectivas), and pensions.

Likewise, regarding the performance evaluation of public servants, the Ministry of National Planning and Economic Policy, in its steering role, shall provide the corresponding methodological instruments to coordinate its effective implementation with the different institutions.” ### Grievances of the Claimant The claimant questions that MIDEPLAN is granted powers to "define the guidelines and administrative regulations aimed at the unification, simplification, and coherence of employment in the public sector, ensuring that public sector institutions adequately respond to the objectives, goals, and actions defined." This constitutes a very clear intrusion into the powers of administration, policy, and organization of decentralized entities, in direct violation of the three degrees of autonomy that the Constitution and the creation laws have granted to each of those administrations, stripping them of their power of self-administration. Each decentralized entity is a distinct legal person, with a specific legal purpose and addressing specific needs established by law. A budget is assigned to them for this purpose, which in many cases is their own because it comes from taxes created for their benefit or from a commercial activity. On the other hand, the Ministry of Planning is alien to the reality of each institution and the community or public interest it serves, despite which it is granted the power to decide on multiple aspects of the public employment regime. A violation of the principle of legal certainty (seguridad jurídica) also occurs, because the duality in regulation (decentralized regime and regulatory powers of the Executive Branch) causes a state of insecurity for the entities and their workers.

### Report of the PGR The Office of the Attorney General (Procuraduría General de la República, PGR) suggests dismissing this part of the claim, based on the following considerations:

“Quite contrary to what the claimant groundlessly accuses, the Law for Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas, LFFP), and specifically its Title III, referring to the Amendment of Law No. 2166, Public Administration Salary Law, of October 9, 1957, and its amendments, and other applicable Transitory provisions, did not seek to establish, by way of artificial homogeneity, a unitary public employment statute in formal terms; that is, a single regulatory instrument—but rather it established a series of postulates and rules on remuneration that, in general terms and with a clear claim of generality, tend toward the unification, simplification, and transversal coherence of the different pre-existing employment subsystems in the Public Sector, which includes both the Central Administration and the decentralized one, independently of the degree of autonomy of each institution, or the type of services provided to the State.

And as the contested numerals 46 of Law 9635 and 22 of its Regulations themselves state, the steering role that the Law grants to MIDEPLAN is to issue general policies and advise public institutions to achieve unification, simplification, and coherence in matters of public employment. The foregoing is based on administrative efficiency and effectiveness policies, following criteria of planning and measurement of public management results; this is in accordance with constitutional subsection 140 (8).

It was not the legislator's intention to repeal the powers granted to other public agencies in their respective creation laws; which is a legally viable option and does not affect the Law of the Constitution in the contested terms.” ### Resolution of the Constitutional Chamber Most of the grievances raised were dismissed ab initio by this Chamber, as everything related to the defense of institutional autonomy was rejected outright due to the lack of standing (legitimación) of the claimant (interlocutory judgment No. 2019-010635).

It should also be remembered that by resolution of this Constitutional Chamber No. 2024-7057 of March 14, 2024, it was resolved to dismiss the accumulated unconstitutionality actions—in which Article 22 of the regulation was included—on the understanding that the rules of the questioned decree must be applied only to the officials of the institutions that are not excluded from the application of the LFFP in salary matters in accordance with the provisions of the advisory opinion (opinión consultiva) No. 2018-1951, of 21:45 hours of November 23, 2018.

By virtue of the foregoing, only the argument remains of an alleged violation of the principle of legal certainty to the detriment of workers, since on one hand the autonomy of decentralized entities is enshrined and, on the other, it grants powers to MIDEPLAN to make decisions and, via decree, issue guidelines, inverting the hierarchy of norms in the event of compliance with said policies, or liability in the event of non-compliance. In summary, he questions MIDEPLAN's steering role due to the legal uncertainty it could entail for workers. In the opinion of this Tribunal, the claimant's argument relates to eventual normative conflicts in the application of infra-constitutional provisions that say nothing about the constitutionality itself of the questioned numerals and a clear injury to the Law of the Constitution or the fundamental rights of public servants. The eventual normative conflicts would correspond to be evaluated and resolved in the first instance by the competent legal authorities, but in the sub lite, the arguments provided are not sufficient to evaluate and determine a direct confrontation of the rules with the Political Constitution and, much less, an injury to the fundamental rights of public officials. It is merely a statement about an eventual situation of insecurity regarding what should prevail in each specific case; regarding which, legal operators must naturally make use of the tools offered by the legal system and particularly the General Law of Public Administration (Ley General de la Administración Pública) to resolve any normative conflicts. However, it is repeated, such conduct inherent to the application of any regulation does not imply its unconstitutionality. Again, the claimant omits to provide solid and sufficient arguments to recriminate the rule in question, and it is not for this Chamber to supply the argumentative deficiencies. Consequently, the reproaches made must be dismissed.

### XXVII.- ON THE MEASUREMENT OF PERFORMANCE EVALUATION ### Contested Rules Article 47 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública, LSAP) is contested, a regulation added by the LFFP, which orders the following:

“**Art. 47- Methodological basis for performance evaluation (evaluación del desempeño).** The performance evaluation of officials shall be based on quantitative indicators of compliance with individual goals for products and services provided, linked to the processes and projects carried out by the unit to which they belong, and that of the managerial body at all levels for the fulfillment of institutional goals and objectives.

It shall be the responsibility of each superior to define the processes and projects of the unit, as well as the products and services provided, in accordance with current regulations and the strategic governmental institutional plans.

The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy (Mideplán), with the objective of homogenizing and standardizing, with the respective exceptions, the evaluation methods and respective information systems.

(Thus added by Article 3 of Title III of the Law for Strengthening Public Finances, No. 9635 of December 3, 2018).” ### Grievances of the Claimant In addition to the alleged injury to the autonomy of decentralized entities, the claimant considers that there is also a violation of the principle of equality and the principle of prohibition of arbitrariness (interdicción de la arbitrariedad), insofar as the Administration can disapply its own evaluation methods whenever it wishes, without objective criteria established by law. The violation of the principle of equality derives—according to the claimant—from paragraph 1 of the rule establishing "quantitative indicators of compliance with individual goals for products and services provided." It is alleged that the services provided by the Public Administration can never be equated to the type of services provided in the private sector, such as to establish quantitative evaluation methods. He considers that MIDEPLAN is unaware of the realities of the different institutions and the diverse workers of the public sector to define standardized and quantitative guidelines for goals and results evaluation. He questions, for example, how to quantify the work of a police officer or a teacher?

### Report of the PGR Insofar as what the claimant accuses seems to refer to an aspect of simple and strict ordinary legality interest, in which no alleged infringements of constitutional norms and principles are accused, in terms of Article 73 subsections a) and b) of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional, LJC), but rather refers to a clear aspect of interpretation and regulatory application of the scope of numeral 47 of the LSAP amended by the cited Law No. 9635, what is thus contested cannot be the object of an unconstitutionality action as intended, because said process is intended to exercise a control of constitutionality of norms and not to control the correct application of the Law; this latter aspect of mere ordinary legality would correspond to the competent ordinary jurisdiction to hear and resolve, which in this case could be the Contentious-Administrative (Contencioso Administrativa) jurisdiction.

### Resolution of the Constitutional Chamber It must be insisted again that the grievances related to the injury to municipal and decentralized entity autonomy were preliminarily rejected.

Subsequently, the claimant alludes to an alleged injury to the principles of equality and prohibition of arbitrariness because "the Administration can disapply its own evaluation methods whenever it wishes." However, from a careful reading of the rule, it is not possible to appreciate on what the claimant bases these assertions. Indeed, from the argumentation made by the claimant, it is not possible to derive an injury to the Law of the Constitution, but mere assumptions about the practical difficulty regarding performance evaluation and, specifically, the measurement of objectives or results for the various ranges of Public Administration servants. In this regard, in the Chamber's opinion, the recriminations of the claimants are nothing more than mere practical or operational difficulties about what should be understood by individual goals for products or services provided; but which, in the terms stated by the claimant, do not reflect a problem of constitutional relevance, but mere assumptions of the supposed difficulty in designing individual goals for products or services provided for public servants that are necessarily linked to the processes and projects carried out by the unit to which each server belongs. In that sense, this Chamber agrees with the opinion provided by the PGR in that this process is not designed to control the correct application of infra-constitutional norms but to assess the confrontation of the provisions with the Law of the Constitution, and that from the arguments raised, such evident confrontation is not deduced or corroborated.

It must be remembered that by imposition of the Political Constitution, the Public Administration and its public servants are subject to a procedure of results evaluation and accountability (rendición de cuentas) with the consequent personal responsibility for all public servants in the fulfillment of their duties. The Constitution also states that it is up to the law to indicate the means so that the control of results and accountability operates as a system that covers all public institutions (Article 11 of the Political Constitution). Justly, this contested regulation intends to establish the general guidelines to comply with the constitutional mandate of subjecting public servants to a continuous process of results evaluation that demonstrates efficiency, without it being apparent that such general provisions injure the fundamental rights of public officials.

This pronouncement refers, of course, to the general provision that is contested here, which does not prevent that, eventually, the specific methodologies for performance evaluation that are issued may be questioned for an alleged injury to the principles of reasonableness or equality of the potentially affected workers.

XXVIII.- ON THE CRITERIA FOR PERFORMANCE EVALUATION **Challenged Norms** The claimant challenges the norm that establishes the general criteria for performance evaluation (evaluación del desempeño). The originally challenged norm read as follows:

***Art. 48- Criteria for performance evaluation***. *Each head of a Public Administration entity, at the beginning of the year, must assign and distribute all officials among the unit's processes, projects, products, and services, establishing delivery deadlines and estimated time for their completion. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; failure to do so shall be considered a serious offense in accordance with applicable regulations.* *For the regular and frequent follow-up of work plan activities, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and compliance with deadlines and times. It shall be the responsibility of each official, including all managerial levels, to update and keep current the information necessary for their performance evaluation, in accordance with the processes, projects, products, and services specifically assigned, their delivery deadlines, and estimated times for their completion, in said computer system that the Administration shall make available to them. Failure to do so shall be considered a serious offense in accordance with applicable regulations.* *The incentive for length of service (anualidad) shall be granted solely through performance evaluation for those servants who have met a minimum rating of "very good" or its numerical equivalent, according to the defined scale. Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter, and twenty percent (20%) shall be the responsibility of the head or superior.* *(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)* It is worth noting that said norm was reformed by the LMEP, so its current wording is as follows:

"*Art. 48- Criteria for performance evaluation. Each head of a Public Administration entity, at the beginning of the year, must assign and distribute all officials among the unit's processes, projects, products, and services, establishing delivery deadlines and estimated time for their completion. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; failure to do so shall be considered a serious offense in accordance with applicable regulations.* *For the regular and frequent follow-up of work plan activities, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and compliance with deadlines and times. It shall be the responsibility of each official, including all executive levels, to update and keep current the information necessary for their performance evaluation, in accordance with the processes, projects, products, and services specifically assigned, their delivery deadlines, and estimated times for their completion, in said computer system that the administration shall make available to them. Failure to do so shall be considered a serious offense in accordance with applicable regulations.* *The incentive for length of service shall be granted solely through performance evaluation for those public servants who work under the composite salary scheme (salario compuesto), who have met a minimum rating of "very good" or its numerical equivalent, according to the defined scale, in accordance with the following rules:* *a) Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter.* *b) Twenty percent (20%) shall be the responsibility of the head or superior, which shall be evaluated according to good performance in accordance with the competencies necessary for the job performance.* *(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)* *(Thus reformed by Article 49, sub-clause a) of the Public Employment Framework Law (Ley Marco de Empleo Público), No. 10159 of March 8, 2022)* **Grievances of the Claimant** The claimant states that, as with Arts. 46, 47, and 48, this numeral constitutes an intrusion by the Central Administration into the administrative competencies of decentralized entities. The norm, viewed in light of the referenced articles, contains arbitrary provisions. It creates a new obligation for public officials at any level, regarding keeping the update and maintenance up-to-date of the information for their performance evaluation in a computer system, under penalty of being charged with committing a serious offense. This is a new obligation that translates into more work and less time to attend to daily obligations, and it also does not clarify to which workers it refers.

On the other hand, it establishes that 80% of the evaluation will be a measurement of goals and 20% “*responsibility of the head*”. Thus, one-fifth of the total percentage of the worker's evaluation is granted to the subjective considerations of each head, understanding that this 20% is the difference between obtaining or not obtaining the length of service incentive for officials, granting power to heads to leave their subordinates, without any visible objective criteria, without the increases for time served for as many periods as they wish.

**PGR Report** The PGR suggests dismissing the grievances of the claimant. In this regard, it makes the following observations:

“*A feature that characterizes the particular legal regime of the public function (rights, duties, and responsibilities), unlike private relationships governed by common law, is that employment conditions are not established by contract or collective agreement, but are determined by objective norms, whether laws or regulations that can be modified unilaterally. Hence, it is rightly affirmed that the relationship is statutory, by way of a specific public employment regime or personnel regulation, founded and governed by principles of Public Law, whose configuration, extension, and content can be variable, according to the bureaucratic model legislatively chosen, according to the conception of the State in force at the time. Therefore, public function reforms are always connected to a preconceived strategy (public policy) of Administration modernization that requires introducing necessary reforms in the organization and operating regime, as well as changing the traditional habits and values of its agents.* *In any case, it must be considered that from the brief but significant references to the legal regime of the public function made by our Political Constitution (Arts. 191 and 192), a series of legal consequences derive, as consubstantial principles. Among them is that the personnel serving the Administration must be regulated by a statute for the purpose of guaranteeing efficiency, which implies: legislative authorization and a reservation of law on the matter; that their recruitment and selection shall be made under criteria of equality, merit, and proven capacity; and that their performance in the exercise of their duties is based on the guarantee of stability and impartiality with full submission to the Law and Justice. All postulates that must be taken into account by any bureaucratic model that is to be developed.* *In that context, directly associated with the length of service incentive is performance evaluation. A system in which a paradigm shift has operated, as it overcomes that subjective criterion of mere assessment of the individual performance of the servant in their work in general, and methodologically transcends to objective criteria based on quantitative indicators of fulfillment of individual goals for products and services rendered, directly linked to processes and projects carried out by the unit to which the servant belongs (Arts. 45 to 50 of the Public Administration Salary Law, introduced by Law No. 9635). And its link to the payment of the length of service incentive is evident, since its payment depends on the result of the performance evaluation.* *Given this special and novel conformation operated in performance evaluation, the accused unconstitutionality defects are unfounded, since the legislator, in exercise of its broad, inexhaustible power to configure the Statute of public officials (Arts. 102, 121.1, and 191 constitutional), sought to clearly establish postulates and norms that in general terms tend towards the unification, simplification, and coherence of the different existing subsystems of human resources management in the Public Sector.* *And even, the determination of administrative offenses accused by the claimant as unconstitutional fully complies with the nuanced postulates of the principle of specificity (principio de tipicidad) in disciplinary matters that the Chamber itself has established in its jurisprudence (Among others, resolution No. 2002-10359 of 14:48 hrs. on October 30, 2002). And in any case, it will be in the competent ordinary jurisdiction, not in this constitutional venue, where the legitimacy or not of the concrete application of the challenged norm can be analyzed”.* **Resolution of the Constitutional Chamber** In the first place, regarding the alleged injury to autonomies, it is necessary to reiterate that the claimant lacks standing to question said alleged affectation. Moreover, this topic was addressed in general terms in judgment No. 2024-007057 where the considerations of advisory opinion No. 2018-19511 were reiterated and it was emphasized that regarding the payment of length of service incentives (a salary matter) and performance evaluation, what is applicable to the Branches –Judicial and Legislative–, the Supreme Electoral Tribunal, and decentralized public entities –municipalities, state universities, and the C.C.S.S.– are their own special laws. Likewise, in said judgment, very similar grievances to those raised in this unconstitutionality action were examined, in the sense that the claimants denounce a supposed subjective measurement by the heads. On this matter, this Chamber resolved the following:

“*On the other hand, the claimants estimate that, to the extent that the granting of incentives such as length of service payments depend on subjective assessments by those who rate them, the right to salary will be violated. However, in the judgment of this Chamber,* ***the questioning of the subjectivity in the rating to which the servant could eventually be subjected, is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the eventual violation of fundamental rights****. And, in any case, the disagreements that officials may have with the result of the examination carried out, is a matter of legality that this Court is not responsible for assessing and that, therefore, must be discussed before the Administration or in the corresponding jurisdictional avenue*.

*Likewise, regarding the accused injury to the principle of prohibition of arbitrariness (principio de interdicción de la arbitrariedad) and the principle of prohibition of misuse of power (principio de interdicción de la desviación de poder), the filing brief does not provide an adequate substantiation of the reasons, on constitutional grounds, for which the eventual violation of these principles is considered, but rather refers to criteria, which must be verified in the legality venue”.* (Judgment No. 2024-007057. The highlighted text does not correspond to the original).

Such considerations must be reiterated in the *sub lite*, since the claimant precisely alludes to an alleged subjectivity of the heads regarding the performance evaluation of subordinates, which would affect obtaining the length of service incentive. In the first place, the fact that the eventual obtaining of length of service incentives is linked to the public servant's performance is consistent with the jurisprudential lines of this Chamber. Let us see, by way of example, what was resolved by this Chamber based on judgment No. 2020-001807 in which the following was considered:

“*In terms of that additional increase established for the case of non-professional workers, certainly a minimum rating is not established to be a beneficiary of the increase. Which means that, even if the rating was 0, an increase of 3% would always be obtained. Thus then, clause a) is evidently unconstitutional. The support for the increase, which is supposedly for the good result of the performance evaluation, would be a contradiction. Although the representative of the Union certifies that only 6 officials were in such a situation, this does not prevent more from resulting in the future, and the impact on public finances being greater. From all of which it is concluded that the norm is disproportionate, contrary to the constitutional principles that promote suitability and good management of public services and funds.* ***As the Attorney General's Office indicates in its report, this situation violates the principles of reasonableness and proportionality, by rewarding insufficient ratings in the public service, which violates the constitutional principles of proven suitability (numeral 192 of the Political Constitution) and continuous evaluation of results (ordinal 11 of the Political Constitution), insofar as the payment of the recognition should not be automatic***”. (The highlighted text does not correspond to the original).

In the second place, the results evaluation processes and the measurements and scores assigned –like any administrative act preceded by a substantiation procedure– must be duly motivated (Title Six, Chapter Three of the LGAP) and, moreover, in the event of disagreement with the results, the ordinary remedies that the legal system provides can be opposed. Therefore, the claimant's suppositions refer to eventual discussions on the correct or incorrect application of the norm, all of which can be controlled in ordinary legality venues.

Neither is any illegitimacy or injury to the Law of the Constitution observed by the fact that the legal norm establishes the responsibility of public servants to record and support the necessary information demonstrating the fulfillment of their performance evaluation goals, given that in the absence of such support, the disciplinary regime can be applied.

Such responsibilities of public servants—in general, demonstrating efficient results in the performance of assigned tasks—derive directly from Constitutional Law, which justly requires the entire Public Administration to **submit to a procedure of evaluation of results and accountability, with the consequent personal responsibility for all servants in fulfilling their duties**. Our Constitution precisely mandates that the law shall establish the means for this control of results and accountability to cover all public institutions. Therefore, far from creating a new unreasonable obligation, the act of submitting to the procedure of evaluation of results and rendering accounts for the fulfillment of assigned goals—supporting, recording, demonstrating compliance with assigned goals—is consistent with the constitutional obligation imposed and derived from Art. 11, but it is also a manifestation of the principle of transparency and of the proven suitability that must characterize the hiring and performance of public servants (Art. 192). Furthermore, as the PGR notes, the determination of administrative offenses accused by the petitioner as unconstitutional fully complies with the nuanced postulates of the principle of legality (principio de tipicidad) in disciplinary matters.

Finally, it is repeated, everything related to its individualized application, namely the results obtained and the eventual commencement of disciplinary proceedings, are aspects that must be assessed and examined through ordinary legality channels; however, regarding the content of the rule and the arguments raised, no violation of Constitutional Law is observed.

XXIX.- ON THE EXCLUSION OF BENEFITS FOR HIERARCHS AND OTHER SERVANTS Challenged Rule Art. 51 of the LSAP, a provision added by the LFFP, is challenged, which orders the following:

"**Art. 51- Exclusion of benefits.** The prohibitions and exclusions established in Articles 691 and 694 of Law No. 2, Labor Code (Código de Trabajo), of August 27, 1943, shall be applicable to hierarchs and officials who negotiate regulations, contracts, statutes, or acts that grant advantages of any nature.

(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), No. 9635 of December 3, 2018)." Grievances of the Petitioner The petitioner questions the rule for an alleged violation of the constitutional principles of reasonableness and proportionality and the rights to collective bargaining (negociación colectiva), union freedom, and the singular non-derogability of regulations. He states that the purpose of the rule is to discourage collective bargaining, by prohibiting the public officials who negotiate collective agreements from benefiting from them. This—in the petitioner's opinion—constitutes a violation of Art. 4 of Convention 98 of the ILO.

Report of the PGR The PGR suggests dismissing the grievance. To this end, it refers to the limitations to which servants are subject regarding the possibility of signing collective agreements in the public sector.

The PGR states the following:

"In the context explained, it is obvious that the petitioner is unaware that very far from what he groundlessly accuses, Article 51 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), amended by the Law for the Strengthening of Public Finances, No. 9635, validly establishes, as necessary content of the Functional Statute (Art. 191 Constitutional), a specific type of incompatibility through which it seeks to avoid a potential conflict of interest, by which **justifiably and reasonably, officials are excluded who, due to their superior hierarchical position, the very nature of their functions, or their participation in negotiations as employer representatives, have the capacity to configure and express the will of the Administration before the other employees, and who could be directly benefited by those negotiations; a highly inconvenient matter.** (Cf. Constitutional Chamber (Sala Constitucional), ruling No. 2531-94 of 3:42 p.m. on May 31, 1994). A functional incompatibility that must be related to Article 48 of the Law against Corruption and Illicit Enrichment in the Public Function - No. 8422 of October 6, 2004-, which not only recognizes and expressly establishes the analyzed incompatibility, but also classifies it as criminal conduct (Opinion C-159-2007 op. cit.)." (The emphasis does not correspond to the original).

Resolution of the Constitutional Chamber Regarding these grievances, this Chamber refers to its own precedents in the sense that, while it is true that a window has been accepted for certain public servants to negotiate aspects pertaining to employment contracts through collective bargaining, that right does not cover all public servants. It was already noted supra that:

"In conclusion, collective agreements are not completely prohibited in the public sector, but rather they are permitted only in the case of workers who do not perform public management (gestión pública), that is, those covered by Articles 3, 111, and 112 of the General Law of Public Administration (Ley General de la Administración Pública). The determination in each specific case of which workers are covered by said rules is a matter outside this constitutional jurisdiction and corresponds to the operators of the law." In that sense, it is also worth recalling that the right to collective bargaining is a fundamental right exercised in accordance with the law, and to that extent, the legislator has chosen to delimit which public servants are excluded from collective bargaining. It should be remembered that the Chamber has affirmed that the right to collective bargaining does exist with respect to certain categories of public servants, but it has also explained that it is not for the Chamber itself to determine to which workers these collective agreements would or would not be applicable, an issue that must be determined in the sphere of legality (see, for example, ruling No. 2013-014499).

In that legitimate exercise of delimiting the servants who can validly benefit from collective bargaining, the legislator enacted the Labor Procedural Reform (Reforma Procesal Laboral), which came to regulate the conditions of legitimacy of collective agreements in the public sector. In this way, the articles to which the challenged rule alludes state the following:

"Art. 691.- Automatically excluded from advantages of any nature that may derive from collective agreements, conciliatory accords, arbitrations, and any agreement for the solution of an economic and social conflict, whether by express or indirect inclusion or reference, are **the public servants indicated in Articles 683 and 689**.

**It is also expressly prohibited to make technical adjustments in application of any collective instrument, for the direct or indirect benefit of the indicated servants**." "Art. 694.- **No person who may actually or potentially receive any benefit from the collective agreement that is signed may be part of the delegations that intervene in representation of the employer**. Likewise, there shall be an impediment if the result could benefit their spouse, companion, or cohabitant, or their relatives, as indicated in the second paragraph of Article 48 of Law No. 8422, Law against Corruption and Illicit Enrichment in the Public Function (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), of October 6, 2004.

(Thus added by Article 2 of Law No. 9343 of January 25, 2016, "Labor Procedural Reform".)" (The emphasis does not correspond to the original).

In Arts. 683 and 689, the corresponding delimitation is made, which is also reflected in the amendment to the LGAP according to which:

"All public servants who do not participate in the administrative public management (gestión pública administrativa) have the right to negotiate collective labor agreements, in accordance with the provisions of Article 62 of the Political Constitution, both in the public enterprises and economic services of the State and in the rest of the Public Administration, according to the determination made of these by Articles 683 and 689 of Law 2, Labor Code (Código de Trabajo), of August 27, 1943." (Art. 112, subsection 5)).

It is thus observed that the legislator chose to enumerate the governing officials and other public servants who participate in "public management" (gestión pública), and who, therefore, are excluded from unionizing and from entering into collective agreements in the Public Sector (see on this matter the opinion of the PGR No. 018 of January 22, 2020).

These restrictions, contrary to what the petitioner claims, do not seek to discourage collective bargaining, but rather ensure that these negotiations are carried out by persons who—due to their hierarchical situation—do not benefit themselves and to avoid a conflict of interest. This type of rule has been examined by the Chamber, and, for example, it has been said that they do not violate the principle of equality. In ruling No. 2531-1994, the following was established:

"Thus, in accordance with the content of the principle of equality indicated by the jurisprudence of this Chamber, it is admissible to establish unequal treatment among those who are unequal, but not among those who are equal, which is why it can be concluded that **it is possible to make restrictions or exclusions among the possible beneficiaries of a collective labor agreement due to the special institutional hierarchical position of the employees, such is the case of trusted workers or employees or those who occupy high-level, management, and very high responsibility positions. This measure is justified by virtue of the conflict of interests that may arise**, since these employees, who participate in the negotiations as employer representatives, or perform a function with close ties to them - in accordance with Article 4 of the quoted Bank's Internal Labor Regulations, which establishes in relevant part: 'Persons who hold Management, Head, or Administration positions are employer representatives...' -, **may be benefited from these negotiations that depend on them directly or indirectly, which is why it is not advisable for them to be covered by collective labor agreements. As observed, this exclusion is objective and sufficiently reasonable**, and therefore does not violate the principle of equality enshrined in Article 33 of the Constitution, as alleged by the petitioner, and it is appropriate to reject the action on the merits on this point, in accordance with the second paragraph of Article 9 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional)." (The emphasis does not correspond to the original).

Additionally, in ruling No. 2000-10358, the following considerations were made:

"[O]n the matter properly concerning the managerial classes of autonomous institutions and public enterprises such as RECOPE, **the Chamber has understood in preceding cases that the placement of a public official at the managerial level has certainly served as a suitable element to justify a rule of differentiated treatment in the matter of Collective Agreements** – as the Attorney General's Office well recalls –:

'It is unnecessary to recall at length here that the collective agreement is the result of a bilateral negotiation that has taken place between the public entity (in this case, JAPDEVA) and its officials. Evidently, the interests of the latter in obtaining certain employment conditions are not necessarily coincident with the institutional ones, and in some cases can even be opposed, taking into account that the public entity, which inscribes its policies or its decisions regarding personnel within the broader framework of government policies or decisions, is the holder of public interests, it is the employer, against which its officials or employees assert their own interests, which being theirs are truly private interests." <span style="font-weight:bold; font-style:italic; text-decoration:underline">The structure of the negotiation—on one end, the hierarchy expressing the will and interests of the employer (the specific Public Administration), and on the other, the union, which upholds those of the employees—explains and justifies the exclusion of some officials from the application of the benefits of the negotiation.</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">This concerns those whose position and functions are such that they are incompatible with the possibility of also having them as beneficiaries of the right to collective bargaining, without risk to the interest of the Administration, to the public interest: since it is in them that the capacity to configure and express the will of the Administration vis-à-vis the other employees truly lies, that is to say, since they are the ones who directly hold or decisively influence the decisions the Administration makes in negotiation with its employees, the exclusion is imposed upon common sense as objective, reasonable, and, therefore, non-discriminatory</span><span style="font-style:italic; text-decoration:underline">.</span><span style="font-style:italic">'</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">From the foregoing, it is deduced that in the case of the petitioner, the principle of equality was not harmed, since the distinction in relation to the other workers of his Department has an objective and reasonable justification; therefore, on this point, the appeal must be declared without merit." (Resolution No. 4325-96 of nine hours twenty-one minutes of the twenty-third of August of nineteen ninety-six)."</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>Consequently, although it is true, as has been developed, that there exists a fundamental right to engage in collective bargaining and that facilities must be granted for such purposes ‒</span><span>with the adequate safeguarding of public funds and the constitutional principles</span><span> of reasonableness, proportionality, and proper use of public funds</span><span> ‒</span><span> it is also</span><span> legitimate to establish certain negotiation guidelines</span><span>, including subjective coverage. In this sense, although it has not been formally incorporated into our legal</span><span> system, one can resort to the </span><span style="font-style:italic">“</span><span style="font-style:italic">Convention concerning Labour Relations in the Public</span><span style="font-style:italic"> Service, 1978 (No.</span><span style="font-style:italic"> 151)”</span><span style="font-style:italic"> </span><span>as a mere hermeneutic criterion or for illustration</span><span>. Said convention urges States to adopt </span><span style="font-style:italic">“</span><span style="font-style:italic">measures appropriate to national conditions to stimulate and encourage the full development and utilisation</span><span style="font-style:italic"> of procedures for negotiation</span><span style="font-style:italic"> between the competent public authorities and public employees' organisations</span><span style="font-style:italic"> in respect of conditions of</span><span style="font-style:italic"> employment, or of any other</span><span style="font-style:italic"> method</span><span style="font-style:italic">s that will allow representatives of public employees</span><span style="font-style:italic"> to participate in the determination</span><span style="font-style:italic"> of such conditions”</span><span style="font-style:italic"> </span><span>(art. 7</span><span>). But beforehand, it makes the warning and recognition that </span><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">national law</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> shall determine the extent</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> to which the guarantees</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> provided for in this Convention apply to high-level employees</span><span style="font-style:italic"> who, by virtue of their functions, are normally considered to have policy-making or managerial</span><span style="font-style:italic"> roles or to employees whose duties are of a highly confidential nature”</span><span> (art. 1</span><span>, paragraph 2</span><span>). This illustrates and corroborates that the legislator could</span><span> legitimately assess and list</span><span> the positions that, due to their high managerial level, may be excluded from the benefits of collective</span><span> bargaining, without this in itself</span><span> being illegitimate or unconstitutional. Note also</span><span> what is provided to that effect by art. 48 of the Law against </span><span>Corruption and Illicit</span><span> Enrichment in the Public</span><span> Service, which criminalizes the conduct of a public official who signs acts or agreements that benefit him or her directly, which clearly illustrates the incompatibility here</span><span> ex</span><span>am</span><span>ined. The rule in question contemplates the following illicit</span><span> conduct: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">Art. 48.-Legislation or Administration for Personal Profit.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">Shall be</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> punished with imprisonment from one to eight years</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">, the public official who sanctions, promulgates, authorizes, signs, or participates with a favorable vote in laws, decrees, agreements, administrative acts, and contracts that grant, in a direct form, benef</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">its for him</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">self,</span><span style="font-style:italic"> for their spouse, partner, or cohabitant, their relatives up to the third degree of consanguinity or affinity, or for companies in which the public official, their spouse, partner, or cohabitant, their relatives up to the third degree of consanguinity or affinity hold stock participation, whether directly or through other legal entities in whose share capital they participate or where they are legal representatives or members of any corporate body.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic; text-decoration:underline">The same penalty shall apply</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> to whoever favors their spouse, their partner, or cohabitant, or their relatives up to the third degree of consanguinity or affinity, or favors him</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">self, with patrimonial benefits contained in collective</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> agreements, in whose negotiation</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> they participated as a representative of the employer</span><span style="font-style:italic">”.</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Thus, the numeral questioned in the </span><span style="font-style:italic">sub lite </span><span>is no more</span><span> than a replica of other rules in force in the legal system and of the general duty of probity that establish prohibitions for certain senior officials from regulating or agreeing on aspects for their own benefit, without a violation</span><span> of the constitutional principles and rights invoked emerging from the allegations presented.</span><span style="-aw-import:spaces"> </span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445502" class=""><span>XXX.- ON THE PAYMENT MODALITY FOR PUBLIC SERVANTS</span></a><span> </span></h2><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445503" class=""><span style="text-transform:uppercase; background-color:#ffffff">Challenged Rules</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>Art. 52 of the LSAP, added by the LFFP, No.</span><span>9635, and art. 21 of regulation No.</span><span>41564-MIDEPLAN are challenged. The contested legal rule established</span><span>, in its original wording, the following: </span></p><p style="margin-top:0pt; margin-left:42.55pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-weight:bold; font-style:italic">Art. 52- Payment Modality for Public Servants</span><span style="font-style:italic">. The institutions contemplated in article 26 of this law shall adjust</span><span style="font-style:italic"> the payment frequency of their officials' salaries to the monthly payment modality with a bi-weekly advance.</span></p><p style="margin-top:0pt; margin-left:42.55pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(As</span><span style="font-style:italic"> added by article 3</span><span style="font-style:italic"> of</span><span style="font-style:italic"> </span><span style="font-style:italic">Title III of the Law for Strengthening Public Finances, No.</span><span style="font-style:italic">9635 of December 3, 2018).”</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Subsequently, the rule was amended for the purpose</span><span> of adding the specific</span><span> case of payment in the Costa Rican Social Security Fund (CCSS). Consequently, the current rule reads as follows: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 52- Payment Modality for Public Servants.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The institutions contemplated in article 26 of this law shall adjust the payment frequency of their officials' salaries to the monthly payment modality with a </span><span style="font-style:italic">bi-weekly advance.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Excepted from the provisions of the preceding paragraph is the Costa Rican Social Security Fund (CCSS), which shall maintain</span><span style="font-style:italic"> the payment frequency of its officials' salaries under the bi-weekly modality.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(As</span><span style="font-style:italic"> amended by the sole article of the Law to maintain the bi-weekly payment frequency of the salaries of the workers of the Costa Rican Social Security Fund, No.</span><span style="font-style:italic">10102 of December 8, 2021)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>Meanwhile, the regulatory rule provides the following:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-weight:bold; font-style:italic">Art. 21.- Payment Modality for Public Servants</span><span style="font-style:italic">. Payments must be adjusted to the monthly payment modality with a bi-weekly advance, pursuant to</span><span style="font-style:italic"> the provisions of article 52 of Law No.</span><span style="font-style:italic"> 2166, added through article 3 of Law No.</span><span style="font-style:italic"> 9635.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">The institutions must</span><span style="font-style:italic"> carry out the corresponding steps to adapt the technological</span><span style="font-style:italic"> payment systems to said provision</span><span style="font-style:italic">, within the period indicated</span><span style="font-style:italic"> in Transitory XXIX of Law No.</span><span style="font-style:italic">9635. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The Administration shall be</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> responsible for ensuring full compliance with the change in payment modality and the corresponding salary recognitions, so that no decrease</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> or increase in the salary of the servants is produced</span><span style="font-style:italic">”.</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The transitory rule that was issued</span><span> to make this modification operational was not challenged by the plaintiff. However, it is necessary to transcribe it in order to carry out an appropriate</span><span> analysis of the issue</span><span>. Transitory XXIX reads as follows: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">TRANSITORY XXIX. The institutions that pay the salaries of their servants with a modality other than that contemplated in article 52 must</span><span style="font-style:italic"> make the corresponding adjustments within three months following the effective date of this law. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">The calculations</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> and necessary adjustments shall be made</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> so that the change in payment frequency does not produce a decrease</span><span style="font-weight:bold; font-style:italic; text-decoration:underline"> or increase in the salary of the servants</span><span style="font-style:italic">”.</span><span> (Highlighting does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore"> </span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445504" class=""><span style="text-transform:uppercase; background-color:#ffffff">Grievances of the Plaintiff</span></a><span style="text-transform:uppercase; background-color:#ffffff"> </span></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The plaintiff states that the referenced rules violate the municipal autonomy and that of decentralized entities, and the principles of legality, reasonableness, proportionality, progressivity of labor rights, as well</span><span> as the constitutional right</span><span> of collective bargaining</span><span>. They point</span><span> out that the rule violates the administrative</span><span> autonomy of the decentralized entities insofar as they are ordered how</span><span> to regulate their remuneration system. Although the law provides</span><span> that the salary not be varied, it orders the institutions how to ad</span><span>mi</span><span>nister salaries, thereby committing an abusive </span><span style="font-style:italic">ius variandi</span><span>. There are workers who have planned their obligations according to the bi-weekly frequency, as they have received</span><span> their salary that way for</span><span> years. The mere change of the payment modality can entail a detriment for these officials. The</span><span> fact that the State, through the legislator, orders these institutions to conform to the present article</span><span> and its transitory rule, directly violates the Law of the Constitution and conventional law, by failing to</span><span>recognize these rights of a higher rank than the legal one, causing a regression in labor rights and, therefore, equally violating the principle of progressivity thereof. The norm is neither reasonable nor proportionate, since according to Trans</span><span>itory XXIX there should be no decrease</span><span> or increase; in that sense, there is no reason</span><span> whatsoever to affect the autonomy</span><span> of the entities. In the absence of a palpable purpose, the norm lacks any reason</span><span> or proportion</span><span>.</span></p><h3 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445505" class=""><span style="text-transform:uppercase; background-color:#ffffff">Report of the PGR</span></a><br data-mce-bogus="1"></h3><p style="margin-top:0pt; margin-bottom:0pt"><span>The PGR suggests that this Chamber dismiss the grievances raised. For such purposes, the following reflections are made:</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">“</span><span style="font-style:italic">We cannot lose sight of the general and uniform vocation and character with which</span><span style="font-style:italic"> the Law for Strengthening Public Finances, No. 9635 of December 3, 2018, was issued</span><span style="font-style:italic">, with a clear purpose of </span><span style="font-style:italic">subjecting to uniform criteria all matters concerning the salary</span><span style="font-style:italic"> policy of the Public</span><span style="font-style:italic"> Administration</span><span style="font-style:italic"> (constitutional arts. 105, 121.1, 140 subsections 7) and 191);</span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:13.5pt"><span style="font-style:italic; -aw-import:ignore"> </span></p><p style="margin-top:0pt; margin-left:35.45pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Now then, with regard to the periodicity or frequency of salary payment, as one of </span><span style="font-style:italic">the reorganization measures</span><span style="font-style:italic"> for the containment</span><span style="font-style:italic"> and reduction</span><span style="font-style:italic"> of personnel expenses of Public Administrations, the reform introduced to the Law</span><span style="font-style:italic"> </span><span style="font-style:italic">of Salaries of the Public</span><span style="font-style:italic"> Administration by</span><span style="font-style:italic"> </span><span style="font-style:italic">the Law for Strengthening Public Finances, No. 9635 of December 3, 2018</span><span style="font-style:italic"> </span><span style="font-style:italic">(arts. 26.2 and 52 and Transitory Provisions XXV first</span><span style="font-style:italic"> paragraph and XXIX)</span><span style="font-style:italic"> </span><span style="font-style:italic">and its Regulation</span><span style="font-style:italic"> </span><span style="font-style:italic">–</span><span style="font-style:italic">Executive Decree No. 41564-MIDEPLAN-H- (arts. 2, 3 and 21</span><span style="font-style:italic">), establishes that in the public</span><span style="font-style:italic"> institutions contemplated in article 26</span><span style="font-style:italic"> </span><span style="font-style:italic">–</span><span style="font-style:italic">including Municipalities-</span><span style="font-style:italic"> </span><span style="font-weight:bold; font-style:italic">shall adjust</span><span style="font-weight:bold; font-style:italic"> the payment frequency of the salaries of their officials to the monthly payment modality with a bi-weekly advance</span><span style="font-style:italic"> (art. 52); that is, the salary agreed upon per monthly time unit shall be paid</span><span style="font-style:italic"> in a bi-weekly periodicity or frequency. For which, as</span><span style="font-style:italic"> established in its Transitory XXIX, they must</span><span style="font-style:italic"> make the corresponding adjustments within three months after</span><span style="font-style:italic"> the effective date of that Law</span><span style="font-style:italic"> </span><span style="font-style:italic">-the cited Law No. 9635 was published and entered</span><span style="font-style:italic"> into force on December 4, 2018-</span><span style="font-style:italic">; which</span><span style="font-style:italic"> includes the adaptation</span><span style="font-style:italic"> of the technological</span><span style="font-style:italic"> payment systems available (art. 21 of Executive Decree No. 41564-MIDEPLAN-H), as well</span><span style="font-style:italic"> as carrying out the</span><span style="font-style:italic"> calculations and necessary adjustments in order to ensure that the legally prescribed</span><span style="font-style:italic"> change in payment modality does not produce a decrease</span><span style="font-style:italic"> or increase in the salary of the servants (Transitory XXIX and art. 21 op.

cit.</span><span style="font-style:italic"> </span><span style="font-style:italic">in fine</span><span style="font-style:italic">).</span> It would then be the case, according to such legal norms, of a clearly mandatory, imperative, and absolute character, that all public institutions covered by that legal framework would have to regulate the modality or periodicity of salary payments for their public servants, and no other.

As we were categorical in legal opinions C-060-2019, of March 5, 2019, and C-281-2019, of October 1, 2019, and we reaffirm now, the cited state Law, although supervening, would prevail over the provisions of any other pre-existing legal or lower-ranking provision at a sectoral level, such as previously signed collective bargaining agreements; this by way of tacit repeal – total or partial – due to normative incompatibility of their contents.

Therefore, the alleged defects are not admissible.” **Resolution of the Sala Constitucional** Firstly, like all the previous sections, the issue of municipal autonomy and that of other autonomous entities must be rejected due to the petitioner's lack of standing.

As a second point, it is pertinent to note that what is challenged is a general norm aimed at organizing the Public Administration regarding public employment and specifically adjusting the payment periodicity of public servants' salaries to the modality of monthly payment with a biweekly advance. That is, it has the purpose of standardizing payment periodicity in the public function. The foregoing, with the express exception that under no circumstance – in the event of a change – may a decrease in public servants' salaries occur. In the judgment of this Court, this measure tends to avoid provisions with different periodicities and the consequent impact on public budgets, which in some cases has been considered unreasonable and harmful to the correct disposition of public funds. For example, in judgment no. 2019-016791 already cited previously, this Court examined the regularity of the Collective Bargaining Agreement of the Municipality of Limón, in which the following had been agreed: *“The Municipality shall pay its workers every two weeks the equivalent of what corresponds to fifteen (15) days of total salary.”* In this regard, the Court considered it legitimate to establish a differentiated payment modality since the collective bargaining agreement predated the LFFP, but this Tribunal declared the unconstitutionality of the fictitious creation of an additional working day with the corresponding payment. On that occasion, the following was resolved:

“- The requirement for legality in salary payment. The Municipality of the Canton of Limón and the Union of Municipal Workers of the Province of Limón (SINTRAMUPL), agreed to pay the officials of that corporation on a biweekly system (salary every two weeks), whereby they obtain more than one payment for the fifty-two weeks a year, and not forty-eight weeks, as occurs with the biweekly or monthly payment modality. Precisely, through the challenged norm, the Collective Bargaining Agreement adds one more day to the mentioned biweekly payment. The Procuraduría General de la República argues that this Court has accepted social benefits above the established minimums, but in the case, they miss objective parameters that seek better provision of public service, as well as the principles of reasonableness and proportionality, and technical criteria. Likewise, it indicates that it lacks suitability and necessity, since there is already remuneration for the days worked as compensation for effective work. Also, it brought up several official letters that are important to cite, such as Official Letter DJ-0782-2011 of July 20, 2011, from the Contraloría General de la República, regarding salary adjustments which states: "In that sense, it cannot be overlooked that this type of modification must have adequate motivation: in cases of salary policy. Singularly, it will be necessary not only to have the legal basis for the decision, but also adequate technical justification accrediting the content of the administrative conduct. For the case under analysis, said basis will be determined—essentially—by the technical study demonstrating a substantial increase in the cost of living and/or the need to make a greater increase, which would justify that the salary increase is required and not arbitrary. [...] the text of Article 16 of the Ley General de la Administración Pública must be considered. It is evident then that to effect a salary increase, whether within budget programming, or by salary adjustment, the necessary studies must be available that, from a technical or scientific point of view, demonstrate its necessity and suitability for the (licit) purpose of that administrative conduct. The Court considers that Article 24 of the challenged Collective Bargaining Agreement entails several problems that affect its constitutional legitimacy: first, insofar as it governs a public employment system in a municipal corporation where the principle of legality prevails; and second, because it creates a legal fiction that is contrary to reasonableness and proportionality. The first thing that must be said is that while municipalities can negotiate Collective Bargaining Agreements, the public employment relationship governed by public or statutory law is not thereby lost, where the liberalities that private employers may grant to their workers, typical of common labor law, do not apply. In this sense, it must be emphasized that there is a responsibility of the superior authorities, of the municipal corporations, to maintain the validity of the principle of budgetary and financial legality. In this sense, Collective Bargaining Agreements are instruments that must be renegotiated periodically, and what is agreed upon cannot or should not always be maintained over time, as they must evolve from one era to another, with social benefits keeping pace with the improvements or contractions of the country's economy. In this sense, it can be said that the challenged norm is an old clause that took effect starting in 1994, and which could not respond to current needs. Therefore, its analysis is pertinent. The Procuraduría General de la República, in its report, cites likewise Official Letter No. 003418 of March 27, 1989, which states: "The benefit that a public servant obtains with a weekly or biweekly payment system lies in the fact that they will be compensated for the fifty-two weeks of the year and not only forty-eight as occurs when the payment method is monthly or biweekly. In essence, this payment system (weekly or biweekly) implies, at the time of its implementation, a salary increase for the official (annual or monthly, that is distinct) of 8.33%, given that four more weeks are being remunerated. It starts from the fact that in the Public Sector, a monthly-based salary system is used that the servant earns, which is seen increased by 8.33%. Although this Court considers that the Collective Bargaining Agreement of the Canton of Limón could agree on a better annual salary with the biweekly payment, as part of the agreed socio-economic benefits, the truth is that it is improper for each biweekly payment to have an extra day added to incorporate non-existent workdays in the annual calendar. If the fifty-two weeks of the year are divided by the two weeks of salary payment, twenty-six biweekly salary disbursements are obtained, for which the municipal employee receives an additional day for every fourteen days of payment for their work. As observed, the norm does not remain a simple mathematical equation, but rather obligates the gratuitous addition of one more day, given that: "The Municipality shall pay its workers every two weeks the equivalent of what corresponds to fifteen (15) days of total salary." This means that if twenty-six additional days are added to the twenty-six biweekly payments, on top of the three hundred sixty-five days of the year, a real and effective payment of three hundred ninety-one days is obtained, which the municipal corporation pays its employees annually. Recall that if three hundred sixty-five days of the year are divided by fifty-two weeks of the year, the seven days of the week are obtained. Another way to see it is that they receive approximately fourteen months of salary: the twelve annual months, the aguinaldo, and the remaining twenty-six days. The manner in which salary payment is regulated in the first paragraph of Article 24 of the challenged Collective Bargaining Agreement translates into a transfer of public funds, without an objective justification or reason, that translates into better provision of service in compensation from the workers to the municipality and the inhabitants of the canton. In this sense, these funds do not conform to the principles of morality, legality, efficiency, austerity, and reasonableness in public spending, in which it is imperative not to use public funds as private funds, and the discretionary nature of spending is not free. For this reason, the Court must conclude that the provision, as will be stated below, is unconstitutional. The Court does not observe that the mechanism devised in the Collective Bargaining Agreement seeks a just defense of the indecorous salaries earned by municipal officials, as alleged by the Union of Municipal Workers of Limón; on the contrary, that is not a valid argument, given that it must be demonstrated, at least with information accrediting the case, regarding the liberalities of Public Administrations, in its judgment No. 2012-003267 of 4:01 p.m. on March 7, 2012, which established: "This principle of legality is manifested in the handling, administration, destination, and custody of public resources, for which the legislator, through Law No. 8131 of September 18, 2001, Ley de Administración Financiera y Presupuestos Públicos, indicates, in Article 5, the different principles, among them the principle of financial management. The norm defines it in the following manner: 'For the purposes of the preceding article, the following budgetary principles shall be observed: ... **Principle of financial management.** The administration of the financial resources of the public sector shall be oriented towards the general interests of society, attending to the principles of economy, effectiveness, and efficiency, with full subjection to the law. c) [...]

In this sense, the legislator inserted into the legal system and developed, within the Public Administration, the principle of financial legality fully consistent with Article 140, subsection 7) of the Political Constitution, eliminating an unauthorized use of public resources with the mere discretion of the Public Administration through an Autonomous Regulation or an act of public law not expressly authorized by law. Precisely, the legislator cleared all doubt regarding the scope of the principle by radically indicating full subjection to the law. Similarly, through Article 107, when referring to the principle of legality, it states: "Administrative acts and contracts issued in matters of financial administration must substantially conform to the legal system, according to the hierarchical scale of its sources. The legality of the acts and operations of public bodies and entities subject to this law is presumed, but evidence to the contrary shall be admitted." Consequently, it must substantially conform to the legal system, so there is no total discretion of the Public Administration to create sources of expenditures; on the contrary, legal authorization must exist. It is equally important to note that the economic obligations of the Public Treasury may originate from the Law, likewise, they may originate from jurisdictional resolutions (Articles 122 and 153 of the Political Constitution), and from contracts and administrative acts when some form of obligations based on certain manifestations of the State's will applies. However, it is important to clarify that those manifestations cannot be understood from a private civil or labor standpoint, not only for what was indicated supra, but, on the contrary, given that it refers to contractual forms whose origin is precisely found in the law or that the law indicates the mechanisms to generate these economic obligations." In the case before us, the challenged provision could not be justified in the protection of workers against human rights violations, since it cannot be affirmed that workers receive a ruinous salary from the corporation, and in violation of the minimum wage for workers. Although an improvement could be produced through collective bargaining, the state will must be validly expressed and conformed to the legal system, which in this case, it is not.

- On the violation of the principle of reasonableness and proportionality. The union alleges that the violation of reasonableness and proportionality has not been demonstrated; however, the Court considers that the petitioner provided sufficient elements of judgment on which to base the questioning of the challenged norm, when it claims the lack of justification for an extra payment, as well as the breach of reasonableness and proportionality, given that that part of the salary generates an undue and unjustified use of public resources. As noted in the previous section, the provision openly conflicts with the legal system, in its legality and legitimacy, because, as will be seen, it creates a benefit whose reasonableness is very tenuous, it is a privilege that lacks a valid legal foundation, and a plain and simple transfer of public funds occurs for twenty-six unworked days, nor for being the fruit of work received by the municipal corporation. There is a total absence of consideration, which every employer owes the worker for the work provided.

(…)

[I]n the public sphere, the provisions that are agreed upon would be subject to their legal (analyzed supra) and constitutional validity. Having overcome the foregoing, the examination of weighted reasonableness must be made, as has been cited in the previous judgment; so when there is a given antecedent, a specific consideration is demanded, provided it is equivalent or proportionate. In the case, dealing with a labor or statutory relationship, it follows that for a specific labor consideration by the worker, the corresponding remuneration is received as compensation. But, herein lies the crux of the problem of reasonableness or the test of the challenged provision, which is its absence of equivalence and proportionality. Why?

If, for a given antecedent, such as effective and continuous work for two weeks or fourteen days, payment is received for fifteen days, it is evident that it must be concluded that there is a presumed right that is built on the basis of a fictitious or artificial consideration, which would be contrary to the legality of the wage payment analyzed, to the unequivocal rules of science or technique, or to the elementary principles of justice, logic, or convenience (Article 16.1, of the Ley General de la Administración Pública), since the weeks paid annually are much more with respect to the year than for weekly, biweekly, monthly, or bi-monthly salaries (Article 165, of the Código de Trabajo). And even so, accepting that as a result of collective bargaining it is possible to improve economic conditions, surpassing the payment of forty-eight weeks that corresponds to a bi-monthly or monthly payment, as occurs for many public workers, and a payment of fifty-two weeks is agreed upon, which effectively exist in the calendar, this would not be commensurate with the creation of a fiction without technical or scientific, legal support, or one that was created to solve a superior interest of the legal system. This reality is verified mathematically, without much effort. Thus, the benefit (payment of remuneration for fifteen days) received for the antecedent (workday of fourteen days) under discussion results in a wage mechanism that is fictitious, upon which a benefit or payment obligation for an additional day is created that compromises public resources, a source of expenditure is created without a well-defined legal budget, and hardly without the technical justification to demonstrate that it is the appropriate means for the solution of ruinous wages. In this sense, there is an obligation on the part of the state apparatus to ensure that if a collective bargaining agreement materializes in a Collective Bargaining Agreement, as has been reasoned, it must not openly infringe the legal system, since "the ends do not justify the means." (The highlighting does not correspond to the original).

From the preceding precedent, it follows that, although it was eventually legitimate to establish a different payment periodicity, these modalities must be duly justified and not create additional days of payment in a fictitious manner. All of the foregoing, to the detriment of public finances.

In light of such considerations, it is legitimate that—in order to avoid measures such as these where days are fictitiously added to the detriment of public finances—the legislator establishes general rules of recognition in the payment periodicity for the Public Administration. In this regard, it should be recalled—as analyzed supra—that the reform to the LSAP had as its guiding purpose to aspire for the remunerations of the public function to be governed by a scheme of efficiency and quality in public spending—that is, measures of uniformity. The standardization in the payment schedule can perfectly be considered a measure so that the Administration is more efficient regarding payroll payments.

Now, detailing the aspects questioned by the plaintiff, in the opinion of this Chamber, the mere affirmation that it is an abusive ius variandi because the workers could suffer harm from the change in modality is nothing more than a mere subjective assessment lacking motivation or objective proof that reliably proves an injury or regression in the fundamental rights of public servants. To the extent that there can be no pecuniary harm to the workers as expressly established by the legislator, the plaintiff's affirmations to the effect that this constitutes a regression in labor rights or that the principle of progressivity is injured are not understood. Likewise, the allegations regarding the supposed injury to the principles of reasonableness or proportionality lack adequate and sufficient motivation. It is not for this Court to supply argumentative deficiencies and try to supply or understand the eventual harm due to the alleged unreasonableness of the norm.

Finally, as has already been noted, it is not for the Chamber, through an acción de inconstitucionalidad, to evaluate specific situations of workers or the prevalence between this norm and the current collective bargaining agreements, as this refers to discussions of ordinary legality.

Consequently, the reproaches raised must be dismissed.

XXXI.- REGARDING THE PROFESSIONAL CAREER INCENTIVE Preliminary Clarification Regarding this section, and given that it is a cross-cutting theme in the acciones de inconstitucionalidad that were consolidated, the allegations will be addressed by identifying in each case the respective grievances and the response given by the PGR, MIDEPLAN, DGSC, and the Ministry of Finance.

Challenged Norms Article 53 of LSAP, added by LFFP No. 9635, and Article 15 of regulation No. 41564-MIDEPLAN are questioned:

"Art. 53- Professional career incentive. The professional career incentive shall not be recognized for those academic titles or degrees that are a requirement for the position.

Training activities shall be recognized for public servants provided these have not been paid for by public institutions.

New professional career points shall only be recognized salary-wise for a maximum period of five years.

(As added by Article 3 of Title III of the Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 of December 3, 2018) Art. 15.- Professional career. The professional career incentive shall be granted under the following conditions:

• a)It shall be recognized for those academic titles or degrees that are not requirements for the position.
• b)Recognition of professional career shall proceed when training activities are paid for by the interested servant, whether during working hours or outside of them, provided they are relevant to the position held. For those training activities not paid for by public institutions, leave with pay may be granted, with justification, to receive the training.
• c)New professional career points shall be recognized salary-wise for a period of 5 years.
• d)Professional career points may be recognized, according to the parameters prior to the entry into force of Law No. 9635, only and exclusively in the cases of those applications submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that have not been processed by the Administration." Furthermore, in a related manner, reference is made to Articles 1 and 4 of resolution DG-139-2019 of 3:00 p.m. on July 24, 2019, from the DGSC, which state the following:

"Article 1. Modify Articles 1, 2, 4, 5, 6, 9, and 18 of Resolution DG-064-2008 of February 28, 2008, so that they respectively read as follows:

(...)

"Article 9: Each point considered in any Professional Career factor shall have a unique and independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Offices must establish the corresponding controls so that when said period expires, the respective scores are expired and the inherent payments cease.

Said Offices must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates, presented by each servant, are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." "Article 4. Modify Articles 1, 2, 3, 7, 8, 9, 10, 18, 20, and 21 of Resolution DG-333-2005 of November 30, 2005, so that they respectively read as follows:

(...)

"Article 10.- Each point considered in any Teaching Professional Career factor shall have a unique and independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Office of the Ministry of Public Education must establish the corresponding controls so that when said period expires, the respective scores are expired and the inherent payments cease.

Said office must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates, presented by each servant, are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed." Grievances of the Plaintiff Party (acción No. 19-004931-0007-CO) The plaintiff highlights that the challenged norm represents a regression in relation to the purpose of hiring suitable officials, by providing that professional career points will only be recognized when they cover the training they receive. This constitutes a serious disincentive for State professionals to improve their academic and training conditions. Additionally, the norm creates two types of officials: those who can invest in their training and those who depend on the Administration investing in it. Both would perform the same functions, but the training assumption would cause them to receive different incomes, which injures the principle of equality. The training incentive could be provided in a collective bargaining agreement, in which case, the norm would also injure the right to collective bargaining.

Finally, the wording of the norm creates legal uncertainty, as it is ambiguous and makes it impossible to determine with any certainty the spirit of the legislator: whether to recognize up to five years of training or to pay only for five years.

### Grievances of the Claimant (action No. 19-023575-0007-CO) The President of the APSE also questioned the provisions of Art. 53, paragraph 3, Art. 15 of the decree, and by extension refers to the content of the resolution of the DGSC, which is limited to reiterating what is provided in the law, namely that "*New professional career points will only be recognized for salary purposes for a maximum period of five years*". On this point, this Chamber clarifies that, given that the provisions of said resolution are a mere reiteration of what is stated in the law, this Chamber will limit itself to evaluating the content provided in the legal norm, noting that its content is otherwise repeated in the regulation and in the resolution that complies with what the legislator ordered.

The arguments regarding this provision revolve around an alleged violation of Articles 34, 45, and 74 of the Political Constitution by introducing a temporal limitation on the recognition of professional career points, since it punishes professionals who are recognized for professional career points in a confiscatory manner, given that after five years the incentive ceases to be paid, damaging subjective rights and the inalienability of the right.

The contested norm violates the fundamental right to a salary (enshrined in Art. 57 of the Constitution and Articles 23 of the Universal Declaration of Human Rights, 7 of the International Covenant on Economic, Social and Cultural Rights, and 7 of the Protocol of San Salvador), insofar as the official's subjective right to continue earning the professional career compensation is nullified, once the aforementioned five years have elapsed after its respective recognition, despite it having been granted because they fulfilled the requirements established in the legal system and, therefore, constitutes an acquired right. The contested regulations violate Art. 34 of the Constitution since they eliminate—arbitrarily—the corresponding recognition and cause a cessation of remuneration without a legitimate reason justifying the interdiction of that right. The contested regulations remove from the worker's assets, after five years, an economic benefit, of a salary nature, which was recognized because they fulfilled the established requirements; a suppression that implies a manifest violation of an acquired right. Such regulations discourage the professional development of public officials, to the detriment of efficiency in the provision of public service and to the impairment of the consolidated rights of the professional officials responsible for providing the service. The contested regulations also violate the principle of the intangibility of the worker's assets and, consequently, become a confiscatory or expropriatory provision, in breach of articles 34, 40, and 45 of the Political Constitution. The contested regulations violate the principle of the intangibility of assets, since when an unjustified reduction of the worker's salary occurs, a detriment to their assets is produced without granting any compensation for such effect. It is not justified that if the corresponding economic incentive was recognized because the professional servant fulfilled the requirements established by the regulations and continues to fulfill them, the law should come to suppress that recognition after five years have elapsed. Article 74 of the Constitution is violated, which declares the inalienable nature of the rights and benefits contained in the Single Chapter of Title V of the Political Constitution and any other deriving from the Christian principle of social justice. Such principle binds the ordinary legislator, who cannot dispose of a fundamental right at their discretion, restricting its essential content, limiting its scope, or extinguishing a subjective right. The deprivation of the remuneration of the economic incentive for professional career implies abusive regulation, which renders a fundamental right nugatory, a treatment incompatible with Art. 74 of the Constitution.

In summary, the disagreement is based on the fact that these legal norms establish that the recognition, and subsequent payment, of new points under the so-called professional career system in the public employment regime, after the reform introduced by Title III of the LFFP No. 9635, will have a unique and independent validity for a period of five years; which in the claimant's opinion is contrary to the fundamental right to a salary, violates the principles of non-retroactivity to the detriment, asset intangibility, and non-confiscation, as well as the inalienability of social rights.

### Report of the PGR First, the PGR proposes a doctrinal approach to the concept of the professional career incentive and then requests that the objections be dismissed. The foregoing, according to the following reflections:

"*As is obvious, the recognition of the professional career has the ultimate objective of ensuring that the Administration has the highly trained personnel it needs for an adequate performance of the public function. But the effective achievement of this and other objectives of the professional career depends on its regulatory scheme; that is, on the career scheme that is provided for and regulated by norms (C-099-2008 of April 3, 2008; C-184-2013 of September 5, 2013 and C-315-2018, of December 14, 2018).* &nbsp; *It is important to reaffirm then that the regime of rights of public officials is not a static regime, but variable by essence, especially regarding rights of economic content, whose amount can even be modified within the limits of the Constitution (Art. 34 constitutional), since the servant does not have an acquired right against the legislator, and even against the same regulatory power of the employing Administration, to maintain a specific regulation of their rights, when experience shows that it must be subjected, in accordance with the Law, to a more or less continuous process of adjustments and reforms for reasons of general interest (Resolution No. 10340 of 12:47 hrs of June 11, 2010, Constitutional Chamber).* &nbsp; *And the legal change operated by Law No. 9635 on the matter, which is of general application in the Public Sector, does not seek to create an odious differentiation or a salary detriment as is groundlessly accused, but rather* ***it is reasonably based on prevailing budgetary-financial considerations and limitations in which the real need to achieve a balance in public finances is validly justified****; a need that goes beyond overcoming a temporary or circumstantial economic crisis, as it constitutes an economic objective that it is desirable to maintain over time. Without thereby actually appreciating any violation of the right to equality under the Law, as is groundlessly accused.* &nbsp; *It should be remembered that the State has the obligation to promote efficiency in the provision of public services, for which it is fundamental to foster the efficiency of public employment. In fact, part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenditures generated by the State payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation, and to the availability of resources*". (The highlighting does not correspond to the original).

&nbsp; ### Second Report of the PGR In the report requested from the PGR —in relation to the grievances of expediente No. 19-023575-0007-CO— it was explained that there is no injury to Art. 34 of the Political Constitution because the reform safeguards the acquired rights of public servants who enjoyed that incentive.

Then, regarding the recognition period for new professional career points, it is alleged that it is not true that the new regulation on the professional career, which introduces a five-year validity —for points acquired and paid for that concept after December 4, 2018— is contrary to the principle of non-confiscation, since it is an economic compensation that is quantitatively insignificant, accessory, complementary, and optional to the total salary, which in terms of the Chamber itself does not affect the essential core of the minimum salary constitutionally protected —Art. 57 constitutional—. Therefore, it cannot be affirmed that it is confiscatory in the terms accused, especially when the claimant does not base or develop any technical, precise, and solidly supported argument in this regard.

Nor is any violation of the principle of the inalienability of social rights —Art. 74 constitutional— observed, since as there is no right to the immutability of the legal system, the matter of salary supplements for those still under the composite salary scheme is tangible matter available to the legislator, as it is not part of the constitutional labor regime.

### Report of Mideplan It is reported that from the application of Art. 56 in concordance with the provisions of Transitory Provision XXV of Title III of Law No. 9635, the State (as sole employer, as long as labor continuity subsists) is compelled to safeguard salary amounts as a manifestation of the principle of salary indemnity, the acquired rights, and the consolidated legal situations of the public servants covered by the scope of application of the law, such that the amounts that had already entered the asset sphere of the public servants at the time of approval of said law cannot be reduced or applied retroactively in an undue manner. However, the acquired rights and consolidated legal situations regarding the amounts recognized for professional career prior to the entry into force of the LFFP cannot be equated with the expectations of right that public servants may have regarding the recognition of new points, nor can they aspire to recognition that exceeds the maximum limit set by law, as this would indisputably incur a flagrant violation of the principle of legality.

### Report of the DGSC Said directorate rejects the arguments of unconstitutionality.

It affirms that salary supplements that depend on some condition to be granted —as is the case here— do not constitute an acquired right, as this cannot be considered part of the salary proper, since its granting depends on the objective conditions for which it was recognized. Regarding the professional career incentive, it is the case that, in accordance with the legal reform introduced by Law No. 9635, it is widely known from its granting that said bonus will be recognized and remunerated on a temporary basis.

When referring to the granting of salary incentives, such as the recognition of points for professional career, we are not in the presence of an administrative act generating acquired rights as the claimant erroneously claims; on the contrary, it is a benefit granted and conditioned not only on the fulfillment of certain assumptions and requirements, but also that its enjoyment is legally conditioned to a previously established period, so that its suppression cannot be considered as an abusive ius variandi by the Administration, upon fulfillment of the temporal condition —five years— of enjoyment of said salary bonus.

It refers to the background of the reform's approval to conclude that the legislator not only could, but had to introduce changes in the legal regulations in force regarding the remunerations of public servants, without this implying a violation of the principle of non-retroactivity and asset intangibility, since what is constitutionally prohibited is suppressing a legally granted benefit, not the Administration's ability to regulate future situations, as occurs in this case when the legislator regulates new conditions, requirements, and deadlines for the granting of the salary incentive for professional career. In this section, it should be considered that the deputies, upon enacting Law 9635, respected the aforementioned principles, which can be verified from a reading of Article 56 and Transitory Provision XXV of that legal body.

Consistent with this legal stance and the legal change introduced in our field, this Dirección General issued resolution No. DG-139-2019 of July 24, 2019, which modified resolutions numbers DG-064-2008 of February 28, 2008, and DG-333-2005 of November 30, 2005, for the purpose of adjusting these regulations to the precepts established in Law 9635 and its regulation.

The actions carried out by this Dirección General were not only timely and diligent, but also conformed to the norms in force, and were developed in adherence to the principle of legality.

The cessation of the recognition of points for the professional career incentive, as it is not an acquired right but rather a salary bonus granted by the Administration for a determined period, in no way transgresses the principle of the inalienability of the labor rights of public servants.

### Report of the Ministry of Finance In application of the principle of salary indemnity, the servants who had the professional career points recognized before December 4, 2018, will retain—without temporal limitation and as long as the labor relationship is maintained—the quantity of points accumulated and recognized before that date, and based on which they receive the respective economic compensation; but points obtained after the entry into force of Law 9635 and other regulated aspects regarding the professional career will be subject to the normative modifications introduced by the cited law. The violation of salary indicated does not occur, since rights of economic content can be modified within the limits of the Constitution (Art. 34 constitutional).

The purpose of Law 9635 is not to seek a differentiation or salary detriment, but rather it was proposed for the purpose of obeying budgetary and financial limitations, with the clear objective of seeking to maintain a balance in public finances and for this economic objective to be maintained over time and not only be applicable to a fiscal crisis. In this sense, it is the State's obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet the employer obligations towards public officials and the expenditures for payroll payments that it must make, adjusted to the reality that the country's finances are going through. The payment of salary bonuses or incentives must be related to the balance of public finances. Said reform introduced by Law No. 9536 seeks to promote this balance without thereby meaning that it has violated constitutional norms and/or principles. It is important to point out that, to safeguard salaries, and because Transitory Provision XXV of the LFFP so provides, the total salary of the servants who were active on December 4, 2018 —the date on which that law entered into force— cannot be reduced.

Finally, it refers to the state of public finances, to conclude that it is clear that the State is obliged to guarantee the principle of efficiency by ensuring the necessary resources to meet obligations, adjusted to the reality that the country's finances are going through, so the payment of salary bonuses or incentives must be related to the balance of public finances.

### Resolution of the Constitutional Chamber #### Generalities on Professional Career Points Historically, it has been recognized that the so-called "*professional career*" corresponds to an economic incentive applicable to professional-level officials in the service of the Public Administration, through which they are pecuniarily recognized for academic advancement and training. This remuneration also sought to contribute to the recruitment and retention of the best-qualified professionals in each area of activity, for an adequate performance of the public function, as well as to increase the productivity of professionals.

The definition of "*professional career*" can currently be found in the Regulation of Title III of the LFFP, Executive Decree No. 41564 of February 11, 2019:

"*Article 1.- Definitions.* For the purposes of these regulations, it shall be understood as follows:</span><span style="font-style:italic"> </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(…</span><span style="font-style:italic">) </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">b) Professional career (carrera profesional): salary incentive recognized for those academic degrees or titles that are not a requirement for the position, as well as for those training activities (actividades de capacitación) that have not been paid for by public institutions."</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Also in the "Standards for the application of the professional career for public entities covered by the scope of the Budgetary Authority" (Normas para la aplicación de la carrera profesional para las entidades públicas cubiertas por el ámbito de la Autoridad Presupuestaria), No. 42945-H, where it is defined as follows:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"Article 1</span><span style="font-style:italic">-The Professional Career is hereby designated as the regime that recognizes, through a complementary and optional economic incentive, the merit of the professional official, who provides services in the public entities covered by the scope of the Budgetary Authority, achieved through their optimal performance and permanent involvement in activities in at least one of the following areas:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1.1 Academic education (Formación académica) at the level of university degrees and postgraduate degrees, additional to the requirements of the position.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">1.2 Education in professional training activities."</span></p><p style="margin-top:0pt; margin-bottom:8pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The Second Chamber of the Court has defined this salary supplement in the following terms:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal"><span style="font-size:12pt; font-style:italic">"III.- REGARDING THE INCENTIVE FOR PROFESSIONAL CAREER RECOGNITION: From its origins, the recognition for professional career was conceived as an economic incentive whose fundamental objective is to stimulate the academic and professional advancement of professionals in the service of the Public Administration; and to contribute to the recruitment and retention of the best-qualified professionals in each area of activity, all with a view to a better and more adequate fulfillment of the purposes of the public function, within which is, undoubtedly, efficiency in service (Article 4 of the General Law of Public Administration). Like any salary benefit that compromises public finances, its recognition and granting can never be an arbitrary or indiscriminate act. On the contrary, as the Public Administration is subject to the principle of budgetary legality, it must also in this case, guarantee the fulfillment of the legally established requirements without, on the other hand, being able to fail to recognize, when appropriate, the right of the official."</span><span style="font-size:12pt"> (Judgment No. <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0034-390251" style="text-decoration:none">2007-000721</a>. The highlighted text does not correspond to the original).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Being a salary benefit or an incentive, it is necessary to reiterate what was mentioned </span><span style="font-style:italic">supra </span><span>regarding other types of incentives —like the recognition of seniority bonuses (anualidades)— in the sense that no one has the right to the immutability of the legal system, that is, that the rules never change. Therefore, while it is true that the ultimate objective of recognizing the professional career is to ensure that the Administration has the highly trained personnel it needs for an adequate performance of the public function, it is also true that for the effective achievement of this and other objectives of the professional career, its recognition and payment conditions depend on what is provided and regulated by the legislator. </span></p><p style="margin-top:0pt; margin-bottom:8pt"><span>In the </span><span style="font-style:italic">sub lite</span><span>, it has been amply established that our country was going through a fiscal situation that implied the commitment and sacrifice of all Costa Ricans in many matters. Among them, the budgetary limitations for the recognition of salary supplements and incentives, with the purpose of achieving a balance in public finances. In this regard, we agree with the PGR in the sense that it is the State's obligation to guarantee the principle of efficiency by ensuring the necessary resources to meet employer obligations to public officials and the expenditures for payroll payments that it must make, adjusted to the reality that the country's finances are going through. Therefore, the legislator can make changes to the conditions under which services are provided to the State. That is, it has the competence to dictate the general guidelines for regulating remunerations and, in that sense, it is worth establishing that there is no fundamental right to have a specific regulatory mechanism maintained. The foregoing, provided that the acquired rights and consolidated legal situations of the persons who maintained a service relationship before those changes were made are respected, and, in addition, constitutional principles such as reasonableness and non-discrimination are respected.</span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445519" class=""><span>Regarding an alleged disincentive and setback in relation to proven suitability (idoneidad comprobada)</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Such arguments are not sufficiently developed by the claimant as would have been required and, therefore, the appropriate course is to dismiss them. All personnel of the Public Administration must be hired based on proven suitability, both personally and professionally speaking, and, in that sense, it must be taken for granted that the servants must fulfill the qualities for the position to which they are appointed. Therefore, no logical relationship is found in the claimant's affirmation that the rule represents a setback regarding the hiring of suitable officials, when this is the basic premise of all hiring in the Public Administration. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445520" class=""><span>On the reasonableness of recognizing the incentive to servants who paid for their own training</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>The fact that incentives are recognized to those persons who pay for the corresponding training from their own resources (peculio) is reasonable. If the servant invested their own time and money in the training, it is reasonable that the Administration pays this person the corresponding incentive. Conversely, as a matter of principle and with the arguments provided by the claimant, it appears reasonable that, if it was the public institution itself that invested in the servant's training and the latter did not have to pay for their studies, in contrast, they do not receive an additional pecuniary amount for the incentive under analysis. In the context of the approval of the regulations under analysis, it seems reasonable that the one who paid for their own studies receives a stipend, but not the one whose corresponding studies were paid for with public funds. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445521" class=""><span>On the alleged violation of the principle of equality</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Furthermore, the construction made by the claimant regarding a presumed violation of the principle of equality is artificial. He alludes that there will be two types of public servants: those who can invest in their education and those who cannot, which would eventually cause different incomes. In this regard, the claimant errs in his assessment because he constructs a false hypothesis. In reality, any public servant could invest time and resources in training activities (actividades de capacitación), but only those who truly procure the means for their professional and personal improvement will receive the corresponding incentive. It would be unequal for a servant who received training at the expense of public funds to receive, additionally, a stipend as an incentive, unlike that servant who made an effort to pay for their own training. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Consequently, the grievances are rejected in the terms they were presented by the claimant. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445522" class=""><span>On collective bargaining (negociación colectiva)</span></a><br data-mce-bogus="1"></h2><p style="margin-top:0pt; margin-bottom:8pt"><span>The claimant merely states that the training incentive could be part of a collective bargaining agreement and therefore the rule would violate that right. As for this aspect, it is appropriate to refer the parties to what was previously resolved. Restrictions on collective bargaining agreements are not absolute and, in the cases of public servants who can agree to them, it is perfectly possible to negotiate this type of salary improvements that respond to the training needs of the respective workplace. However, this does not prevent that, as a general criterion, the legislator establishes the conditions for the recognition of this type of salary incentives. Consequently, the grievances raised must be dismissed. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445523" class=""><span>On the correct interpretation of the regulations</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:8pt"><span>The plaintiff alleges a supposed threat to the principle of legal certainty because the regulation is not clear in its wording. Said argument, only stated as such, is not sufficient to decree the unconstitutionality of the regulation. It has already been amply insisted that, when questioning the content of a provision for supposedly violating the Law of the Constitution, the party must raise solid and duly substantiated arguments. Here the argument is not properly developed, being that, moreover, the aspects related to the correct interpretation and application of ordinary legal norms correspond to the operators of the corresponding pathways and not to this Constitutional Court. </span></p><h2 style="margin-top:2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445524" class=""><span>On the alleged violation of acquired rights and the inalienability of rights</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>In Action No. 19-023575-0007-CO, the party insists on a presumed violation of acquired rights (derechos adquiridos), enunciating the violation of Articles 34, 45, and 74 of the Political Constitution. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding these points, it is convenient to distinguish between professional career points obtained prior to the approval of the LFFP and those that will be and have been recognized subsequently. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Regarding the former, that is, the officials who have had professional career points recognized prior to the approval of the LFFP, it is imperative to recall what is established in Article 56 of the LSAP and Transitory Provision XXV of the LFFP regarding Public Employment. Said norms provide, as pertinent, the following: </span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Art. 56- Application of incentives, caps, and compensations. The incentives, compensations, caps, or seniority bonuses remunerated as of the date of entry into force of the law shall be applied prospectively and may not be applied retroactively to the detriment of the official or their patrimonial rights.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">TRANSITORY PROVISION XXV. The total salary of the servants who are active in the institutions contemplated in Article 26 upon the entry into force of this law may not be decreased and the acquired rights they hold shall be respected. (…)".</span><span> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>As can be seen, the new provisions on the recognition of salary incentives —such as professional career points— safeguard and protect the acquired patrimonial rights of public servants who enjoyed the incentive under the originally agreed conditions. In no way can the already consolidated salary amount of public servants be affected. In that line of thought, there is no affectation of salary or acquired rights, much less a waiver of salary aspects. The reporting authorities are correct in the sense that the State is compelled to safeguard salary amounts as a manifestation of the principle of salary indemnity (principio de indemnidad salarial), the acquired rights and the consolidated legal situations of the public servant persons covered by the scope of application of the law, so that the amounts that had already entered the patrimonial sphere of the public servant persons at the time of approval of said law, cannot be reduced or applied retroactively in an undue manner. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Now then, as already noted, the situation of servants with such incentives already incorporated into their salary differs from the situation of those expectations of right of those servants who seek the recognition of new professional career points by virtue of subsequent training. In such cases, public servants inevitably must adjust to the new conditions defined by the legislator by virtue of the state of public finances. It is not, as the claimant affirms, a sanction, but rather that the future incentive is subject to the fulfillment of the applicable provisions for its recognition and payment —it is, we repeat, a mere expectation— and, in such a case, its authorization and payment will be made according to the new imposed legal conditions, with the public servant knowing in advance that the recognition and payment of the incentive will be made for a specific term and not for life. The reporting authorities are correct in the sense that with the legal reform introduced by Law No. 9635, from its granting it is widely known that the cited supplement will be recognized and remunerated on a temporary basis. Consequently, at this point it is appropriate to reiterate what was said regarding the future recognition of seniority bonuses and to allude to the considerations made in judgment <a href="https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1236193" style="text-decoration:none">No. 2024-007057</a>:</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">"In the sub examine, it must be noted that the future payment of a seniority bonus is not an automatic effect incorporated into every official's salary, but rather, as recognized by the Office of the Attorney General of the Republic (Procuraduría General de la República), it constitutes an expectation of right if certain conditions are met, for instance, reaching the annual period and also qualifying within the evaluation parameters. Should such conditions not be met, the recognition in question would not be made. In that sense, one cannot seek to establish as an acquired right the way in which these will come to be paid or the assumptions under which it must be done, since there is no right to the immutability of the legal system (inmutabilidad del ordenamiento jurídico), according to the precedent cited supra.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">(…)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Neither does it imply a retroactive application of the law, as it concerns the future payments of seniority bonuses, not those whose amounts have already entered the official's wealth (peculio), whose amount remains intact (…)</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; -aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic">Thus, that which was already acquired and contemplated in the salary that the worker received prior to the effectiveness of Law No. 9635, as explained, is maintained, with the officials preserving their acquired rights and without any affectation to the salary that corresponds to them."</span><span> (The highlighted text does not correspond to the original). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>In which case, it is necessary to insist that there is no right to the immutability of the legal system and one cannot claim that there is an acquired right to a specific regulation on the recognition of salary incentives. The fiscal situation prompted the legislator to establish the recognition of this salary supplement for a limited term and the public servant knows in advance that the new incentive is not permanent, but that its payment will be for a specific period, which in the opinion of this Chamber does not violate the right to salary or Articles 34 and 74 of the Political Constitution, nor the principles of intangibility of assets or non-confiscation. The public servant is not renouncing their rights, nor is the legislator violating an acquired right, because the latter has provided within the framework of legislative discretion that the new professional career incentives may only be recognized for a single, specific term, with the prior knowledge and acceptance of the respective servant.</span></p> The Chamber does not overlook the importance of these bonuses and, of course, advocates for the training and retention of the best human capital that the Administration has available. All of this contributes to the promotion of general well-being through the provision of an effective and efficient public service. However, once again, from the perspective in which this action is brought, no violation of the Law of the Constitution is observed because the bonuses that had entered the assets of the public servants prior to the reform remain absolutely untouched according to the current legal provisions themselves. Whereas, the expectation of new bonuses, that is, in the future or thereafter, may be recognized when the legal and regulatory conditions established for such cases are met; however, such recognition shall be only for five years, with the prior knowledge and acceptance of the servant who processes the salary bonus.

There is no such thing as a subjective right of the official to continue earning the professional career remuneration, once the five years following its respective recognition have elapsed. Nor is there an injury to the hard core of the salary, since this is not subject to variation, but rather the bonus recognized and payable for a temporary period.

It is true that the State as an employer must promote policies to incentivize the continuous education of its servants so that personnel continue to be trained and, ultimately, so that the entire Public Administration aspires to have and retain the best officials for the benefit of the general interest and the services that must be provided to all users and administered parties. In this sense, it is desirable that the State promotes decent and competitive salaries to retain personnel. But with the elements provided so far in this proceeding, no injury to the invoked rights is perceived as such. Therefore, this aspect of the action is dismissed without prejudice to the debate being reopened or reframed in other terms if it is determined that the provisions cause an impoverishment of the salaries of professionals or it is verified that this aspirational measure for the retention of the most suitable public servants is being harmed by the flight of trained personnel.

Finally, and if there were eventually an illegitimate application of the norm, that would have to be examined in each specific case through the ordinary channels of legality, but the objections raised do not prove an injury to the Law of the Constitution.

Conclusions

As a corollary to the considerations made in light of the arguments raised by the plaintiffs, the injury to the invoked constitutional rights and principles is not proven.

Judge Cruz Castro issues a dissenting vote and declares unconstitutional Article 53 of the LSAP, added by the LFFP No. 9635, Article 15 of Regulation No. 41564-MIDEPLAN, and Resolution No. DG-139-2019 of the DGSC.

XXXII.- CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS Challenged Norms Article 54 of the LSAP added by the LFFP No. 9635 and Article 17 of Regulation No. 41564-MIDEPLAN are challenged.

The original version of Article 54 literally provided the following:

"Art. 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation that, upon the entry into force of this law, is expressed in percentage terms, its future calculation shall be a fixed nominal amount, resulting from applying the percentage to the base salary as of January 2018.

(Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018)".

This numeral was subsequently reformed by the sole article of the Law to prevent the reduction of the salaries of Costa Rican educators, No. 10137 of February 17, 2022. The current norm provides the following:

"Article 54- Conversion of incentives to fixed nominal amounts. Any other existing incentive or compensation, that upon the entry into force of this law is expressed in percentage terms, its future calculation shall be a nominal amount, resulting from applying the percentage to the base salary as of July 2018.

In the specific case of the salary component called "Incentive for the Development of Teaching", which is received by the teaching staff of the second title of the Civil Service Statute, it must be calculated as a fixed nominal amount, resulting from applying eight point thirty-three percent (8.33%) to the total salary, this being understood as the sum of the base salary plus its respective salary components, which the servant earns at the time the work is performed, with reference to the salary scale in force as of July 2018.

At all times, the incentive for the development of teaching shall be calculated proportionally according to the number of lessons, the workday, and other salary components that the public servant holds.

TRANSITORY- The amounts received by the personnel of the Ministry of Public Education corresponding to the Incentive for the Development of Teaching, which were calculated as a percentage from the entry into force of Law 9635, Law for the Strengthening of Public Finances, of December 4, 2018, and until February 17, 2022, shall be considered as an item properly paid by the Administration and received in good faith by the personnel of Title II of the Civil Service Statute (teaching, administrative, and technical-docente staff of the Ministry of Public Education), who are released from the obligation to repay them. In accordance with the foregoing, the Ministry of Public Education is exempted from the obligation to claim their payment. Likewise, the sums received by the personnel of the Ministry of Public Education, for the Incentive for the Development of Teaching, from February 17, 2022, and until its effective nominalization in the corresponding payment systems, shall be considered as properly paid, for which reason they do not generate overpaid sums and therefore the Ministry of Public Education is exempted from the obligation to claim their payment.

(Thus the previous transitory added by the sole article of Law No. 10423 of November 20, 2023) (Thus added by Article 3 of Title III of the Law for the Strengthening of Public Finances, No. 9635 of December 3, 2018) (Thus reformed by the sole article of the Law to prevent the reduction of the salaries of Costa Rican educators, No. 10137 of February 17, 2022)".

Similarly, the original version of the decree stated the following:

Art. 17.- Conversion of incentives to fixed nominal amounts. In accordance with the provisions of Article 54 of Law No. 2166, added by Article 3 of Law No. 9635, any other existing incentive or compensation that upon the entry into force of Law No. 9635 is expressed in percentage terms, must be calculated by means of a fixed nominal amount, resulting from applying the percentage to the base salary as of January 2018.

Said provision was reformed, so that the current version orders the following:

"Article 17.- Conversion of incentives to fixed nominal amounts. The amounts for incentives or compensations already received prior to the entry into force of Law No. 9635, are preserved and maintained over time as fixed nominal amounts, a product of the way they were revalued before December 4, 2018, this in accordance with the provisions of Articles 54 and 56 of Law No. 2166, added by Article 3 of Law No. 9635, and Transitory XXV of Law No. 9635.

In accordance with the provisions of Article 54 of Law No. 2166, added by Article 3 of Law No. 9635 and the transitory provisions XXV and XXXI of the third title of Law No. 9635 and in concordance with the Resolution of the General Directorate of the Civil Service DG-087-2018 of nine o'clock on July 2, 2018, any other existing incentive or compensation that upon the entry into force of Law No. 9635 is expressed in percentage terms, must be calculated by means of a fixed nominal amount, resulting from applying the percentage to the base salary as of July 2018.

(Thus reformed by Article 1 of Executive Decree No. 41729 of May 20, 2019)".

Grievances of the Plaintiff The plaintiff argues that, like the challenged Article 50, this norm empties the content of any future existing incentive provided by legal, conventional, or regulatory norm, by decreeing it nominally, subjecting it to the loss of the purchasing power of the currency. He considers that it is a very poor legislative technique that harms the progressiveness of rights and the autonomy of decentralized entities and that directly affects the purchasing power of public officials, whose salary would be confiscated. The unreasonable and disproportionate relationship of what the legislator seeks is clear: higher consumption taxes and a reduction of labor rights. The harm is not only for the professional class, but also for municipal laborers, administrative police officers, etc. The legislator intends to refinance the State at the expense of the rights of Costa Ricans, above all, of public officials, regardless of their salary level.

Allegations of the Active Co-adjuvant (SINAME) It argues that Article 17 of Executive Decree No. 41564-MIDEPLAN-H must be declared unconstitutional because it violates the acquired rights and consolidated legal situations (situaciones jurídicas consolidadas) of public officials, since the norm is being given a retroactive effect, to the detriment of the administered parties, in complete disregard of Article 34 of the Constitution. What is established in that numeral of the regulation of Law No. 9635 is contrary to the Political Constitution because it nominalizes all seniority bonuses (anualidades) and salary bonuses even though those amounts were established as percentages since their creation, and this creates an affectation of the economic rights of the administered parties, leaving them completely unprotected and without legal certainty despite the fact that those are rights that come from collective bargaining. In accordance with the principle of non-retroactivity, it cannot be admitted that a later law influences this type of relations forged under the protection of the law. The legal system must protect the intangibility of these acquired rights and consolidated legal situations that are being threatened by the challenged norms.

Report of the PGR The PGR suggests declaring the unconstitutionality action without merit based on the following reasoning:

"Just as we indicated in the original report of last March 18, within this case file, in the opinion of this Attorney General's Office, the legislator is the one called to establish the incentives and the amount of the economic benefits granted to its servants; this as part of the so-called "Statute of public officials" (Article 191 of the Constitution).

And based on the foregoing, it must be understood that the economic amount granted for incentives or bonuses depends on the intensity with which the legislator wishes to incentivize the permanence in the position of public officials, and on the economic possibility of paying the sums derived from that incentive.

Note that keeping the pre-existing salary components as percentages implies a greater expenditure of resources that is not consistent with the intention of balancing public finances that currently prevails, out of necessity. Faced with this situation, it corresponds to the legislator to decide —as he already did— to effectuate said conversion by nominalizing them and thus promote the balance of public finances, without opting for one or another decision implying any violation of constitutional norms or principles, since those alternatives are constitutionally valid in view of the basic regulation of the constitutional regime of public employment (Article 191 of the Constitution), which it is incumbent upon the legislator to configure (Articles 105 and 121.1 Ibidem).

Thus, the permanent nature implicit in granting these salary components a nominal value that is stable over time is not intended to worsen the situation of public employees, but rather is validly justified by the real need to achieve a situation of balance in public finances; a need that goes beyond overcoming a temporary or conjunctural economic crisis, as it constitutes an economic objective that it is desirable to maintain over time.

As we reaffirm, the State has the obligation to promote efficiency in the provision of public services, for which it is fundamental to foster the efficiency of public employment. In fact, part of the guarantee of efficiency consists of ensuring that there are sufficient economic resources to meet the expenditures generated by the State payroll, which is only achieved through reasonable salary recognitions, adjusted to the country's economic situation and the availability of resources.

In any case, we must insist that this rule (art. 54) does not repeal the incentives or compensations existing prior to the Law for the Strengthening of Public Finances, but rather establishes the form in which they are to be calculated in the future, no longer as a percentage, but by means of a fixed nominal amount. (Opinion C-153-2018, of June 6, 2019). Which means that, by express legal mandate, all salary components that before December 4, 2018, were calculated as a percentage, must without exception be nominalized in accordance with the provisions. A position we reaffirmed in pronouncements OJ-041-2019, of May 29, 2019, in the case of the Caja Costarricense de Seguro Social; OJ-068-2019, of June 20, 2019, in the case of the Poder Judicial; opinions C-166-2019, of June 13, 2019, in the case of the Tribunal Supremo de Elecciones; C-194-2019, of July 8, 2019, in the case of the Municipalities; C-281-2019, of October 1, 2019, in which it was determined that, given its general scope of application and its undeniable vocation for uniformity and homogeneity, as a constitutionally valid option to regulate the remunerative conditions of employment in the entire public sector (art. 192 of the Constitution), the provisions on public employment contemplated in the Public Administration Salary Law related, among other topics, to the form in which salaries and their components must be calculated in the Public Sector, prevail over any other provision of legal or lower rank pre-existing at the sectoral level; this by way of tacit repeal – total or partial – due to normative incompatibility of their contents.

It should be remembered that the regime of rights of public officials is not a static regime, but variable by essence, especially with regard to rights of economic content, the amount of which may even be modified within the limits of the Constitution (art. 34 of the Constitution), since the servant does not have a vested right against the legislator, and even against the same normative power of the employing Administration, for a specific regulation of their rights to be maintained, when experience demonstrates that it must be subjected, in accordance with the Law, to a more or less continuous process of adjustments and reforms for reasons of general interest (Resolution No. 10340 of 12:47 hrs on June 11, 2010, Sala Constitucional).

And since the employment relationship is framed in an objective regime, defined legally or by regulation, as was explained, it is also modifiable by one or another normative instrument, without, consequently, being able to claim that this statutory situation is frozen in time, because "no one has the right to the immutability of the legal order, that is, that the rules never change, therefore the principle of non-retroactivity does not prevent that once the rule that connects the fact with the effect has come into legal existence, it cannot be modified, and even suppressed by a subsequent norm" (Resolution No. 6134-98 of 17:24 hours on August 26, 1998, Sala Constitucional).

In this way, the consolidated criterion has been that the official lacks a general vested right to the maintenance of a specific regulation of their working conditions or to prevent its modification, clarifying that the mere conditions objectively provided for in the norms or the advantageous situations or mere expectations that could potentially derive from them are not vested rights, if they are not accompanied by a singular legal act that confers a subjective right to an individualized legal situation arising from facts protected by the expressed objective norm, and always born during the validity of the same. (See in this regard, among others, judgment No. 84-2014-I of 11:30 hrs. on November 28, 2014, from the Tribunal Contencioso Administrativo y Civil de Hacienda, Section I).

And in this case, it must not be lost sight of the fact that in the face of the nominalization of the pre-existing percentage incentives and bonuses, ordered by the legislative provisions of the Law for the Strengthening of Public Finances, No. 9635, those salary components are preserved but under a fixed economic value; that is, they are not repealed, but are preserved in the future under a fixed amount resulting from the application of the percentage to the base salary as of July 2018; this to safeguard the "vested rights", because Transitory Provision XXV of the Law itself so arranged, in the sense that the total salary of the servers who were active as of December 4, 2018, the date on which that Law entered into force, cannot be diminished.

Finally, regarding the accusation that the nominalization of salary components ordered in Law No. 9635 negatively affects the right of negotiation that contains provisions on the payment of incentives or compensations in percentage form, thus addressing that alleged reason for unconstitutionality, those objections revolve around the theme of the prevalence or not of a subsequent law (the Law for the Strengthening of Public Finances) over current collective bargaining agreements. And in this regard, we must reiterate that the institutional position of this advisory body on that topic was expressed in our opinion C-060-2019, of March 5, just recently passed. In that pronouncement, the conclusion was reached that collective bargaining agreements are subject to the law, even when the latter is subsequent, especially when that law is expressly directed to repeal (with effect towards the future, consequently respecting vested rights and consolidated legal situations) the conventional norms that have a specific content.

For the reasons stated, the alleged defects are not admissible." ### Ministry of Finance Report The minister requests that the grievances raised be dismissed and states the following:

"[T]he treatment given to the annuities, the nominalizing of the bonuses are not compensatory measures, nor arbitrary, nor do they violate vested rights, but rather their orientation is to standardize the public employment regime." ### Resolution of the Constitutional Chamber Regarding these grievances, it is necessary to reiterate what was resolved in the previous items. In the first place, the claimants lack standing to question the alleged injury to the autonomies of the municipalities or decentralized entities.

Secondly, regarding labor rights, it is necessary to insist that the legislator provided that these types of general rules take effect towards the future, safeguarding in any case the salary status of public servants. In this regard, it is necessary to reiterate what was established in art. 56 of the LSAP in the sense that "the incentives, compensations, caps, or annuities remunerated on the date of entry into force of the law will be applied in the future and may not be applied retroactively to the detriment of the official or their proprietary rights." So the legislator's will in any case was to safeguard the salary and vested rights of public servants. However, as has been developed throughout this resolution, the fiscal background prompted the legislator to adopt measures with the purpose of stopping the imbalance in public finances through provisions of containment in public spending and standardization in the payment of public servants' salaries. All of which is legitimate within the framework of Constitutional Law, since there is no fundamental right to the immutability of the legal order and that the rules on the recognition of salary bonuses and incentives do not vary over time. Therefore, this Chamber noted that this type of provisions are legitimate provided that the possibility is safeguarded for those public servants who do not participate in public management to negotiate salary improvements within the margins of reasonableness, proportionality, and correct disposition of public funds in times of economic contraction. In which case, the prospective nominalization of salary incentives ‒and with the arguments raised by the claimants‒ does not appear as an emptying of the fundamental rights of public officials.

Now, regarding the claim that a hollowing out of the salary is occurring, generated by the loss of purchasing power, salary progressivity, and supposedly confiscatory and unreasonable conditions, the grievances must be dismissed due to insufficient reasoning and demonstration of the grievances. It has been insisted upon in this resolution ‒based on the LJC itself and on constitutional jurisprudence‒ that whoever alleges injury to Constitutional Law or argues the unreasonableness of a norm must provide solid arguments and demonstrate the supposed pernicious effects of the provision. In the specific case, identical defects and deficiencies are noted, as the claimants limit themselves to predicting negative salary aspects, without providing greater elements of judgment to this Chamber to carry out an appropriate analysis of a true impact on the generality of public servants.

Finally, regarding eventual antinomies or the prevalence of other special norms, it is reiterated that this must be assessed and resolved in the ordinary instances of legality.

## XXXIII.- ON THE REFORMS TO ART. 57 OF THE PUBLIC ADMINISTRATION SALARY LAW ### Challenged Norms The claimant questions several subsections of art. 57 of the LSAP. The challenged provisions regulate the following:

Article 57- Reforms. The following laws are modified, in the manner described below:

(…)

• f)The first paragraph of article 47 of Law No. 1581, Civil Service Statute, of May 30, 1953, is reformed. The text is as follows:

Article 47- Notwithstanding the provisions of article 43, the minister may terminate the employment contracts of the servants, upon prior payment of the benefits that may correspond to them, provided that the Tribunal de Servicio Civil, upon resolving the consultation that will be made to it in advance, deems that the case falls under one of the following very qualified exceptions.

• g)Article 15 of Law No. 8422, Law against Corruption and Illicit Enrichment in the Public Function, of October 6, 2004, is reformed. The text is as follows:

Article 15- Economic retribution for the prohibition from exercising liberal professions. The economic compensation for the application of the preceding article shall be equivalent to a payment of fifteen percent (15%) for bachelors and thirty percent (30%) for licentiates or postgraduates on the base salary set for the category of the respective position.

• h)Subsection b) of article 1 of Law No. 5867, Law of Compensation for Prohibition Payment, of December 15, 1975, is reformed. The text is as follows:

Article 1- [.]

• b)Fifteen percent (15%) for those who are university bachelors.
• i)Article 5 of Law No. 5867, Law of Compensation for Prohibition Payment, of December 15, 1975, is reformed.

Article 5 – Unless a special remuneration regime exists for the public official, the benefits set forth in subsections a) and b) of article 1 of this law shall apply to employees of the Executive Branch, Judicial Branch, Supreme Electoral Tribunal, Civil Registry, Office of the Comptroller General of the Republic, Office of the Attorney General of the Republic, and municipalities, referred to in article 244 of Law No. 8, Organic Law of the Judicial Branch, of November 29, 1937. Such compensation shall be calculated based on the lowest salary indicated in the Public Administration salary scale issued by the Dirección General del Servicio Civil.

(…)

• m)The penultimate paragraph of article 9 of Law No. 7319, Law of the Office of the Ombudsman of the Republic, of December 10, 1992, is amended. The text is as follows:

[.]

The prohibition set forth in subsection 4) of this article extends only to professional employees occupying professional positions in the Office of the Ombudsman of the Republic (Defensoría de los Habitantes). These officials shall be economically compensated on a percentage basis over their base salary. The percentages to be paid to compensate the prohibition are: thirty percent (30%) for those holding a licentiate degree or a higher degree, and fifteen percent (15%) for university baccalaureate holders.

[.].

• n)Articles 1 and 2 of Law No. 6451, Authorizing the Judicial Branch to Recognize Benefits, of August 1, 1980, are amended. The texts are as follows:

Article 1- The Supreme Court of Justice is authorized to recognize the benefit on the basis of prohibition (prohibición) to professional personnel whom it considers, due to the functions inherent to the position held, are prevented from practicing their liberal profession or professions on a private basis, or from holding positions in private enterprise, the Public Administration, and autonomous or semi-autonomous institutions.

Article 2- An official granted the benefit established in the preceding article shall receive financial compensation (compensación económica) of a percentage over their base salary. Fifteen percent (15%) for those possessing the academic degree of university baccalaureate (bachiller universitario), and thirty percent (30%) for those holding a licentiate degree or a higher degree.

(…)

• o)Article 23 of Law No. 6934, Reform of the National Registry Law, of November 28, 1983, is amended. The text is as follows:

Article 23- As financial compensation on the basis of prohibition, the professional personnel paid from the budget of the Administrative Board (Junta Administrativa) shall be recognized, on a percentage basis over their base salary, fifteen percent (15%) for those possessing the academic degree of university baccalaureate, and thirty percent (30%) for those holding a licentiate degree or a higher degree.

• p)An article 48 bis is added to Law No. 7428, Organic Law of the Office of the Comptroller General of the Republic, of November 7, 1994. The text is as follows:

Article 48 bis- Financial Compensation. As financial compensation for the prohibition contained in article 48, subsection a), the officials to whom it applies shall receive, on a percentage basis over their base salary, fifteen percent (15%) for those possessing the academic degree of university baccalaureate, and thirty percent (30%) for those holding a licentiate degree or a higher degree”.

Allegations of the Complaining Party The complainant challenges subsection f) for violating art. 192 of the Constitution regarding the suitability and inamovability of public officials, as well as their labor stability. He affirms that the legislator's intention is to repeal the state obligation to indemnify a worker included in the Civil Service Statute (Estatuto de Servicio Civil). To which is added the repeal of subsection f) of art. 37 of law No. 1581, Civil Service Statute, of May 30, 1953, which provided as follows:

“f) If they cease in their functions due to job suppression (supresión del empleo), they shall have the right to severance pay (indemnización) of one month for each year or fraction of six or more months of service rendered. It is understood that if, by reason of the preferential right granted by article 47, in its penultimate paragraph, the laid-off employee returns to occupy a position in the administration before having received the totality of the monthly payments to which they are entitled by concept of severance pay for dismissal, the payment of the same shall cease immediately. In the event of a new dismissal due to job suppression, to determine the severance pay to which they are entitled, the amount of the unpaid monthly payments based on the first dismissal for job suppression to which they were subject shall be added to the time served in the new position.

For the payment of the monthly payments referred to in this subsection, the funds from the Ordinary Budget corresponding to the suppressed position shall be used, and for this purpose the budget item shall be maintained until the obligation is fully canceled.

(The preceding subsection as amended by article 1 of Law No. 4906 of November 29, 1971, an amendment that in turn was AUTHENTICALLY INTERPRETED by Law No. 5173 of May 10, 1992, article 1, in the sense that "workers who avail themselves - even voluntarily - of retirement, old-age pension, death or withdrawal pension, granted by the Caja Costarricense de Seguro Social or by the various pension systems of the State Branches, by the Tribunal Supremo de Elecciones, by the Autonomous, semi-autonomous, and municipal Institutions, have the right for the employer to pay them the unemployment assistance (auxilio de cesantía).") (Text modified by Resolution of the Constitutional Chamber No. 8232-00 of 15:04 hours of September 19, 2000).” The complainant states that these norms being repealed have a reason for being. The constituent considered it necessary to include the public employment regime within our highest normative body to guarantee suitability and stability, and based on this latter, the severance pay that art. 37 contained was foreseen, which somehow guaranteed that the governor or administrative heads could not apply the cases of exception (such as reorganization) indiscriminately in order to dismiss officials. An equalization with the private worker is produced, with only minimum rights assisting them.

The rest, for violation of the principles of equality, salary equality, and subsection i) for violation of the principles of reasonability, proportionality, and legal certainty. Regarding subsections g), h), i), m), n), o), and p), it was indicated that there is evident inequality promoted by the legislator without any justification, by determining that some officials will receive a prohibition payment (pago de prohibición) percentage of 65% of the base salary, while others, under equal conditions with respect to academic level and functions, will be compensated with only 30%.

Subsection i) is an ambiguous provision, contrary to the principle of legal certainty, since it amends art. 5 of law No. 5867, Law of Compensation for Prohibition Payment of December 15, 1975. The amended norm indicates that the compensation shall be calculated based on the lowest salary indicated in the Public Administration salary scale issued by the DGSC. The original norm provided that such compensation would be calculated based on the base salary corresponding to each institution. The objective of paying the prohibition percentages to professionals, using the lowest salary on the scale, violates the principles of reasonability and proportionality, to the extent that the professional is compensated for the limitation on practicing their profession with an amount that does not correspond to what said professional could obtain if not legally limited.

Report of the PGR The PGR requests that the grievances raised be dismissed, based on the following considerations:

“Let us begin by clarifying that, recently, through opinion C-281-2019, of October 1, 2019, in the face of any contradiction between the general rule for the payment of the financial compensation for prohibition provided in article 36 of the Law of Salaries of the Public Administration (which contemplates the payment of 30% for licentiate or higher), and the provisions, for example, in subsection a) of article 1° of law No. 5867 (which establishes, for this same situation, the payment of 65% compensation), or any other prior law on the same matter, the claim of generality and uniformity that inspired the amendment to the Law of Salaries of the Public Administration, carried out through the Law for Strengthening Public Finances, must prevail.

Hence, the antinomy existing between article 36 of the Law of Salaries of the Public Administration which establishes as a parameter for calculating the financial compensation for prohibition the base salary of each employee, and article 5 of the “Law of Compensation for the Payment of Prohibition” which provides that the payment of the compensation for the prohibition referred to in article 244 of the Organic Law of the Judicial Branch must be calculated based on the lowest salary indicated in the salary scale of the Public Administration, always following the claim of generality and uniformity that inspired the amendment to the Law of Salaries of the Public Administration, must be resolved in favor of the general and uniform rule established as a unifying parameter; that is, the parameter for calculating the aforementioned financial compensation must be the base salary of each employee.

Below, the PGR transcribes its own opinion C-281-2019, of October 1, 2019, which, as relevant, clarifies the normative situation resulting from the amendment and clarifies how the antinomy and the situation of the employees of the State Tax Administration should be interpreted:

With the aim of applying the general rule referred to in the recently transcribed norm, article 57 of the Law of Salaries of the Public Administration ordered a series of amendments to pre-existing laws that regulated the payment of financial compensation for prohibition. Among the provisions that were expressly amended by means of that norm is article 1° of law No. 5867 of December 15, 1975, called “Law of Financial Compensation for the Payment of Prohibition”.

That article established, before the entry into force of the Public Finance Strengthening Law (Ley de Fortalecimiento de las Finanzas Públicas), that officials subject to any prohibition on the liberal practice of their profession would receive an economic compensation of 65% in the case of professionals with a licentiate degree or higher (subsection a), 45% in the case of graduates of licentiate or master's programs (subsection b), and 30% in the case of university bachelor's degree holders (subsection c).

(...)

With the aforementioned changes, subsection a) of Article 1 of Law No. 5867 remained in force, a subsection which establishes —as we have already indicated— that in the case of professionals with a licentiate degree or higher, the economic compensation would be 65% of the base salary, which contradicts the general rule established in Article 36 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) in the sense that the economic compensation for this type of official must be 30% of the base salary.

The current text of Article 1 of Law No. 5867, including the reforms and derogations to which reference has been made, is as follows:

"Article 1.- For the personnel of the Tax Administration who, by reason of their positions, are subject to the prohibition contained in Article 118 of the Code of Tax Rules and Procedures (Código de Normas y Procedimientos Tributarios), except for the members of the Fiscal Administrative Tribunal (Tribunal Fiscal Administrativo), the following economic compensation is established over the base salary of the salary scale of the Public Administration Salary Law:

• a)Sixty-five percent (65%) for professionals at the licentiate level or other higher academic degree.
• b)Fifteen percent (15%) for those who are university bachelor's degree holders.
• c)…" .

From the foregoing, it is evident that there is a contradiction between the general rule for the payment of economic compensation for prohibition provided in Article 36 of the Public Administration Salary Law (which contemplates a payment of 30% for licentiate or higher), and the provision in subsection a) of Article 1 of Law No. 5867 (which establishes, for that same case, a payment of 65% compensation). Such a contradiction is nothing other than an antinomy, which implies the tacit derogation of one of the two precepts. In view of this, this Attorney General's Office (Procuraduría) considers that the provision in Article 36 of the Public Administration Salary Law must prevail, not only because it is the most recent rule, but also because it reflects the aim for generality and uniformity that inspired the reform in public employment matters implemented through the Public Finance Strengthening Law.

(...)

Although it could be affirmed that the Law on Compensation for Payment of Prohibition (Ley de Compensación por Pago de Prohibición) is a special law in relation to the Public Administration Salary Law, as it regulates a specific aspect of service relationships applicable to a specific group of servants (those subject to a prohibition on the liberal practice of their profession), the truth is that, in these cases, the aim for generality and uniformity of the Public Administration Salary Law must prevail over the prior law that regulates the payment of economic compensation for prohibition.

Following another criterion, in this case, would imply deviating from the purpose of the reform to the Public Administration Salary Law, consisting of establishing general guidelines on the manner in which incentives and economic compensations derived from employment relationships must be recognized throughout the public sector.

Furthermore, this Attorney General's Office does not find any particularity that justifies paying the officials to whom subsection a) of Article 1 of Law No. 5867 applies an economic compensation of 65% of their base salary for prohibition, while the rest of the public officials are paid, for that same restriction, 30%. That is to say, there is no distinguishable, verifiable feature that supports that differentiated treatment, and therefore, what is appropriate, under the protection of the constitutional principles of equality and reasonableness, is to apply the general rule contained in Article 36 of the Public Administration Salary Law.

Apart from the above, the disproportion between the economic compensation that would be recognized to an official with a licentiate academic degree (65% of the salary) and that which would be recognized to one with a university bachelor's academic degree (15%) would be unreasonable, which ratifies the validity of the thesis presented.

Additionally, the PGR acknowledges that there is certainly a contradiction regarding the calculation basis from which the payment of the compensation for the prohibition on the liberal practice of the profession is made, and in such case, it considers that prevalence must be given to the regulation with a vocation for uniformity:

"In this case, following the aim for generality and uniformity that inspired the reform to the Public Administration Salary Law, we estimate that the method of calculating the economic compensation that must be applied is the one provided in Article 36 of the Public Administration Salary Law (over the base salary of each official) and not the one provided in Article 5 of Law No. 5867 (over the lowest salary indicated in the salary scale of the Public Administration).

Such an interpretation, apart from maintaining the uniformity sought by the Public Administration Salary Law, is consistent with the constitutional principles of equality and reasonableness, since there is no objective and reasonable justification for the economic compensation for the prohibition referred to in Article 244 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) to be different (lower) than that applicable to other professionals for similar restrictions on professional practice." Finally, regarding the claim that the special indemnities for the suppression of positions were allegedly illegitimately derogated, the PGR stated the following:

"It is also untrue that the reform introduced by Law 9635 to paragraph 1 of Article 47 and subsection f) of section 37 of the Civil Service Statute (Estatuto de Servicio Civil) has violated the guarantee of employment stability (Art. 192 of the Constitution), and authorizes without further ado the principle of free dismissal without indemnity in public employment, as is unfoundedly accused.

According to our explanation in our opinion C-086-2019, of April 3, 2019, in use of its power to configure public employment (Art. 191 of the Constitution), in use of the inexhaustible legislative power (Arts. 105 and 121.1 Ibid.), reforms were introduced to the Civil Service Statute regarding unemployment benefits (auxilio de cesantía) and indemnities of a similar nature in cases of reorganizations or restructurings.

And specifically, taking into consideration the express derogation of subsection f) of Article 37 of the Civil Service Statute, and the modification introduced to Article 47 of that same legal body, by Articles 58 subsection b) and 57 subsection f), respectively, introduced to the Public Administration Salary Law by Law No. 9635 –of Public Finance Strengthening–, as well as the application of its transitional regime (Transitory XXVII and Art. 13 subsection a) in fine of the Executive Decree No. 41564-MIDEPLAN-H), and especially due to the non-existence of identity between the indemnities normatively provided for the purpose, according to section 111 subsection d) of the Regulation to the Civil Service Statute (Reglamento del Estatuto de Servicio Civil), we concluded:

• a)If the reorganization carried out implies the need to dispense with the services of some employees covered by collective bargaining instruments, either because they are not required within the new organic structure, or because they do not accept the subsequent reduction of their salaries, after December 4, 2018, the applicable indemnity for those covered by Collective Agreements would be that corresponding to the payment of benefits, specifically for unemployment benefits, but in no case may said indemnity be greater than twelve years while such collective instruments remain in force (Opinion C-060-2018, of March 5, 2019).
• b)For those other employees excluded from the application of those collective instruments, who could also be dismissed due to reorganization, the normative precept contained in Article 39 of the cited Law No. 9635 would be directly applicable; that is, a maximum limit of 8 years of unemployment benefits; a rule which for these cases has immediate effectiveness –as of its publication date– and which, by its normative rank, prevails over section 27 subsection c) of the Regulation to the Civil Service Statute.
• c)While, in the case of the aforementioned salary reduction or decrease, the special indemnity provided by regulation, as a general rule, by the cited section 111 subsection d) of the Regulation to the Civil Service Statute must continue to be applied, until the derogatory or regulatory reform power held by the Executive Branch (Art. 140.3 of the Political Constitution) is exercised with respect to it.

That is to say, the guarantee of stability in the public post or position continues to exist at the legal level, and as a consequence thereof, any unjustified dismissal entails the recognition of legal benefits. There exists, therefore, no contrived or forced comparison to the private labor regime, as is unfoundedly accused.

The alleged defects are dismissible, as they are unfounded." Resolution of the Constitutional Chamber (Sala Constitucional) Regarding Art. 57 subsection f) In relation to this specific numeral, it is questioned that it harms the immovability of public servants and it is reproached that the state obligation to indemnify the worker included in the Civil Service Statute has been derogated. To better clarify what is denounced by the plaintiffs, it is necessary to compare the different versions of the rule under analysis, that is, Art.

47 of the Civil Service Statute:

The challenge to said norm is linked to the derogations made by virtue of Art. 58 of the LSAP added by the LFFP. Subsection b) of said numeral ordered the derogation of subsection f) of Art. 37 of Law No. 1581, Civil Service Statute, of May 30, 1953, which provided the following:

<span style="font-style:italic">“</span><span style="font-style:italic">Article 37.- The servants of the Executive Branch protected by this law shall enjoy the following rights:</span> <span style="font-style:italic">(…</span><span style="font-style:italic">)</span> <span style="font-style:italic">f) </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">If they cease their functions due to suppression of the position, they shall be entitled to severance pay of one month for each year or fraction of six or more months of services rendered</span><span style="font-style:italic">. It is understood that if, by reason of the preferential right granted by Article 47, in its penultimate paragraph, the laid-off employee were to again occupy a position in the administration, before having received the entirety of the monthly payments to which they are entitled as severance for dismissal, the payment of the same shall cease immediately. In the event of a new dismissal due to suppression of the position, to determine the severance to which they are entitled, the amount of unpaid monthly payments arising from the first dismissal due to suppression of the position to which they were subjected shall be added to the time served in the new position.</span> <span style="font-style:italic">For the payment of the monthly payments referred to in this subsection, the funds from the Ordinary Budget corresponding to the suppressed position shall be used, and for this purpose the budget item shall be maintained until the obligation is fully settled”.</span> In accordance with this overview, it is clear that the claimant's argument is not correct, because he alleges that this set of provisions harms the guarantee of job stability (inamovilidad) of public servants. According to the claimant, from these norms arose the obligation for the heads to not apply exceptional dismissals indiscriminately ‒for example, due to reorganization of services‒, with the result that public servants are now equated to any private worker.

Firstly, it must be remembered that Art. 192 of the Political Constitution categorically establishes that “<span style="font-style:italic">public servants shall be appointed based on proven suitability and may only be removed for the causes of justified dismissal expressed in labor legislation, or in the case of forced reduction of services, whether due to lack of funds or to achieve a better organization of the same</span>”. Furthermore, from a careful review of the regulatory situation, it follows that the job stability regime for public servants remains intact and that the exceptional dismissal regime also remains in force with identical requirements. This is easily observed from the mere comparison of the norms in the inserted table. What occurred is that the legislator eliminated a specific norm for the regulation and payment of legal benefits in the event that a “forced reduction of services” occurs, but if the norm is examined in detail, <span style="font-weight:bold; text-decoration:underline">it still orders that the termination of the contract will occur </span><span style="font-weight:bold; font-style:italic; text-decoration:underline">“</span><span style="font-weight:bold; font-style:italic; text-decoration:underline">upon prior payment of the benefits that may correspond to them”</span>, that is, the payment of the corresponding benefits remains in force and its illegitimate suppression could indeed contravene the Law of the Constitution. Therefore, this Chamber agrees with the explanations provided by the reporting authorities in the sense that the guarantee of stability in the public position continues to exist at the legal level as a derivation of the Political Constitution, and as a consequence of this, any cessation due to forced reduction of services entails the recognition of legal benefits and there is no equation with the private labor regime, as artificially alleged by the claimant. This Chamber has recognized the payment of legal benefits in the case of forced reduction of services because it is equated to a dismissal with employer liability. As an example, see judgment [n.° 2020-021330](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1026561) in which the following considerations were made:

<span style="font-style:italic">“</span><span style="font-style:italic; background-color:#ffffff">The numeral under analysis indicates that</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">“</span><span style="font-style:italic; background-color:#ffffff">If the Municipality were to terminate the Employment Contracts with its employees, in accordance with the previous article (Article 19), or when the worker accepts it”.</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">In the opinion of this Tribunal, the recognition of the payment of the</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">severance pay (cesantía)</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">in the first scenario is not unconstitutional because its payment is due to the employer's will to terminate the employment contract due to a restructuring process, a scenario that has been assimilated by this Chamber to a dismissal with employer liability. This has been resolved by this Chamber when hearing claims similar to the one raised in the</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">sub lite. For example, in judgment n.°</span><span style="font-style:italic; background-color:#ffffff">2019-008679 in which it was considered</span><span style="font-style:italic; background-color:#ffffff">, as relevant, the following:</span> <span style="font-style:italic; background-color:#ffffff">“The general rule, in the Political Constitution, is to recognize the stability of the public official, but this can be altered in very special situations by authorizing removal in cases of a</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">forced reduction</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">of services caused by lack of funds or by reorganization. The cited precedent is clear on the need to establish a limit of years for the payment of the severance assistance, for these cases, as well as recognizing that in the suppression of positions, there is no will or fault whatsoever on the part of the worker, which would precipitate the termination of the official's service relationship. Quite the contrary, the suppression of the position is nothing other than human resource restructuring processes, which normally require diagnoses and studies that are later materialized in duly motivated and reasoned administrative acts, and which, if it is concluded that positions need to be suppressed, the workers must receive similar treatment, as a natural consequence, to the same order and category of causes for dismissals with employer liability. </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">In this sense, the payment of the severance assistance</span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff"> </span><span style="font-weight:bold; font-style:italic; text-decoration:underline; background-color:#ffffff">is legitimate with the payment of the legal minimum established by the corresponding labor legislation, or when this is displaced by collective bargaining, under the parameters mentioned for the appropriateness of the payment, provided that the reasons of constitutionality that validate this type of cause prevail</span><span style="font-style:italic; background-color:#ffffff">.</span> <span style="font-style:italic; background-color:#ffffff">Regarding the suppression of the position, the payment to be made, in accordance with the new jurisprudential criterion of the Chamber, must not exceed the twelve years already cited. As the scenario of position suppression in the Collective Bargaining Agreement is a constitutionally valid cause (Art. 192), the appropriate course is to declare the action without merit on this point, provided that the severance granted does not exceed twelve years”. </span> <span style="font-style:italic; background-color:#ffffff">For this reason, in such a scenario, the reason for the severance for restructuring under the exclusive will of the employer to terminate the employment contract is not in itself unconstitutional”.</span><span style="background-color:#ffffff"> (The highlighted text does not correspond to the original).</span> Therefore, according to the precedent, the suppression of the position as a result of a human resource restructuring process normally requires diagnoses and studies that are later materialized in duly motivated and reasoned administrative acts, and if it is concluded that positions need to be suppressed, the workers must receive treatment similar to a dismissal with employer liability and, therefore, may require the benefits that correspond to them.

What is under discussion following the derogations in question is not related to the constitutional guarantees of suitability or job stability, but rather to the determination of the amount that would eventually need to be recognized to public servants whose position is suppressed. Evidently, the decision on this matter requires a task of integration and interpretation by the different legal operators, taking into account the specific qualities of the institution in question and whether the servants are or are not covered by other special provisions, such as the respective collective bargaining agreements. Said interpretative task ‒in order to determine in each specific case the amount of severance‒ is a matter of legality and not of constitutionality and, as is evident, says nothing about the supposed unconstitutionality of the provisions challenged. Therefore, these objections must be dismissed.

## <a name="_Toc193445539" class="">Regarding Art. 57, subsections g), h), m), n), o), and p)</a> In relation to this numeral, the claimant raises discussions typical of ordinary legality and not of constitutionality regarding which norms should prevail for the purposes of recognizing payment for the prohibition (pago de la prohibición). The foregoing is ratified by the explanation provided by the PGR in its report regarding which norms should or should not prevail in each specific case. Such objections do not correspond to being resolved by this Chamber, but rather before ordinary instances. In this regard, it is appropriate to remember and reiterate what was resolved by this Chamber in judgment [n.° 2023-010798](https://nexuspj.poder-judicial.go.cr/document/sen-1-0007-1170977) in which the following was stated:

<span style="font-style:italic">“</span><span style="font-style:italic; background-color:#ffffff">With a brief argument, the claimant refers to the reduction that operated in the payment percentages of the prohibition fee (pago de prohibición) that the Public Administration pays to</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">its officials, which was reformed in the Law for the Strengthening of Public Finances. He notes the change from 65% to 30%, and from 45% to 30%, and the derogation of the other subsections of the conventional norm. The Union maintains that the percentages safeguard municipal interests, by having a prohibition payment for personnel in charge of municipal taxes, and not entering into conflicts with hours outside their workday. They maintain that due to the constitutional autonomy of the municipality, the</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">Law for the Strengthening of Public Finances</span><span style="font-style:italic; background-color:#ffffff"> does not apply to the personnel, and if that were the case, it would be for those who joined after December 2018.</span> <span style="font-style:italic; background-color:#ffffff">As the Procuraduría General de la República indeed explains, it is clear that the discussion presented in this numeral is one of ordinary legality, since it involves a conflict of norms applicable over time; that is, of legal antinomies. What is under discussion</span><span style="font-style:italic; background-color:#ffffff"> </span><span style="font-style:italic; background-color:#ffffff">is whether some of the provisions that support the percentages regulated conventionally and established by law have been derogated, thereby discussing whether a presumed tacit derogation occurs for several provisions of the Public Administration Salary Law, the Law of Economic Compensation for Payment of Prohibition, with the reforms introduced in the Law for the Strengthening of Public Finances.</span> As is evident, it must be defined whether subsection a), of article 1, of the Law of Economic Compensation for the payment of Prohibition, survives the legal reforms, and in this type of circumstances, the integration and interpretation of infra-constitutional norms is required, which is not the purview of the Constitutional Chamber (Sala Constitucional), but rather of the administrative and judicial authorities, as appropriate.</span></p><p style="margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; line-height:normal; font-size:12pt"><span style="font-style:italic; background-color:#ffffff">Consequently, on this point, the action must be dismissed".</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:ignore">&nbsp;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Likewise, it is not appropriate for the Chamber, in the specific case, to assess the entire legal framework for the purpose of defining which special provisions apply to each public servant based on their legal situation, or which parameter should be adopted for making the corresponding calculation.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Finally, this Court observes that the alleged injury to the principles of equality, reasonableness, proportionality, and legal certainty was barely mentioned, as the arguments raised by the plaintiff do not allow for an appropriate analysis of the matter. That is, these claims are merely stated and are not duly substantiated. Therefore, these grievances must be rejected. </span></p><h2 style="margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt"><a name="_Toc193445540" class=""><span>XXXIV.- GENERAL CONCLUSIONS</span></a><span> </span></h2><p style="margin-top:0pt; margin-bottom:0pt"><span>Based on the analysis performed </span><span>‒</span><span>in light of the claims raised by the plaintiffs</span><span>‒</span><span> this action must be declared partially with merit, pursuant to the following arguments: </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Aspects that must be dismissed by virtue of the plaintiffs' standing (legitimación)</span><span style="font-weight:bold; text-decoration:underline"></span><span>: articles 3, 4, 9, and 14 of Executive Decree (Decreto Ejecutivo) No.</span><span>41564-MIDEPLAN-H, Title IX of the LFFP, and matters concerning the destination of free surpluses (superávits libres). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents (salva el voto) and also admits the plaintiffs' standing (legitimación) regarding the defense of institutional autonomies, fiscal responsibility, and the destination of free surpluses (superávits libres).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the annuities (anualidades)</span><span>: </span><span>the action must be declared partially with merit solely due to the unreasonableness of recognizing the annuity (anualidad) incentive in the month of June of each year and for breaking labor continuity. This is according to what was regulated in Article 12 of the LSAP in its version amended by the LFFP and during the period it was in force. In all other respects, the grievances are declared without merit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the alleged injuries to acquired rights</span><span>: as no retroactive effect on the proprietary rights of public servants was proven, the claims related to the alleged injury to the principle of non-retroactivity and Article 34 of the Political Constitution must be declared without merit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the fundamental right to collective bargaining (negociación colectiva)</span><span>: </span><span>Article 55 </span><span>‒</span><span>and, therefore, all provisions related to the questioned bonuses, namely Articles 39, </span><span>50, 54 of the LSAP and Transitory Provisions (Transitorios) XXVII and XXXI of the LFFP</span><span>‒</span><span> must be deemed constitutional under the understanding that the restriction on negotiating does not apply to Public Sector employees who can validly conclude collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law. All the foregoing</span><span>, without prejudice to legality and constitutionality controls over the result of the negotiation, in view of the constitutional principles of reasonableness, proportionality, and the proper use and management of public funds. </span><span>Finally, the unconstitutionality of the provision in Transitory Provision (Transitorio) XXXVI paragraph 1 of the LFFP </span><span>‒</span><span>transitory provision to Title III of the Amendment to Law No.</span><span>2166, LSAP</span><span>‒</span><span> </span><span>is declared, as said numeral disregards the free and voluntary nature of collective bargaining (negociación colectiva) and, on the contrary, establishes the obligation for all heads of public entities to denounce the collective bargaining agreements (convenciones colectivas), once the expiration date arrives. Regarding the</span><span> second paragraph of said transitory provision, the action must be declared without merit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding exclusive dedication (dedicación exclusiva) contracts:</span><span> </span><span>there is, in this Chamber's opinion, no injury to the principle of legal certainty, as the aspects pertaining to the renewal procedure or the term of the contracts are not matters of constitutional relevance but fall within the aspects of timeliness and convenience that the legislator can define. In this regard, no injury to the Law of the Constitution was proven. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the imposition of the "prohibition (prohibición)" regime</span><span style="font-weight:bold; text-decoration:underline"></span><span style="font-weight:bold; text-decoration:underline"></span><span style="font-weight:bold; text-decoration:underline"></span><span style="font-weight:bold; text-decoration:underline"> without the corresponding compensation</span><span>: the Chamber considers that the unconstitutionality must be declared </span><span>of the following phrases: </span><span style="font-style:italic">"</span><span style="font-style:italic">Public servants subject by law to the prohibition (prohibición) regime may not practice their profession or professions, </span><span style="font-style:italic; text-decoration:underline">regardless of whether they meet the requirements to be entitled to compensation for this concept</span><span style="font-style:italic">"</span><span> (Art. 32 p. 2 </span><span style="font-style:italic">in fine</span><span>) and </span><span style="font-style:italic">"</span><span style="font-style:italic">The public servants indicated in the law </span><span style="font-style:italic; text-decoration:underline">as potential beneficiaries of economic compensation for prohibition (prohibición), may not practice, in a private capacity, for remuneration or ad honorem,</span><span style="font-style:italic; text-decoration:underline"></span><span style="font-style:italic; text-decoration:underline"> the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>). The foregoing, by virtue of the fact that they </span><span>attempt to impose the restriction or limitation on professional practice, even when there is no compensation whatsoever, injuring the principles of reasonableness, proportionality, and non-discrimination. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the new percentages defined by the legislator for the payment of exclusive dedication (dedicación exclusiva) or prohibition (prohibición) contracts</span><span>: the claims must be dismissed by virtue of insufficient substantiation to prove their unreasonableness, impact on salary, discrimination, or impact on the public service. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the prohibition (prohibición) of additional incentives</span><span>: the arguments must be rejected due to insufficient substantiation by the plaintiff and because what is claimed refers to the resolution of legal antinomies that must be resolved through ordinary legal channels. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the steering role (rectoría) of MIDEPLAN and its impact on the rights of public servants</span><span>: </span><span>the plaintiff's argument relates to potential normative conflicts in the application of </span><span style="font-style:italic">infra</span><span>-constitutional provisions, which says nothing about the constitutionality itself of the challenged articles or a certain injury to the fundamental rights of public servants.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the performance evaluation goals</span><span>: it is concluded that the plaintiff's claims refer to potential practical difficulties that do not prove an injury to the Law of the Constitution. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the criteria for performance evaluation</span><span>: the criteria of this Chamber are reiterated, in the sense that the questioning of subjectivity in the evaluation to which the public servant could eventually be subjected is nothing more than an abstract, imprecise, and generic opinion that does not necessarily involve the potential violation of fundamental rights. And, in any case, any disagreements that public servants may have with the result of the evaluation performed is a matter of legality that </span><span>is not for this Court to assess and that, therefore, must</span><span> be discussed before the Administration or through the competent jurisdictional channel. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the exclusion of high-ranking officials (jerarcas) from participating in collective bargaining (negociación colectiva)</span><span>: this Chamber considers that it </span><span>does not seek to disincentivize collective bargaining (negociación colectiva), but rather that these negotiations be carried out by </span><span>persons who, due to their hierarchical position (jerárquica), would not benefit themselves and, therefore, avoid a conflict of interest. In this sense, the legislator could legitimately assess and list the positions that, due to their high managerial level, can be excluded from the benefits of collective bargaining (negociación colectiva), without this by </span><span>itself being illegitimate or unconstitutional.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the change in the payment method</span><span>: no particular injury was proven to the detriment of the fundamental rights of public servants. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the grievances related to the form of recognition and payment of points for professional career</span><span>: no injury was proven </span><span>‒</span><span>in the terms formulated by the plaintiffs‒</span><span> to the invoked constitutional rights and principles. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding the nominalization (nominalización) of salary bonuses</span><span>: this Chamber dismissed </span><span>‒</span><span>with the arguments presented‒</span><span> the finding of any unconstitutionality. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold; text-decoration:underline">Regarding Article 57 of the LSAP</span><span>: this Court dismissed that there is an authorization to carry out reorganizations that are detached from the respective payment of labor benefits and that the matter concerning the proper interpretation of which should prevail for the payment corresponding to the amount of the prohibition (prohibición) is a discussion of legality and not of constitutionality. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records a general note. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Rueda Leal issues a dissenting vote (voto particular), in the following terms:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>1) declares the action with merit regarding the phrase "</span><span>The annuity (anualidad) incentive shall be recognized in the first half of the month of June of each year"</span><span> contained in the challenged Article 12 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) amended by Law No. 9635 "</span><span>Strengthening of Public Finances (Fortalecimiento de las finanzas públicas)"</span><span> during its period of validity;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="-aw-import:spaces">&nbsp;</span><span>2) declares the action with merit in relation to the paragraphs: "</span><span style="font-style:italic">Public servants subject by law to the prohibition (prohibición) regime may not practice their profession or professions, regardless of whether they meet the requirements to be entitled to compensation for this concept</span><span>"</span><span> (Art. 32 paragraph 2 </span><span style="font-style:italic">in fine</span><span>) and "</span><span style="font-style:italic">The public servants indicated in the law as potential beneficiaries of economic compensation for prohibition (prohibición), may not practice, in a private capacity, for remuneration or ad honorem, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>), both of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), added by Article 3 of Title III of the Law on "Strengthening of Public Finances (Fortalecimiento de las finanzas públicas)", No. 9635 of December 3, 2018;</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>3) in all other respects, declares the actions without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Lara Gamboa declares the action with merit solely regarding the phrase "</span><span style="font-style:italic">The annuity (anualidad) incentive shall be recognized in the first half of the month of June of each year</span><span>"</span><span> contained in the challenged Article 12 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) amended by Law No. 9635 "Strengthening of Public Finances (Fortalecimiento de las finanzas públicas)" during its period of validity. In all other respects, declares the actions without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">XXXV.- DOCUMENTATION PROVIDED TO THE CASE FILE (EXPEDIENTE)</span><span style="font-weight:bold">. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>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, or new technology-produced device, these must</span><span> 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</span><span> be destroyed, according to the provisions of the "Regulation on the Electronic Case File before the Judicial Branch" (Reglamento sobre Expediente Electrónico ante el Poder Judicial), approved by the Full Court (Corte Plena) in session No. 27-11 of August 22, 2011, Article XXVI and published in Judicial Bulletin (Boletín Judicial) number 19 of January 26, 2012, as well as in the agreement approved by the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial), in session No. 43-12 held on May 3, 2012, Article LXXXI.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center"><span style="font-weight:bold">THEREFORE (POR TANTO):</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>The accumulated unconstitutionality actions are declared partially with merit, following this order of </span><span>considerations:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">First:</span><span> By majority, the plaintiffs' standing (legitimación) is partially admitted.</span><span style="-aw-import:spaces">&nbsp; </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents (salva el voto) and also admits the plaintiffs' standing (legitimación) regarding the defense of institutional autonomies, fiscal responsibility, and the destination of free surpluses (superávits libres).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Second:</span><span> The active joinder (coadyuvancia activa) of [Name 002] is admitted.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Third:</span><span> The joinders of [Name 003] and of [Name 004]</span><span> are rejected for being untimely. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Fourth:</span><span> The majority of the grievances are dismissed on the understanding that the challenged norms should apply only to public servants of the institutions that are not excluded from the application of the Law for Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) in</span><span> salary matters, in accordance with the provisions of Advisory Opinion (Opinión Consultiva) No. 2018-19511 of 21:45 hrs. on November 23, 2018. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Fifth:</span><span> The unconstitutionality action is declared partially with merit regarding Article 12 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) in its version amended by the Law for Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) and during the period it was in force. The foregoing, due to the unreasonableness of recognizing the annuity (anualidad) incentive in the month of June of each year and for breaking labor continuity. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents (salva el voto) and declares the action with merit regarding annuities (anualidades), particularly with respect to Article 50 and Transitory Provision (Transitorio) XXXI.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Sixth:</span><span> By majority, it is declared that Article 55 </span><span>–</span><span>and, therefore, all provisions related to the questioned bonuses, namely Articles 39, 50, 54 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) and Transitory Provisions (Transitorios) XXVII and XXXI of the Law for Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas)</span><span>–</span><span> must be interpreted as constitutional under the understanding that the restriction on negotiating does not apply to Public Sector employees who can validly conclude collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law. All the foregoing, without prejudice to legality and constitutionality controls over the result of the negotiation, in view of the constitutional principles of reasonableness, proportionality, and the proper use of public </span><span>funds.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents partially (salva parcialmente el voto) and declares Articles 54, 55 and Transitory Provisions (Transitorios) XXVII and XXXI unconstitutional. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Seventh:</span><span> By majority, the unconstitutionality of the provision in Transitory Provision (Transitorio) XXXVI first paragraph of the Law for Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) is declared.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records additional reasons. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Eighth:</span><span> The unconstitutionality of the following paragraphs is declared: </span><span style="font-style:italic">"</span><span style="font-style:italic">Public servants subject by law to the prohibition (prohibición) regime may not practice their profession or professions, regardless of whether they meet the requirements to be entitled to compensation for this concept"</span><span> (Art. 32 paragraph 2 </span><span style="font-style:italic">in fine</span><span>) and "</span><span style="font-style:italic">The public servants indicated in the law as potential beneficiaries of economic compensation for prohibition (prohibición), may not practice, in a private capacity, for remuneration or ad honorem, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>), both of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), added by Article 3 of Title III of the Law for Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), No. 9635 of December 3, 2018. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-weight:bold">Ninth:</span><span> In all other respects, by majority, the accumulated actions are declared without merit. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records a note regarding the exclusive dedication (dedicación exclusiva) contract (Article 28 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública)). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents (salva el voto) and declares Articles 35 and 36 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) unconstitutional.</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro dissents (salva el voto) and declares Article 53 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), Article 15 of Regulation No. 41564-MIDEPLAN, as well as Resolution No. DG-139-2019 of the General Directorate of Civil Service (Dirección General de Servicio Civil) unconstitutional.</span><span style="-aw-import:spaces">&nbsp;&nbsp; </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Cruz Castro records a general note. </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>Judge Rueda Leal issues a dissenting vote (voto particular), in the following terms:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>1) declares the action with merit regarding the phrase "</span><span>The annuity (anualidad) incentive shall be recognized in the first half of the month of June of each year"</span><span> contained in the challenged Article 12 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública) amended by Law No.

9635 "Strengthening of public finances" during its period of validity; 2) declares the action partially with merit in relation to the paragraphs: "_Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether they meet the requirements to become entitled to compensation for this concept_" (art. 32 paragraph 2 _in fine_) and "_For officials indicated in the law as potential beneficiaries of economic compensation for prohibition, they may not practice, in a private, remunerated or ad honorem capacity, the profession or professions they hold_" (art. 33 _in fine_), both of the Public Administration Salaries Law, added by article 3 of title III of the law on "Strengthening of public finances", no. 9635 of December 3, 2018; 3) in the remaining aspects, declares the actions without merit.

Magistrate Lara Gamboa declares the action with merit solely regarding the phrase "_The longevity incentive (incentivo por anualidad) shall be recognized in the first half of the month of June of each year_" contained in the challenged article 12 of the Public Administration Salaries Law, as amended by law no. 9635 "Strengthening of public finances" during its period of validity. In all other aspects, he declares the actions without merit.

This judgment has declaratory and retroactive effects to the date of validity of the annulled norms, without prejudice to rights acquired in good faith.

Notify this ruling to the appearing parties and to the Procuraduría General de la República, the Ministerio de Hacienda, the Ministerio de Planificación y Política Económica, and the Dirección General de Servicio Civil.

Publish this ruling in the Official Gazette La Gaceta and publish it in its entirety in the Judicial Bulletin. Notify.

**Fernando Castillo V.** **Fernando Cruz C.** **Paul Rueda L.** **Aracelly Pacheco S.** **Alejandro Delgado F.** **Jorge Isaac Solano A.** **Fernando Lara G.** **Exp:** **19-002620-0007-CO** **Res. no.** **2025-008201** **Dissenting vote of Magistrate Lara Gamboa.** Magistrate Lara Gamboa declares the action with merit solely regarding the phrase "_The longevity incentive (incentivo por anualidad) shall be recognized in the first half of the month of June of each year_" contained in the challenged article 12 of the Public Administration Salaries Law as amended by law no. 9635 'Strengthening of public finances' during its period of validity. In all other aspects, he declares the actions without merit.

Respectfully, I allow myself to provide a brief and concise justification of my reasons for separating from the majority vote regarding what was declared with merit, and on some other specific aspects.

• A)With respect to article 12 of the Public Administration Salaries Law in its version amended by the Law for Strengthening Public Finances, I deem it unconstitutional, not only because it is irrational, as decided by the majority; but also because the recognition of the longevity incentive until the month of June of each year is discriminatory, instead of recognizing it to everyone equally, in the month in which each official has completed their work anniversary.
• B)Regarding art. 55 (legal reserve in the creation of salary incentives and compensations), it is the opinion of the undersigned that the legal reserve for the creation of incentives and compensations is not only constitutional, because the legislator can establish general regulations for the public sector, but also that it is essential to have express legal authorization, in accordance with the Political Constitution and the demands of the principle of legality. Only in this way could public funds be disposed of and negotiated in a collective bargaining agreement, converting them into private funds in the form of bonuses, vacations, years of severance assistance (auxilio de cesantía), longevity incentive (incentivo por anualidades), leave with pay, scholarships, or any other type of incentive or compensation. Without this express legal authorization, the heads would not be acting under the law, and therefore such norms would become unconstitutional. Our Political Constitution establishes in its article 11 the Principle of Legality applied to public officials: "_Public officials are mere depositaries of authority. They are obliged to fulfill the duties that the law imposes on them and cannot arrogate faculties not granted to them…_" (the emphasis is not from the original), which must be applied to collective bargaining agreements in the public sector. (see regarding this, the dissenting vote of the undersigned in Resolution No. 16981-2022, File: 16-013968-0007-CO, Sala Constitucional) C) Regarding Transitory Provision XXXVI paragraph 1 of the LFFP, the undersigned considers that the legislator can establish, by law, the obligation to denounce collective bargaining agreements for all heads of public entities, once their expiration date arrives; since collective bargaining agreements are a meeting of wills and the Legislative Assembly has the legitimacy so that, by law, it may express the will of the State in this type of situation. Likewise, the Legislative Branch may approve a law, changing said provision, at the moment it deems appropriate.
• D)Finally, the undersigned considers that there is freedom for whoever wishes to accept a position in the Public Administration, if they deem it well remunerated, which may or may not have conditions or restrictions regarding exclusive dedication, which do not necessarily have to be compensated. The State can also offer work, with restrictions of exclusive dedication, without it being mandatory to provide consideration in exchange for said limitation. It is for this reason that, as long as they are general rules that apply equally to all those who find themselves in the same conditions, they are deemed constitutional, this being the case of the second paragraph of article 32, and article 33 of the Public Administration Salaries Law, added by article 3 of title III of the law on 'Strengthening of public finances', no. 9635 of December 3, 2018.

**Fernando Lara G.** **Exp. 19-002620-0007-CO** **Res. 2025008201** **Separate opinion of Magistrate Rueda Leal.** For the purposes of the _sub examine_, I must mention that, regarding the joinders, admissibility, and standing of the acting parties, I share what is set out in the majority vote.

Regarding the context of approval of the challenged regulations and the reasoning developed in the sections from which I do not separate myself from the judgment, I clarify that the fiscal situation of the country must be understood within the framework of the year in which the challenged regulations were approved. Consequently, with respect to my position, I adhere solely to what was developed in resolution no. 2018019511 of 21:45 hours on November 23, 2018, since this action was filed in February 2019; that is, less than three months later.

Furthermore, I note that with respect to recitals VII, VIII, IX, X, XI, and XII I do not issue any pronouncement, since these are arguments developed in the abstract and general jurisprudence that, in my opinion, are not essential for the resolution of this matter. Precisely, in each section of grievances I will note the cases in which I share the cited jurisprudence, or, I will set forth the thesis I deem correct.

* **On recital XIII "Change in regulation regarding longevity incentives (anualidades)".** In this regard, I share the view that article 50 of the Public Administration Salaries Law and transitory provision XXXI of the law on 'Strengthening of public finances' are not unconstitutional for the reasons indicated by the majority, since they are covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. It should be clarified that, in my opinion, this type of legislator's decisions is fully susceptible to constitutional control, but for this there must be adequate substantiation by the acting parties that allows the Chamber to carry out the respective balancing of legal interests. Now, I observe that both norms provide for the future regulation of the longevity incentive (incentivo por anualidad), so _prima facie_ I rule out any impact on the salary of public servants that could be declared by the Chamber. However, I clarify that not in all cases should acquired rights and consolidated legal situations be recognized _per se_. Regarding these last two categories, the Chamber, in judgment no. 1997002765 of 15:03 hours on May 20, 1997, stated:

"_The concepts of 'acquired rights' and 'consolidated legal situations' appear closely related in constitutional doctrine. It is feasible to affirm that, in general terms, the former denotes that consummated circumstance in which a thing –material or immaterial, whether it be a previously foreign asset or a previously non-existent right– has entered (or affected) the patrimonial sphere of the person, so that the latter experiences a verifiable advantage or benefit. For its part, the 'consolidated legal situation' represents not so much a patrimonial surplus, but a state of affairs fully defined in terms of its legal characteristics and its effects, even if these are not yet extinguished. What is relevant about the consolidated legal situation, precisely, is not whether those effects still persist or not, but that –by virtue of a legal mandate or a judgment that so declared– a rule, clear and defined, has already emerged into legal life, connecting a factual premise (conditioning fact) with a given consequence (conditioned effect). From this perspective, the person's situation is given by a logical proposition of the type 'if..., then...M', that is: if the conditioning fact has occurred, then the 'consolidated legal situation' implies that, necessarily, the conditioned effect must also occur. In both cases (acquired rights or consolidated legal situations), the legal system protects –making it intangible– the situation of whoever obtained the right or enjoys the situation, for reasons of equity and legal certainty._" However, both acquired rights and consolidated legal situations are conditioned on not deriving from grotesque, aberrant, and glaring inequities. That is, that prior state of affairs that one seeks to protect, stems from a minimum of constitutional sanity. Precisely, I have maintained that when norms exist that violate the constitutional order with such overwhelming magnitude that they are impossible to justify, what I call "_a non-existent legal norm_" is configured from its very genesis for reasons of unconstitutionality, in _mutatis mutandis_ application of the doctrine of the legally non-existent act for reasons of legality, a position sustained by a relevant sector of legal science. The non-existence designates a profoundly gross unconstitutionality of the challenged norm (even, in another process, it could refer to an act), an extreme degree of nullity for reasons of unconstitutionality from which the absence of an essential element is noted at the very moment the norm subject to the action arose. Due to that extreme defect in the very genesis of the norm, preserving the effects derived from manifestly unconstitutional, unreasonable, and completely unjustified legal provisions is improper. These are clearly unconstitutional provisions at their base, by virtue of which acquired rights "_in good faith_" cannot be recognized.

In this case, I do not consider that we are facing any scenario of such nature, therefore it is constitutionally valid for the challenged norms to regulate this incentive prospectively and to respect the amounts previously received in good faith by the servants.

Now, at this point, the majority cites judgment 8254-2020 of 17:15 hours on April 30, 2020; however, on that occasion I stated regarding the recognition of the longevity incentive and the performance evaluation process:

"_Dissenting vote of Magistrate Rueda Leal, with regard to transitory provision I, which establishes a longevity incentive for seniority (anualidad por antigüedad). In the case at hand, I establish that the norm does not require any type of performance evaluation mechanism. I emphasize that the existence of such an evaluation mechanism cannot be inferred from the word 'efficient service'. Furthermore, the concept of 'efficient service' does not establish a threshold for granting this incentive, so that the fulfillment of minimum service could also lead to its application. In that regard, I consider applicable – mutatis mutandis – the arguments I set forth in judgment no. 2014-001227 of 16:21 hours on January 29, 2014:_ "_The undersigned Magistrate records this dissenting vote for the reasons set forth below. I consider that the unconstitutionality action should have been partially declared with merit against articles 156 of the RECOPE Collective Bargaining Agreement 2011-2012 (but for reasons different from the majority's) and 13 of the Performance Evaluation Standards of that same institution. I.- On the constitutional relevance of performance evaluation during the exercise of public function. Performance evaluation consists of those procedures, methods, or strategies commonly used to evaluate or measure the human resources of a given workplace. According to the Dictionary of the Real Academia de la Lengua Española, the term 'evaluate' means: 'determine the value or importance of a thing or of the aptitudes, conduct, etc., of a person'._" That is, the performance evaluation (evaluación del desempeño) of a person means estimating the value that a person has in productive terms as well as appreciating the individual's performance in their position or functions. These procedures tend to measure and rate an employee's performance based on previously defined parameters. This examination of an individual's labor quality must respect one of the most important constitutional principles for the exercise of public function: proven suitability (idoneidad comprobada). This requirement—of constitutional rank—for holding public office has been strengthened by the jurisprudence of this Chamber over the years. For example, recently, in judgment number 2013-013202 of 9:05 a.m. on October 4, 2013, this Court indicated that Article 192 of the Political Constitution guarantees access to and appointment of public servants based on proven suitability. In accordance with Article 191 of the Constitution, every public employment regime has the purpose or goal of guaranteeing the efficiency of the Administration, which can be achieved, among other ways, through a performance evaluation procedure carried out periodically for each public servant. This principle of proven suitability was also developed in judgment number 1696-92 of 3:30 p.m. on August 23, 1992, which stated: "(...) In those times, many public servants were removed from their positions to make way for supporters of the new government, damaging the functioning of the public administration. Precisely to attack this evil, a group of constituents advocated for the creation of that legal instrument in order to endow the Public Administration with greater administrative and functional efficiency." Likewise, in judgment number 0140-93 of 4:05 p.m. on January 12, 1993, the foregoing concepts were expanded: "(...) From a historical-legal perspective, the two articles transcribed above are the product of an intense debate within the Constituent Assembly of 1949, which aimed to: -Eliminate the 'spoils' ('botín') practice—as it was called—, alluding to the behavior that politicians had traditionally had, consisting of the fact that with each new Government or Administration, public servants were dismissed to replace them with followers of the winning political party; and, -Form a Public Administration with human resources of the best quality and condition (morally, technically, and scientifically speaking), in order to make it efficient for fulfilling its objectives." Proven suitability means that it is a necessary condition for the appointment and retention of public servants to have or meet the characteristics and conditions that enable them to perform optimally in the work, post, or public office; that is, to possess the merits that the function demands. In judgment number 1696-92, it was stated: "(...) the suitability of public servants should not only be understood in a specific sense, 'academic' or 'physical' for example, but should rather be assumed as a conjunction of elements or factors of diverse nature that, assessed as a whole, result in a person being the most suitable for the position." The State must implement policies in state institutions to establish the appropriate requirements for holding a post, which must also be based on parameters of reasonableness and proportionality. Precisely, the importance of the performance evaluation of public officials lies in constantly reexamining whether the requirements and merits that allowed a person to enter the public employment regime are maintained over time, in order to guarantee efficiency in the provision of public services inherent to the State. These constitutional principles have, in turn, been incorporated into the Carta Iberoamericana de la Función Pública, approved at the V Conferencia Iberoamericana de Ministros de Administración Pública y Reforma del Estado, held in Santa Cruz de la Sierra, Bolivia, from June 26 to 27, 2003. In that instrument, it was established, among other guiding principles of the entire public function system, that merit, performance, and capacity are guiding criteria for access, career, and other human resources policies, which evidently includes public employment management (Article 8). As the precedents of this Chamber have indicated, the fulfillment of these basic elements of public function can only be achieved if the Public Administration itself establishes adequate means that enable the hiring of duly qualified personnel with an appropriate ethical framework, since the public employee is the one who ultimately executes the public service and, consequently, the one who defines, with their daily actions, the course and manner in which the State fulfills its tasks (see judgment number 2010-021051). Furthermore, in legal doctrine it has been said that performance evaluation systems must adhere to the criteria of transparency, objectivity, impartiality, and non-discrimination. Each Administration will determine the periodicity of the evaluations, the bodies responsible for conducting them, as well as the applicable procedures that must respect the aforementioned principles. Thus, the success of the system depends on the ability to combine evaluation methods that guarantee objectivity and respect for the principles of merit and capacity. Among the factors that can be evaluated are professional conduct as well as performance or achievement of results. Not only are the aspects to be assessed relevant (i.e., what to assess), but so too, equally, are the evaluation methods (how to assess). The embodiment of the principles of merit, capacity, and suitability in the Constitutional Text does not determine their application exclusively in the procedure for entering public function (which is the area where this Chamber has had the most opportunity to strengthen them), but rather they extend their validity throughout the working life of the public official, so that they are equally enforceable during membership in and permanence within the public employment regime. The legal rationale (ratio iuris) of performance evaluation in public function precisely seeks to examine the validity of merits, capacities, aptitudes, and suitability during a person's tenure in the state apparatus. Performance evaluation not only entails benefits for the employer (e.g., taking measures to improve workers' behavior, achieving better communication, planning and organizing work more adequately, identifying individuals who require improvement in a specific area, etc.), but also provides them for the workers themselves, by allowing them to know the behavioral and performance aspects that their employer most values in its collaborators, revealing the expectations of their superior and, furthermore, providing the opportunity for self-evaluation and self-criticism in their professional development. The mechanisms for controlling a public servant's performance in their daily functions also allow the Administration to verify if those persons who have improved themselves and obtained new knowledge and skills in their field are applying them during the exercise of their position and, with this, to evaluate if the public service provided is benefiting from this type of qualified personnel. This guarantees that those persons, whose contribution in the labor field is highly positive, remain in public function. It is impossible to aspire to the good functioning of public services if the human resources of the Administration do not possess the command of the required scientific field and the level of reasoning necessary for the optimal performance of their functions, and if these requirements are not constantly reevaluated. As stated in judgment number 2012-07163 of 4:00 p.m. on May 29, 2012, in which I served as Presiding Magistrate, a fundamental pillar of the democratic system is the citizenry's trust in its institutions, which demands, among other requirements, that the administered party trust the correct functioning of the Administration; this inevitably implies, apart from ethical and personality issues, that the official master the subject matter in which they work and have an appropriate level of reasoning, on which public employment management must be based. These qualities and aptitudes must not only be evaluated by the Administration at the time of entering the public employment regime, but must be constantly reexamined in order to maintain the citizenry's trust in the quality of its institutions. Likewise, it must be highlighted that the performance evaluation of public officials is of such high value that through the reform of the year 2000, the Derived Constituent Power sought to grant it constitutional roots. Specifically, it is Article 11, paragraph 2, of the Political Charter that recognizes the importance of evaluating the results of the Public Administration, by stating the following: "(...) The Public Administration, in a broad sense, shall be subject to a procedure of results evaluation and accountability, with the consequent personal responsibility for officials in fulfilling their duties. The law shall indicate the means for this results control and accountability to operate as a system covering all public institutions." Consequently, in this state of things, the performance evaluation of public officials is no longer just a legal or regulatory requirement (as will be seen below), but a constitutional one, intended to achieve good and efficient public management. In conclusion, the importance of using various instruments that tend to evaluate performance in public function finds its rationale in high constitutional principles repeatedly strengthened by the jurisprudence of this Chamber, mainly the proven suitability of Article 192 of the Constitution and the text of Article 11 also of the Constitution. II.- On the unconstitutionality of Article 156 of the Collective Bargaining Agreement (Convención Colectiva de Trabajo) of RECOPE 2011-2012. Firstly, it is necessary to rule on the issue of the double payment for annuities (anualidades) that RECOPE workers receive, by virtue of the benefits obtained through their collective bargaining agreement and those also recognized to them by the Ley de Salarios de la Administración Pública (Law No. 2166 and its reforms). As the plaintiff states, the generality of the servants that make up the public sector is recognized with a single economic incentive according to their years of service with the Public Administration. Such benefit or salary supplement is commonly called annuities, which were devised as recognition by the Administration to reward, apparently, the experience acquired by officials who have continuously provided their services, although, as will be seen below, it is actually conditioned on the servant's performance. This figure finds its normative basis precisely in the Ley de Salarios de la Administración Pública, which recognizes this incentive in favor of all officials who provide their services to the Public Administration, among which are the RECOPE servants. However, Article 155 of the RECOPE Collective Bargaining Agreement refers to the salary scale of the Ley de Salarios de la Administración Pública, in the following terms: "Article 155.- The salary scale established in the Ley de Salarios de la Administración Pública shall be applied to the workers to whom this Agreement refers. Each of the following steps of said scale shall continue to be recognized, as the workers acquire their right to the enjoyment of vacations." However, in Article 156 of the Agreement, another payment for the same concept of annuities is again recognized in favor of RECOPE workers: "Article 156. Workers shall maintain and receive an increase in the annuity percentage from four percent to five percent of the base salary for each year worked, which they have been receiving by virtue of previous negotiations." Faced with this panorama, we have two norms of the collective bargaining agreement that recognize in favor of RECOPE workers two different amounts for a single concept: annuities or years of service. This, in my consideration, is openly unconstitutional. I do not share the thesis that this double payment for the category of annuities is adequately founded on the objective of reducing the salary gap between a certain group of RECOPE workers and the other officials of the Public Administration. Such an end must be achieved through natural and direct mechanisms, such as increasing the base salary, and not through means that imply disproportionate benefits, as occurs in this case, where RECOPE workers receive double pay for the same concept: the annuity. Faced with such a situation, I opt to preserve the constitutionality of Article 155 of the cited Agreement, not only because it has not been the object of the action, but also because said norm is limited to assigning the annuity benefit previously recognized in Law No. 2166 and which extends to RECOPE workers. However, since the annuity I deem constitutional is the one recognized in the Ley de Salarios de la Administración Pública, it is necessary to make some observations regarding this incentive. In the first place, Article 5 of this Salary Law requires a merit evaluation for proceeding with the payment of annuities in the public sector.

Thus</span> reads the legal text: "(…) The annual increases shall be granted on merit to those public servants who have received a performance evaluation of at least 'good', in the previous year, granting them an additional step, within the same category, until reaching the maximum salary" (the underlining does not correspond to the original). In practice, this payment has been granted automatically, that is, without first verifying whether the performance evaluation of the benefited public servant has been "good". Pursuant to this mentioned Article 5, as well as in accordance with the constitutional principles of proven competence (numeral 192 of the Constitución Política) and evaluation of results (ordinal 11 of the Constitución Política), the payment of the longevity pay (anualidad) must not be automatic, as it has operated to date, but rather must be attributed only to those public servants who excel in the performance of their public duties. That is, in truth, the longevity pay (anualidad) is not a salary bonus established as recognition of the public servant's experience in an institution, but rather a reward for the "good experience" that has been had with such an official, or better said, for their "good performance". As seen previously, Article 11, paragraph 2, of the Constitución establishes the imperative need to evaluate the results of public management. It is true that to date there is no regulatory law in the country that seeks to standardize the effective application of performance evaluations in the scope of the public function; however, this does not detract from the relevance of evaluation as a constitutional principle that must guide the management of the Administración Pública. In my view, the text of Article 11, paragraph 2, of the Constitución establishes a clear and unequivocal mandate: results in public management must be evaluated. Thus, in this context where, on the one hand, the cited constitutional norm imposes the evaluation of the results of public management, and, on the other, ordinal 5 of the Ley de Salarios requires a merit evaluation prior to the payment of longevity pays (anualidades), the need for a regulatory law on performance evaluation in the Administración becomes more meaningful, because this would facilitate the payment of longevity pays (anualidades) based on merit. As a corollary of the foregoing, I deem it pertinent to declare the unconstitutionality of Article 156 of the Convención Colectiva de Trabajo of RECOPE 2011-2012, for causing an intolerable privilege and, furthermore, I take this opportunity to point out that the payment of longevity pays (anualidades) established in the Ley de Salarios de la Administración Pública (No. 2166), specifically in its numeral 5, requires that a performance evaluation be carried out prior to its recognition, since such payment only proceeds when the public servant is rated at least with a "good". Ergo, the longevity pays (anualidades) established in Law No. 2166 are, in no way, automatic, by virtue of which neither are those granted pursuant to Article 155 of the cited Convención Colectiva.

III.- Regarding the unconstitutionality of numeral 13 of the Normas para la Evaluación del Desempeño of RECOPE and the reward for minimum effort. On the other hand, I consider that Article 13 of the Normas para la Evaluación del Desempeño of RECOPE recognizes the payment of a salary incentive to officials who do not precisely stand out for their excellence. This provision prohibits accrediting said salary incentive to those RECOPE public servants who obtain a rating lower than 70 in the corresponding performance evaluation; a contrario sensu, employees who exceed 70 (even if it is a minimum rating), do receive said incentive. This means, no more and no less, that an official who obtains a rating of 70 in their performance evaluation will receive the same salary incentive as one whose efficiency and quality in the exercise of the public function is outstanding and, therefore, has received a grade of 90 or higher. Upon reviewing the Normas para la Evaluación del Desempeño of RECOPE, it was not found that there was any provision aimed at recognizing a scale that would allow for grading the amount of payment of such benefit based on the rating obtained, when it was higher than 70. This inexorably means that Article 13 of the Normas para la Evaluación del Desempeño of RECOPE rewards the minimum effort of some and, consequently, devalues the quality of others, by treating workers in evidently different situations equally. I underline that the performance evaluation of officials must be the key point for the granting or non-granting of this salary incentive. Properly applied, it is extremely beneficial for the sake of efficient public service, as it allows maintaining in the exercise of the public function those persons who not only demonstrated ab initio that they were suitable to hold the position, but also continue to demonstrate those qualities of competence and efficiency in the performance of their duties over time. Now, to evaluate the adequate exercise of a public servant's public duties, it is obvious to think that the expectations, goals, and objectives intended to be met in the corresponding work group must have been defined beforehand. To the extent that these purposes of public management are duly pre-established and known by all, it will be more transparent to specify which were achieved and who played a fundamental role in achieving them. In the specific case, Article 13 of the Normas para la Evaluación del Desempeño of RECOPE comes to reward those officials who, after the corresponding performance evaluation, pass it without greater merits. As the norm is drafted, the regulated salary incentive is not only directed at those officials who excel due to their achievements, but also at those who make the minimum effort. Hence, such a complacent provision contravenes the spirit of performance evaluation in the public function that was intended to be safeguarded in ordinal 11 of the Constitución Política, as well as the principle of proven competence developed in the constitutional Article 192, for which reason I declare such norm frankly unconstitutional. Independently of the foregoing, Article 13 of the Normas para la Evaluación del Desempeño of RECOPE is also unconstitutional, because if we start from the assumption that the benefit of the longevity pay (anualidad) of ordinal 155 of the Convención Colectiva of RECOPE 2011-2012 refers to the longevity pay (anualidad) as regulated in ordinal 5 of the Ley de Salarios de la Administración Pública (which requires that it only be recognized for the official whose performance has been rated at least as "good"), then we easily arrive at the conclusion that in both cases the salary benefit depends on the performance level of the official, so we would again be facing the double payment of a salary bonus arising from the same cause.

In addition, I share the dismissal of the action regarding the arguments that were not sufficiently substantiated. Indeed, it is not enough to superficially allege violations of constitutional numerals or principles. Now, I clarify that I did not hear on the merits the claims dismissed in judgment No. 2024007057 at 10:10 hours on March 14, 2024 (since I granted the action for violation of the fundamental right to citizen participation); however, I concur that, in principle, generic statements raised in an unconstitutionality action without substantiation or evidence must be rejected.

Regarding the challenge of the contested Article 12 of the Ley de Salarios de la Administración Pública, I partially concur with the unconstitutionality referred to by the majority, but only insofar as the payment computed in June of each year (regardless of the date of entry) constitutes an unreasonable situation. There is no justification whatsoever for making public servants who acquired the right to payment of longevity pays (anualidades) and met the corresponding legal requirements wait. This is a situation evidently contrary to the Derecho de la Constitución.

However, I do not deem unconstitutional the elimination of the recognition or counting of longevity pays (anualidades) in other dependencies of the public sector, because, as the Procuraduría General de la República indicates, its creation had a legal origin, so the legislator, in principle, has the power to vary it to ensure sound management of public finances. Note that even that numeral was reformed by the 'Ley Marco de Empleo Público' which recognizes the time served in other entities of the public sector for the purposes of computing the longevity pays (anualidades).

On the other hand, I concur with the considerations regarding the discussions of interpretation and normative integration of the contested ordinal 12 regarding the recognition of longevity pays (anualidades) in promotions being matters of legality that do not present, in the terms raised, any situation of constitutional relevance.

With respect to the alleged violation of the principle of reasonableness for the establishment of the percentages of longevity pays (anualidades) in transitory norms, I concur with the vote and with the position of the Procuraduría General de la República regarding the fact that it constitutes a problem of legislative technique, but not of constitutionality.

Likewise, the possible conflicts (antinomias) between the provisions of the Ley de Salarios de Administración Pública and the personnel statutes constitute matters of legality properly addressed in common legal channels.

* **Regarding considering XIV "ON THE ALLEGED Violation OF THE principle of non-retroactivity of the law and disrespect for consolidated legal situations".** In the first place, I agree with the majority vote regarding the fact that all arguments referring to municipal autonomy or that of decentralized entities must be dismissed, since the claimants are not legitimated for such purposes.

In addition, I concur with the dismissal of arguments for lack of substantiation when no transgressions to the Derecho de la Constitución were justified or demonstrated.

With respect to the fact that the amounts of the longevity pays (anualidades) and other bonuses (Articles 50, 54, and transitory XXXI) disregard what is established in other legal instruments, I must point out that, as I indicated, acquired rights and consolidated legal situations start from a minimum of constitutional reasonableness that does not imply their recognition in all cases (for example, when aberrant and grossly unconstitutional situations exist); however, both the longevity pays (anualidades) and the bonuses can be validly regulated for the future, so that prima facie I rule out any violation of numeral 34 of the Constitución Política. Consequently, I share the reasoning set forth once this precision is made.

Similarly, I agree that, in principle, it is not the Chamber's responsibility to resolve problems of application or interpretation of norms of an infra-constitutional rank to determine the prevalence of some over others for the resolution of labor-related conflicts.

I reiterate that the recognition of longevity pays (anualidades) is covered by the principle of free configuration of the legislator (within the limits permitted by the Derecho de la Constitución) and there is no right to the immutability of the legal system. Likewise, in my view, these types of legislator decisions are fully susceptible to constitutionality control, but for this there must be adequate substantiation by the claimants that allows the Chamber to carry out the respective weighing of legal assets. Consequently, the Asamblea Legislativa can, in principle, regulate the requirements, amounts, and terms of salary incentives for the future.

Regarding transitory XXVII, I agree that, according to the precedents cited in this section, it is constitutionally legitimate to impose a maximum limit of 12 years for the concept of severance pay (cesantía). Thus, I concur with the terms of the dismissal of these claims.

* **Regarding considering XV "Violation of the principle of free collective bargaining".** In this regard, the claims referring to municipal autonomy or that of decentralized entities, as well as those related to minor entities, must be dismissed, since the claimants are not legitimated for such purposes.

In the same sense, I reiterate that the arguments related to possible conflicts (antinomias) between the contested norms, the collective bargaining agreements (convenciones colectivas), and internal labor statutes must be declared without merit because they do not involve, in the terms raised, any claim of constitutional relevance, but rather a question of mere legality.

Likewise, the claims relating to the limit on severance pay (cesantía) and acquired rights are dismissed for the same reasons set forth ut supra in this individual opinion.

Now, regarding Article 55 of the Ley de Salarios de la Administración Pública (added by the law of 'Fortalecimiento de las finanzas públicas') and collective bargaining, I did not share what was ordered by the majority in the advisory opinion No. 2018019511 at 21:45 hours on November 23, 2018. On that occasion, I noted:

"VIII.- Different reasons of Judge Rueda Leal, with respect to numeral 3 of Title III "Amendment to the Ley de Salarios de la Administración Pública" of the project, which adds Article 55 of Chapter VII "Disposiciones Generales".

The consultants question the constitutionality of numeral 3 of Title III "Amendment to the Ley de Salarios de la Administración Pública" of the project, which adds ordinal 55 of Chapter VII "Disposiciones Generales", of legislative project 20.580. This norm establishes:

"Article 55- Legal Reserve in the creation of salary incentives and compensations The creation of incentives or compensations, or salary bonuses may only be done through law." They base their claim on numeral 4 of the Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, 1949 (No. 98) of the International Labour Organization (ILO), which states:

"Article 4 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements." They consider that the State has the commitment to respect, promote, and make a reality, in good faith and in accordance with the Constitución, the principles relating to freedom of association and trade union freedom, as well as the effective recognition of the right to collective bargaining.

After analyzing the claims, I consider that the starting point of the constitutionality analysis must be, precisely, our Constitución Política.

Regarding collective bargaining, Article 62 of the Constitution reads:

“ARTICLE 62.- Collective labor agreements (convenciones colectivas de trabajo) that, in accordance with the law, are concluded between employers or employer unions and legally organized worker unions shall have the force of law.” Taking as a basis the claims expressed and the transcribed norms, I note that the task of the constitutional judge is to examine whether the three transcribed texts are reconcilable. Only in the event that a constitutional reading of Article 55 is unfeasible would its declaration of unconstitutionality proceed.

The first thing I observe is that Article 4 of the Convention imposes the obligation to adopt “…measures appropriate to national conditions, where necessary, to stimulate and promote…” (emphasis added) collective bargaining.

Two points stand out from its literal wording. On one hand, these are measures to stimulate and promote collective bargaining. That is, the regulation does not delegate the definition of all elements of the labor contract to collective bargaining; nor is it observed that it limits the legislative power of configuration on the matter, already guaranteed by Article 62 of the Constitution, as will be seen below.

Even more important is the second point. The aforementioned Article 4 refers to “national conditions,” in order to determine the measures to be taken by the State. A basic element of such requirements is the domestic legal system and, unavoidably, the Political Constitution. This reference obliges a review of the text of Article 62 of our Magna Carta, transcribed above. Among its regulations, the force of law it grants to collective labor agreements and the definition of the parties to collective bargaining are noted. For the purposes of the sub examine, it must be emphasized that our Constitution expressly rests the regulation of collective bargaining on a legal norm, since the force of law of the collective agreement is conditioned upon it being concluded “…in accordance with the law…”. This precept not only establishes the obligation to obey the law when negotiating a collective agreement, but also institutes the duty to legislate on the matter, in order to establish a legal framework that regulates collective bargaining.

This first approximation to our Constitution allows us to infer the compatibility of the challenged precept with its text, since the cited Article 55 requires that the regulation of incentives, compensations, or salary pluses (incentivos, compensaciones o pluses salariales) in the public sector be carried out through a law. In other words, both the Constitution and the questioned norm impose a legal regulation of the matter. In the case of the latter, its wording is specifically focused on the topic of incentives, compensations, or salary pluses. Thus, if the Constitution requires legal regulation on the matter, an article that advocates the same requirement cannot be challenged as unconstitutional.

If one continues examining the “…national conditions…” established by our Magna Carta, the previous result is reinforced. A first point, specifically applicable to public officials, is the principle of legality, central to any Rule of Law. This principle subjects the actions of such public servants to the guidelines of the law. As Article 11 of the Constitution literally states, public officials “…cannot arrogate powers not granted…” in law, a norm that is developed by Article 11 of the Ley General de la Administración Pública, by stating that “…The Public Administration shall act subject to the legal system and may only carry out those acts or provide those public services authorized by said system, according to the hierarchical scale of its sources…” In this vein, it cannot be deemed unconstitutional for the consulted provision to require an enabling norm to regulate the powers of authorities acting as employers in collective bargaining, especially when it concerns the handling of public funds, as is the matter of incentives, compensations, or salary pluses. Quite the contrary, such a requirement is a patent manifestation of the principle of legality.

The notion that public officials are subject to the law, basic to the Rule of Law, has been established in the jurisprudence of the Chamber (Sala) on matters of collective bargaining. Thus, in judgment No. 2000-004453 of 2:56 p.m. on May 24, 2000, this Court held:

“Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector where the application of the institution of collective labor agreements is constitutionally possible, that is to say, in the so-called companies or economic services of the State and in those personnel groups of public institutions and entities in which the nature of the services provided do not participate in public management, under the terms of subsection 2 of Article 112 of the Ley General de la Administración Pública, the Chamber reiterates and confirms its jurisprudence that the authorization to negotiate cannot be unrestricted, i.e., comparable to the situation in which any private employer would find themselves, since by that route, laws, regulations, or current government directives cannot be dispensed with or excepted, nor can laws that grant or regulate competencies of public entities, attributed by reason of normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion that is inferred from Article 112, subsection 3) of the Ley General de la Administración Pública and from Considerando XI of judgment No. 1696-92 of this Chamber.” (The highlighting does not correspond to the original; see in the same sense judgments Nos. 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261, and 2006-17436).

Finally, emphasis must be placed on the fact that the contested provision is closely related to the use of public funds destined for “incentives or compensations, or salary pluses.” Precisely, insofar as public funds are involved, the State is obligated to ensure their sound management. Likewise, the criterion for assigning them must be subject to the principle of reasonability, on the understanding that officials must seek to satisfy “…primarily the public interest…” (Article 113 of the Ley General de la Administración Pública). One way to ensure their correct administration is to avoid the casuistic, arbitrary, or disproportionate creation of such incentives, seeking to provide a regulatory framework through a law. Concerning the stated approach, when studying the constitutionality of collective labor agreements, the Chamber has stated:

“After all, as the doctrine recognizes, the Public Administration is not a private estate and therefore the money that is committed, as it is not its own, must be administered within the framework of the law, which necessarily includes the mentioned test of reasonability and proportionality. It is clear that financial activity presupposes the fulfillment of criteria of economy and efficiency, that is, of rationalization of financial activity that legally and morally prevents waste and gives the community the right to demand not only effectiveness but also to prevent such waste; after all, it is the monies of that community that are being administered. These duties are imposed on the Administration in general, which undoubtedly includes the public enterprise, and perhaps with even greater rigor, especially if they are public funds used for the benefit of employees subject to a private regime. That is why the jurisprudence of this Chamber has concluded that although arbitration awards (laudos) and collective labor agreements are permitted in State enterprises, the possibility of negotiation cannot be unrestricted, and that, among other things, the limitations required to harmonize public spending with budgetary availability must be respected, as well as the fact that laws, regulations, or current government directives cannot be dispensed with or excepted as a consequence of the negotiation process.” (Judgment No. 2006-7261 of 2:45 p.m. on May 23, 2006. The highlighting does not correspond to the original).

Note that the obligation to ensure the sound management of public funds by the servants of the Public Administration derives not only from the obligation to render accounts and act in accordance with the law, as regulated in Article 11 of the Constitution, but also from other norms of the Fundamental Law that explicitly impose such a duty:

“Article 24.- (…)

The law shall establish the cases in which the competent officials of the Ministry of Finance and the Comptroller General of the Republic may review the accounting books and their annexes for tax purposes and to supervise the correct use of public funds.

Article 184.- The duties and attributions of the Comptroller are:

* To supervise the execution and settlement of the ordinary and extraordinary budgets of the Republic. No payment order shall be issued against State funds unless the respective expenditure has been approved (visado) by the Comptroller; nor shall any obligation arise for the State that has not been countersigned (refrendada) by it. * To examine, approve, or disapprove the budgets of the Municipalities and autonomous institutions, and supervise their execution and settlement. * To send annually to the Legislative Assembly, at its first ordinary session, a report on the activity corresponding to the previous economic year, detailing the Comptroller's work and presenting the opinions and suggestions deemed necessary for the better management of public funds. * To examine, review, and close the accounts of State institutions and public officials. * Others assigned by this Constitution or the laws.

Article 193.- The President of the Republic, the Government Ministers, and the officials who manage public funds, are obligated to declare their assets, which must be valued, all in accordance with the law.” (The highlighting does not correspond to the original).

As can be inferred from the logical structure in this type of classic legal relationship, opposite the referred obligation of the public servant stands the correlative right of the inhabitants to the correct administration of public funds.

The analysis carried out herein allows the conclusion that the Constitution delegated to the ordinary legislator the duty to regulate collective bargaining by means of law. Now, since this involves public workers (that is, the public servants who can validly sign a collective agreement) and the sound use of public funds, it is not unconstitutional to require that the creation of incentives, compensations, or salary pluses be effected through a law. Such a regulatory body would correspond not only to the legal development of Article 62 of the Magna Carta, but also of Articles 11, 24, 184 subsection 3), and 193 of the Constitution, by subjecting the public servants who exercise employer roles to the principle of legality and the sound management of public funds.

Evidently, the development of that legal framework will be subject to the limits imposed by the Constitution and the instruments of International Human Rights Law, which include the conventions of the International Labour Organization. Therefore, through a law that regulates the creation of incentives, compensations, or salary pluses, no precept could be established that would empty the content of the labor and union rights contemplated in the cited conventions and the Fundamental Law. In other words, the healthy purpose of ensuring the correct administration of public funds could not be the excuse to unreasonably limit the right to collective bargaining. However, the mere general provision for such matter to be regulated by law (without its concrete content being in view) does not imply per se a current and immediate violation of union freedom, since the right of citizens to the sound management of public funds and respect for the principle of legality undoubtedly justify it.

However, I also consider that the approval of Article 55 entails the duty of the Legislative Assembly to enact, within a reasonable period, the legal framework that would serve as the basis for the collective bargaining of the indicated items. In other words, if an unreasonable period were to elapse without such a norm being enacted, the situation would materially become a hollowing out of collective bargaining concerning such items, a situation that would contravene Article 62 of the Political Constitution.

Thus, I estimate that Article 62 (by referring to the law), Article 11 (which imposes the principle of legality), and this latter precept together with Articles 24, 184 subsection 3), and 193 (which support the right of citizens to the sound management of public funds), all of the Political Constitution, empower the legislator to regulate the creation of incentives, compensations, or salary pluses through the law, provided that by this means the right to collective bargaining is not emptied of its content.” Consequently, in accordance with what has been transcribed, Article 62 of the Constitution empowers the legislator to regulate the creation of incentives, compensations, or salary pluses through the law, provided that by this means the right to collective bargaining is not emptied of its content. Precisely, the scope of application of the latter includes a variety of topics that go beyond the limits, the negotiation of which remains unchanged, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining not only agrees with the Constitution but is prescribed by it.

Additionally, with respect to this section and collective bargaining, the majority of the Chamber cites resolution No. 2021017098 of 11:15 p.m. on July 31, 2021; however, on that occasion I gave the following dissenting reasons:

“a) Dissenting reasons of Judge Rueda Leal regarding Article 43 and Transitory Provision XV of the project.

Concerning Article 43, and on the basis that it deals with the public sector that can validly conduct collective bargaining, I estimate that there are no constitutional conflicts, because it only establishes partial limits to collective bargaining, which are intimately linked to the principle of budgetary balance. In my opinion, the scope of application of collective bargaining includes a variety of topics that go beyond the limits of that article, the negotiation of which would remain unchanged with the eventual entry into force of this bill, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining is not only in accordance with the Constitution, but prescribed by it, as I explained in my dissenting reasons set forth in judgment No. 2018-019511:

“After analyzing the claims, I consider that the starting point of the constitutionality analysis must be, precisely, our Political Constitution. Regarding collective bargaining, its Article 62 reads:

“ARTICLE 62.- Collective labor agreements that, in accordance with the law, are concluded between employers or employer unions and legally organized worker unions shall have the force of law.” Taking as a basis the claims expressed and the transcribed norms, I note that the task of the constitutional judge is to examine whether the three transcribed texts are reconcilable. Only in the event that a constitutional reading of Article 55 is unfeasible would its declaration of unconstitutionality proceed.

The first thing I observe is that Article 4 of the Convention imposes the obligation to adopt “…measures appropriate to national conditions, where necessary, to stimulate and promote…” (emphasis added) collective bargaining.

Two points stand out from its literal wording. On one hand, these are measures to stimulate and promote collective bargaining. That is, the regulation does not delegate the definition of all elements of the labor contract to collective bargaining; nor is it observed that it limits the legislative power of configuration on the matter, already guaranteed by Article 62 of the Constitution, as will be seen below.

Even more important is the second point. The aforementioned Article 4 refers to “national conditions,” in order to determine the measures to be taken by the State. A basic element of such requirements is the domestic legal system and, unavoidably, the Political Constitution. This reference obliges a review of the text of Article 62 of our Magna Carta, transcribed above. Among its regulations, the force of law it grants to collective labor agreements and the definition of the parties to collective bargaining are noted. For the purposes of the sub examine, it must be emphasized that our Constitution expressly rests the regulation of collective bargaining on a legal norm, since the force of law of the collective agreement is conditioned upon it being concluded “…in accordance with the law…”. This precept not only establishes the obligation to obey the law when negotiating a collective agreement, but also institutes the duty to legislate on the matter, in order to establish a legal framework that regulates collective bargaining.” With respect to Transitory Provision XV, given its wording, the considerations I expressed in the cited vote No. 2018-019511, when analyzing an identical transitory provision, are applicable:

“The petitioners challenge the constitutionality of Transitory Provision L of Bill 20.580, which states:

“TRANSITORY PROVISION L - From the entry into force of this law, the heads of public entities are obligated to denounce collective labor agreements upon their expiration.

In the event that it is decided to renegotiate the agreement, it must be adapted in all its aspects to what is established in this Law and other regulations issued by the Executive Branch." They consider that such an obligation limits the right to renegotiation or to automatic renewal under the conditions stipulated in subsection e) of Article 58 of the Labor Code (Código de Trabajo).

After analyzing the filing brief, I observe that the reasoning provided by the party refers only to the apparent opposition of the contested provision with the cited article of the Labor Code. Such a normative conflict is a question of mere legality, outside the competencies of this Chamber.

On the other hand, I dismiss that the mere mention of an alleged violation of Article 62 of the Constitution is sufficient to satisfy the requirements of a legislative consultation. As Article 99 of the Ley de la Jurisdicción Constitucional requires, the optional consultation must be made in a “reasoned memorial,” a situation that differentiates it from the mandatory consultation. Thus, the petitioners have the duty to clearly state the reasons for the alleged constitutional violation, as the Chamber has indicated on other occasions:

“In this regard, the Constitutional Chamber, in developing the scope of that norm, through judgment No. 5544-95 of 3:00 p.m.

of October 11, 1995, stated:</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt; background-color:#ffffff"><span style="font-style:italic; background-color:#ffffff">"Insofar as the consultation refers to Article 28 of the Bill, because it was not formulated with supporting reasons, 'expressing the questioned aspects of the bill, as well as the reasons for which doubts or objections regarding its constitutionality are held' (Art. 99 of the Ley de la Jurisdicción Constitucional), since the consulting parties merely indicate the subject matter consulted, without making any kind of constitutional argument, it is not appropriate to process the consultation. This has been repeatedly resolved by constitutional jurisprudence and for that reason, insofar as this aspect is concerned, there is no basis to process the consultation filed (See Consultative Opinion No. 5399-95, related to Consultation No. 4773-95 and subsequent interlocutory resolution, No. 501-I-95)."</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt; background-color:#ffffff"><span style="font-style:italic; background-color:#ffffff">Regardless of the foregoing, a prima facie analysis of the rule – a limit imposed given the lack of supporting reasons in the filing brief – does not allow one to visualize its unconstitutionality. I emphasize that this is a transitory regulation of limited application to the collective bargaining agreements (convenciones colectivas) where the State figures as the employer. I stress this fact since I consider that the obligation imposed by said provision has the purpose of adjusting the collective bargaining agreements to the legal framework that would come into force with the challenged bill. Hence, the possible renegotiation of the agreement entails that it be adapted "…in all its respects to what is established in this Law and other regulations issued by the Executive Branch." Likewise, I clarify and underscore that such article does not signify the suspension, repeal, or nullification of collective bargaining agreements or their provisions, nor does it impose a restriction on their effects that is different from the temporary validity that had been previously agreed upon by the parties.</span></p><p style="margin-top:14pt; margin-left:70.8pt; margin-bottom:14pt; text-indent:35.4pt; background-color:#ffffff"><span style="font-style:italic; background-color:#ffffff">Now then, it must be remembered that the Constitución Política establishes a basic requirement for collective bargaining agreements, which is that they be concluded "…in accordance with the law…". Thus, it is clear that the content and form of a collective bargaining agreement are subject to the law, by constitutional mandate. Ergo, it is not unconstitutional for a rule – such as the one challenged – to seek that collective bargaining agreements respect the law. It should also be noted that it neither repeals nor empties the content of subsection e) of Article 58 of the Código de Trabajo, leaving intact the possibility of renegotiating the collective bargaining agreement</span><span style="font-style:italic">."</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><a name="_Hlk195181214" class=""><span>Based on the foregoing, in a specific context of severe fiscal deficit (déficit fiscal grave), the legislative measures taken aimed at the sound management of public finances and the principle of budgetary equilibrium can only be struck down by more serious transgressions of other fundamental rights, which is not verified in the </span><span style="font-style:italic">sub examine.</span></a><br data-mce-bogus="1"></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt"><span>On the other hand, in consultative opinion no. 2018019511 of 21:45 hours on November 23, 2018, I set forth the following particular reasons regarding transitory provision L (transitorio L):</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"</span><span style="font-weight:bold; font-style:italic">IX.- Particular reasons of Magistrate Rueda Leal regarding transitory provision L of Title V "Transitory Provisions" (Disposiciones Transitorias)</span><span style="font-style:italic">.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">The consulting parties question the constitutionality of transitory provision L of bill 20.580, which states:</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"TRANSITORIO L - Upon the entry into force of this law, the heads (jerarcas) of public entities are obligated to terminate (denunciar) the collective bargaining agreements upon their expiration.</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">In the event a decision is made to renegotiate the agreement, it must be adapted in all its respects to what is established in this Law and other regulations issued by the Executive Branch."</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">They consider that such an obligation limits the right to renegotiation or to automatic extension under the conditions stipulated in subsection e) of Article 58 of the Código de Trabajo.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">After analyzing the filing brief, I observe that the supporting reasons provided by the party refer only to the apparent opposition of the questioned provision to the cited numeral of the Código de Trabajo. Such a normative conflict is a matter of mere legality, outside the jurisdiction of this Chamber.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">On the other hand, I dismiss that the mere mention of an alleged infringement of Article 62 of the Constitution is sufficient to satisfy the requirements of a legislative consultation. As required by numeral 99 of the Ley de la Jurisdicción Constitucional, the optional consultation must be made in a "reasoned memorial," a situation that differentiates it from the mandatory consultation. Thus, the petitioners have the duty to clearly state the grounds for the alleged constitutional infringement, as the Chamber has indicated on other occasions:</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"In this regard, the Constitutional Chamber, in developing the scope of that norm, through judgment No. 5544-95 of 15:00 hrs. of October 11, 1995, stated:</span></p><p style="margin-top:14pt; margin-left:56.7pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">"Insofar as the consultation refers to Article 28 of the Bill, because it was not formulated with supporting reasons, 'expressing the questioned aspects of the bill, as well as the reasons for which doubts or objections regarding its constitutionality are held' (Art. 99 of the Ley de la Jurisdicción Constitucional), since the consulting parties merely indicate the subject matter consulted, without making any kind of constitutional argument, it is not appropriate to process the consultation. This has been repeatedly resolved by constitutional jurisprudence and for that reason, insofar as this aspect is concerned, there is no basis to process the consultation filed (See Consultative Opinion No. 5399-95, related to Consultation No. 4773-95 and subsequent interlocutory resolution, No. 501-I-95)."</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">Regardless of the foregoing, a prima facie analysis of the rule – a limit imposed given the lack of supporting reasons in the filing brief – does not allow one to visualize its unconstitutionality. I emphasize that this is a transitory regulation of limited application to the collective bargaining agreements where the State figures as the employer. I stress this fact since I consider that the obligation imposed by said provision has the purpose of adjusting the collective bargaining agreements to the legal framework that would come into force with the challenged bill. Hence, the possible renegotiation of the agreement entails that it be adapted "…in all its respects to what is established in this Law and other regulations issued by the Executive Branch." Likewise, I clarify and underscore that such article does not signify the suspension, repeal, or nullification of collective bargaining agreements or their provisions, nor does it impose a restriction on their effects that is different from the temporary validity that had been previously agreed upon by the parties.</span></p><p style="margin-top:14pt; margin-left:28.35pt; margin-bottom:14pt; text-indent:28.35pt"><span style="font-style:italic">Now then, it must be remembered that the Constitución Política establishes a basic requirement for collective bargaining agreements, which is that they be concluded "…in accordance with the law…". Thus, it is clear that the content and form of a collective bargaining agreement are subject to the law, by constitutional mandate. Ergo, it is not unconstitutional for a rule – such as the one challenged – to seek that collective bargaining agreements respect the law. It should also be noted that it neither repeals nor empties the content of subsection e) of Article 58 of the Código de Trabajo, leaving intact the possibility of renegotiating the collective bargaining agreement."</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>By virtue of the exposed considerations, I dismiss any unconstitutionality in the terms raised in the </span><span style="font-style:italic">sub lite, </span><span>inasmuch as the collective bargaining agreements are subject to the law by constitutional mandate. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>With respect to the alleged injury to the principle of equality in relation to the solidarity associations (asociaciones solidaristas), I share the arguments set forth in the majority vote and the cited jurisprudence. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Regarding the alleged unconstitutionality of transitory provision XXXVI, what was noted </span><span style="font-style:italic">ut supra </span><span>regarding collective bargaining applies. Likewise, the general subjection of collective bargaining agreements to provisions of the Executive Branch is not unconstitutional </span><span style="font-style:italic">per se, </span><span>because, for example, the Código de Trabajo itself provides for the consideration of regulatory provisions in this matter, which are subject to constitutional control. However, no arguments were developed that would evidence any transgression susceptible of being declared. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><a name="_Hlk195181246" class=""><span>Based on the foregoing, I consider that challenged Article 55 (and the other provisions related to the questioned bonuses (pluses), namely, numerals 39, 50, 54 of the Ley de Salario de la Administración Pública and transitory provisions XXVII and XXXI of the 'Public Finance Strengthening' (Fortalecimiento de las finanzas públicas) law) are not unconstitutional. Likewise, I consider that transitory provision XXXVI is not contrary to Constitutional Law by establishing the obligation of heads to terminate (denunciar) the collective bargaining agreements upon the expiry of their term, nor by contemplating the general subjection to regulatory provisions. </span></a><br data-mce-bogus="1"></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital (considerando) XVI </span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">"</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">ART. 3 OF DECRETO EJECUTIVO N.°</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">41564-MIDEPLAN-H, REGLAMENTO DEL TÍTULO III DE LA LFFP, LEY N°</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">9635 REGARDING PUBLIC EMPLOYMENT (EMPLEO PÚBLICO)</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Although I did not vote on </span><span>resolution no. 2019010635 of 9:20 hours on June 12, 2019, I share the dismissal of these points for lack of supporting reasons and because the claimant's standing (legitimación) with respect to the alleged infringement of the principle of autonomy was rejected.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XVII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">ARTS. 4, 9 AND 14 OF DECRETO EJECUTIVO N.°</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">41564-MIDEPLAN-H, REGLAMENTO DEL TÍTULO III DE LA LFFP, LEY N°</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic; text-transform:uppercase">9635 REGARDING PUBLIC EMPLOYMENT (EMPLEO PÚBLICO)</span><span style="font-family:'Times New Roman'; font-weight:bold">"</span><span style="font-family:'Times New Roman'; font-weight:bold">. </span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>I reiterate that I did not vote on </span><span>resolution no. 2019010635 of 9:20 hours on June 12, 2019; however, I concur with the dismissal regarding these norms as they were not expressly challenged. </span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recitals XVIII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">FISCAL RESPONSIBILITY RULES. TITLE IV OF THE LFFP. FISCAL RESPONSIBILITY OF THE REPUBLIC</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">"</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic"> and XIX "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">FISCAL RESPONSIBILITY. DESTINATION OF FREE SURPLUSES</span><span style="font-family:'Times New Roman'; font-weight:bold">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to these points, I concur with the reasoning (fundamentación) made by the majority regarding the lack of standing (legitimación) of the claimant. </span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XX "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">EXCLUSIVE DEDICATION CONTRACTS (CONTRATOS DE DEDICACIÓN EXCLUSIVA)</span><span style="font-family:'Times New Roman'">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Although I did not vote on </span><span>resolution no. 2019010635 of 9:20 hours on June 12, 2019, I agree that the claimant does not have standing (legitimación) to bring action in defense of the autonomy of municipal or autonomous entities. Likewise, I share the dismissal of the remaining arguments for lack of supporting reasons. </span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXI "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">EXTENSION (PRÓRROGA) OF THE EXCLUSIVE DEDICATION CONTRACTS</span><span style="font-family:'Times New Roman'; font-weight:bold">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In this regard, I clarify that the norms challenged here are not unconstitutional, given that the legislator, in principle, is free to regulate the renewal conditions and the terms of exclusive dedication contracts (contratos de dedicación exclusiva) without any situation of constitutional relevance being observed, in the terms raised. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>Regarding the alleged injury to Article 34 of the Constitution and the other arguments, I concur with the dismissal developed in the majority vote.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">SERVANTS (SERVIDORES) TO WHOM EXCLUSIVE DEDICATION OR PROHIBITION MAY BE RECOGNIZED</span><span style="font-family:'Times New Roman'; font-weight:bold">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to this section, I concur with the reasoning for the dismissal made by the majority.</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXIII "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">OBLIGATIONS IMPOSED ON PUBLIC SERVANTS (SERVIDORES PÚBLICOS) BY VIRTUE OF THE EXCLUSIVE DEDICATION CONTRACT AND THE PROHIBITION</span><span style="font-family:'Times New Roman'; font-weight:bold">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>With respect to this point, I concur with both the reasoning made by the majority and the grant declared. Ergo, I declare the action granted (con lugar) in relation to the paragraphs: "</span><span style="font-style:italic">Officials subject by law to the prohibition regime may not practice their profession or professions, regardless of whether or not they meet the requirements to become entitled to the compensation for this concept</span><span>"</span><span> (Art. 32 paragraph 2 </span><span style="font-style:italic">in fine</span><span>) and "</span><span style="font-style:italic">For officials indicated in the law as possible beneficiaries of economic compensation for prohibition, they may not practice privately, in a paid or ad honorem capacity, the profession or professions they hold</span><span>"</span><span> (Art. 33 </span><span style="font-style:italic">in fine</span><span>), both of the Ley de Salarios de la Administración Pública, added by Article 3 of Title III of the "Public Finance Strengthening" law, No. 9635 of December 3, 2018;</span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXIV "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">NEW PERCENTAGES FOR EXCLUSIVE DEDICATION AND FOR PROHIBITION</span><span style="font-family:'Times New Roman'; font-weight:bold">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to this recital, I agree with the reasoning made by the majority, with the exception of the referral to recital VII. Likewise, </span><span>I did not hear on the merits the points dismissed in judgment no. 2024007057 of 10:10 hours on March 14, 2024 (since I declared the action granted due to transgression of the fundamental right to citizen participation); however, I agree that, in principle, the generic statements raised in an unconstitutionality action without supporting reasons or proof must be rejected. </span></p><ul type="disc" style="margin:0pt; padding-left:0pt"><li style="margin-left:29.44pt; padding-left:6.56pt; font-family:serif; -aw-font-family:'Symbol'; -aw-font-weight:normal; -aw-number-format:''"><span style="font-family:'Times New Roman'; font-weight:bold">Regarding recital XXV "</span><span style="font-family:'Times New Roman'; font-weight:bold; font-style:italic">PROHIBITION OF ADDITIONAL INCENTIVES</span><span style="font-family:'Times New Roman'; font-weight:bold">".</span></li></ul><p style="margin-top:0pt; margin-bottom:0pt; text-indent:35.4pt"><span>In relation to this point, I concur with both the reasoning made by the majority and with the ordered dismissal.</span></p> Regarding this considerando, I agree with the reasoning provided by the majority, with the following exceptions.

Even though I did not rule on the merits regarding the points dismissed in judgment no. 2024007057 of 10:10 a.m. on March 14, 2024 (as I granted the action due to a violation of the fundamental right to citizen participation), I did vote on advisory opinion no. 2018-19511 of 9:45 p.m. on November 23, 2018. Now, in this latter vote, the general scope of the stewardship (rectoría) of Mideplan was explained, so, in principle, it is up to the ordinary operator of the law to analyze the rules they must apply in accordance with the constitutionality criteria established therein. It is worth noting that this Court took into consideration that there were exceptions and exclusions provided for in special legal rules that had not been repealed by the ‘Public Finance Strengthening’ ('Fortalecimiento de las finanzas públicas') law; however, I believe that, for the purposes of this constitutional review process, what was stated in resolution no. 2018-19511 of 9:45 p.m. on November 23, 2018, is sufficient (that is, I refrain from ruling on what was decided in judgment no. 2024007057 of 10:10 a.m. on March 14, 2024). Precisely, in advisory opinion no. 2018-19511 of 9:45 p.m. on November 23, 2018, it was stated:

“**a) Regarding MIDEPLAN’s stewardship (rectoría) in public employment matters and compliance with the guidelines of the Dirección General de Servicio Civil.** The first two objections mentioned are:

“2.) In accordance with the previous report, it is determined that the project does affect the organization and functioning of the Judicial Branch, and that there is opposition to it, provided that the following is not eliminated:

a.- The provisions established in the reform of Articles 46 and 47 of the Public Administration Salaries Law (Ley de Salarios de la Administración Pública), No. 2166 of October 9, 1957, regarding MIDEPLAN’s stewardship (rectoría) of public employment for the Judicial Branch.

b.- The provisions established in the reform adding Article 49 in fine to the Public Administration Salaries Law (Ley de Salarios de la Administración Pública), No. 2166 of October 9, 1957, regarding the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil for the Judicial Branch.” In order to clearly understand these points, the corresponding rules are transcribed:

“Article 46- Public Employment Stewardship (Rectoría de Empleo Público) All Public Sector employment matters shall be under the stewardship (rectoría) of the Minister of National Planning and Economic Policy, who must establish, direct, and coordinate general policies, coordination, advisory services, and support to all public institutions, and define the administrative guidelines and regulations aimed at the unification, simplification, and coherence of employment in the public sector; ensuring that public sector institutions respond adequately to the defined objectives, goals, and actions.

Furthermore, the Minister must evaluate the public employment system and all its components, in terms of efficiency, effectiveness, economy, and quality; and propose and promote the necessary adjustments for the better performance of public officials and institutions.

Article 47- Methodological basis for performance evaluation The performance evaluation of officials shall be based on quantitative indicators of compliance with individual goals for products and services provided, linked to the processes and projects carried out by the unit to which they belong; and that of the managerial staff at all levels for compliance with institutional goals and objectives.

It shall be the responsibility of each superior to define the processes and projects of the unit, as well as the products and services provided; in accordance with the regulations in force and the institutional governmental strategic plans.

The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy, with the objective of homogenizing and standardizing, with the respective exceptions (salvedades), the evaluation methods and the respective information systems.

(…)

Article 49.- Effects of the annual evaluation The result of the annual evaluation shall be the sole parameter for granting the seniority bonus (anualidad) incentive to each official.

The annual ratings shall constitute a background for granting the incentives established by law and for suggesting recommendations related to the improvement and development of human resources. It shall be considered for promotions, advancements, recognitions, training, and development, and shall be determined by the official's performance evaluation history. Likewise, the evaluation process must be considered to implement actions for improvement and strengthening of human potential.

Annually, the Dirección General de Servicio Civil shall issue the technical and methodological guidelines for the application of performance evaluation instruments, which shall be of mandatory compliance.” As can be seen from the literal wording of the agreement, the first two precepts are objected to because they provide for a “… MIDEPLAN’s stewardship (rectoría) of public employment …”, while the third speaks of “… the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil for the Judicial Branch.” To specify the concrete implications of this regulation with respect to the Judicial Branch, both an internal examination of its articles must be carried out and its interaction with the rest of the legal system must be verified. In other words, the literal wording of the project's rules must be assessed, as well as their hypothetical systematic interpretation should they become part of our legislation.

Regarding the first level of analysis, numerals 46 and 47 grant and detail the issue of public employment stewardship (rectoría) under the responsibility of the Minister of National Planning and Economic Policy.

On this matter, the consulting deputies state that “… Article 46 and 47 (sic) do not interfere with the organization or functioning of the Judicial Branch since an interpretation consistent with constitutional limits necessarily limits its application to those entities over which there is effective intersubjective direction, respecting the principle of Separation of Powers and judicial independence. Provided that the aforementioned rule is interpreted this way, as indeed it must be according to the spirit of the legislator, it will be in accordance with the law of the Constitution, without in any way disrupting the jurisdictional function of the Judicial Branch or those administrative tasks essential for its fulfillment.” The Chamber also highlights that the Minister of Finance explained the following to the Supreme Court of Justice: “… regarding MIDEPLAN’s stewardship (rectoría) in matters of public employment evaluation, the project is clear in stating that this stewardship (rectoría) is exercised with the respective exceptions. In that sense, I know there is a will on the part of the deputies to present an authentic interpretation that guarantees the absolute independence of the Judicial Branch in matters of performance evaluation…” (Official note no. DM-2362-2018 of October 16, 2018. The underlining is added).

It is extracted from the foregoing that the stewardship (rectoría) of the Minister of National Planning and Economic Policy in public employment matters has exceptions in the bill. The Chamber verifies the truth of this argument, since the questioned clause 47 establishes in fine:

“The general guidelines applicable to the entire public sector shall be defined by the Ministry of National Planning and Economic Policy, with the objective of homogenizing and standardizing, with the respective exceptions (salvedades), the evaluation methods and the respective information systems.” (The underlining is added).

The Chamber notes that the aforementioned Articles 46, 47, and 49 are found in Chapter VI, titled “STEWARDSHIP AND PERFORMANCE EVALUATION OF PUBLIC SERVANTS (RECTORÍA Y EVALUACIÓN DEL DESEMPEÑO DE LOS SERVIDORES PÚBLICOS)”.

The application of this chapter to the Judicial Branch is assumed in the proposed reform to the Public Administration Salaries Law (Ley de Salarios de la Administración Pública), which introduces a numeral 26 with the following wording:

“Article 26- Application The provisions of this chapter and the following ones shall apply to:

1. The Central Administration, understood as the Executive Branch and its dependencies, as well as all deconcentrated bodies attached to the different ministries, the Legislative Branch, the Judicial Branch, the Supreme Electoral Tribunal, as well as the dependencies and auxiliary bodies of these. (…)” The Chamber draws attention to the fact that almost all the chapters of the amendment to the Public Administration Salaries Law (Ley de Salarios de la Administración Pública) refer, in at least one of their articles, to the cited clause 26. Thus, Chapter III is the one that precisely contains numeral 26, while Chapter IV cites it in its precepts 39 and 40:

“Article 39- Severance pay assistance (Auxilio de cesantía) The compensation for severance pay assistance (auxilio de cesantía) for all officials of the institutions contemplated in Article 26 of this law shall be regulated according to the provisions of the Labor Code, and may not exceed 8 years.

Article 40- Inadmissible additional incentives The creation, increase, or payment of remuneration for the concept of “discretion and confidentiality” is not permissible, nor is the payment or recognition for the concept of biennia (bienios), quinquennia (quinquenios), or any other remuneration for the accumulation of years of service other than the seniority bonuses (anualidades), in any of the institutions contemplated in Article 26 of this law.” (The underlining is added).

For its part, Chapter V refers to that rule in its clause 42:

“Article 42- Limit on total remuneration in the public function The total remuneration of those servants whose appointment is by popular election, as well as the heads (jerarcas), subordinate titleholders, and any other official within the institutional scope of application contemplated in Article 26 of this law, may not exceed per month the equivalent of twenty monthly base salaries of the lowest category of the Public Administration salary scale, except as indicated in Article 41 regarding the remuneration of the President.” (…)” (emphasis added).

While Chapter VII does so in its Article 52:

“Article 52- Payment method for public servants The institutions covered by Article 26 of this law shall adjust the payment periodicity of their officials’ salaries to a monthly payment method with a biweekly advance.” (emphasis added).

Thus, it is verified that the only chapters that do not refer to the cited Article 26 are VIII –related to the reform and repeal of other regulations– and the challenged VI, which is, indeed, the one that speaks of “exceptions” (salvedades).

The relevance of this fact lies in the interpretation derived from the conjunction of both premises. If, on the one hand, the general rule contemplated in Article 26 is not mentioned or invoked in Chapter VI and, on the other, said chapter is the one that speaks of “exceptions” (salvedades), then the unavoidable need to perform a systematic interpretation is revealed, in order to establish such exceptions with clarity. It is evident that, if the legislator literally refers to exceptions, the task of the legal operator is, precisely, to determine those exceptions.

Following this line, the extension of these “exceptions” (salvedades) to the Judicial Branch is verified and better understood when the second level of analysis is carried out, which implies a systematic reading of the legal system.

The principles governing systematic interpretation allow for the resolution of problems of (apparent) collisions of norms. For the purposes of the sub lite, it must be recognized that the Constitution has a direct influence on the exegesis of the entire legal system. The Constitution is a living text, whose provisions imbue the rest of the infra-constitutional norms with meaning.

In addition to the above, the resolution of a collision of norms presupposes the application of other interpretive principles, such as the prevalence of special norms over general ones.

These basic elements of legal hermeneutics guide the study of the norms in question.

The reading of the constitutional framework begins with the recognition of the independence of the Judicial Branch, one of the cardinal foundations of our Rule of Law:

“ARTICLE 9.- The Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and independent Powers among themselves. The Legislative, the Executive, and the Judicial.

None of the Powers may delegate the exercise of functions that are proper to them. (…)” “ARTICLE 154.- The Judicial Branch is only subject to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities than those expressly indicated by legislative precepts.” “ARTICLE 156.- The Supreme Court of Justice is the superior court of the Judicial Branch, and the courts, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding the civil service.” These constitutional provisions have given rise to the development of a profuse regulatory framework, specifically designed to regulate the Judicial Branch. Among the norms of this framework are the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Agency, the Salary Law of the Judicial Branch, the Judicial Service Statute (including its reform by the Judicial Career Law), etc.

Clearly, the norms enunciated above have the intention of concretely regulating the Judicial Branch, ensuring that its independence from the other Powers of the Republic is guaranteed.

The fact that the Judicial Branch enjoys particular regulation brings to the forefront the second point of analysis of systematic interpretation. In this sense, it must be studied whether particular norms exist for the Judicial Branch and verify their relationship with the articles under question.

Regardless of whether Article 47 of the bill speaks of “exceptions” (salvedades), it is observed that performance evaluation (evaluación del desempeño) and the competence in labor-related decision-making, whether general or specific, are already regulated by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external body to assume the “leadership” (rectoría) or impose criteria on that Branch. Moreover, said regulatory framework is designed to guarantee the efficiency of the judicial function and to protect judicial servants from external interference, as indicated by Article 1 of the Judicial Service Statute:

“Article 1.- This Statute and its regulations shall govern the relations between the Judicial Branch and its servants, in order to guarantee the efficiency of the judicial function and to protect those servants.” Note that the norm determines that the employment relations between the Judicial Branch and its servants are regulated by the Statute and its regulation. The systematic interpretation required by that article prevents indirect regulation of the judicial service through directives or guidelines originating from other bodies. This is verified because the issuance of the regulation referred to in the norm is, in turn, the exclusive competence of the Court, as the same Statute indicates:

“Article 5.- Before issuing an internal labor regulation, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective project known to those servants, by the most appropriate means, so that they may make observations in writing, within a term of fifteen days.

The Court shall take these observations into account to resolve accordingly, and the regulation it issues shall be mandatory without further procedure, eight days after its publication in the ‘Judicial Bulletin’ (Boletín Judicial).” An additional guarantee of the Judicial Branch’s independence in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external bodies:

“Article 6.- The Personnel Department of the Judicial Branch shall operate under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court.” Subsequently, the detail of the Judicial Service Statute’s regulations distinguishes the different competencies in matters of performance evaluation (evaluación del desempeño), which corroborates the existence of special regulations for that Branch. Thus, for example, Articles 8 and 10 of the Judicial Service Statute state:

“Article 8.- The Head of the Personnel Department is responsible for:

• c)Establishing the technical procedures and instruments necessary for greater personnel efficiency, including the periodic service evaluation (calificación periódica de servicios), the file and record of each servant, and the forms that are of technical utility; (…)

Article 10.- The periodic service evaluation (calificación periódica de servicios) shall be carried out annually by the Head of each judicial office regarding the subordinates working therein, using special forms that the Head of the Personnel Department shall send to the different offices in the months he/she determines. (…)” That is, the periodic evaluations (calificaciones periódicas) of judicial personnel, such as the annual evaluation, are carried out through the procedures established by the Head of the Personnel Department of the Judicial Branch. These are special norms, pertaining exclusively to the Judicial Branch, which would prevail over the general norms of the bill, should they come into force.

The Chamber emphasizes that the draft law does not repeal or modify in any way the provisions transcribed above, nor any other of the Judicial Service Statute. This Statute governs employment matters in the Judicial Branch and represents a guarantee for judicial servants, in accordance with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit or stem from a mere inference, as this would denote the disregard of hermeneutic rules.

On the other hand, in response to the question that Article 49 of the bill orders the Judicial Branch to mandatorily comply with the guidelines of the Civil Service Directorate General (Dirección General de Servicio Civil), the truth is that the relationship between said Directorate and the Judicial Branch is addressed by a specific norm, as derived from the aforementioned Article 8:

“(…) The Head of the Personnel Department may make the necessary inquiries to the Civil Service Directorate General (Dirección General de Servicio Civil) and request the corresponding advice from this Directorate, for the better performance of his/her functions. (…)” That is, the legal framework of the Judicial Branch provides for the authority of the Head of its Personnel Department (now called Human Resources) to consult the Civil Service Directorate General (Dirección General de Servicio Civil) and request its advice for the performance of its functions. These functions include, as seen, the obligation to determine the procedures and technical instruments for the periodic evaluation (calificación periódica) of personnel (Article 8 cited above). Such a provision of special law renders the questioned norms of Bill No. 20,580 inapplicable to the Judicial Branch.

Again, it is recalled that this is a special norm that takes precedence over the general provision. Furthermore, it is highlighted that the norms of the Judicial Service Statute would remain intact after the reform proposed through Bill No. 20,580, as it neither modifies nor repeals it.

In conclusion, given that Chapter VI of the intended amendment to the Public Administration Salary Law (Ley de Salarios de la Administración Pública) contemplates an exception for the Judicial Branch, coupled with the fact that the latter has special regulations of legal rank related to the performance evaluation (evaluación del desempeño) of its officials, it is not observed that the consulted bill actually affects the organization or functioning of the Judicial Branch.” Regarding the other arguments, I concur with the dismissal developed by the majority of the Chamber.

- Regarding recital XXVII “MEASUREMENT OF THE PERFORMANCE EVALUATION (EVALUACIÓN DEL DESEMPEÑO)”.

Regarding this point, I concur with both the reasoning provided by the majority and the dismissal ordered.

- Regarding recital XXVIII “CRITERIA FOR THE PERFORMANCE EVALUATION (EVALUACIÓN DEL DESEMPEÑO)”.

Regarding this recital, I agree with the reasoning provided by the majority, with the following caveats.

Even though I did not rule on the merits regarding the points dismissed in Judgment No. 2024007057 of 10:10 a.m. on March 14, 2024 (since I granted the action for violation of the fundamental right to citizen participation), I did vote on Advisory Opinion No. 2018-19511 of 9:45 p.m. on November 23, 2018. Now, in this latter vote, the general scope of the ‘Public Finance Strengthening’ law regarding salaries and performance evaluation (evaluación del desempeño) was explained, so, in principle, it is up to the ordinary operator of law to analyze the norms that must be applied in accordance with the constitutionality criteria established therein. It is worth noting that this Court took into consideration that there were exceptions and exclusions provided for in special legal norms that had not been repealed by the ‘Public Finance Strengthening’ law; however, I consider that, for the purposes of this constitutional control process, what is indicated in Resolution No. 2018-19511 of 9:45 p.m. on November 23, 2018, is sufficient (meaning, I abstain from ruling on what was resolved in Judgment No. 2024007057 of 10:10 a.m. on March 14, 2024). Precisely, in Advisory Opinion No.

2018-19511 of 9:45 p.m. on November 23, 2018, in addition to what was cited *ut supra* regarding the performance evaluation, also indicated:

***"c.- Regarding salary matters.*** *On this point, the aforementioned agreement states:* ***" 2.)** In accordance with the previous report, it is determined that the project does affect the organization and functioning of the Judicial Branch, and that there is opposition to it, as long as the following is not eliminated:* *(…)* ***d.-** The restrictions established in the bill on salary matters and their respective components for officials of the Judicial Branch."* *After analyzing the articles of bill No. 20.580, concerning the amendments to the Public Administration Salary Law, the Chamber recalls that the impact on the salary of judicial officials can affect judicial independence. As was briefly expressed in the aforementioned opinion (voto) No. 2018-5758 of 3:40 p.m. on April 12, 2018:* *"(…) What is part of judicial independence is that judges have a dignified economic sufficiency, both while active and inactive, (…)"* *Now, it should be noted that the questioned regulations are not particular to judicial officials, but rather encompass the Public Administration in a generalized manner. The importance of this point lies in the fact that the Chamber has sustained a solid criterion regarding the inadmissibility of mandatory institutional consultations (such as those provided for in articles 167 and 190 of the Political Constitution), when a project is of a national or general nature:* *"(…) Now, properly regarding the consultation to the Caja Costarricense de Seguro Social, as provided by Article 190 of the Constitution ("For the discussion and approval of projects relating to an autonomous institution, the Legislative Assembly shall first hear the opinion of that institution.") and the reiterated jurisprudence of this Chamber (see rulings numbers Sentencia 2012-02675 and 2008-004569) before the legislative approval of a bill relating to an autonomous institution, the Legislative Assembly must hear the opinion of that institution. This, of course, does not mean that every bill or any amendment related to an autonomous institution through a bill must be consulted with it, but rather, only those aspects referring to its constitution or organic structure, or those relating to the essential scope of the competencies of the involved institutions. In this case, the bill that gave rise to the questioned law has no relation to the organic structure of the Caja Costarricense de Seguro Social, nor to its competencies, but rather refers to the establishment of a salary scale for all public and private institutions that hire doctors, not just for the Caja. While it is true it could have a relationship with its finances, the ordinary legislator is competent and sovereign to establish salary criteria for a specific professional sector. Therefore, in this case, the mandatory consultation to the Caja Costarricense de Seguro Social, as part of the parliamentary procedure, was not applicable. In the same sense that this Chamber considered that the mandatory consultation to public universities was not appropriate, opinion (voto) 1602-98 stated:* *"II. OF THE NON-COMPLIANCE WITH THE LEGISLATIVE PROCESS (MANDATORY CONSULTATION TO THE UNIVERSITY OF COSTA RICA). However, previously, this Chamber in ruling number 3530-97, of three o'clock and fifty-seven minutes on June twenty-fourth, nineteen ninety-seven, heard the constitutionality of the challenged regulations and for the same reasons indicated in this action, concluded, decisively, their conformity with the constitutional order, under the following considerations:* *" I.- Unconstitutionality due to omissions in the legislative process: In the first instance, the plaintiff considers that the entirety of law 6836 and article 61 of law 7064 are unconstitutional due to defects in the approval procedure, because by their content, in accordance with the provisions of article 88 of the Constitution and 126 and 157 of the Regulations of the Legislative Assembly, they are laws of mandatory consultation to the Universities, as they directly affect matters placed under their competence. Regarding the cited article 88, it was established in ruling number 1313-93 of one o'clock and fifty-four minutes on March twenty-sixth, nineteen ninety-three, that the specific functional competence of the Universities, called ‘organic specialty’ refers to ‘providing higher education in various university careers, and other related activities’ and this is what the constitutional consultation tends to guarantee. The norms challenged in this action refer to the setting of salaries and incentives for professionals in medical sciences and have no direct relationship with the functional competence of the University and therefore, on this point, the action must be dismissed on the merits.* *By virtue of the foregoing, it is appropriate to dismiss the challenge to the Law of Incentives for Professionals in Medical Sciences, number 6836, of December twenty-second, nineteen eighty-two, regarding the non-compliance with substantial legislative procedures." (Sentencia No. 2013-014736 of 3:45 p.m. on November 6, 2013)* *In a similar sense, the Chamber indicated:* ***"V.- Dismissal of the action regarding the real estate tax and the real estate transfer tax.-** As explained above, the plaintiff comes in his capacity as Mayor of the Municipality of Belén and instructed by the Municipal Council of that canton in order to defend the interests of his community against legislative norms that are said to affect them in the specific terms indicated above, that is, insofar as it is a matter of imposing extensions to municipal tax exemptions without complying with the consultation process of Article 190 of the Constitution.- Now, the standing granted by the second paragraph of article 75 of the Law of Constitutional Jurisdiction on which the plaintiff relies is not sufficient to challenge all the taxes exempted by law number 7210 on Free Zones, but only to defend his interests regarding municipal taxes, that is, those that have come into legal existence through municipal initiative in the terms of article 121 subsection 13) of the Political Constitution. Thus, the objection for lack of consultation must first be dismissed insofar as it is directed against the real estate tax established in law number 7509 of May 9, 1995 and its reforms, which -as the Attorney General's Office indicates- has a national character having been issued through an ordinary law, even though the tax competence for its administration and the definition of the destination of the funds corresponds to the municipal corporations.- This point was clarified with precision by this Chamber in ruling number 2011-003075 which indicated:* ***A.- On the jurisprudence related to the real estate tax.** One of the aspects that this Chamber must resolve is settled in the Chamber's jurisprudence, having determined the nature of the tax, that is, whether it is a municipal or national levy. The foregoing has consequences for the approach to the claims raised by the Municipality of Escazú. The precedents of this Chamber have reiterated that it is a national tax destined for municipal purposes, and that, although the tax initiative of municipalities is recognized, it is not possible to understand exclusivity in this matter that limits the freedom of configuration when the initiative is exercised by the legislator. In this sense, the State can, through national taxes, provide extraordinary resources to the Municipalities of the country with the important objective of financing them. (…)* *It is concluded that the plaintiff could not come to claim the defense of municipal competencies of participation in the configuration of taxes, regarding a tax of unquestionable national character such as the cited real estate tax.- The same reasoning applies in relation to what the plaintiff identifies as a real estate transfer tax and which, as the advisory body also specifies, seems to refer rather to the municipal stamp that must be paid as part of the tax burden of some registrable operations in the Public Registry and which is regulated in article 84 of the Municipal Code, for which it also has an undeniable national character.- In summary, regarding these two recently cited taxes, the action filed must be flatly rejected." (Sentencia No. 2015-7688 of 9:00 a.m. on May 27, 2015).* *In the case at hand, the norms of the project related to salary matters have general application, without this Court having elements to consider that these will affect the financial sustenance of the officials dedicated to the administration of justice to such a degree that at least "a dignified economic sufficiency" is not ensured.* *The Chamber does not omit underlining that the norms of the Organic Law of the Judicial Branch, the Salary Law of the Judicial Branch, and the Judicial Service Statute are not affected by the proposed reform. These norms enable the autonomy of the Judicial Branch regarding changing its salary scale or varying base salaries. In that sense, note what was stated by the Minister of Finance to the Corte Plena:* *"Regarding the possibility that the project affects the independence of the Judicial Branch by regulating the application of certain bonuses, I would like to respectfully point out that the project does not affect or eliminate the power of the Judicial Branch to modify its salary scale or modify base salaries. So, if the Judicial Branch considers it necessary to increase the salary of any official, it has full power and autonomy to do so. Particularly, if the Judicial Branch considers that, given the regulation of exclusive dedication or annual step increases, it is necessary to increase the salary of any official, it may do so under the protection of its independence in salary matters."* *This observation is not only shared by the Chamber, but also determines with indisputable clarity that the consulted project does not affect the organization or functioning of the Judicial Branch in salary matters.* *Based on what was explained above, the Chamber determines that the questioned regulations of legislative bill 20.580 do not affect, in the stated sense, the organization or functioning of the Judicial Branch.* ***d)** Finally, the Chamber observes that the consulted project is being processed through the special procedure established in article 208 bis of the Regulations of the Legislative Assembly. Said article reads:* *"Article 208 bis.- Special Procedures* *By a motion for order, approved by two-thirds of its votes, the Legislative Assembly may establish special procedures to process amendments to its Regulations and bills whose approval requires an absolute majority, excepting the approval of administrative contracts, those related to the sale of State assets or the opening of its monopolies, and international treaties and conventions regardless of the voting required for their approval. All special procedures shall respect the democratic principle and safeguard the right of amendment." (Emphasis added).* *The transcribed norm provides that the special procedure of 208 bis must be used only for projects whose approval requires an absolute majority. Furthermore, to establish such a procedure, the deputies must reach an agreement by two-thirds of the votes. In other words, to apply a procedure under article 208 bis, there must be the consensus of a qualified majority of the deputies that the project intended to be processed by that means is one that can be approved by an absolute majority.* *On the other hand, this Court also notes that the Legislative Assembly based the consultation made to the Corte Plena on article 157 of the Regulations of the Legislative Assembly, a norm that lists the institutional consultations of a constitutional nature. Said article is complemented by article 126 of the same Regulations, since both differ only by the stage of the procedure in which the consultation is made. Thus, the consultations of article 126 are carried out in committee, while those of article 157 correspond to the plenary:* *"ARTICLE 126.- Mandatory constitutional consultations* *When a project is being discussed within a committee or a motion is approved that, in accordance with articles 88, 97, 167, and 190 of the Political Constitution, must be consulted, the respective consultation shall be made by the President. The consultations of the committees shall be considered as made by the Assembly itself and, as pertinent, the provisions of article 157 of these Regulations shall apply.* *(…)* *ARTICLE 157.- Institutional consultations* *When during the discussion of a project the Assembly determines that the Tribunal Supremo de Elecciones, the University of Costa Rica, the Judicial Branch or an autonomous institution must be consulted, and the Committee has not done so, the consideration of the project shall be suspended, proceeding to make the corresponding consultation.* If eight business days elapse without a response to the consultation referred to in this article, it shall be understood that the consulted body has no objection to the project. In the event that the consulted body, within the stated term, makes observations on the project, it shall automatically pass to the respective committee, if the Assembly accepts said observations. If the latter rejects them, respecting what the Political Constitution determines, the matter shall continue its ordinary procedure.” Returning to the specific case, it is observed that, effectively, the Legislative Assembly resorted to the application of Article 157 by directing the institutional consultation to the Judicial Branch:

“Subject: Institutional consultation pursuant to Article 157 of the Regulations of the Legislative Assembly, regarding the updated text of Legislative File No. 20580, LAW FOR THE STRENGTHENING OF PUBLIC FINANCES.

Dear Sirs:

With superior instructions and in accordance with the provisions of Article 157 of the Regulations of the Legislative Assembly, the updated text of Legislative File No. 20,580, LAW FOR THE STRENGTHENING OF PUBLIC FINANCE, which is attached to this communication, is consulted.

Pursuant to Article 157 of the Regulations of the Legislative Assembly, the stipulated term to comment on the project is eight business days counted from the date of receipt of this official communication; if no response is received from the consulted person or entity, it will be assumed that there is no objection to the matter. (…)” (Official Communication No. AL-DSDI-OFI-0329-2018 of October 5, 2018, visible on folio No. 19390 of the legislative file).

The Chamber is not unaware that the procedure for approving laws requires a certain flexibility – indeed, one speaks of the principle of parliamentary flexibility –; however, such ductility of forms should not be confused with a lack of congruence or inconsistency in parliamentary action.

Returning to the case at hand, if the Legislative Assembly opted for a procedure based on Article 208 bis, due to the existence of consensus regarding the approval of the project by absolute majority, then it becomes incongruent to initiate, within that procedure, a process of constitutional consultations, in order to determine if the project requires a qualified majority, as occurred in this case.

It is not, let it be well understood, that the Legislative Assembly cannot consult the instances it deems pertinent. Such a conclusion would be erroneous, since the parliamentary procedure must be enriched with inputs from diverse sectors, which is characteristic of the democratic system. What is indeed improper is to dedicate public resources of all kinds in a procedure processed under the uncertainty of whether its vote corresponds to an absolute majority, when the rule (208 bis) expressly requires certainty in that regard. If there was doubt as to the type of vote required for the approval of the project, then ab initio a procedure based on Article 208 bis should not have been chosen. Such action opposes the efficiency and reasonableness that must prevail in the actions of the Administration.

In the specific case of file No. 20,580 and according to what was previously expressed, the Chamber verified that it bears no relation to the organization or functioning of the Judicial Branch, so the noted uncertainty disappears. However, this Court does determine that the consultation made was improper due to incongruence, based on the reasoning carried out supra.

Corollary to the foregoing, points c) and d) are resolved, in the sense that the consultation made by the Legislative Assembly to the Supreme Court of Justice is improper, since in light of Article 167 of the Political Constitution, said project does not affect the organization or functioning of the Judicial Branch, as it maintains its own constitutional competencies specifically in relation to the consulted extremes. Consequently, the approval of the project in question does not require the qualified vote stipulated in numeral 167 of the Political Constitution”.

Regarding the other arguments, I share the criterion of the majority of the Chamber and the cited jurisprudential precedents.

- **Regarding recital XXIX "EXCLUSIÓN DE BENEFICIOS PARA JERARCAS Y OTROS SERVIDORES" (EXCLUSION OF BENEFITS FOR HIGH-RANKING OFFICIALS AND OTHER SERVANTS (EXCLUSIÓN DE BENEFICIOS PARA JERARCAS Y OTROS SERVIDORES)).** In relation to this recital, I agree both with the reasoning provided by the majority and with the dismissal ordered.

- **Regarding recital XXX "MODALIDAD DE PAGO PARA LOS SERVIDORES PÚBLICOS" (PAYMENT MODALITY FOR PUBLIC SERVANTS (MODALIDAD DE PAGO PARA LOS SERVIDORES PÚBLICOS)).** With respect to this section, I concur both with the reasoning provided by the majority and with the declared dismissal.

- **Regarding recital XXXI "INCENTIVO POR CARRERA PROFESIONAL" (PROFESSIONAL CAREER INCENTIVE (INCENTIVO POR CARRERA PROFESIONAL)).** In relation to this recital, I agree with the reasoning provided by the majority and the ordered dismissal, with the following exceptions.

I clarify that I have not issued any pronouncement regarding the principles of reasonableness and non-discrimination, since no claim linked to these was substantively developed.

Regarding collective bargaining (negociación colectiva), I maintain that, in application of numeral 62 of the Political Constitution, collective agreements (convenciones colectivas) can be validly subject to legal provisions. For further elaboration, I refer to the arguments set forth ut supra regarding collective bargaining (negociación colectiva); however, specifically, I consider that the aforementioned constitutional article empowers the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that this avenue does not empty the right to collective bargaining (negociación colectiva) of its content. Precisely, the scope of application of the latter includes a variety of topics that go beyond the limits, whose negotiation remains invariable, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining (negociación colectiva) not only agrees with the Constitution, but is prescribed by it. From the foregoing, in a specific context of severe fiscal deficit, the legislative measures taken aimed at the sound management of public finances and the principle of budgetary balance can only be overturned by more serious transgressions of other fundamental rights, which is not verified in the sub examine.

Furthermore, regarding salary incentives, I must point out that, as I have indicated, acquired rights and consolidated legal situations are based on a minimum of constitutional reasonableness that does not imply their recognition in all cases (for example, when there are aberrant and grossly unconstitutional situations); however, in principle, they can be validly regulated prospectively, which is why I prima facie dismiss any injury to numeral 34 of the Political Constitution. Consequently, I share the exposed reasonings once this precision has been made. I reiterate that this aspect is covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. Likewise, in my opinion, this type of decision by the legislator is fully susceptible to constitutional review (control de constitucionalidad), but for this there must be adequate substantiation by the claimants that allows the Chamber to carry out the respective weighing of legal interests. Consequently, the Legislative Assembly may regulate prospectively the requirements, amounts, and terms of salary incentives. Ergo, I do not observe any injury to constitutional ordinal 74 either.

Finally, I do not issue any pronouncement regarding the scenarios raised by the majority with respect to staff retention and their training, nor regarding the arguments related to such topics, since I consider that, at this time, it is not up to the Court to take a position in this regard, because the challenged provisions are within the free configuration of the legislator and no unconstitutionality susceptible of being declared at this time was developed.

- **Regarding recital XXXII "CONVERSIÓN DE INCENTIVOS A MONTOS NOMINALES FIJOS" (CONVERSION OF INCENTIVES TO FIXED NOMINAL AMOUNTS (CONVERSIÓN DE INCENTIVOS A MONTOS NOMINALES FIJOS)).** In relation to this recital, I agree with the reasoning provided by the majority and the ordered dismissal, with the following exceptions.

In the first place, regarding collective bargaining (negociación colectiva), I maintain that, in application of numeral 62 of the Political Constitution, collective agreements (convenciones colectivas) can be validly subject to legal provisions. For further elaboration, I refer to the arguments set forth ut supra regarding collective bargaining (negociación colectiva); however, specifically, I consider that the aforementioned constitutional article empowers the legislator to regulate the creation of incentives, compensations, or salary bonuses through law, provided that this avenue does not empty the right to collective bargaining (negociación colectiva) of its content. Precisely, the scope of application of the latter includes a variety of topics that go beyond the limits, whose negotiation remains invariable, for example, those related to the configuration of work, disciplinary regime, union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining (negociación colectiva) not only agrees with the Constitution, but is prescribed by it. From the foregoing, in a specific context of severe fiscal deficit, the legislative measures taken aimed at the sound management of public finances and the principle of budgetary balance can only be overturned by more serious transgressions of other fundamental rights, which is not verified in the sub examine.

Furthermore, regarding salary incentives, I must point out that, as I have indicated, they are covered by the principle of free configuration of the legislator (within the limits permitted by the Law of the Constitution) and there is no right to the immutability of the legal system. Likewise, in my opinion, this type of decision by the legislator is fully susceptible to constitutional review (control de constitucionalidad), but for this there must be adequate substantiation by the claimants that allows the Chamber to carry out the respective weighing of legal interests. Consequently, the Legislative Assembly may regulate prospectively the requirements, amounts, and terms of salary incentives.

For its part, I share the dismissals for insufficient reasoning and demonstration of grievances, as well as the alluded legality problems susceptible to being evaluated in the ordinary instances.

- **Regarding recital XXXIII "REFORMAS AL ART. 57 DE LA LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA" (REFORMS TO ART. 57 OF THE PUBLIC ADMINISTRATION SALARY LAW (REFORMAS AL ART. 57 DE LA LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA)).** In relation to this recital, I agree both with the reasoning provided by the majority and with the ordered dismissal.

&nbsp; &nbsp; &nbsp; **Paul Rueda L.** &nbsp; **Exp:**&nbsp;**19-002620-0007-CO** **Res. N°****2025-008201** &nbsp; **1\. Dissenting vote (Voto salvado) of Magistrate Cruz Castro regarding the standing (legitimación) of the claimants for the defense of institutional autonomies (autonomías institucionales), fiscal responsibility, and the destination of free surpluses (superávits libres).-** &nbsp; In addition to what was indicated by the majority, I consider that the claimants also have sufficient standing (legitimación) for the defense of institutional autonomies (autonomías institucionales), fiscal responsibility, and the destination of free surpluses (superávits libres), as all of these are—in my opinion—categories included within diffuse interests (intereses difusos). As I have indicated in previous votes (judgment number 2015-19623 of eleven hours fifty minutes on the sixteenth of December two thousand fifteen and judgment number 2016-01669 of nine hours and thirty minutes on the third of February two thousand sixteen), I apply a broader criterion in the admission of the action in defense of the autonomy (autonomía) of decentralized institutions. In this case, I apply the same criterion, as these are interests of such relevance that their defense cannot be limited to the legal representatives or agents of a specific institution.

I consider that in the defense of institutional interests and/or the autonomy (autonomía) of decentralized institutions there exists an interest of social and political relevance that should not remain under the exclusive control of the institution's representatives. I cannot ignore that the political conditioning factors that determine the actions of the high-ranking officials and representatives of the institutions require, as a counterweight, that the citizenry itself be able to point out the defects or acts that harm institutional interests. Thus, from a political and constitutional point of view, it is not admissible that only the agents of the institution are the ones who defend its interests. They often cannot do so because their appointment has a powerful political link with the Executive Branch. The values and principles that sustain the autonomy (autonomía) of autonomous entities have greater relevance than the commitment of the agents who transiently represent the institution. In that defense there is an interest that affects the balance of powers, citizen participation, and transparency. Institutional autonomy (autonomía institucional) has special relevance based on the principle of balance of powers and the strengthening of democracy. The defense of the institution and its autonomy (autonomía) are values of greater relevance than the institution itself; for this reason, I dissent from the majority criterion in the sense that only institutional representatives are the ones who can defend interests of constitutional relevance before this body.

Transparency, the balance of powers, and citizen participation require broader criteria for the admissibility of the action, which is why I depart from the majority opinion and incline toward dissenting on this aspect. Citizens who are not institutional representatives in the strict sense must have greater prominence, because the autonomy and interests of autonomous entities are not of concern only to their leaders. Democracy is strengthened through the discussion of these constitutional issues. It is a relevant matter for the balance of powers and transparency. By virtue of the foregoing, I also consider that the plaintiffs have standing (legitimación) to defend diffuse interests related to fiscal responsibility and the destination of free surpluses (superávits libres). The plaintiffs, as citizens, are entitled to raise their constitutional objection in those terms. This openness fosters citizen control and participation in matters as relevant to democracy as fiscal matters.

**2. Dissenting vote of Judge Cruz Castro regarding annual increments (art. 50 and transitory provision XXXI)** The majority opinion states that “*since granting or recognizing annual increments (anualidades) responds to criteria of opportunity and convenience that the legislator must establish, it is not considered that the established regulatory mechanism is openly unreasonable or disproportionate.*” Concluding that bonuses and their growth are matters available to the legislator. Now, in a dissenting vote (voto salvado) to vote no. 2024-07057 at 10:10 a.m. on March 14, 2024, I have stated the following: While it is true that there is no right to the immutability of norms, and this allows the method of calculating FUTURE annual increments (anualidades) to be changed. It is true that the annual increments (anualidades) already accounted for had a calculation method that must continue to be respected in the future, under penalty of being considered a violation of acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas). I also considered that, in application of constitutional norms and principles, it must be recognized that there is a consolidated legal situation (situación jurídica consolidada) in favor of public workers, which consists of the right to continue receiving—in the future—the effective payment of annual increments (anualidades) earned before the law came into effect, but also, that such payment be calculated according to the method (percentage calculation) that governed at the time and that must be maintained, not only because the law so ordered, but because Article 34 of the Constitution itself so establishes. It should only be appropriate to leave the payment in nominal form solely for annual increments (anualidades) earned in the future. This protects the legal effects of a consolidated legal situation (situación jurídica consolidada), which is directly related to the right to a salary. The amount of the annual increments (anualidades) has already been defined; it cannot be varied retroactively; it is an acquired right (derecho adquirido). If one wishes to vary what was defined before the law came into effect, a specific amount of compensation (indemnización) must be recognized.

For the rest, although annual increments (anualidades) are considered a salary bonus, it is true that their protection falls within the right to a salary. In general, regarding the right to a salary, constitutional jurisprudence has indicated that: “*The salary as remuneration owed to the servant by virtue of a statutory relationship, for the services they have rendered, is not only an obligation of the employer, but a constitutionally protected right.*” (see vote no. 2015-009504). A fundamental right that, moreover, is inalienable (art. 74 of the Constitution). This link between the right to a salary and human dignity is found not only in the Political Constitution, but also in instruments of International Law. Thus, Article 23.3 of the Universal Declaration of Human Rights establishes: “*3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection*”. Human dignity is the guiding criterion in the development of the essential content of the right to a salary and its limits, since what is sought is that the worker has an adequate standard of living, in accordance with their basic needs. Minimum wages (salarios mínimos) seek to enable public servants and their families to lead a dignified life; however, this salary base does not guarantee, in itself, that the established levels truly meet this condition. Faced with this situation, the Law provides for salary increases. In this sense, it would be unconstitutional to freeze salaries, but also to reduce salaries by changing the method of calculating annual increments (anualidades), as is the case here. This is a retroactive variation. If work is conceived as a right of the individual whose exercise benefits society, and the State as an employer in a statutory relationship has the obligation to periodically pay the salary, which is a constitutionally protected right (see judgment No. 2009-008062 at 9:35 p.m. on May 13, 2009), a norm that has the effect of reducing it is not constitutionally acceptable. In this sense, economic crises should never justify the reduction or regression in the protection of social rights, as is the case here with the right to a salary. It is not just any right; it is one of the core elements of the right to a salary.

By virtue of the foregoing, I have considered, under these same reasonings, to dissent, deeming that Articles 50 and transitory provision XXXI of the challenged law, by establishing a different method for calculating annual increments (anualidades) already accounted for, do so in violation of acquired rights (derechos adquiridos), consolidated legal situations (situaciones jurídicas consolidadas), and the right to a salary and human dignity of the public worker.

**3. Partial dissenting vote of Judge Cruz Castro regarding the unconstitutionality of Articles 54, 55, and transitory provisions XXVII and XXXI.-** In this section, I have considered Articles 54, 55, and transitory provisions XXVII and XXXI unconstitutional, as I indicate below.

-The challenged art. 54 refers to the “*conversion of incentives to fixed nominal amounts*”, without considering the existence of collective bargaining agreements (convenciones colectivas) with other types of provisions.

-Art. 55 refers to the creation of salary incentives and compensations only through law, disregarding other normative provisions such as collective bargaining agreements (convenciones colectivas). In this sense, I share and bring up in this case what this Chamber indicated in advisory opinion no. 2018-019511, where it concluded that it is contrary to the Law of the Constitution—specifically to union freedom and the right to collective bargaining (negociación colectiva)—for the legislator to prevent the ends related to salary components from being agreed upon within a collective bargaining process and to reserve them only to formal law. On that occasion, the Chamber determined that art. 55 should not be perceived as unconstitutional, under the understanding that it does not apply to those public sector workers who can indeed enter into collective bargaining agreements (convenciones colectivas de trabajo). However, my position goes even further, as I consider that the entire content of art. 55 is unconstitutional, for disregarding the right to collective bargaining (negociación colectiva) enshrined in Article 62 of the Constitution.

-Transitory Provision XXVII refers to the application of severance pay (auxilio de cesantía), limiting its payment in cases exceeding twelve years.

-Transitory provision XXXI, as stated, establishes a different method for calculating annual increments (anualidades) already accounted for.

All these norms are violative of our Law of the Constitution, due to several reasons. In the first place, they imply a derogation of collective bargaining agreements (convenciones colectivas) and regulations or statutes that already contain provisions regarding the payment of incentives or compensations in percentage form; or that have created salary incentives and compensations through that means. Therefore, this constitutes a violation of the right to collective bargaining (negociación colectiva). All of this, furthermore, in violation of acquired rights (derechos adquiridos), consolidated legal situations (situaciones jurídicas consolidadas), and the right to a salary and human dignity of the public worker.

Likewise, regarding the cap on severance pay (auxilio de cesantía), I reiterate what I have indicated in previous dissenting votes:

“*Severance pay (cesantía), an expression of the solidary social right and unemployment insurance. In the same sense that I have expressed in previous votes, I do not consider that the norms of Collective Bargaining Agreements that establish the payment of severance pay (auxilio de cesantía) in cases of resignation of the worker are unconstitutional, but quite the opposite. Under a thesis similar to that expressed by this Chamber in vote number 2000-00643, I consider that Article 63 of the Constitution does not prohibit granting the so-called severance pay (auxilio de cesantía) even in the hypothesis where there is no dismissal "without just cause." What it does mandate, with supreme character, as it were, is that whenever the dismissal is without cause, compensation (indemnización) is appropriate. But it does not prohibit that a type of severance pay (auxilio de cesantía) can be granted and legally recognized in any other case. Furthermore, Article 74 of the Political Constitution is clear in stating that the rights and benefits contained in its Title on Social Rights and Guarantees do not exclude others derived from the Christian principle of social justice and indicated by law. Moreover, as I indicated in the dissenting vote (voto salvado) to vote number 2008-001739, in relation to Article 72 of the Constitution and unemployment insurance, public authorities have incurred an omission of the mandate established by Article 72 of the Political Constitution in the sense that: “*while there is no unemployment insurance*”, which is even reinforced by another tacit mandate possessing the same content (namely Article 63 ibidem), which establishes: “*Article 63.- Workers dismissed without just cause shall have the right to compensation (indemnización) when they are not covered by unemployment insurance.*” None of the public authorities with normative power have taken the necessary measures to provide full enforceability to the implicit mandates established by Articles 63 and 72 of the Constitution regarding unemployment insurance (despite the fact that this has been required since the moment the Constitution was promulgated, that is, November 8, 1949), all of which undoubtedly constitutes an unjustified omission that clearly violates the Law of the Constitution. It is clear that the configuration of severance pay (auxilio de cesantía) in the terms in which it has been designed by the Worker Protection Law (‘Ley de Protección al Trabajador’), unlike what the Advisory Body and the President of the Legislative Assembly maintain, in no way exempts the State from its obligation to ensure that unemployed workers fully enjoy their fundamental rights, among them their right to unemployment insurance, due to the lack of infra-constitutional development that allows the full enforceability of this constitutional clause of deferred execution, all of which undoubtedly affects the notion of the Constitution as a Legal Norm endowed with coerciveness. Article 63 of the Constitution is an essentially transitory provision, in which it is assumed that a progressive development of the legal system and state policies must occur in order to establish unemployment insurance, since workers dismissed with just cause do not find a solidary response that allows them to survive with dignity while they manage to find another job; on the other hand, in many cases, severance pay (indemnización por cesantía) only temporarily covers the expenses demanded by the worker and their family, without ignoring, moreover, that the litigiousness of this economic compensation (compensación económica) prevents the salaried worker dismissed with just cause from receiving, belatedly, the compensation (indemnización) to which they are entitled. The deadline for the progressive development of a normative framework and a policy that ensures the dignified existence of unemployed citizens has exceeded parameters of reasonableness, as it is a mandate that remains unfulfilled after fifty-nine years of having been enacted.* This omission is deepened in a political environment in which a restriction of the rights of all citizens who depend on a salary is promoted, even if that salary is very high. The omission of the authorities responsible for defining solidarity and social development policies, according to the provisions of Articles 50 and 74 of the fundamental norm, has resulted in a failure to develop a comprehensive and solidary policy that translates into a system providing a specific response to the involuntarily unemployed, a concept that includes, from the perspective of developing personal dignity, under-employment or informal employment. The complexity of the unemployment phenomenon demands a regulatory framework and a state policy that makes visible, in all its extension, a phenomenon that affects the dignity of the unemployed person and that is a fundamental component of the solidarity foreseen in Article 74 of the constitution. Work, the right to life, and liberty are an essential part of dignity; their absence directly harms the dignity of the person. As the social doctrine of the Church, which is an ideological reference that Article 74 of the constitution, well establishes: “…Whoever is unemployed or underemployed suffers, in effect, the profoundly negative consequences that this condition produces in the personality and runs the risk of being marginalized from society and becoming a victim of social exclusion. In addition to young people, this drama generally affects women, less specialized workers, the disabled, immigrants, ex-convicts, the illiterate, all people who find greater difficulties in seeking placement in the world of work…” (See “Compendio de la Doctrina Social de la Iglesia” Celam. 2005- p. 208) The constitutional norm on unemployment insurance was presented by the social democratic group; one of its representatives, Lic. Rodrigo Facio, expressed some comments that remain current and that explain the need to convert this norm into living law. Constituent Facio pointed out that “… the general formula that has been submitted to the knowledge of the Chamber does not refer to the type of assistance that the State will provide to the unemployed, a matter that will be resolved according to the circumstances and economic conditions of the Treasury, and especially according to the nature of the unemployment phenomenon that arises. The assistance may be minimal or be sufficiently broad so that the unemployed person and their family do not suffer the lack of the former’s salary. He added that the principle must be established, since it is one of the few social guarantees whose nature is not class-based. All the social guarantees of our Constitution are provisions related to worker-employer conflicts. In contrast, the proposed principle is situated outside these class conflicts, and contemplates the worker precisely when they most need the help of the State, when they lose their job, upon becoming unemployed. The most tragic moment for the worker is when they are left without occupation. The Constitution must necessarily pay attention to that problem. It is true that in cases of economic crisis, both assistance and the reintegration of the worker into their work will be very difficult, but the difficulty is not an obstacle to not leaving in the Constitution a general formula that records the State’s interest in the problem of unemployment. He referred to the methods employed by the late President Roosevelt to solve the grave problem of unemployment that was presented to the United States during the global economic crisis that began in the year 29. Roosevelt solved the grave problem by resorting to a series of resources that raised much criticism, but that served to begin attacking the problem: he initiated public works and a broad subsidy policy, financed with budget deficits….”, subsequently, in the face of objections from some constituents, Facio argued that “.. everyone agreed that the phenomenon of unemployment is one of the most serious and difficult in the contemporary world. Not because our country is on the sidelines of that problem as a normal problem of the industrial world, should we disregard it. He added that he agreed with Mr. Arias that the adequate and reasonable formula to solve the problem of unemployment lay in unemployment insurance. For that reason, his faction presented in one of the previous sessions the formula - which was approved - that the worker unjustly dismissed from their job will receive compensation, provided that unemployment insurance is not established. However, I understand that unemployment insurance is difficult to establish, especially in an environment like ours, which cannot be created suddenly. Therefore, while its establishment is not achieved, the State, by the most adequate means, must address the problem of unemployment. Even in the most organized and economically powerful countries like the United States, where insurance has reached great extension and great efficiency, in the budget when unemployment grows, there is an important line item of many millions of dollars to address unemployment. Why? Because the Insurance cannot cope on its own. In Costa Rica, a country that is little organized and economically weak, the establishment of unemployment insurance would be difficult to achieve. The Caja de Seguro Social itself encounters a series of difficulties with the insurances established so far. He added that the problem of unemployment aid is very difficult. Practically only two solutions exist for it -as Licenciado Don Hernán Bejarano has demonstrated in several articles recently published- which are: unemployment aid in the established form and unemployment insurance. The ideal would be to arrive at unemployment insurance. However, while that desideratum is not achieved, an institution must be established that takes charge of those services of protection and reintegration of the unemployed person into work…” These words of Rodrigo Facio acquire greater relevance despite the time elapsed; they are the visions that acquire permanence in the imaginary of justice that must guide society in its human and equitable development. After so many decades, it is reasonable that unemployment insurance become a tangible claim, the ideal situation to which Rodrigo Facio referred. It is logical to admit that unemployment insurance could have seemed a distant goal in 1949, but such distance and postponement is not justifiable given the current economic and social development that the country has. Involuntary unemployment is a theme that affects the development of human dignity and that demands a specific response, in accordance with the aspirations and characteristics that define the solidary or welfare state. It is clear that by reason of the normative force of the Constitution, all of it is demandable from the actions of the public powers, “in all its integrity, in all its parts, in all its contents, also in its implications.” Thus then, in the face of the fact that the Constitución Política is a constitution of minimums, and that there has been an omission on the part of the Public Authorities in establishing unemployment insurance, it is reasonable that, through other figures available to the worker, such as Collective Bargaining Agreements, scenarios can be established that favor the worker who becomes unemployed, for whatever reasons. Which is also in line with considering unemployment aid (auxilio de cesantía) as an institute that has evolved, to be able to become a true real right, just as it is established, for example, in the Ley de Asociaciones Solidaristas. On the other hand, I also do not consider unconstitutional those clauses of collective bargaining agreements that break the new limit established by this Chamber of twelve years. Although I had previously agreed with the establishment of the twenty-year limit, I do not believe there are reasons to reduce it on this occasion to twelve years, and to consider it unconstitutional when the twelve years are exceeded. This constitutional instance cannot be the way to relatively easily reduce guarantees and benefits for workers. The jurisprudence of this Chamber has been reiterated, in which the existence of higher limits set by collective bargaining agreements, than those established in the Código de Trabajo, has been accepted, since it has been understood that said code establishes minimum rules that can be exceeded, of course, provided it is done within parameters of reasonableness and proportionality. I do not consider that exceeding a maximum of twelve years, in comparison with the eight established by the Código de Trabajo, is unconstitutional.

Note also the following variations in criteria that this Chamber has had regarding these themes:

• a)UNEMPLOYMENT AID (CESANTÍA) CAN BE PAID IN ANY CASE, INCLUDING IN CASE OF RESIGNATION, IN PARTICULAR FOR SOLIDARISTAS OF THE PUBLIC OR PRIVATE SECTOR, BUT NOT IF THIS IS ESTABLISHED THROUGH A COLLECTIVE BARGAINING AGREEMENT IN NEGOTIATION WITH UNIONS.- When the reform to the unemployment aid (cesantía) of the Ley de Protección al Trabajador was consulted to the Constitutional Chamber, it was said that the Constitución Política does not prevent the unemployment aid (auxilio de cesantía) from being paid in cases other than unjustified dismissal. Thus, in Vote 2000-643 it was noted that it is possible to pay unemployment aid (cesantía) in case of resignation from employment or justified dismissal, but that what the Constitution requires is that in case of unjustified dismissal it always be paid:

“In contrast to the criterion that has been prevailing in the discussion of the consulted project, for this tribunal, Article 63 of the constitution does not prohibit granting the so-called unemployment aid (auxilio de cesantía) even in hypotheses where there is no dismissal 'without just cause.' What it does mandate, with supreme character, one might say, is that whenever the dismissal is without cause, compensation is appropriate.” (Constitutional Chamber, Vote no. 2000-00643, Considerando III).

In such a way, the Chamber established that unemployment aid (cesantía) can be transformed into an acquired right, which can even be paid in case of dismissal without just cause. Following this idea, the Ley de Asociaciones Solidaristas had established since 1984 that the unemployment aid (cesantía) accumulated in the unemployment aid fund (fondo de cesantía) would be received by the worker in any case. The same had been done by collective bargaining agreements. However, in a recent ruling (7690-2018, reiterated by others) on the collective bargaining agreement of the Sistema Nacional de Radio y Televisión (SINART), the payment of unemployment aid (cesantía) in case of resignation was declared unconstitutional. Thus, we can synthesize the jurisprudence of the Constitutional Chamber in that unemployment aid (cesantía) can be paid in any case, including in case of resignation, in the public and private sector, especially if one is a solidarista, but not if one is a union member, that is, if it is negotiated through a collective bargaining agreement. It remains paradoxical that it is admitted in one scenario and suppressed if it involves a collective bargaining agreement.

b. UNEMPLOYMENT AID (CESANTÍA) CAN BE PAID WITHOUT A LIMIT OF YEARS, IN THE PUBLIC SECTOR AND IN THE PRIVATE SECTOR, IF ONE IS A SOLIDARISTA OR IF IT IS ESTABLISHED BY LAW, BUT NEVER IF IT IS DONE THROUGH A COLLECTIVE BARGAINING AGREEMENT. ALSO, UNEMPLOYMENT AID (CESANTÍA) CAN BE PAID THAT TOTALLY IGNORES THE CRITERIA OF SENIORITY (ANTIGÜEDAD) AND EARNED SALARY BY THE WORKERS, IF THE UNEMPLOYMENT AID (CESANTÍA) IS ESTABLISHED TO PRIVATIZE A PUBLIC INSTITUTION.- The limit of 8 years of unemployment aid (cesantía) was modified in Costa Rica by various mechanisms, achieving higher limits ranging from 9 years to payment with no limit of years.

This has been done through various mechanisms. Let us look at some:

• The Solidarist Associations Law (art. 18 para. B) establishes the payment of severance pay (auxilio de cesantía) with no limit on years, meaning that if a person works 40 years for a public institution or a private employer, they are entitled to 40 years of severance pay.

• The Civil Service Statute (art. 37 para. f and 47) establishes that, if a worker is dismissed due to institutional restructuring, they are entitled to severance pay for all years worked, meaning, with no limit on years.

• The very Worker Protection Law that transformed a part of the severance pay into the Labor Capitalization Fund (Fondo de Capitalización Laboral), which the employer deposits month after month with no limit on years into an account in the name of the worker.

• The Labor Procedural Reform (Labor Code reformed by the RPL, art. 576) establishes that if a worker protected by a special immunity (fuero especial) obtains a judgment that annuls the dismissal and orders their reinstatement in employment, the worker may substitute their reinstatement with the payment of severance pay with no limit on years.

• Through collective bargaining agreements (convenciones colectivas), the severance pay cap has been broken, establishing caps greater than 8 years, even establishing severance pay with no limit on years, meaning, for all the time actually worked.

In all these cases, the severance pay is calculated based on the criteria defined by the Labor Code: seniority and salary earned by the worker. However, in the early 2000s, the collective bargaining agreement of INCOP established a very special rule, since it not only broke the severance pay cap by setting it at 12 years, but also established that, if the employment relationship ended due to the privatization of INCOP (which ultimately happened), workers would receive an ADDITIONAL severance pay beyond the 12 years established in a table ranging from US$6,000 for one year of seniority up to an ADDITIONAL severance pay of US$50,000 for thirty years of seniority. In this regard, the Constitutional Chamber (Sala Constitucional) resolved the consultation as follows:

“V.- COLLECTIVE BARGAINING AGREEMENT AND BASIS OF THE TRANSFER. In the opinion of the consultants, the conclusion of an agreement between the various sectors involved in the strengthening and modernization of INCOP and the subsequent addition to the collective bargaining agreement to add the consulted compensation for the laid-off workers of that entity are not sufficient to give support to such an extraordinary benefit or gratuity. Regarding this point, in recital IV the reasons were already set forth for which this Tribunal does not understand that the compensation added to the collective bargaining agreement is a sort of singular gift or liberality and, therefore, unconstitutional. The consulted budgetary norm is not atypical, since the compensation is found added to the institution's collective bargaining agreement for the benefit of the workers, given that this has, according to the provisions of numeral 62 of the Political Constitution, force of law.” That is, the Constitutional Chamber on that occasion indicated that it was sufficient for such additional severance pay to be included in a collective bargaining agreement to be constitutional. A short time later, the Constitutional Chamber declared unconstitutional a rule of the Collective Bargaining Agreement of the Social Protection Board (Junta de Protección Social, JPS), which copied almost literally the rule of the Civil Service Statute, that is, it indicated that if the institution was restructured, workers would receive severance pay with no limit on years, meaning, it would be paid recognizing all the years actually worked by the workers. In this case, the Constitutional Chamber declared the rule of the collective bargaining agreement unconstitutional for being unreasonable and disproportionate (06727-2006). Finally, for many years, the Constitutional Chamber established a new severance pay cap at 20 years, maintaining that this was a reasonable cap. In the current juncture where the political winds blow against the public sphere and particularly against public servants, the Constitutional Chamber says that it finds the severance pay cap at 12 years and no longer at 20. The political visions have changed, orienting themselves towards a restrictive vision, in contradiction to what was the original vision that inspired the spirit of the social guarantees introduced with great optimism in 1943. In summary, according to the current jurisprudence of the Constitutional Chamber:

• it is not important to grant exaggerated severance pay without any relation to any type of criterion if it is to permit the privatization of a public institution; • it is constitutional to pay severance pay in case of resignation in the public sector through solidarist associations, but never through collective bargaining agreements negotiated with unions; • it is constitutional to pay severance pay with no limit on years in the public sector through solidarist associations, but never through collective bargaining agreements negotiated with unions.

Thus, I consider the disproportion beyond twenty years, but I do not consider disproportionate the recognition of severance pay for terms greater than twelve and less than twenty years. The improvement of workers' conditions, through mechanisms that exceed the minimums established in the Labor Code, does not seem unconstitutional to me, as long as they are not disproportionate and irrational. The Chamber has become an arbiter of reasonableness and proportionality regarding the benefits granted to workers, but that evaluation, for various reasons, is not applied to other social and economic sectors. The worker depends on salary and social benefits; that does not occur with other sectors of the labor economy. There is a structural vulnerability of the majority of public and private workers. That condition must not be lost sight of in a society guided by the principle of solidarity. For this reason, exceeding the payment of severance pay, for this type of state enterprises, beyond twelve years, as long as it is not greater than twenty years, is not unreasonable, but is justified, for example, in incentives for the institution to try to retain its most experienced employees and thereby benefit the exercise of public function and public services. It is justified, moreover, because the worker has no other source of income than the benefits they receive for their work; in this situation, they have no alternative.” Finally, regarding the different method of calculating the already-accounted-for seniority bonuses (anualidades), I reiterate what was stated in the dissenting vote to vote no. 2024-07057:

“Dissenting Vote of Magistrate Cruz Castro.- The change in the payment of seniority bonuses and salary supplements (pluses salariales) earned prior to the law (so that they are now paid nominally and not as a percentage) is unconstitutional because it is a reduction of the right to salary and a retroactive application of the law (…)

-Although it is true that there is no right to the immutability of norms, and this allows the method of calculating FUTURE seniority bonuses to be changed. It is quite true that the already-accounted-for seniority bonuses had a method of calculation that must continue to be respected in the future, under penalty of being considered a violation of acquired rights and consolidated legal situations (situaciones jurídicas consolidadas).

-Violation of the principle of non-retroactivity: it clearly follows from art. 34 of the Constitution that laws cannot have retroactive effect to the detriment of acquired patrimonial rights. In this case, it involves a regulatory norm with retroactive effect, to the detriment of the right to salary. Furthermore, there is clearly an excess of regulatory power, by going beyond what is indicated in the law when it is observed that the cited law is clear in providing, in its Transitory XXV, that "The total salary of the servers who are active in the institutions contemplated in article 26 upon the entry into force of this law may not be reduced and the acquired rights they hold shall be respected", while article 3 of the aforementioned regulation provides that: "Correspond to acquired rights, the incentives, sursalaries (sobresueldos), supplements, additional remunerations or any other of an equivalent nature, which prior to the entry into force of Law No. 9635 comprised the total salary of the public servant, in permanent or interim status".

The Chamber, in application of constitutional norms and principles, must recognize that there is a consolidated legal situation in favor of public workers, which consists of the right to continue receiving—in the future—the effective payment of seniority bonuses earned before the entry into force of the law, but also, that said payment be calculated according to the method (percentage calculation) that governed at the time and that must be maintained, not only because the law so ordered, but because article 34 of the Constitution itself so establishes. It being appropriate only to leave the payment in nominal form solely for the seniority bonuses earned in the future. Thus protecting the legal effects of a consolidated legal situation, which has a direct relationship with the right to salary.

-Violation of the principle of legal reserve (reserva legal): according to repeated jurisprudence of this Chamber, the restriction of fundamental rights is reserved to law. The right to salary is a fundamental right, and any restriction established by regulation, to change the form of calculating the payment of previous seniority bonuses (a consolidated legal situation) constitutes a violation of the principle of legal reserve. As stated in the vote cited by the majority, "(...) The principle of legal reserve implies, in what is relevant here, that executive regulations may develop legislative precepts but may not increase the restrictions established nor create those not foreseen by the legislator, and must scrupulously respect their 'essential content'. (Judgment No. 2001-05916 of 15:28 hours of July 3, 2001).

In this case, restrictions are being EXPANDED because the challenged regulation is changing the method of calculating previous annual salary increments (anualidades).

-*Regarding the violation of the right to a salary and the dignity of the worker.-* In general, regarding the right to a salary, constitutional jurisprudence has indicated that: “*The salary as remuneration owed to the employee by virtue of a statutory relationship, for the services they have rendered, is not only an obligation of the employer, but a constitutionally protected right.*” (see vote No. 2015-009504). A fundamental right that is, moreover, inalienable (Art. 74 of the Constitution). This link between the right to a salary and human dignity is found not only in the Political Constitution, but also in instruments of International Law. Thus, Article 23.3 of the Universal Declaration of Human Rights establishes: “*3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.*” Human dignity is the guiding criterion in the development of the essential content of the right to a salary and its limits, since what is sought is for the worker to have an adequate standard of living, in accordance with their basic needs. Minimum wages seek to enable public employees and their families to lead a dignified life; however, this salary base does not guarantee, by itself, that the established levels truly meet that condition. Faced with this situation, the Law provides for salary increases. In this sense, it would be unconstitutional to freeze salaries, but also to reduce salaries by changing the method of calculating annual salary increments (anualidades), as is the case here. Therefore, if work is conceived as a right of the individual whose exercise benefits society, and the State as an employer in a statutory relationship has the obligation to periodically pay the salary, which is a constitutionally protected right (see judgment No. 2009-008062 of 9:35 p.m. on May 13, 2009), a regulatory norm that has the effect of reducing salaries is not constitutionally acceptable. In this sense, economic crises must never justify the reduction or regression in the protection of social rights, as is the case here, the right to a salary.” **4. Additional reasons of Magistrate Cruz Castro regarding the unconstitutionality of Transitory Provision XXXVI.-**

Transitory Provision XXXVI states the following:

“*TRANSITORIO XXXVI. Upon the entry into force of this law, the heads of public entities are obligated to denounce collective bargaining agreements (convenciones colectivas) upon their expiration.* *In the event that a decision is made to renegotiate the collective bargaining agreement (convención), it must be adapted in all its aspects to what is established in this law and other regulations issued by the Executive Branch.*” Among the allegations of the claimants, it is indicated that obligating the heads to denounce collective bargaining agreements upon their expiration, together with other provisions, implies emptying the right to collective bargaining (negociación colectiva) of its content. It is also indicated that this transitory provision is an intrusion by the Public Power into the right to collective bargaining, since it obligates the heads of public entities to denounce collective bargaining agreements upon their expiration, thereby suppressing the content of Art. 62 of the Political Constitution and of ILO Conventions 87 and 98, in conjunction with Arts. 26 of the ACHR and 8(a) of the Protocol of San Salvador, for which reason it is considered contrary to the Law of the Constitution; this regression is also observed because the Transitory Provision imposes the obligation that, if new collective bargaining agreements are negotiated, they must be adapted to the provisions of Law No. 9635, meaning that working conditions that worsen previous ones must be inserted, without respect for consolidated legal situations. Furthermore, the norm allows the Executive Branch to establish any content in those agreements, all of which is also introduced in a norm of a transitory nature, causing permanent and definitive effects.

In this judgment, the Chamber declares the unconstitutionality of the provisions in the first paragraph of Transitory Provision XXXVI of the Law on Strengthening Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), on the grounds that the mandatory nature of the denunciation is contrary to the principle of free and voluntary negotiation. For these purposes, this Court reiterates what was indicated in votes No. 2018-019511 and No. 2021-17098, where it relied on ILO criteria stating that “*Collective bargaining, to be effective, must be voluntary in nature and does not imply recourse to coercive measures that would alter the voluntary nature of said negotiation.*” For this reason, the Chamber concluded that “*a legal provision that obligated a party to conclude a collective agreement with another would be contrary to the principle of free and voluntary negotiation*”. Thus, said numeral is unconstitutional by setting aside the free and voluntary nature of collective bargaining, since, quite the contrary, it establishes the obligation for all heads of public entities to denounce collective bargaining agreements once the expiration date arrives. Therefore, it declares the unconstitutionality of the provision contained therein in the sense of subjecting the heads to the obligation to denounce collective bargaining agreements to the detriment of the fundamental rights examined herein.

In this regard, in addition to sharing the reasons indicated for this declaration of unconstitutionality, I state the following additional reasons:

-The first paragraph is unconstitutional, not only for setting aside the free and voluntary nature of collective bargaining, but for emptying it of all content and thereby propitiating an absolute regression in the right to collective bargaining. Clearly, the legislator committed an unconstitutional excess by obligating all heads of public entities to denounce all collective bargaining agreements, for the simple fact that a transitory provision so orders, disregarding the entire negotiation process that preceded the collective bargaining agreement. As I have indicated in other dissenting votes, I consider that collective bargaining agreements (Convenciones colectivas) are part of that social vision that makes the Constitution something more than individual rights. The incorporation of this chapter into our Magna Carta occurred in the year 1943, which reformed the Constitution of 1871, and this in turn was included in our current constitution. One of these rights, relevant to the subject of study, is the freedom of association (libre sindicalización), regardless of the labor sector to which the worker belongs (whether public or private), enshrined in Article 60. On the other hand, Article 61 establishes the right to strike as an exercise of union freedom, which, although limited to certain regulations in the public sector (according to the same constitutional article), is indeed admissible for that sector, as established by this Court in judgment No. 1998-1317, stating:

“*The right to unionize (sindicación) thus has constitutional rank in Costa Rica and is regulated internally through norms of a legal nature, specifically the Labor Code (Código de Trabajo), which regulates in its Article 332 and following – located in Title Five “Of Social Organizations” – matters relating to the operation and dissolution of unions and defines the rules for the protection of union rights. Article 332 of the Labor Code also declares the legal constitution of unions to be of public interest, which are distinguished “(…) as one of the most effective means of contributing to the support and development of popular culture and Costa Rican democracy”. The foregoing reference allows us to conclude at this stage that the fundamental right of unionization is recognized without distinction of the public or private nature of the labor sectors; that is, to an equivalent magnitude. In relation to the content of union action, specifically regarding the right to strike, Article 61 of the Political Constitution establishes that the regulation of the aforementioned right of collective action is a matter of legal reserve, with any restriction of the said right to be made by law and in no way may it favor acts of coercion or violence. It is also a result of the attribution conferred by the cited constitutional numeral 61, that it is the legislator's responsibility to define in which cases of public activity the exercise of the right to strike is restricted or excluded; a mandate that is satisfied through Article 375 (formerly, 368) of the Labor Code, which must be adjusted to the criteria of reasonableness and proportionality to be consistent with the democratic principle on which the national legal system rests, embodied in Article 1 of the Political Constitution and which is the supreme value of the Constitutional State of Law...*” Collective bargaining represents a basic element in the content of union freedom, precisely because through Unions a negotiation can be promoted that fosters resolving the labor situations of workers. Union freedom itself implies negotiating collectively to obtain the economic, social, and professional benefits enshrined in our Fundamental Charter. Bargaining also arises as a pacifying instrument in the face of collective conflicts, such as the right to strike, which is recognized in the public sector and can be reflected in the agreements of a collective bargaining agreement. Our Political Constitution so specified in Article 62 within the chapter regulating social rights and guarantees, recognizing that collective labor agreements (convenciones colectivas de trabajo) that, in accordance with the law, are concluded between employers or unions of employers and legally organized unions of workers shall have the force of law, without distinguishing between public or private workers. The correct dimension that this constitutional right of collective bargaining must acquire, enshrined in the chapter of social guarantees, in the case of the public sector, is not one of total curtailment for the employee, but an understanding that its exercise is subject to certain limitations in consideration of the observance of the legal system, the limits of public spending, and the corresponding regulations that exist in this matter.

-The second paragraph, where it is established that in the event that a decision is made to renegotiate a collective bargaining agreement, it must be adapted in all its aspects to what is established in the law and “*other regulations issued by the Executive Branch*”. Thus, I consider that the claimants are correct and that said norm “*leaves the door open*” for the Executive Branch to establish any content for those regulations. Then, collective bargaining agreements must no longer only submit to legal provisions, but to any other regulation of the Executive Branch, which I consider openly unconstitutional. While I do share the thesis that the capacity for collective bargaining cannot be unrestricted, as I have indicated in a previous dissenting vote, I do not consider admissible the interference of the Executive Branch in the exercise of a fundamental right, such as collective bargaining. Clearly, this is also contrary to the principle of legal reserve (reserva legal), according to which the regulation of fundamental rights (as is the case here with the right to collective bargaining) is a matter of legal reserve. The legal reserve also protects social rights; there cannot be a restrictive vision of such an important guarantee as the legal reserve.

This guarantee also protects social rights.

I believe that the mere act of allowing the Executive Branch to issue guidelines regarding the exercise of a fundamental right is per se unconstitutional. It is a kind of control and supervision over workers' rights, which require no tutelage. The right to unionization, to collective bargaining, and to the effective resolution of collective disputes are a trilogy of fundamental rights that give effectiveness and response to the need of workers to group together, compensating for their real inferiority vis-à-vis employers. Mechanisms are required that compensate for the asymmetry that characterizes the worker-employer relationship. The Fundamental Charter itself recognizes the right to collective bargaining, along with various international instruments (International Labour Organization Conventions numbers 87, 98, 135 and 151). Certainly, in the public sector, the employing entity is not entirely free, since the State is subject to the principle of legality or juridicity. However, assuming that limitation is very different from subjecting the collective agreement to guidelines issued by the Executive Branch, ignoring that they must be defined through legislative act. There is no doubt that the right to collective bargaining is a fundamental right that can be limited, but only by law, not through regulatory norms, as this rule allows. The dreams of the 1940s with the social reform remain unfulfilled. It was thought that the Collective Agreement would be the horizon of social progress for workers, but that has not been possible. There is a constant attempt to legislatively limit unions and Collective Agreements. Those aspirations remain on the paper of the Constitution, because these negotiations are an exception for the vast majority of workers and are therefore seen as a privilege. The aspirations of the Constitution have been truncated, the political reality imposes a fierce restriction on union rights and collective bargaining. There are several pending matters regarding the full enforcement of the Constitution, especially in social matters. I believe there is an aspiration to have union rights and collective bargaining on paper, to have them there, to speak of them, to maintain our good international image, but in reality, these rights are exercised, in part, by a unionized minority; the rest of the workers understand that it is better not to unionize, nor to seek a negotiation of their working conditions. These would be unrealistic pretensions, because in the current landscape, it is enough to have a job, the economic and political reality does not allow for more. Sad reality, the social Constitution has a long wait for a more just, more equitable, more decent society. This is a topic that transcends my function as a Constitutional judge.

5. Note from Magistrate Cruz Castro regarding the exclusive dedication contract (article 28 of the Public Administration Salary Law).

While it is true that regarding the challenges to the provisions of the exclusive dedication contract I have subscribed to the majority opinion, I do consider it necessary to record this note to indicate the following:

While the exclusive dedication regime is a matter of legal regulation, verifying compliance with the principle of progressivity and non-regression is a constitutional matter, particularly in this case, when labor rights and conditions are at stake. In this case, the Chamber states that *"...* *the complainant accuses that the principles of progressivity of labor rights and the protective principle are violated. However, in the judgment of this Chamber, this mere statement without an adequate analysis of the norms and the impact they may have on the workers' labor rights, prevents an appropriate constitutional analysis. Such statements must be dismissed due to improper and insufficient reasoning by the complainant."* The reason why the insufficient reasoning prevented this Chamber from carrying out the constitutional review and examining whether or not the principles of progressivity and non-regression are respected. But said examination remains a pending task; this Chamber, in judgment No. 2011-016153 of 9:30 hrs. on November 25, 2011, stated: *"(...) Social or welfare rights must be, according to the imperatives of Public International Human Rights Law, the object of progressive development, so that national authorities or public powers must adopt all necessary measures, to the maximum extent permitted by their resources, possibilities, and capacities, to guarantee their effective enjoyment and exercise."* In this sense, I consider that the examination of the progressive development of fundamental rights is also predicable regarding labor rights. Thus, the Social Constitution ceases to be a mere statement on paper to assess its realization in reality.

Work, the right to life, and liberty are essential parts of dignity; their absence directly injures the dignity of the person. As well established by the social doctrine of the Church, which is an ideological reference that Article 74 of the Constitution *"...* *Anyone who is unemployed or underemployed suffers, in fact, the profoundly negative consequences that this condition produces on the personality and runs the risk of being marginalized from society and becoming a victim of social exclusion. In addition to young people, this drama generally affects women, less specialized workers, the disabled, immigrants, ex-convicts, illiterate people, all of whom find greater difficulties in the search for a placement in the world of work..."* * (See "Compendium of the Social Doctrine of the Church"* Celam. 2005- p. 208). It is clear that by reason of the normative force of the Constitution, it is fully enforceable against the actions of public powers, *"in its entirety, in all its parts, in all its contents, also in its implications"*. So then, faced with the fact that the Political Constitution is a minimum-standards constitution, the progressivity of fundamental rights must move from being an ideal to a constitutional requirement. This constitutional instance cannot be the avenue through which guarantees and benefits are relatively easily reduced for workers; although those benefits may have been established by law, it does not mean they can be regressive at any time. In this sense, it remains pending at this constitutional venue to examine, when soundly raised, whether the changes in the regulations governing exclusive dedication contracts in the public sector are progressive, or on the contrary, are regressive, without any basis.

6. Dissenting vote of Magistrate Cruz Castro regarding the unconstitutionality of Articles 35 and 36 of the Public Administration Salary Law.

I have considered dissenting on these issues and finding that the changes made to Articles 35 and 36 of the Public Administration Salary Law are unconstitutional. These norms, after the reform carried out by the Public Finance Strengthening Law, No. 9635, establish the following:

*"Art. 35- Percentages of compensation for exclusive dedication. The following economic compensations are established on the base salary of the position held by professional officials who sign exclusive dedication contracts with the Administration:

1. Twenty-five percent (25%) for servants with the level of licentiate degree (licenciatura) or another higher academic degree.

2. Ten percent (10%) for professionals with the level of university bachelor's degree (bachiller universitario).

(Thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018) Art. 36- Prohibition and percentages of compensation. Public officials who by law have been imposed the restriction for the liberal practice of their profession, called prohibition, and who meet the requirements established in Article 31 of this law, shall receive an economic compensation calculated on the base salary of the position they hold, in accordance with the following rules:

1. Thirty percent (30%) for servants at the licentiate degree level or another higher academic degree.

2. Fifteen percent (15%) for professionals at the university bachelor's degree level.

(Thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018)"* It is questioned that the new percentages for the recognition of supplementary salary components (sobresueldos) for exclusive dedication and prohibition, under less beneficial conditions, violate the principle of progressivity of rights. Furthermore, there is a lack of a technical study that could support this detriment to labor conditions, without certainty that it is the cause of the country's fiscal problem, when it has been pointed out that the causes of the fiscal deficit stem from more complex problems such as tax evasion and avoidance (evasión y elución fiscal).

Likewise, it is questioned that the reduction of percentages, both in exclusive dedication and prohibition contracts, creates a clear inequality of conditions among the same officials, between those who were hired by the Administration before the entry into force of Law 9635, and new hires.

In this regard, the majority of the Chamber considered that compliance with the principle of financial or budgetary balance is an objective and reasonable justification for regulating salary aspects and that "faced with a critical condition in public finances (duly supported by technical studies), which puts the effective or adequate execution of constitutionally relevant services at risk, the decision of the competent authorities to define and apply measures capable of mitigating or solving the problem is not only reasonable, but, even more, it is unavoidable" (advisory opinion no. 2018-18505).

Regarding this argument, I have considered issuing a dissenting vote, as I believe the plaintiffs are correct. The variants set forth in Title III of the LFFP regarding the percentages of Exclusive Dedication and Prohibition conflict with the provisions contained in the Political Constitution. It is not only an attack against the principles of progressivity and non-regression of fundamental rights, but also against legal certainty, the principle of technical reasonableness, and the principle of equality. Note the clear deterioration in the established percentages, which represents a total regression to previous labor conditions; also note the creation of a differentiation between officials hired before and after the entry into force of such rules. All of this without mentioning the lack of technical support, which cannot be replaced by a generic justification of the critical situation of public finances, because if we scrutinize, at all times and at every moment, problems with public finances are alleged. Thus, this argument cannot be used as generic support for any regression of labor rights. Even legal certainty is affected since, although there is no right to the immutability of the legal system, there is a right to progressivity. It is inadmissible for the Constitution to endorse changes and more changes that direct labor rights toward regression. Instead of increasing salaries, the political will to reduce them is observed, a decision that demonstrates, without the slightest doubt, the regression in the well-being of a sector of workers.

**7. Dissenting vote of Judge Cruz Castro regarding the unconstitutionality of Article 53 of the Public Administration Salary Law, Article 15 of regulation no. 41564-MIDEPLAN, as well as resolution no. DG-139-2019 of the Civil Service General Directorate.** Art. 53 of the LSAP, added by the LFFP no. 9635, and Art. 15 of regulation no. 41564-MIDEPLAN are questioned:

"*Art. 53- Incentive for professional career. The incentive for professional career will not be recognized for those academic titles or degrees that are a requirement for the position.* *Training activities will be recognized for public servants provided that these have not been paid for by public institutions.* *New professional career points will only be recognized salary-wise for a maximum period of five years.* *(Thus added by Article 3 of Title III of the Public Finance Strengthening Law, No. 9635 of December 3, 2018)* *Art. 15.- Professional career. The incentive for professional career will be granted under the following conditions:* * *It will be recognized for those academic titles or degrees that are not requirements for the position.* *E) The recognition of professional career shall proceed when the training activities are paid for by the interested servant, whether during working hours or outside of them, as long as they are relevant to the position held. For those training activities that are not paid for by public institutions, leave with pay may be granted on a reasoned basis to receive the training.* * *The new professional career points will be recognized salary-wise for a period of 5 years.* *d) Professional career points may be recognized, according to the parameters prior to the entry into force of Law No. 9635, solely and exclusively in the cases of those requests submitted to the Institutional Human Resources Management Offices prior to the publication of said law and that have not been processed by the Administration."* Furthermore, resolution DG-139-2019 of 3:00 p.m. on July 24, 2019, of the DGSC, which states the following:

"*Article 1. Modify articles 1, 2, 4, 5, 6, 9, and 18 of Resolution DG-064-2008 of February 28, 2008, so that they respectively read as follows:* *(...)* *"Article 9: Each point considered in any Professional Career factor will have a single, independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Offices must establish the corresponding controls so that, upon completion of said period, the respective scores are expired and the inherent payments cease.* *Said Offices must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates submitted by each servant are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed."* * *"Article 4. Modify articles 1, 2, 3, 7, 8, 9, 10, 18, 20, and 21 of Resolution DG-333-2005 of November 30, 2005, so that they respectively read as follows:* *(...)* *"Article 10.- Each point considered in any Teaching Professional Career factor will have a single, independent validity, and salary compensation, for a period of five (5) years from the date on which the respective recognition takes effect. The Institutional Human Resources Management Office of the Ministry of Public Education must establish the corresponding controls so that, upon completion of said period, the respective scores are expired and the inherent payments cease.* *Said office must also establish the necessary control mechanisms so that the academic titles and professional-level training certificates submitted by each servant are recognized exclusively on one occasion and, furthermore, the five-year validity limit is not transgressed."* These rules were challenged on the grounds that they represent a step back in relation to the purpose of hiring the most suitable officials, because a temporal limitation on the recognition of professional career points is introduced, given that after five years the incentive ceases to be paid, harming subjective rights and the non-waivability of the right. Furthermore, it is indicated that the wording of the rule causes legal uncertainty, as it is ambiguous and does not allow one to determine with certainty what the spirit of the legislator was: whether to recognize up to five years of training or to pay for only five years.

In this regard, the majority of this Chamber considered dismissing this aspect of the action, without prejudice to the debate being reopened or reframed in other terms if it is determined that the provisions cause an impoverishment of professionals' salaries or it is verified that this aspirational measure for the retention of the most suitable public servants is being harmed by the flight of trained personnel.

However, I believe that the questioned regulations are indeed unconstitutional, because, as the plaintiffs indicate, the fundamental right to a salary (enshrined in Art. 57 of the Constitution and ordinals 23 of the Universal Declaration of Human Rights, 7 of the International Covenant on Economic, Social and Cultural Rights, and 7 of the Protocol of San Salvador) is infringed, insofar as the subjective right of the official to continue earning the professional career remuneration is nullified, once the referred five years after their respective recognition have elapsed. The corresponding recognition is also arbitrarily eliminated and produces a cessation of the remuneration without there being a legitimate reason that justifies the interdiction of that right. The impugned regulations remove from the worker's assets, after five years, an economic benefit, of a salary nature, that was recognized to them because they met the established requirements.

A component that forms part of the salary is eliminated, without any substantial basis. The recognition of the professional career has the ultimate objective of ensuring that the Administration has the highly trained personnel it needs for an adequate performance of the public function. This compensation has also been intended to assist in the recruitment and retention of the best-qualified professionals in each area of activity, for an adequate performance of the public function, as well as to increase the productivity of professionals. That said, a regression in the regulation of this matter constitutes an unreasonable disincentive for personnel seeking to be increasingly trained and, with that, a disincentive to the professionalization of the public sector is configured.

I must emphasize that, while it is true that it is indicated that there is no injury to Art. 34 of the Political Constitution because the reform safeguards the acquired rights of the public servants who enjoyed that incentive, the truth is that regarding the timeframe for recognizing new professional career points, the legislator committed an excess that resulted not only in the violation of the block of fundamental labor rights—for being regressive—but also of the block of principles that operate in the public sphere—by eliminating the incentive that stimulates the betterment of public officials.

While there is no right to the immutability of the legal system, as the majority vote states, the truth is that the legal system must be progressive and not regressive. The legal system can change, but not to worsen the conditions of fundamental rights associated with labor rights. The fiscal situation cannot serve as a generic excuse for the legislator to minimize the recognition of labor incentives. Legislative discretion is also subject to limits, and with the challenged rules, I consider that such limits have been transgressed because they violate the block of constitutionality.

It is not that the official lacks a subjective right to continue earning the remuneration for a professional career, once the five years after its respective recognition have elapsed. Rather, that the regulations that recognize certain labor rights and incentives cannot be degraded, as that would be contrary to the constitutional principle of progressivity of fundamental rights. Especially in this case, since said incentives are associated with promoting the continuous training of public servants and, with it, the provision of public services. There is no reason to devalue or distort a worker's salary, considering that there are incentives that can be eliminated after a certain timeframe. The challenged legislative act ignores the constitutional transcendence of salary and the limits that exist for its modification or elimination.

**8. General note of Judge Cruz Castro.** I have considered it necessary to record this general note to refer to several aspects, particularly those that the majority of the Chamber records in the preceding recitals, with arguments that I do not share.

It has been said that the Ley de Fortalecimiento de las Finanzas Públicas (LFFP) was given as a response to the critical Costa Rican fiscal situation and in pursuit of uniformity and expenditure containment regarding the payroll of public servants. However, this argument becomes a fallacy if it is not accompanied by technical support. There is no study indicating what percentage of the fiscal crisis is a direct cause of public sector remuneration, or if that percentage is decisive regarding the fiscal deficit. Nor is there a study that conclusively finds that the cause of the fiscal crisis is said public sector remuneration; on the contrary, experts in the field cite multiple causes, the majority of them based on problems of tax evasion, inefficiency in collection, the growing payment of debt interest, and, in general, the deficient legal and institutional framework of the tax burden. The considerations indicated in the majority vote, made by the Contraloría General de la República, refer to the need to contain salary expenditure, but no concrete data is presented that leads to asserting either that salary expenditure is the main cause of the fiscal deficit, much less how much of said deficit would be solved by all the cuts and regressions that the regulation intended. All of which results in an insufficient argument and a mirage that gave the impression that the solution to the fiscal deficit lay in weakening the labor rights of public servants. I transcribe below what an expert economist tells us:

*“The fiscal crisis in simple terms* [agosto 14, 2024](https://revistavisioncr.com/la-crisis-fiscal-en-sencillo/) [editor1850](https://revistavisioncr.com/author/editor1850/) Luis Paulino Vargas Solís.

(…)

Where is the problem?

No, not in the salaries. That discourse is today untenable, when rather it must be recognized that salaries have been brutally compressed. That not only entails a serious deterioration in people's living conditions, but also is making it difficult to retain highly qualified personnel.

One part of the problem lies in the strong growth of interest payments, which makes it obligatory to recognize that the policies that intended to reduce them have failed. Do not misunderstand me: I am not saying, nor even hinting, that they should stop being paid. But I am warning that a rethinking is necessary and that new options must be sought to reduce the hemorrhage that this means.

But the main problem lies in the income. They are clearly insufficient, which demonstrates that the fiscal plan of Carlos Alvarado, followed and applied to the letter by Chaves, is also a failure. The problem should be obvious to anyone who wishes to see it: expenditures have been compressed brutally, public salaries thrown into a hole, and, meanwhile, fiscal income stalls and we must continue taking on debt.

The situation is worrying, and threatens to become unsustainable. And that could occur sooner than we would like.

We have extremely serious problems of tax fraud, but, furthermore, it is undeniable that the very rich of Costa Rica only pay a small fraction of what they should contribute.”* The majority vote indicates that “it was unavoidable that the Costa Rican State adopt measures to guarantee the qualities and principles of our Social and Democratic State of Law. The foregoing, under a harmonious interpretation of the principle of budgetary equilibrium and the Social Democratic State of Law.” However, I have held the criterion that the Social Democratic State of Law can never be subordinated to economic or financial reasons. Even worse, when it is assumed that economic science is a supposedly exact science, insensitive to moral issues and fundamental rights. Furthermore, the principle of budgetary equilibrium, in its true constitutional scope, cannot be interpreted as that principle which supports the degradation in the fulfillment and effectiveness of fundamental rights. The economy, finances, refer to people, subjects of rights, to whom the fulfillment of conditions must be ensured so they may achieve their dignity. The so-called balance between salary policies and the rights of public servants cannot be an equation that is always resolved to the detriment of the latter's rights. Thus, I have maintained a dissenting position regarding the limit on the right to severance pay (auxilio de cesantía), so that, contrary to what the majority indicates, I consider that the financial and fiscal situation of the Costa Rican State should not be the justification for the elimination of labor rights and improvements. Certainly, I do not deny the existence of a public interest in reducing public expenditure, but said reduction of expenditure cannot weigh on the backs of the workers, those who depend on a salary. I underline what the Chamber itself indicates: “the emptying of the fundamental rights of public sector workers with the aim of solving the problems of public finances is not valid.” Furthermore, when it indicates that: “these regulations must not remain frozen in time to the detriment of public servants, to the point that salaries are not attractive —which could impact the efficiency of the Public Administration— or do not guarantee minimum conditions of dignity and well-being for workers.” As I have indicated in the note to Vote No. 2016-12803, social rights are not second-order aspirations:

*“VII.- Note of Judge Cruz Castro. Economic and social rights are not second-order aspirations. In this action, questions arise about the condition of social and economic rights. They are not merely aspirations; they are subjective rights that are not left to the discretion of the legislator; they are authentic rights, integrated into the requirements of a constitutional state of law. There can be no full exercise of individual and political rights if the effective validity of welfare rights is not guaranteed.

The existence of a fundamental right presupposes its validity without intermediations or conditions. The dignity of the human being as the central axis of a constitutional democracy requires the effective validity of welfare rights. There is no human progress, there is no social equity if education is an aspiration without budgetary support and without effective validity in the life of citizens. The constitutional minimum demands that the guarantee of education and of rights that, because they are social, are no less than individual ones. A dignified and just existence requires the recognition of economic and social rights. This is the challenge of an authentic constitutional state of law.

Socially oriented rights must define the horizon of human progress that a society requires to give effective validity to the person's dignity. As has been rightly said, the essential content of the Social Democratic State of Law and of democratic constitutionalism must ensure just and dignified human development.

In the Latin American community, it is recognized that Article 26 of the American Convention on Human Rights enables the submission of individual petitions in relation to economic, social, and cultural rights, a topic on which the Inter-American Court of Human Rights ruled in the case of 'five pensioners v. Peru' in its judgment of February 28, 2003. Other precedents can be cited.

Economic, social, and cultural rights are rights taken seriously, as defined by the United Nations International Covenant on Economic, Social and Cultural Rights, as well as the Protocol of San Salvador to the American Convention on Human Rights approved in San Salvador and in force in America.”* The fact that they are programmatic rights does not weaken their enforceability or their validity.

*All rights, both individual and social, generate positive and negative obligations for the State; it is not possible to define a first-order line for individual rights and leave programmatic rights in second place, weakened. There are unavoidable obligations for the state and society, such as the environment, access to education, the right to strike, the formation of unions, the unjustified irreversibility of programmatic rights.* I believe that the legislator does not have total discretion to have drafted a law such as the LFFP; rather, they had to adjust to the constitutional framework, particularly to our entire Social Political Constitution. In this sense, the remuneration and other labor conditions of workers, which are elevated to the category of fundamental rights, should have been the insurmountable limits for the legislator. In another era, José Figueres spoke very clearly of increasing wages. That has been forgotten; now decreasing wages prevail for all, because the globalized economy does not permit the recognition of a just and dignified wage for workers. Although it is said and reiterated in the majority vote that no one has a *"right to the immutability of the legal system" (right that the rules never change)*, the truth is that the principle of progressivity and the principle of non-regression require that said legal system be reformed to improve, to advance, to progress, and not to retreat in the recognition of labor rights for workers. Thus, the mutability of the legal system in this matter must be directed at satisfying the interest of the community and the progression in the protection of fundamental rights, particularly social rights, which have diminished in the last twenty years. It seems that for those of the South, those of the dependent economies, it is not very realistic to speak of a welfare state. In this way, we go on capitulating in the dreams of an economic, social, and political democracy.

It seems to me that I hold a broader view of the principle of progressivity and non-regression than that made in the majority vote. I begin by citing recital 11 of ruling 275/2016 of the Italian Constitutional Court:

*“The guarantee of irreducible human rights engages the Budget, and its balance cannot condition its complete satisfaction.”* Furthermore, the discussion around the Colombian case (ruling SU-140/19), where it must be clear that no public authority may invoke fiscal sustainability to undermine fundamental rights, restrict their scope, or deny their effective protection. An important priority is defined in that criterion. The principle of progressivity of human rights must be given sufficient normative force so that any regression is presumed unconstitutional.

Unlike what the Chamber indicates in the majority vote, I consider that the financial sustainability and availability of economic resources of the State should not be the filter for measuring compliance with these principles. On the contrary, in the same sense as indicated in the minority vote of the Mexico ruling of the year 2008 (see Silva and Rosales, 2009), it is stated:

*“even in situations of scarce resources, or a malfunctioning of social security institutions, the State must make efforts, including through international cooperation, to advance —and not repeal or diminish as occurs in this case— the enjoyment of rights such as retirement and old-age pensions, (…)* *(…) once a certain level of constitutional and legal protection has been achieved … the legislator's freedom of configuration in matters of social rights is restricted.”* I also cite what was indicated by the Constitutional Court of Colombia (ruling C 272 of 2009, when it has pointed out that a Social State of Law implies that *“the authorities are obliged to correct visible social inequalities, to facilitate the inclusion and participation of the most marginalized and vulnerable sectors of the population in the economic and social life of the nation, and to stimulate a progressive improvement of the material conditions of existence of the most depressed sectors of society.”* Likewise, ruling C-1064 of the year 2002 and C-931 of the year 2004 (see also ruling T-025 of the year 2004), which specifies the justification that the State must give to apply a regressive measure:

*“As this Court has already explained, when a regressive measure is submitted to constitutional judgment, it shall be the State's responsibility to demonstrate, with sufficient and pertinent data, (1) that the measure seeks to satisfy an imperative constitutional purpose; (2) that, after a judicious evaluation, it is demonstrated that the measure is effectively conducive to achieving the pursued purpose; (3) that after an analysis of the different alternatives, the measure appears necessary to achieve the proposed end; (4) that they do not affect the non-derogable minimum content of the social right involved; (5) that the benefit it achieves is clearly superior to the cost it entails.”* Thus, it is not a matter of the legislator simply, with insensitive superficiality, proceeding to dictate regressive norms, as has been done in this case of the LFFP, and the various provisions challenged herein that I have considered unconstitutional. This law defines the orientation that weakens the essence of the social state, sacrificing the social rights of the majority in favor of a form of economism that in fact ignores the social rights of citizens who depend on a wage. It is sad to hear that the wreck of the State's finances originates from an excessive and unjustified wage allocation. With few exceptions, the parliament reached an overwhelming consensus to weaken the welfare state, impacting one of its most sensitive components: wages. I cannot fail to mention that without good wages, the Public Administration cannot be efficient in providing its services. Globalization imposes decreasing wages on us, which also means that the services provided by public officials have little significance. What remains of a welfare state that has always had so many adversaries, despite the aspirations contained in the Constitution? In this so vigorous globalization, there is no space for the progress and social mobility that the social state fosters. I perceive that very clearly in this economism that inspires this Public Finance Strengthening law. The political priority is the accounting of public finances; the welfare state is weakened, cornered, postponed. This is the reality of economic development in the era of globality, of free trade.

**Fernando Cruz C.**

Res. n.°2025-008201 Contenido I.- Cuestiones de Trámite:

• 1)Sobre las coadyuvancias admitidas 2) Sobre las coadyuvancias posteriores II.- Sobre la integración de la Sala para conocer este asunto Sobre la AdmisiBIlidad:

III.- Sobre los presupuestos formales de admisibilidad y legitimación IV.- La legitimación de los accionantes en EL CASO CONCRETO CONSIDERANDOS DE FONDO V.- Sobre la metodología de análisis de la acción.

VI.- De previo. Contexto y aprobación de la normativa impugnada.

VII.- SOBRE UN NECESARIO EQUILIBRIO ENTRE LAS POLÍTICAS SALARIALES Y EL RESGUARDO DE LOS DERECHOS FUNDAMENTALES DE LOS SERVIDORES PÚBLICOS VIII.- SOBRE LA MUTABILIDAD DEL ORDENAMIENTO JURÍDICO IX.- Sobre el principio de progresividad y no regresividad.

X.- SOBRE LOS DERECHOS ADQUIRIDOS XI.- ACLARACIÓN PREVIA. APLICACIÓN DE LA NORMATIVA CUESTIONADA A LAS INSTITUCIONES CUBIERTAS POR LA LFFP XII.- SOBRE LA NECESARIA FUNDAMENTACIÓN DE LOS AGRAVIOS Agravios de la acción n.°19-2620-0007-CO XIII.- Cambio de regulación en lo relativo a las anualidades Normas impugnadas Agravios de la parte accionante (acción n.°19-2620-0007-CO) Agravios de la parte accionante (acción acumulada n.°19-004931-0007-CO) Alegatos de la parte accionante (acción acumulada n.°19-022051-0007-CO) Informe de la PGR Alegatos de los coadyuvantes Resolución de la Sala Constitucional Generalidades sobre las anualidades Sobre la constitucionalidad del art. 50 de la LSAP y el Transitorio XXXI (razonabilidad) Sobre el reconocimiento de las anualidades en el mes de junio, la continuidad laboral y la revalorización Sobre la presunta lesión al principio de razonabilidad porque los porcentajes de las anualidades están establecidos en normas transitorias Sobre eventuales antinomias normativas

Conclusiones

XIV.- SOBRE LA SUPUESTA Violación AL principio de irretroactividad de la ley e irrespeto a las situaciones jurídicas consolidadas Aclaración previa Normas impugnadas Agravios de la parte accionante (acción n.°19-002620-007-CO) Agravios de la parte accionante (acción n.°19-004931-0007-CO) Agravios de la parte accionante (acción n.°19-022051-0007-CO) Informe de la PGR (acción n.°19-002620-0007-CO) Informe de la PGR (acción n.°19-004931-0007-CO).

Alegatos de los coadyuvantes Resolución de la Sala Constitucional De previo Montos de anualidades y otros pluses que desconocen lo establecido en otros instrumentos jurídicos Sobre el Transitorio XXVII que se refiere a la aplicación del auxilio de cesantía

Conclusión

XV.- Violación al principio de libre negociación colectiva Aclaración previa Normas impugnadas Agravios de la parte accionante (expediente acción n.°19-2620-0007-CO) Agravios de la parte accionante (acción n.°19-004931-0007-CO) Agravios de la parte accionante (expediente acción n.°19-022051-0007-CO) Informe de la PGR (acción n.°19-2620-0007-CO) Informe de la PGR (acción n.°19-004931-0007-CO) Informe del Ministerio de Hacienda Alegatos de los coadyuvantes Resolución de la Sala Constitucional De previo Lo dictaminado por este Tribunal en las opiniones consultivas n.°2018-019511 y n.°2021-017098 Sobre la supuesta lesión al principio de igualdad por distinguirse respecto de las asociaciones solidaristas Sobre la constitucionalidad del Transitorio XXXVI párrafo segundo

Conclusiones

Agravios de la acción n.°19-004931-0007-CO AGRAVIOS QUE PRIMA FACIE DEBEN SER DESESTIMADOS XVI.- Art. 3 del decreto ejecutivo n.°41564-MIDEPLAN-H, Reglamento del Título III de la LFFP, Ley N°9635 referente al Empleo Público XVII.- Arts. 4, 9 y 14 del decreto ejecutivo n.°41564-MIDEPLAN-H, Reglamento del Título III de la LFFP, Ley N°9635 referente al Empleo Público XVIII.- SOBRE LAS REGLAS DE RESPONSABILIDAD FISCAL. TÍTULO IV DE LA LFFP. RESPONSABILIDAD FISCAL DE LA REPÚBLICA Normas impugnadas Alegatos de la parte accionante Resolución de la Sala Constitucional XIX.- RESPONSABILIDAD FISCAL. DESTINOS DE LOS SUPERAVITS LIBRES Norma impugnada Agravio de la parte accionante Informe de la PGR Resolución de la Sala Constitucional ANÁLISIS DE LAS NORMAS RELATIVAS A EMPLEO PÚBLICO QUE SE CONOCEN POR EL FONDO XX.- SOBRE LOS CONTRATOS DE DEDICACIÓN EXCLUSIVA Normas impugnadas Agravios de la parte accionante Informe de la PGR Informe del Ministerio de Hacienda Resolución de la Sala Constitucional XXI.- SOBRE LA PRÓRROGA DE LOS CONTRATOS DE DEDICACIÓN EXCLUSIVA Normas impugnadas Agravios de la parte accionante Informe de la PGR Resolución de la Sala Constitucional XXII.- SOBRE LOS SERVIDORES A LOS QUE SE LES PUEDE RECONOCER LA DEDICACIÓN EXCLUSIVA O LA PROHIBICIÓN Normas impugnadas Agravios de la parte accionante Informe de la PGR Informe del Ministerio de Hacienda Resolución de la Sala Constitucional XXIII.- SOBRE LAS OBLIGACIONES IMPUESTAS A LOS SERVIDORES PÚBLICOS EN VIRTUD DEL CONTRATO DE DEDICACIÓN EXCLUSIVA Y LA PROHIBICIÓN Normas impugnadas Agravios de la parte accionante Informe de la PGR Informe del Ministerio de Hacienda Resolución de la Sala Constitucional XXIV.- SOBRE LOS NUEVOS PORCENTAJES DE DEDICACIÓN EXCLUSIVA Y DE PROHIBICIÓN.

Normas impugnadas Agravios de la parte accionante Informe de la PGR Informe del Ministerio de Hacienda Resolución de la Sala Constitucional XXV.- SOBRE LA PROHIBICIÓN DE INCENTIVOS ADICIONALES Normas impugnadas Agravios de la parte accionante Informe de la PGR Resolución de la Sala Constitucional XXVI.- SOBRE LA RECTORIA DE MIDEPLAN Normas impugnadas Agravios de la parte accionante Informe de la PGR Resolución de la Sala Constitucional XXVII.- SOBRE LA MEDICIÓN DE LA EVALUACIÓN DEL DESEMPEÑO Normas impugnadas Agravios de la parte accionante Informe de la PGR Resolución de la Sala Constitucional XXVIII.- SOBRE LOS CRITERIOS DE LA EVALUACIÓN DEL DESEMPEÑO Normas impugnadas Agravios de la parte accionante Informe de la PGR Resolución de la Sala Constitucional XXIX.- SOBRE LA EXCLUSIÓN DE BENEFICIOS PARA JERARCAS Y OTROS SERVIDORES Norma impugnada Agravios de la parte accionante Informe de la PGR Resolución de la Sala Constitucional XXX.- SOBRE LA MODALIDAD DE PAGO PARA LOS SERVIDORES PÚBLICOS Normas impugnadas Agravios de la parte accionante Informe de la PGR Resolución de la Sala Constitucional XXXI.- SOBRE EL INCENTIVO POR CARRERA PROFESIONAL Aclaración previa Normas impugnadas Agravios de la parte accionante (acción n.°19-004931-0007-CO) Agravios de la parte accionante (acción n.°19-023575-0007-CO) Informe de la PGR Segundo informe de la PGR Informe de Mideplan Informe de la DGSC Informe del Ministerio de Hacienda Resolución de la Sala Constitucional Generalidades sobre los puntos de carrera profesional Sobre un supuesto desincentivo y retroceso en lo relativo a la idoneidad comprobada Sobre la razonabilidad en el reconocimiento del incentivo a los servidores que pagaron por su capacitación Sobre la supuesta lesión al principio de igualdad Sobre la negociación colectiva Sobre la correcta interpretación de la normativa Sobre la supuesta lesión a los derechos adquiridos e irrenunciabilidad de los derechos

Conclusiones

XXXII.- CONVERSIÓN DE INCENTIVOS A MONTOS NOMINALES FIJOS Normas impugnadas Agravios de la parte accionante Alegatos del coadyuvante activo (SINAME) Informe de la PGR Informe del Ministerio de Hacienda Resolución de la Sala Constitucional XXXIII.- SOBRE LAS REFORMAS AL ART. 57 DE LA LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA Normas impugnadas Alegatos de la parte accionante Informe de la PGR Resolución de la Sala Constitucional Sobre el art. 57 inciso f) Sobre el art. 57 incisos g), h), m), n), o) y p) XXXIV.- CONCLUSIONES GENERALES Res. n.°2025-008201 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA.

San José, a las trece horas del diecisiete de marzo de dos mil veinticinco.

Acción de inconstitucionalidad promovida por [Nombre 001], cédula [Valor 001], en su condición de Secretario General del Sindicato de Empleados del Banco Nacional de Costa Rica (SEBANA), para que se declaren inconstitucionales los arts. 39, 50, 54, 55, 56, 57 inciso I) de la Ley de Salarios de la Administración Pública n.°2166, así como los transitorios XXVII, XXXI y XXXVI de la Ley de Fortalecimiento de las Finanzas Públicas n.°9635. Posteriormente, esta acción fue ampliada (expediente n.°19-004931-0007-CO) para conocer de la constitucionalidad de los arts. 28, 30, 31 inciso 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 incisos f), g), h), i), m), n), o) y p) de la ley n.°2166, arts. 15, 17, 23, 24, 25, del Título IV de la ley n.°9635 y los arts. 1, inciso a), 3, 6, 7, 15, 16, 17, 21 y 22 del decreto ejecutivo n.°41564-MIDEPLAN-H. Asimismo, se acumularon las acciones números 19-022051-0007-CO y 19-023575-0007-CO. Intervinieron en el proceso los representantes de la Procuraduría General de la República, Ministerio de Hacienda, Ministerio de Planificación Nacional y Política Económica y la Dirección General de Servicio Civil.

Resultando:

1.- Por escrito recibido en la Secretaría de la Sala a las 10:16 hrs. de 15 de febrero de 2019, el accionante [Nombre 001], en su condición de secretario general del Sindicato de Empleados del Banco Nacional de Costa Rica (SEBANA), solicita, en resumen, que se declare la inconstitucionalidad de los arts. 39, 50, 54, 55, 56, 57 inciso I) de la Ley de Salarios de la Administración Pública (en lo sucesivo, LSAP) n.°2166 del 9 de octubre de 1957, así como los transitorios XXVII, XXXI y XXXVI de la Ley de Fortalecimiento de las Finanzas Públicas (en lo sucesivo, LFFP) n.°9635 del 3 de diciembre de 2018. Lo anterior, por estimarlos contrarios a los principios de razonabilidad, de irretroactividad de la ley y de libre negociación colectiva, a los arts. 11, 33, 34, 39, 41, 50, 60, 62, 74, 191 y 192 de la Constitución Política, a los Convenios números 87, 98 y 135 de la Organización Internacional del Trabajo (OIT), así como al art. 26 de la Convención Americana sobre Derechos Humanos (CADH) y el art. 8 inciso a) del Protocolo de San Salvador.

El accionante plantea tres grandes motivos de inconstitucionalidad:

• a)violación al debido proceso sustantivo; b) violación del principio de irretroactividad de la ley e irrespeto a las situaciones jurídicas consolidadas; c) violación al principio de libre negociación colectiva.

Primer motivo de inconstitucionalidad. Violación al debido proceso sustantivo En cuanto a este punto, se dice que existe violación al debido proceso sustantivo en relación con los arts. 50, 57 inciso l) en cuanto reforma el art. 12, todos de la LSAP y el Transitorio XXXI de la ley n. º9635. Numerales que, a su vez, deben ser relacionados con otras normas de la LSAP que también fueron modificados por la ley n.°9635, como por ejemplo el art. 58 inciso c) que deroga al art. 5 y los numerales 48 y 49 referidos a la evaluación del desempeño y que, tienen en común, la correlación entre el pago de anualidades y la existencia de un sistema de méritos. El art. 5 hacía referencia al principio de eficiencia de la Administración al señalar que los aumentos anuales serán concedidos por méritos; en tanto ahora con la nueva normativa, se indica que el resultado de la evaluación anual será el único parámetro para el otorgamiento del incentivo por anualidad de cada funcionario, con lo cual, en ambos casos, se parte de un mismo eje programático o sentido teleológico que es cumplir con el régimen de méritos y con el principio de eficiencia contenido en la Constitución Política.

La reforma al art. 50 y lo dispuesto en el Transitorio XXXI deben ser sometidos a un test de razonabilidad para conocer su necesidad, su idoneidad y su proporcionalidad, como parámetros constitucionales en atención a lo dispuesto por el principio del debido proceso.

En cuanto a la necesidad de la nueva normativa en materia de pago de anualidades, no queda clara la intención del legislador a la hora de convertir el porcentaje de la anualidad en un monto fijo y permanente, como tampoco es claro el motivo por el cual se fija precisamente el porcentaje de anualidad que contempla el Transitorio XXXI, haciendo la separación entre clases profesionales y clases no profesionales.

Lo que las normas establecen es un porcentaje anclado en los salarios que se devengaban en enero de 2018, del cual deriva un monto nominal, que no varía en el tiempo, independientemente de los años que un servidor labore en el sector público. Para cuando se aprobó la ley, este salario de referencia que el legislador utilizó ya había sido modificado por los reajustes salariales de ley.

Con este mecanismo introducido en la ley, se evita que haya un aumento hacia futuro del pago de anualidades, lo que conduciría ‒hipotéticamente‒ a una reducción del gasto público en salarios; no obstante, ese argumento carece de lógica interna porque si la necesidad de reducir el pago de anualidades y de salarios en el sector público obedece a un criterio económico, no puede pretenderse regular de una vez para siempre la reducción salarial, tal como si las condiciones económicas del país fueran a perdurar sine die.

La normativa impugnada tampoco es idónea, pues si el monto de las anualidades se ancla en los salarios que correspondían a cada escala salarial para el mes de enero de 2018, tales montos no sólo no van a crecer en el tiempo, sino que van a llegar a tener un valor muy cercano a cero por efecto de la devaluación monetaria y la inflación, sin que exista una relación lógica ni razonable entre el objetivo de la anualidad ‒como un estímulo económico que permita mejorar la eficiencia de los empleados del sector público‒ o entre la anualidad como una fórmula para premiar a quienes son evaluados anualmente en el ánimo de cumplir con el sistema de méritos que contempla la Constitución Política, y un pago que conforme avanzan los años, pierde todo significado real.

El art. 50 y el Transitorio XXXI tampoco son proporcionales con el fin que se proponen, pues se elimina hacia futuro el pago de anualidades y esa es la verdadera finalidad implícita. El sacrificio que imponen esas normas a los empleados que devengan un salario compuesto es totalmente radical y confiscatorio dado que, en el futuro, devengar un salario compuesto, con pago de anualidades, no tendrá ningún significado real para tales empleados porque aquéllas se eliminan hacia el futuro, tornándolas insubsistentes, sin ningún contenido económico real y convertidas en un pago simbólico, de manera que conforme pasa el tiempo de vida laboral, el servidor ganará menos por concepto de anualidad, lo que supone una condición involutiva de su salario. Si lo que el legislador quería era mantener un sistema de evaluación del desempeño vinculado al pago de anualidades, la aprobación del pago de éstas detenido en el tiempo y calculado sobre la base de un monto fijo, no resulta idóneo y afecta todo el sistema de méritos de los arts. 191 y 192 de la Constitución Política. Esa finalidad implícita ‒eliminar anualidades‒ nunca fue planteada abiertamente en la exposición de motivos o en la discusión legislativa.

Inconstitucionalidad del art. 57 inciso 1) en cuanto reforma el art. 12 de la LSAP En lo que se refiere al art. 12 reformado por el art. 57 inciso l) impugnado, el pago de la anualidad antes debía hacerse en el primer día del mes más cercano a la fecha de ingreso o reingreso del funcionario al puesto pero, con la reforma, los pagos de anualidad se harán en la primera quincena de junio de cada año, lo que estima abiertamente inconstitucional, pues además de crear un sacrificio desproporcionado e injustificado en contra de las personas que tienen derecho a la antigüedad cuando su fecha de ingreso o de reingreso es anterior al mes de junio, ello se contrapone a la naturaleza misma de la anualidad, cuyo cometido es remunerar un período anual de labores y no cualquier período construido en forma arbitraria o artificiosa por el legislador, por lo que la norma no resulta idónea, no es lógica ni razonable, sino que se trata de una disposición arbitraria que pasa por encima de la naturaleza de la anualidad y la convierte en algo distinto.

El art. 12 inciso c) de la LSAP establecía que si el puesto anterior que ocupaba una persona ascendida le hubiese dado derecho a uno o más aumentos anuales, al pasar a un puesto superior tendría derecho a que se revaloraran las anualidades percibidas anteriormente, de acuerdo con la nueva categoría a que fuera ascendida; norma que ahora se modificó para señalar que “bajo ningún supuesto se revalorizarán los incentivos ya reconocidos”. La norma anterior guardaba lógica y cumplía con el principio de proporcionalidad, pues pretendía que el ascenso de puesto afectara positivamente a la persona que optara por una plaza superior, estimulando a los empleados del sector público para optar por puestos superiores, pero la reforma lo que hace es desincentivar a las personas para ocupar puestos de mayor responsabilidad, al congelar sus anualidades anteriores y no permitirle optar por una revalorización de éstas.

Además, el art. 12 inciso d) ‒que permitía considerar el tiempo acumulado en otras entidades del sector público para efectos del pago de anualidades‒ fue eliminado, lo que es irrazonable y discriminatorio, además de lesivo del principio de proporcionalidad porque las personas que han laborado en otras entidades del sector público, se verían obligadas a iniciar el conteo a partir de cero en cada entidad en la que laboren, lesionando la doctrina del Estado como patrono único que, como concepto jurídico, ha ido perfilándose en la jurisprudencia de Sala Segunda y Sala Constitucional. La norma tampoco es idónea porque desincentiva el traslado o el reingreso de empleados y funcionarios públicos a las distintas entidades del Estado, contribuyendo a dificultar el sistema constitucional de un acceso a la función pública mediante méritos. Finalmente es discriminatoria porque le confiere una ventaja desproporcionada a las personas que prefieren mantenerse en una misma institución en forma indefinida por sobre aquellas que aspiran a mejorar su condición o a brindar un mejor servicio público en otro lugar del sector público y, en segundo lugar, porque se crea una discriminación entre todas las personas que, con anterioridad a la ley n.°9635, lograron para efectos de anualidades, contabilizar los años laborados en otras entidades del sector público, respecto de aquéllas que quisieran trasladarse o reingresar a éste después de la aprobación de la ley n.°9635.

Resume que los arts. 50, 57 inciso l) y el Transitorio XXXI, al carecer de razonabilidad, idoneidad y proporcionalidad, vulneran el debido proceso sustantivo y con esto las disposiciones contenidas en los arts. 9, 11 y 121 de la Constitución Política, pero también una violación indirecta de los arts. 191 y 192 constitucionales al crearse un sistema de pago de anualidades que atenta contra el sistema de méritos y el principio de eficiencia.

Argumenta lesión al principio de razonabilidad porque un Transitorio fue el que dispuso el porcentaje de anualidad con que debe arrancar el cálculo de lo que será luego el monto nominal e inmodificable de anualidad, así como la fecha a partir de la cual iniciará ese cálculo, lo que, en su criterio, debió haber sido incluido en una norma de fondo para que sea parte del cuerpo legal permanente.

Segundo motivo de inconstitucionalidad: Violación del principio de irretroactividad de la ley e irrespeto a las situaciones jurídicas consolidadas Los arts. impugnados en esta sección se adicionan o se reforman, vaciándolos de su contenido original, sin consideración a los derechos adquiridos ni las situaciones jurídicas consolidadas conforme lo preceptúa el art. 34 de la Constitución Política.

Se aduce que estas normas vulneran el principio de irretroactividad de la ley así como el respeto a las situaciones jurídicas consolidadas, afirmando que, en todo caso, cuando se trata de temas relativos a sobresueldos, es un defecto general de la ley n.°9635, el no respetar las situaciones jurídicas consolidadas de las personas trabajadoras que adquirieron derechos a tenor de la normativa anterior que los regía.

El art. 50 de la LSAP y el Transitorio XXXI imponen una anualidad por un monto fijo nominal que pasa por encima de lo que se ha venido estableciendo en algunas instituciones a través de convenciones colectivas u otros instrumentos normativos que usualmente otorgan un monto de anualidad superior y distinto mediante un pago porcentual calculado sobre el salario base del empleado, con lo cual, esas normas imponen técnicas de cálculo de las anualidades que chocan directamente con las convenciones colectivas y con las reglamentaciones que existen en el sector público en esta materia. El legislador se excedió en sus potestades y con ello se violan situaciones jurídicas consolidadas al no establecer, como sí lo hizo, con el componente salarial de dedicación exclusiva ‒en el transitorio XXVI de la ley n.°9635‒ o de manera defectuosa en el tema de la cesantía, previsiones para paliar el efecto en las situaciones jurídicas consolidadas; casos en los que sí consideró el impacto de la nueva normativa en las situaciones jurídicas subjetivas de cada empleado.

La convención colectiva es un acuerdo con forma de contrato que constituye situaciones jurídicas subjetivas que se integran al patrimonio de derechos de cada trabajador cubierto por el convenio y, mientras esté vigente, los trabajadores a quienes se aplica tienen un derecho y no una simple expectativa de derecho a que se respeten los términos de aquélla. Por lo tanto, la ley n.°9635 no podía ignorar las situaciones jurídicas subjetivas nacidas de una convención colectiva como si no existieran. Es contradictorio que, de acuerdo con el Transitorio XXXVI de la ley n.°9635 el legislador sí tuvo en cuenta la existencia de convenciones colectivas en el sector público pero que, a la vez, no las considerara a la hora de imponer un cambio total y absoluto no solo en los montos, sino también sobre la naturaleza de las anualidades.

La disposición normativa debe interpretarse y aplicarse conforme más favorezca al ser humano o bajo el principio pro homine o pro ciudadano y, por ello, considera que la norma cuestionada debe ser interpretada en claro resguardo y protección de las situaciones jurídicas consolidadas de los afiliados de su representado, de manera tal que desde el momento en que las personas trabajadoras empezaron a laborar en una empresa pública particular donde rige dicha normativa, se crearon situaciones subjetivas en su favor, que forman parte de su salario por lo que no puede el Estado expropiar o confiscar esos derechos, sin una compensación, de modo que si las anualidades fueron predefinidas en un reglamento o estatuto, esto equivale a un acto declarativo de derechos en su favor, por el cual los empleados tienen una situación jurídica subjetiva consolidada a que se respete ese sistema de pago, salvo que se les indemnice conforme con el art. 155 de la Ley General de la Administración Pública (LGAP).

El art. 54 impugnado que se refiere a la “conversión de incentivos a montos nominales fijos”, implica una intromisión directa y heterónoma en las convenciones colectivas existentes y en las futuras que se lleguen a negociar, lo que lesiona gravemente el principio de irretroactividad de las normas legales, por dos razones: primero, porque el salario correspondiente al mes de enero de 2018 que la ley utiliza como referencia para determinar el monto nominal que debe pagarse por concepto de anualidad, ya había sido modificado para cuando se aprobó la ley como consecuencia del reajuste salarial que se aplica semestralmente, por lo que el legislador inobservó el principio de irretroactividad en la elaboración de la norma al utilizar un parámetro delimitador del contenido del artículo que para entonces se encontraba desfasado en el tiempo; la segunda razón es que la disposición de la norma ignora que existen convenciones colectivas y reglamentos o estatutos que ya contienen disposiciones sobre el pago de incentivos o compensaciones en forma porcentual, como la convención colectiva del Banco Nacional, suscrita por su representado en donde se han fijado porcentajes para pagos de incentivos por productividad en el art. 63, denominado desde varias convenciones atrás como incentivo por resultados, por lo que para las personas a quienes se aplica esta convención colectiva, existe un derecho y no una simple expectativa de derecho, a que durante todo el tiempo en que este vigente la convención colectiva, se respete ese derecho subjetivo ya que, de lo contrario, existe una violación del art. 34 de la Constitución Política.

En cuanto al art. 56 impugnado relativo a la “aplicación de los incentivos, topes y compensaciones”, se trata de una norma que tiene un problema de inteligibilidad, que es confusa a pesar de que regula un tema de gran interés como son los derechos adquiridos y las situaciones jurídicas consolidadas. Si el legislador pretendía referirse a una regulación futura, no podía señalar que lo que se aplica a futuro son los incentivos, las compensaciones, topes o anualidades anteriores, e interpreta que talvez lo que el legislador pretendió decir era que las nuevas regulaciones en materia de incentivos, compensaciones, topes o anualidades, rigen hacia futuro y no en forma retroactiva. La norma es contraria al principio de razonabilidad y, por tanto, al debido proceso sustantivo, así como violatoria del art. 34 de la Constitución Política, pues no se respetan los derechos patrimoniales adquiridos antes de la vigencia de la nueva ley, en tanto se omitió reconocer las situaciones jurídicas consolidadas que nacen de convenciones colectivas, reglamentos o estatutos que han declarado derechos a favor de trabajadores antes de la promulgación de la ley.

Sobre el art. 57 inciso l) que reformó el numeral 12 de la LSAP, afirma que tampoco se respetaron las disposiciones contenidas en convenciones colectivas u otros instrumentos legales creadores de derechos subjetivos en temas como cuándo procede el pago de cada anualidad, la forma en que se calcula cuando hay ascensos, el reconocimiento de esos derechos a quienes provienen de otras instituciones del sector público o cuando se reintegran a éste, por lo que no se tiene certeza sobre lo que sucede con las personas que se estaban trasladando de empresa o institución dentro del sector público con anterioridad a la publicación de la ley n.°9635 pero a quienes todavía no se les ha contabilizado los años laborados en otras dependencias del sector público, ni tampoco si debería desconocerse la situación jurídica consolidada a que se les registre el tiempo laborado antes. En este punto, se alega que la ley fue omisa en la solución de conflictos de leyes en el tiempo y esa omisión es visible a lo largo de todas sus disposiciones, salvo en lo relativo a la dedicación exclusiva en donde sí se respetan los contratos de dedicación exclusiva firmados antes de la entrada en vigencia de la ley y, también, de forma menos rigurosa, en materia de cesantía, pues en este caso la ley impone un tope de años que no respetó la contabilidad del tiempo servido que se había incorporado al patrimonio de derechos de los empleados del sector público con sustento en normas de convenciones colectivas que estaban vigentes para cuando entró a regir la reforma de ley, por lo que el legislador irrespetó el contenido de las situaciones jurídicas subjetivas de los afiliados a su representado.

En cuanto al Transitorio XXVII que se refiere a la aplicación del auxilio de cesantía, se trata de una norma que contiene dos vicios de inconstitucionalidad: el primero es la violación al derecho de la negociación colectiva y el segundo es el irrespeto al principio de irretroactividad de la ley e inobservancia de las situaciones jurídicas consolidadas. La norma limita el pago por concepto de auxilio de cesantía con topes superiores a los doce años, sin tomar en cuenta que muchas convenciones colectivas vigentes ‒cuando entró a regir la Ley n.°9635‒ establecían reglas con topes superiores, como la suscrita entre su representado y el Banco Nacional que dispuso que se trataba de un derecho real a favor de los empleados de la institución que se paga con un tope de veinte años y que no fue considerado inconstitucional cuando se analizó en una acción que lo cuestionaba. La limitación que introduce este Transitorio alcanza a otros instrumentos jurídicos diferentes a las convenciones colectivas en los que se regula el pago de cesantía en condiciones más beneficiosas que las estipuladas en el art. 29 del Código de Trabajo, en cuyo caso también se impone el límite de doce años. El vicio de inconstitucionalidad del Transitorio reside en la omisión de dimensionar el alcance de sus efectos, de manera tal que quedaran debidamente resguardadas y no se afectaran las situaciones jurídicas consolidadas a favor de los empleados públicos que, al amparo de convenciones colectivas vigentes u otros instrumentos jurídicos, para el momento en que entró en vigencia la reforma legal, tenían ya acumulada una antigüedad laboral que les otorgaba el derecho a devengar una indemnización por concepto de auxilio de cesantía superior a los ocho o doce años.

Concluye que la técnica jurídica que utilizó el legislador en los arts. 50, 54, 56 y 57 inciso l) en relación con el art. 12 de la LSAP reformada y los Transitorios XXVII y XXXI de la ley n.°9635, resulta inconstitucional al ignorar que, de conformidad con el art. 34 de la Constitución Política, existen situaciones jurídicas consolidadas nacidas de instrumentos tales como convenciones colectivas, reglamentos y estatutos de personal, que debieron ser respetadas.

Tercer motivo de inconstitucionalidad. Violación al principio de libre negociación colectiva Cuestiona los arts. 39, 50, 54, 55, 57 inciso l) en cuanto reforma el art. 12, todos de la LSAP y los Transitorios XXVII, XXXI y XXXVI de la ley n.º9635 relativos a la indicada Ley de Salarios, pues a juicio del accionante, resultan lesivos del principio de libre negociación colectiva.

Se reprocha que la regulación que establece la ley n.°9635 no deja ningún espacio para que estas materias puedan ser reguladas mediante la negociación colectiva y así superar los mínimos que contempla la legislación ordinaria. Lo anterior, a pesar de que se trata de materias laborales esenciales y de que la Reforma Procesal Laboral, aprobada mediante ley n.°9343, en su art. 690 inciso i), estableció la posibilidad de que sindicatos y representantes patronales, pudieran negociar cláusulas de contenido salarial.

Los numerales de la LSAP ‒introducidos o reformados por la ley n.°9635 que se impugna‒ excluyen de manera absoluta toda negociación de componentes o pluses salariales, así como también prohíben la negociación sobre el derecho al auxilio de cesantía, todo lo cual se observa en el tope insuperable de ocho años a la indemnización del pago del auxilio de la cesantía (art. 39), o con el establecimiento de un único pago de anualidad que tiene una única forma de calcularla a través de una división inelástica entre clases profesionales y clases no profesionales y un monto invariable que queda anclado en el tiempo con base en los salarios que se devengaban en enero de 2018 (arts. 50 y 57 inciso l), o imponiendo una prohibición para establecer incentivos o compensaciones en términos porcentuales (art. 54), o estableciendo una reserva de ley para la creación de todo tipo de incentivos, compensaciones económicas o pluses salariales (art. 55) y, además, obligando a los jerarcas a denunciar las convenciones colectivas a su vencimiento (Transitorio XXXVI). Se ha vaciado de todo contenido económico el derecho a la negociación colectiva de incentivos y de componentes de naturaleza salarial contemplados en los incisos h) e i) del art. 690 del Código de Trabajo, cuyo marco jurídico se desprende del Convenio n.°98 de la OIT y del art. 62 de la Constitución Política. La intención de legislador que promulgó la ley n.º9635 fue la de crear una especie de reserva de ley en materia de sobresueldos y anualidades, suplantando al legislador constitucional en clara violación de los arts. 60 y 62 de la Constitución Política pero también se transgreden los arts. 26 de la CADH y el 8 inciso a) del Protocolo de San Salvador.

La Reforma Procesal Laboral abrió espacio al derecho a la negociación colectiva en el sector público de Costa Rica, pero la ley n.°9635 es una contrarreforma que atenta contra el principio de progresividad de los derechos sociales y económicos de los habitantes de este país. A partir del Convenio n.°135 y del Convenio n.°98 de la OIT, aprobado por Costa Rica según ley n.°2561 del 11 de mayo de 1960, se debe fomentar el pleno desarrollo y uso de procedimientos de negociación voluntaria con el objeto de que se emitan contratos colectivos para reglamentar las condiciones de empleo; libertad de negociación colectiva que, en Costa Rica, para el caso de las convenciones colectivas, se elevó a rango de derecho constitucional en el art. 62 de la Constitución Política. En tal sentido, la Sala Constitucional se pronunció en la sentencia n.º2018-019511, cuando se refirió a la introducción del art. 55 dentro de la LSAP, en el proyecto legislativo de la ahora ley n.°9635. Con lo cual, al pronunciarse sobre el expediente legislativo n.°20.580, la Sala Constitucional tuvo claro que no era posible establecer una interdicción total a la creación de sobresueldos por vía de convención colectiva; no obstante lo anterior, las normas aquí impugnadas, lo que hacen es establecer ese tipo de interdicción, pese a la advertencia que hiciera la Sala, de modo que la ley n.°9635 se aprobó conforme al texto decretado en primer debate que revisó la Sala y esto confirma la inconstitucionalidad que solicita.

Por tal razón, las normas impugnadas resultan violatorias del principio de libre negociación colectiva, lo cual implica la violación del Convenio n.°98 de la OIT, del art. 8 inciso a) del Protocolo de San Salvador, y del art. 62 de la Constitución Política.

El art. 39 de la ley n.º2166 reformada por la ley n.º9635, al imponer un tope de ocho años para el pago de la cesantía, impone limitaciones muy serias que impactan el orden constitucional de la negociación colectiva, pues hasta la Sala Constitucional ‒en reiteradas ocasiones aun con criterios restrictivos‒ ha avalado cláusulas de convenciones colectivas suscritas en el sector público en las que se establecen topes de cesantía superiores a los ocho años por entender que el rompimiento del tope legal es constitucionalmente válido y se ajusta a parámetros de razonabilidad y proporcionalidad.

El vicio de inconstitucionalidad alegado se magnifica con la existencia de los Transitorios XXVII y XXXVI de la ley n.°9635 de los que se desprende que la finalidad del legislador no ha sido otra que establecer una prohibición absoluta para que, vía convención colectiva, se puedan negociar reglas sobre indemnización por concepto de auxilio de cesantía distintas a las establecidas en los arts. 39 de la LSAP bajo estudio reformado por la ley n.°9635 y 29 del Código de Trabajo, sin tomar en cuenta que en Costa Rica, el pago del auxilio de cesantía con topes superiores a los que establece el Código de Trabajo se ha aceptado desde hace más de treinta años cuando se aprobó la Ley de Asociaciones Solidaristas n.°6970 del 7 de noviembre de 1980, la que establece el pago del auxilio de cesantía a cargo del empleador ‒público o privado‒ sin ningún tipo de tope de años y como derecho real, es decir, su reconocimiento procede bajo cualquier supuesto con independencia de la causa que extinga la relación laboral. A partir de lo dicho, también se crea un trato desigual e injustificado en perjuicio de la organización sindical frente a la organización solidarista toda vez que ésta sí puede hacerlo por ley especial, en tanto el sindicato no, lo que genera una disparidad de condiciones en el tratamiento legal que el ordenamiento jurídico ofrece a una y otra organización. Añade que la Misión Directa de la OIT que visitó el país, verificó la diferenciación de reglas para el pago del auxilio de cesantía que existe a raíz de la Ley de Asociaciones Solidaristas, lo que constituye un trato discriminatorio entre los trabajadores asociados a éstas y los afiliados a un sindicato.

El Transitorio XXVII supone una clara intromisión e imposición del legislador sobre el contenido de las convenciones colectivas de trabajo que estaban vigentes para cuando entró a regir la reforma contenida en la ley n.º9635, pues esa norma transitoria limita el pago por concepto de auxilio de cesantía a un máximo de doce años a pesar de que existen normas convencionales que disponían límites superiores.

Esos numerales son inconstitucionales porque desconocen la naturaleza jurídica que la Constitución Política le otorga a las convenciones colectivas, pero también porque violan el derecho a la libre negociación colectiva, al estar suplantando la voluntad negociadora de las partes firmantes de esos instrumentos normativos.

El art. 50 de la LSAP junto con el Transitorio XXXI contenido en la ley n.°9635, al imponer una anualidad por un monto nominal fijo, implica un límite irrazonable y desproporcionado a la libre negociación colectiva pero también una prohibición total para negociar el pago de anualidades en las convenciones colectivas de trabajo conforme se venía negociando antes de la entrada en vigencia de la ley n.°9635, por lo que se trata de una retroactividad arbitraria de la norma y un vaciamiento del contenido del derecho a la negociación colectiva.

El art. 54 de la LSAP es inconstitucional porque niega toda posibilidad de negociar un monto distinto por incentivos o compensaciones, los que ahora se han transformado en un porcentaje fijo, anclado en el mes de enero de 2018, sin posibilidad alguna de mejora a futuro, en contraposición a lo dispuesto en el art. 690 inciso h) del Código de Trabajo que contempla la posibilidad de que se puedan negociar incentivos salariales; numeral que ahora queda sin efecto legal por lo que se está ante una verdadera contrarreforma laboral cuyos verdaderos fines nunca fueron explicitados a la ciudadanía. Este numeral 54 es lesivo del principio de irretroactividad, del principio de libre negociación colectiva y del principio de razonabilidad, pues congela sin plazo ni fecha, el pago de sobresueldos y con ello se obliga a su desaparición en el futuro toda vez que fija una condición salarial permanente en el tiempo sin considerar que el mercado de trabajo, las políticas salariales y la condición fiscal de los gobiernos, se modifican a lo largo del tiempo, de modo tal que aunque se quiera dar la apariencia de respeto al pago de sobresueldos, en el fondo no es así y se les condena a desaparecer con el paso del tiempo porque llegará un momento en que su valor económico sea deleznable.

Con la reforma que se hizo en la ley n.º9635 al art. 55 de la LSAP, el legislador pretendió crear una reserva de ley para que cualquier incentivo, compensación o plus salarial tuviera que ser creado por ley; sin embargo, ello es inconstitucional porque el art. 62 de la Constitución Política y el Convenio n.°98 de la OIT, debidamente aprobado por Costa Rica, impiden establecer una limitación de tal naturaleza, pero además porque ese numeral lesiona el principio de libre negociación colectiva, pues reclama una exclusividad en la generación de una fuente normativa de condiciones de trabajo que supone vaciar de contenido el derecho constitucional a la negociación colectiva.

El Transitorio XXXVI es una de las más acusadas intromisiones del Poder Público en el derecho a la negociación colectiva, toda vez que obliga a los jerarcas e las entidades públicas a denunciar las convenciones colectivas a su vencimiento, suprimiendo con ello el contenido del art. 62 de la Constitución Política y de los Convenios 87 y 98 de la OIT, en conjunto con los arts. 26 de la CADH y 8 inciso a) del Protocolo de San Salvador, por lo que considera que es contrario al Derecho de la Constitución.

El desarrollo progresivo de los derechos sociales contemplado en el numeral 26 de la CADH es completamente coartado con este Transitorio, el que más bien consagra el retroceso y la vuelta atrás en el desarrollo del derecho colectivo de trabajo en Costa Rica, lo cual se había logrado con la llamada Reforma Procesal Laboral. Ese retroceso también se observa porque el Transitorio impone la obligación de que, de negociarse nuevas convenciones colectivas, se deberán adaptar a lo dispuesto en la ley n.º9635, lo que significa que se tendrán que insertar condiciones laborales que desmejoren las anteriores, sin respeto de las situaciones jurídicas consolidadas. La libertad de asociación sindical y el derecho a la negociación colectiva, en los términos en que se visualizó por la Corte Interamericana de Derechos Humanos (Corte IDH) en el caso Lagos del Campo versus Perú de 31 de agosto de 2017, no pueden desarrollarse plenamente si el Estado predefine, como sucede en el Transitorio XXXVI de la ley n.º9635, el contenido que deberá tener una convención colectiva, lo cual además se pretende hacer con normas de rango legal pero también con normas secundarias, pues no señala este Transitorio a qué normas se refiere cuando dice “las demás regulaciones que dicte el Poder Ejecutivo”, con lo cual podría ser cualquiera según lo determine el Gobierno de turno, el que, de esta manera, tendría abierta la puerta para interferir de manera ilimitada, contraria a los límites que, por su naturaleza, debe tener el poder público en un Estado Social de Derecho. La Sala Constitucional, en la opinión consultiva n.º2018-019511, al conocer el proyecto de la hoy ley n.º9635, hizo el reparo de que cada jerarca de las entidades públicas tiene la potestad de decidir o no si denuncia las convenciones colectivas; reparo que no fue atendido a la hora de aprobar la Ley n.°9635.

En atención al Transitorio XXXVI, independientemente del momento en que se haga la denuncia de una convención colectiva, lo cierto es que se está obligando a las futuras convenciones a mantener un contenido reglado que dependerá no solo de lo que dice una ley que desmejora las condiciones de trabajo ya obtenidas en instrumentos de negociación colectiva, estatutos y reglamentos anteriores, sino que además, deja abierta la puerta para que el Poder Ejecutivo pueda establecer cualquier contenido a esas convenciones, todo lo cual además se introduce en una norma de carácter transitorio pero que causa efectos permanentes y definitivos.

Finaliza solicitando que se declare la inconstitucionalidad de las normas aquí impugnadas.

2.- A efecto de fundamentar la legitimación que ostenta para promover esta acción de inconstitucionalidad, la parte accionante señala que proviene del art. 75 párrafo segundo de la Ley de la Jurisdicción Constitucional (LJC), toda vez que acude en defensa de intereses colectivos que ostenta su representado. Los representantes del sindicato alegan que las normas cuestionadas contravienen no solo la libre negociación colectiva y con ello la convención colectiva del Banco Nacional, sino también conducen a una perjudicial regresividad de los derechos fundamentales (salario, condiciones de trabajo y libre negociación colectiva) y contradicen el principio del derecho laboral colectivo que establece la posibilidad a negociar en convenciones colectivas las condiciones de cálculo y de pago por concepto de auxilio de cesantía y pluses más favorables para los trabajadores.

3.- Por resolución de la Presidencia de la Sala Constitucional de las 9:46 hrs. de 22 de febrero de 2019, se le dio curso a la acción, confiriéndole audiencia a la Procuraduría General de la República (PGR). En lo relativo a la legitimación se resolvió lo siguiente:

“La legitimación del accionante proviene del artículo 75 párrafo segundo de la Ley de la Jurisdicción Constitucional, toda vez que ejerce la acción directa, sin juicio previo al efecto, a fin de tutelar y preservar los intereses coincidentes de los agremiados de SEBANA, con base en su pacto constitutivo, que posibilita la defensa de intereses colectivos”.

4.- En escrito presentado en la Secretaría de la Sala el 7 de marzo de 2019, se apersonó Juan Carlos Chaves Araya en su condición de Secretario General del Sindicato de Trabajadores del Banco Popular y de Desarrollo Comunal (SIBANPO) para solicitar que se tenga a su representado como coadyuvante activo en vista de que comparte las tesis jurídicas externadas por la parte accionante y porque las normas impugnadas pueden afectar a los trabajadores del Banco Popular y de Desarrollo Comunal (BPDC).

5.- La Procuraduría General de la República rindió su informe a través de Julio Alberto Jurado Fernández mediante documento entregado en la Secretaría de la Sala el 18 de marzo de 2019.

La parte accionante plantea tres motivos de inconstitucionalidad contra la reforma a la LSAP n.º2166 operada por medio de la LFFP n.º9635 y en cada uno de ellos señala las normas que, a su juicio, deberían ser anuladas.

El primer motivo de inconstitucionalidad que plantea la parte accionante está referido a una posible violación al debido proceso sustantivo en relación con los arts. 50, 57 inciso l) de la LSAP reformada por la LFFP y el Transitorio XXXI de esta ley n.º9635.

El legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores, por lo que debe entenderse que el monto económico que se otorgue por concepto de anualidades está en función de la intensidad con la que el legislador quiera incentivar la permanencia en el puesto de los funcionarios públicos y con la posibilidad económica de cancelar las sumas que se derivan de ese incentivo. El legislador podría, incluso, eliminar el pago de anualidades, e incentivar la eficiencia y la permanencia en el servicio público mediante un mecanismo distinto al que se emplea ahora, pues la obligación de reconocer anualidades no está estipulada en normas de rango constitucional, sino legal.

El carácter permanente que está implícito al otorgar a la anualidad un valor nominal que es estable en el tiempo se justifica en la necesidad de lograr una situación de equilibrio en las finanzas públicas, lo que va más allá de superar una crisis económica pasajera, pues constituye un objetivo económico que es deseable que se mantenga en el tiempo. Si se establece que, una vez transcurrido cierto lapso, se deben revertir los cambios hechos en las normas legales que regulan las remuneraciones del sector público, es posible que se vuelva a caer en estados de inestabilidad económica que son indeseables tanto en el corto como en el mediano y en el largo plazo. El Estado tiene la obligación de propiciar la eficiencia en la prestación de los servicios públicos por lo que debe fomentar la eficiencia del empleo público, lo que no significa que ese objetivo sólo pueda ser alcanzado mediante el pago de anualidades. Agrega que parte de la garantía de eficiencia consiste en asegurar que existan recursos económicos suficientes para hacer frente a los egresos que genera la planilla del Estado, lo cual solo se logra mediante reconocimientos salariales razonables, ajustados a la situación económica del país y a la disponibilidad de recursos.

Su representada sí coincide con la parte accionante en cuanto a que no existe razón lógica alguna para que el pago de la anualidad se realice, en todos los casos, a partir de la primera quincena del mes de junio de cada año y no hay justificación para que las personas que cumplan su anualidad inmediatamente después de esa fecha, deban esperar lapsos que podrían ser de casi un año para recibir la compensación respectiva; situación que resulta irrazonable y discriminatoria, pues quienes cumplen la anualidad en mayo o en junio, por ejemplo, recibirían su compensación en condiciones temporales más favorables que quienes la cumplan en julio o en agosto de cada año, por lo que la Procuraduría considera que el sistema debería permitir que, una vez hecha la evaluación del desempeño y demostrado el nivel de eficiencia requerido por la normativa vigente, sea posible reconocer el incentivo económico a más tardar, en el mes siguiente a la fecha en que el funcionario cumpla su anualidad.

Por otra parte, en lo que se refiere al alegato de que no se revaloricen las anualidades de acuerdo al puesto de mayor categoría que lleguen a ocupar los empleados, insiste en que es el legislador quien tiene la facultad para decidir cuáles aspectos de la relación de servicio son los que deben incentivarse mediante el pago de anualidades, o mediante la revalorización de ese beneficio, todo ello de acuerdo a las posibilidades económicas imperantes. Considera que es evidente que revalorizar los incentivos económicos ya adquiridos en caso de que el funcionario sea ascendido de puesto, podría ser un incentivo importante para fomentar la carrera administrativa; sin embargo, aduce que ello implica una erogación de recursos que podría no guardar congruencia con la intención de equilibrar las finanzas públicas y, ante esa situación, corresponde al legislador decidir ‒como ya lo hizo‒ si incentiva la carrera administrativa, o si propicia el equilibrio de las finanzas públicas, sin que optar por una u otra decisión implique violación alguna a normas o principios constitucionales.

En otro orden de cosas, señala que la supresión de la frase del art. 12 de la LSAP que indicaba que a los servidores del sector público se les reconocería el tiempo de servicio prestado en otras entidades del sector público para efectos de aumentos anuales, resulta contrario a la doctrina del Estado como Patrono Único que surgió como una forma de asegurar a los trabajadores que se trasladan de una institución del Estado a otra, la continuidad en el disfrute de los derechos que se reconocen en todo el sector público; sin embargo, aduce que a pesar de ello, no es posible afirmar que dicha doctrina sea intangible para el legislador, pues su creación se produjo por normas de rango legal y no constitucional, lo que conduce a afirmar válidamente que así como el legislador autorizó el reconocimiento del tiempo servido en las distintas instituciones del Estado para efectos del pago de anualidades, es el mismo legislador quien está facultado para modificar esa autorización, cuando estime que sea necesario para lograr el equilibrio de las finanzas públicas.

En cuanto a que una disposición transitoria establezca efectos permanentes, argumenta que tal reparo podría ser útil para reflejar que se ha infringido el deber de seguir una buena técnica legislativa; sin embargo, considera que tal infracción no podría generar la inconstitucionalidad de la norma, pues no se trata de un vicio sustancial que justifique anular la voluntad expresa de la ley.

El segundo motivo de inconstitucionalidad que alega la parte accionante es por violación al principio de irretroactividad de la ley e irrespeto a las situaciones jurídicas consolidadas en relación con la reforma hecha a los arts. 50, 54, 56, 57 inciso l) de la LSAP y los Transitorios XXVII y XXXI, todos de la LFFP n.º9635.

Los reparos aquí planteados giran en torno al tema de la prevalencia o no de una ley sobrevenida (la LFFP) sobre las convenciones colectivas vigentes y, en tal sentido, recuerda que en el dictamen C-060-2019 la Procuraduría expresó su criterio en el sentido de que no existen razones de constitucionalidad que justifiquen dar prevalencia a los mandatos de una convención colectiva o de algún otro instrumento normativo, sobre la ley. Señala que lo anterior no significa irrespetar los derechos adquiridos o las situaciones jurídicas consolidadas de los destinatarios de las convenciones colectivas porque la aplicación de los mandatos legales que riñan con lo pactado en dichos convenios rige hacia futuro, lo que implica que los beneficios laborales incorporados al patrimonio de cada persona por la aplicación de las cláusulas convencionales derogadas por la ley, se mantendrán en el patrimonio de cada una de las personas que los percibió.

En lo que se refiere a los empleados actuales del Banco Nacional que según el accionante mantienen un derecho adquirido a que el cálculo del beneficio de la cesantía se realice sobre un máximo de veinte años de servicio (que era el admitido en la convención colectiva) y no sobre un máximo de doce años, como lo establece el Transitorio XXVII de la ley n.°9635, recuerda que el derecho a la cesantía se adquiere hasta que se produzca el cese de la relación de servicio, y siempre que dicho cese obedezca a alguna de las causales que justifican el pago de esa indemnización, de modo que, antes de que ello ocurra, lo que tiene el interesado es una simple expectativa de derecho que no podría prevalecer sobre disposiciones de rango legal como las introducidas a la LSAP por medio de la LFFP. En razón de lo dicho, la Procuraduría no considera que los arts. 50, 54, 56, 57 inciso l) y los Transitorios XXVII y XXXI de la LSAP, infrinjan el art. 34 constitucional por irrespetar derechos adquiridos o situaciones jurídicas consolidadas de los funcionarios del sector público.

El tercer motivo de inconstitucionalidad se plantea por violación al principio de libre negociación colectiva en cuanto a los arts. 39, 50, 54, 55, 57 inciso l) de la LSAP reformados por la ley n.º9635 y los Transitorios de esta XXVII, XXXI y XXXVI.

El derecho a la negociación colectiva de los servidores públicos es un derecho de configuración legislativa, por lo que su ámbito de aplicación, así como sus alcances, pueden ser definidos por normas de rango legal, sin que ello necesariamente implique violación de normas constitucionales. Si bien es cierto, algunos de los principios que se derivan del art. 62 de la Constitución Política podrían aplicarse a la negociación colectiva en el sector público, también lo es que esa norma no tenía la intención de ser aplicada a las relaciones de empleo público y para acreditar esa situación, debe notarse que el Convenio n.°98 de la OIT sobre el Derecho de Sindicación y Negociación Colectiva, adoptado en 1949, excluyó de su ámbito de aplicación a los funcionarios públicos de la Administración del Estado (art. 6), lo que evidencia que, para ese año (que coincide con el de la promulgación de la Constitución Política vigente), no estaba prevista la posibilidad de que las relaciones de empleo público se rigieran por normas convencionales sino, más bien, por normas estatutarias, emitidas unilateralmente por el Estado. Lo anterior concuerda con lo dispuesto en el art. 191 de la Constitución Política en el sentido de que “Un estatuto de servicio civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de la administración”; norma que refleja una visión uniformadora de las reglas que deben imperar en las relaciones de empleo entre el Estado y sus servidores, lo que resulta compatible con las regulaciones sobre negociación colectiva establecidas en la LFFP. La libertad absoluta de negociación que el accionante hace derivar del art. 62 de la Constitución Política aplica en lo relativo a las condiciones laborales del sector privado, no para las del sector público, pues este último se rige por reglas y principios que, en algunos casos, son diametralmente distintos a los del empleo privado.

No puede conferirse el mismo trato al uso y disposición de fondos públicos (que son los que financian las relaciones de empleo público), que el que se otorga al uso de fondos privados, pues los primeros deben estar orientados a la búsqueda de la satisfacción del interés público por lo que no son absolutamente disponibles por las partes que negocian una convención colectiva en el ámbito público.

La Sala Constitucional, desde hace muchos años, ha mantenido la tesis de que la negociación colectiva en el sector público no es asimilable a la del sector privado y que la primera debe respetar las leyes, los reglamentos y las directrices vigentes, por ejemplo en sentencia n.º4453-2000, en donde se indicó que aún en el sector público en el que resulta constitucionalmente posible la aplicación de las convenciones colectivas, en las empresas o servicios económicos del Estado y en los núcleos de personal de instituciones y entes públicos en los que los servicios que prestan no participan de la gestión pública, la Sala repite y confirma su jurisprudencia en el sentido de que la autorización para negociar no puede ser irrestricta ni equiparable a la situación de un patrono particular, pues por esta vía no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes ni modificar o derogar leyes que otorgan o regulan competencias de los entes públicos.

Además de lo anterior, recuerda que ningún derecho, fundamental o no, es irrestricto, sino que todos ellos están sujetos a las limitaciones y restricciones propias de su naturaleza, siempre que éstas últimas sean razonables y estén contenidas en normas de rango legal, como ocurre con las impuestas a la negociación colectiva en el sector público por la LFFP.

Los principios de eficiencia en el manejo de los fondos públicos, racionalidad del gasto, conducción sana de las finanzas públicas, etc., que son de rango constitucional, deben armonizarse con la posibilidad de negociación colectiva en el sector público, que no puede ser irrestricta, sino que, por el contrario, debe adaptarse a las posibilidades económicas del país.

La Sala, al analizar la constitucionalidad del proyecto de ley que contenía al art. 55 de la LSAP y del Transitorio XXXVI de lo que hoy es la LFFP, indicó que a los empleados del sector público que válidamente puedan celebrar convenciones colectivas, no puede limitárseles la posibilidad de crear incentivos, compensaciones o pluses salariales y que no puede negarse al jerarca de cada entidad pública la potestad de denunciar o no la respectiva convención colectiva (opinión consultiva n.°2018-019511).

El legislador sí puede establecer restricciones al ejercicio del derecho a la negociación colectiva en el sector público como las reguladas en el art. 55 de la LSAP y en el Transitorio XXXVI de la LFFP. Imponer ciertas restricciones a la negociación colectiva en el sector público en materia de cesantía, de valoración de anualidades e incentivos, y de creación de nuevos sobresueldos, no vacía de contenido el derecho a la negociación, ni afecta su núcleo esencial. Añade que, igualmente, la obligación de denunciar las convenciones colectivas al finalizar el plazo pactado, tiene por objetivo adaptar esos instrumentos a las normas vigentes sobre la materia, pero no inhibe la posibilidad de suscribir nuevas convenciones, siempre que esos instrumentos se adapten ‒como siempre se ha exigido‒ al marco legal imperante.

Establecer ciertas restricciones a la negociación colectiva en el sector público es particularmente necesario cuando el país está en una situación de desequilibrio económico que ha sido de dominio público y cuya atención ha requerido sacrificios, no solo de las personas ligadas al Estado por una relación de empleo público, sino de todos los sectores económicos y sociales.

Por otra parte, señala que no es posible comparar a los sindicatos con las asociaciones solidaristas, pues se trata de figuras distintas, con características propias muy diferentes entre ellas y, en ese sentido, recuerda que a las asociaciones solidaristas no se les ha conferido el derecho a la negociación colectiva, ni el derecho de huelga, sin que por ello se encuentren en una situación de desventaja o de discriminación inconstitucional con respecto a los sindicatos.

Finalmente, en lo que se refiere al reparo relativo a la naturaleza permanente y no temporal de lo regulado en el Transitorio XXXVI de la LFFP (relacionado con la obligación de denunciar las convenciones colectivas al finalizar el plazo pactado), puede considerarse como una eventual infracción a una adecuada técnica legislativa, pero no genera la inconstitucionalidad de las normas afectadas, por no tratarse de un vicio grave que justifique anular esas disposiciones.

Culmina con la sugerencia a la Sala Constitucional de declarar sin lugar esta acción, con la salvedad de lo dispuesto en el primer párrafo del art. 12 de la LSAP, concretamente, de la frase que indica que “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año”.

6.- Los edictos a los que se refiere el párrafo segundo del art. 81 de la LJC fueron publicados en los números 57, 58 y 59 del Boletín Judicial, de los días 21, 22, y 25 de marzo de 2019.

7.- En escrito presentado en la Secretaría de la Sala el 4 de abril de 2019 se apersona Enrique Egloff Gerli en su condición de Presidente de la Asociación Cámara de Industrias de Costa Rica, para solicitar coadyuvancia pasiva en este asunto.

Dice que los argumentos de SEBANA parten de una premisa jurídicamente equivocada: que el pago de anualidades es un derecho laboral fundamental reconocido a nivel constitucional. Ello no es cierto porque las anualidades son una creación exclusiva del legislador, por lo que el primer argumento de la acción se refiere a un caso típico de discrecionalidad legislativa y no es de recibo el criterio de la parte accionante porque el aumentar, disminuir o eliminar las anualidades, puede ser variado en el tiempo según cambien las condiciones económicas y fiscales del país.

Las normas impugnadas establecen el porcentaje en que pueden crecer las anualidades en lo sucesivo porque antes se daba el contrasentido de que crecían más que la inflación, lo cual es contrario al principio constitucional de razonabilidad, sin que exista un derecho fundamental a las anualidades como lo pretende el accionante.

El sistema de aumentos anuales de salarios debe ser igual a como ocurre con los salarios mínimos en el sector privado que se produce solo por aumento del costo de vida, toda vez que no hay justificación alguna, ni jurídica ni económica, ni mucho menos fiscal, para que los empleados públicos gocen de privilegios en esta materia respecto de los privados, lo que lesiona el principio de igualdad, con el agravante de que el nivel de salarios promedio de la Administración Pública es muy superior al que rige en el ámbito de la empresa privada en donde, por trabajo igual se paga menos a pesar de que está demostrado que los empleados son más eficientes.

No es cierto que las anualidades estén ligadas a la eficiencia del sector público, pues se ha pagado y aumentado sin sustento en criterios técnicos, desligado del aumento del costo de vida y por ello no resulta lesivo de los arts. 191 y 192 de la Constitución Política. En el pasado el Estado ‒en otras condiciones fiscales‒ le permitían garantizar un sistema muy generoso en materia de anualidades pero hoy en día la situación ha cambiado radicalmente y por ello la situación debe ajustarse a la realidad fiscal del país, lo que se está haciendo a través de la normativa impugnada que respeta los derechos adquiridos de los servidores públicos hasta el momento de su entrada en vigor y lo que se ha hecho es constitucionalmente válido. El pago de anualidades está condenado a desaparecer, pues sólo sirve para aumentar el salario sin justificación razonable ya que el pago se realiza automáticamente solo por acumular años de servicio. Recuerda que los derechos y obligaciones de los servidores públicos son los que taxativamente fije el ordenamiento jurídico y por ello el legislador tiene discrecionalidad para regular los pluses salariales, como considere más oportuno en atención a la salud fiscal del país. El acceso a los cargos públicos es de igualdad de oportunidades y la escogencia del personal para cargos públicos se mide por un criterio de la idoneidad comprobada que no tiene ninguna relación con el pago de la antigüedad, por lo que no es cierto que con la variación del pago de anualidades, se vaya a desincentivar o dificultar el acceso a los cargos públicos por méritos.

Ciertamente la materia regulada por el Transitorio XXXIII debió haberse incluido en una norma sustantiva de la ley porque la naturaleza jurídica de las disposiciones transitorias es la de hacer posible el tránsito de la anterior normativa a la nueva; si bien se trata de un asunto de mala técnica legislativa que puede ser reprochable, no es inconstitucional.

No existen razones que justifiquen el primer alegato de inconstitucionalidad planteado por la parte accionante, por lo que pide que se declare sin lugar.

En lo que se refiere al segundo motivo de inconstitucionalidad alegado, estima que tampoco hay vicio alguno de inconstitucionalidad. Todas las normas pueden ser modificadas hacia el futuro por otra de igual o superior rango sin que ello implique una violación al principio de irretroactividad de la ley; principio que sólo se viola cuando han surgido derechos adquiridos y situaciones jurídicas consolidadas como consecuencia directa de situaciones jurídicas subjetivas creadas al amparo de la legislación anterior y advierte que no se consideran situaciones jurídicas consolidadas ni derechos adquiridos, los que se derivan de convenciones colectivas, reglamentos o estatutos, porque se trata de normas que regulan situaciones objetivas.

En consecuencia, estima que ninguna norma de las que están siendo impugnadas implica una violación al principio de irretroactividad de la ley, pues lo que ha hecho el legislador es modificar, con efectos futuros, situaciones objetivas creadas por la legislación anterior.

En Costa Rica la relación entre los servidores públicos y el Estado es de carácter estatutario, por lo que la celebración de convenciones colectivas está prohibida en el ámbito estatal con excepción de las empresas públicas y los servicios económicos del Estado que se rigen por el derecho privado, por lo que es lógico concluir que los servidores públicos no pueden obtener ningún derecho a su amparo.

Debe distinguirse entre la fuente productora del acto y la naturaleza jurídica de éste, de manera tal que una convención colectiva aunque tiene valor legal, no proviene de la Asamblea Legislativa y por lo tanto no tiene la misma fuerza, de modo que se trata de normas que sí pueden ser modificadas a futuro porque lo que sí sería inconstitucional es que las normas impugnadas hubieran modificado retroactivamente el régimen de anualidades que contenía la legislación anterior. En este caso, sí hay una habilitación constitucional para modificar el contenido de esas normas a futuro ‒a partir de la entrada en vigor de la nueva normativa‒, pues es una facultad discrecional del legislador, modificar los derechos y obligaciones de los servidores públicos hacia futuro en aras de tutelar el interés público. El ordenamiento jurídico no es inamovible y el legislador tiene la potestad discrecional de modificarlo con el sólo límite de no afectar retroactivamente derechos adquiridos y situaciones jurídicas consolidades previamente a su entrada en vigor. Añade que el legislador también tiene plena libertad para escoger el parámetro que considera oportuno para determinar las futuras anualidades sin que ello implique una lesión al principio de irretroactividad de la ley.

El art. 56 impugnado está mal redactado pero no por ello es inconstitucional porque el respeto de derechos adquiridos es de principio y no es necesario indicarlo expresamente, de manera que las convenciones colectivas pueden ser modificadas a futuro por el legislador y lo único que éste debe respetar son los derechos incorporados en el patrimonio de las personas, de modo que puede libremente cambiar las reglas de juego existentes mientras los servidores no tengan un derecho adquirido, aun cuando cuenten con una expectativa de derecho.

En cuanto al tercer motivo de inconstitucionalidad, reitera que las convenciones colectivas solo son aplicables a las empresas públicas y a los servicios económicos del Estado que se rigen por el derecho privado, por lo tanto, la normativa impugnada es aplicable a todos los servidores públicos ya que la suscripción de convenciones colectivas en el ámbito estatal está prohibida, por lo que el legislador puede modificar el monto máximo del pago de auxilio de cesantía de los servidores públicos sin incurrir en una violación de la libertad para celebrar convenciones colectivas.

El art. 39 impugnado y los Transitorios XXVII y XXXVI no son discriminatorios respecto de las asociaciones solidaristas puesto que la ley n.°9635, por ser posterior a la ley n.°6970, la modificó en lo conducente aunque por un error de técnica legislativa no se haya consignado expresamente en su texto esa modificación; sin embargo, es evidente que se modificó en cuanto autoriza el pago del auxilio de cesantía sin sujeción a ningún límite de años laborales dado que existe una incompatibilidad sobreviniente entre el contenido de ambas leyes respecto de los servidores cubiertos por el régimen solidarista. Argumenta que, por otra parte, si la libertad de contratación colectiva es prohibida en el sector público ‒salvo las dos excepciones existentes‒, no es jurídicamente posible que aquélla libertad se vulnere con la normativa impugnada y, por tanto, es válido regular el pago de anualidades en el sector estatal porque los derechos y obligaciones de los servidores públicos son única y exclusivamente los fijados por la ley en virtud del principio de indisponibilidad de la relación según el cual las partes no pueden negociar el contenido de la relación de servicio existente entre ellas.

El principio de progresividad se aplica a la libertad de contratación colectiva, pero como este derecho no existe en el ámbito estatal, no puede invocarse como parámetro de validez constitucional de la normativa impugnada. Finaliza solicitando que se declare sin lugar la acción.

8.- Mediante documento presentado el 9 de abril de 2019 se apersona Miguel Ernesto Carranza Díaz en su condición de funcionario público Facilitador Control Interno y Archivo Central del Hospital Monseñor Sanabria para solicitar que se le tenga como coadyuvante activo en esta acción de inconstitucionalidad por considerarse afectado por las disposiciones normativas impugnadas, y señala que, por su condición de funcionario público y frente a potenciales ascensos, verá lesionado su ingreso económico.

9.- Se apersona Marvin Atencio Delgado en su condición de secretario general del Sindicato de Profesionales en Ciencias Médicas de la Caja Costarricense de Seguro Social e Instituciones Afines (SIPROCIMECA) mediante documento presentado en la Secretaría de la Sala el 9 de abril de 2019 y solicita que se tenga a su representado como coadyuvante activo de esta acción de inconstitucionalidad. La organización sindical que representa se adhiere totalmente a los argumentos esgrimidos por el accionante y considera que las normas impugnadas contravienen los principios del debido proceso, libertad de negociación colectiva, irretroactividad de la ley y respeto a las situaciones jurídicas consolidadas. Solicita que se declare con lugar la acción de inconstitucionalidad en todos sus extremos.

10.- Álvaro Adrián Madrigal Mora en su condición de Secretario General del Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN) se apersona mediante documento entregado en la Secretaría de la Sala el 10 de abril de 2019 para solicitar que se tenga a su representado como coadyuvante activo en esta acción de inconstitucionalidad.

En relación con el pago del auxilio de cesantía, manifiesta que la reforma contenida en la ley n.°9635 no consideró la última reforma a la Ley de Protección al Trabajador en la que se estipuló el derecho de auxilio de cesantía como un derecho efectivo para los trabajadores sin estar sujeto a un límite de años, según lo dispuso el art. 8 de la ley n.°7983, por lo que, en su criterio, la norma contenida en el art. 3 de la ley n.°9635 que adicionó el art. 39 de la ley n.°2166 y el Transitorio XXVII acá impugnados, sería también contrario al art. 7 de la Constitución Política, ello por cuanto los convenios de la OIT son autoridad superior sobre las leyes ordinarias de Costa Rica en los cuales se ha establecido que la negociación colectiva, las relaciones de trabajo en la administración pública y el derecho a sindicalización, son derechos adquiridos y recuerda que el Convenio n.°98 dispone que deberán adoptarse medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar entre los empleadores y las organizaciones de empleadores y trabajadores, el pleno desarrollo y uso de procedimientos de negociación voluntaria con el objeto de reglamentar por medio de contratos colectivos, las condiciones de empleo. En iguales términos están los Convenios 151 y 154 de la OIT. Ni la Asamblea Legislativa ni la Sala Constitucional pueden desconocer tales convenios porque son claros al señalar que la negociación colectiva es permitida para los trabajadores del sector público y que gozará de independencia sobre las autoridades (arts. 7 y 48 de la Constitución Política). A través de las diferentes leyes dictadas en el país se desprende la voluntad legislativa de que el derecho de auxilio de cesantía se aplique no solo en caso de despido con responsabilidad patronal, sino también en relación con la jubilación, pensión por vejez, muerte o retiro concedidas por la CCSS o los diversos sistemas de pensiones de los Poderes del Estado, el TSE, las instituciones autónomas, semiautónomas y las municipalidades. En derecho laboral se parte de un derecho de mínimos por lo que bien se pueden establecer topes mayores, ajustados a los principios de razonabilidad y proporcionalidad. Indica que los alegatos planteados en la acción de inconstitucionalidad en relación con el auxilio de cesantía son plenamente aplicables a los trabajadores de la Universidad Nacional en donde, por vía de convención colectiva, el tope de la cesantía ha sido de quince años y esto se mantiene vigente en la recién prorrogada IV Convención Colectiva de Trabajo UNA-SITUN, con un aumento progresivo y escalonado hasta los veinte años como tope máximo, siendo su aplicación completa a partir del año 2017. Indica que con la reforma regresiva introducida al Código de Trabajo a través de la Ley de Protección al Trabajador n.°7983 de febrero de 2000, los trabajadores tanto del sector público como del privado, vieron disminuidos la proporción a pagar por concepto de auxilio de cesantía ya que se estableció una tabla de cálculo que desmejora el beneficio, según lo dispuesto en el art. 29 del Código de Trabajo.

Por otra parte, en lo que al incentivo de anualidades se refiere, manifiesta que éste se encuentra vinculado estrechamente con el reconocimiento del tiempo servido en el sector público que, en el caso de la UNA, se trata de un plus salarial denominado anualidad que, a esa fecha, constituye un 4% sobre el salario base por cada año laborado para la institución y que está disociado de cualquier tipo de evaluación anual, incluido mediante negociación salarial en las diferentes convenciones colectivas. Argumenta que también se ha reconocido la importancia de la permanencia y experiencia de los trabajadores en otras instituciones públicas de educación superior y por ello la convención colectiva lo reconoce a todos sus trabajadores académicos y administrativos, pero que también está incluido en el Convenio de Coordinación de la Educación Superior Universitaria Estatal de Costa Rica, suscrito por los cuatro rectores de las universidades estatales. El objetivo que origina y sustenta este reconocimiento es la permanencia y experiencia en el sector público en contraposición con el sector privado porque los fines u objetivos de ambos, no son los mismos: la actividad privada promueve el lucro y las utilidades para un grupo reducido de propietarios de empresas en tanto el sector público busca el desarrollo de las instituciones estatales con el objetivo del servicio público, por lo que la permanencia y experiencia en este lo que busca es brindar el servicio de la forma más óptima posible y la captación de recurso humano mejor formado y capacitado. Es irracional y desproporcionado que se haya fijado un mismo monto nominal fijo invariable para toda la escala salarial cuando ésta es un conjunto de categorías diferenciadas ya que cada cargo o puesto, tiene un perfil y otros elementos que le asignan un salario específico diverso de acuerdo con el volumen y responsabilidades del cargo. La disposición del art. 50 impugnado afecta los derechos adquiridos de los trabajadores del sector público porque no se establece ninguna diferenciación entre los que ya están incorporados y adquirieron su derecho de anualidad en forma porcentual y ahora, de pronto, se pretende transformarlo a una suma nominal fija invariable, lo cual es una afectación directa al salario que atenta contra el principio de protección del salario como componente fundamental de la relación laboral con el Estado como patrono. El Transitorio XXXI complementa, de manera permanente, lo dispuesto en el art. 50 impugnado al establecer los porcentajes que luego definirán los montos nominales fijos de la anualidad que, al congelarse en el tiempo, perderán su valor real, lo que implica una discriminación en relación con las diferencias de los porcentajes que existían (1,94 % y 2,54 %) y que ahora se pretenden calcular sobre un salario base de una fecha anterior a la vigencia de la ley n.°9635. La reforma que se hace en el art. 57 inciso l) es discriminatoria en relación con la aplicación fija que se hará en la primera quincena de junio, pues a las personas que cumplen la anualidad de enero a mayo se les atrasará, en tanto que a los que cumplirán de julio a diciembre, más bien se les adelantará, lo que les generará un pago que aún no les corresponde y si este segundo grupo cesa en sus labores, se genera un problema para el erario público; situación que también afectará a los trabajadores interinos, por lo que unos estarán más beneficiados que otros. Esto también pretende desincentivar a las personas para que busquen formarse mejor y lograr ascensos temporales o permanentes toda vez que se impide la revalorización de los incentivos ya reconocidos, desconociendo que la anualidad es un concepto salarial que se aplica a la persona trabajadora y no al puesto o cargo, pero que también genera inseguridad jurídica en todo el sistema de administración de salarios del sector público, evidenciando un retroceso en política salarial y el régimen de estímulos económicos para los trabajadores del sector público. Los arts. 54, 55 y 56 impugnados violan el derecho a la negociación colectiva y a las convenciones colectivas en el sector público. El art. 54 es ambiguo e indeterminado porque se refiere a “cualquier otro”, lo que supone que se refiere a incentivos o compensaciones, lo que hace que sea una cláusula apertus, lesiva de la seguridad jurídica y el principio de legalidad. El art. 56, por su parte, es ambiguo porque se refiere a incentivos “remunerados” a la fecha de entrada en vigencia de la ley aplicados a futuro, lo que es extraño porque si fueron remunerados, no pueden aplicarse a futuro, por lo que parece que en lugar de “remunerados” debió haberse dicho “aprobados” ya que cada trabajador del sector público tiene en su haber individual, un documento de aprobación de todos esos incentivos, compensaciones y anualidades, por lo que su modificación deberá hacerse en forma individual y con la notificación de la resolución que así lo declare.

El Transitorio XXXVI es ambiguo e indeterminado porque no está claro que tal obligatoriedad de denunciar convenciones colectivas, supuestamente transitoria, sea para la primera oportunidad o si se debe aplicar hacia un futuro indefinido cada vez que se venza el período de vigencia de una convención colectiva, con lo cual la norma ya no sería transitoria sino que pasaría a ser de fondo y permanente, con lo cual se limitaría el derecho de negociación colectiva condicionando a una de las partes a denunciar. Este derecho también se limita como derecho fundamental y lo supedita a lo que establece la ley, pero no dice a cuál ley se refiere, si es a la ley n.°9635 o a la ley n.°2166, pues está en una ley que modifica otra ley. Recuerda que en caso de que se denuncie una convención colectiva y no se logre renegociar, los derechos y beneficios que contenía esa y las anteriores convenciones se incorporan a los derechos subjetivos e individuales de cada persona trabajadora de la institución a través de su contrato de trabajo. Supeditar toda negociación colectiva a regulaciones que dicte el Poder Ejecutivo es muy peligroso para la libertad sindical y la libertad de negociación colectiva porque podría darse abusos arbitrarios de los gobernantes de turno para pretender limitar el derecho de negociación colectiva en el sector público a través de decretos, directrices, o cualquier norma de rango inferior que, en forma dictatorial, se quiera imponer al conglomerado sindical del sector público, perdiéndose la seguridad jurídica que existe en el ordenamiento jurídico y señala como un ejemplo de esto el decreto ejecutivo n.° 41654-MIDEPLAN-H denominado Reglamento del Título III de la Ley de Fortalecimiento de las Finanzas Públicas referente al Empleo Público, con el cual, en su criterio, se empieza a experimentar una serie de abusos por parte del Poder Ejecutivo al incluir una serie de “definiciones” con base en el interés actual del Poder Ejecutivo y no en la realidad.

El párrafo segundo del Transitorio XXXVI se contrapone, además de lo dicho por el accionante, a los arts. 7 de la Constitución Política, 7, 23 y 25 de la Declaración Universal de los Derechos Humanos (DUDH), 8 del Pacto Internacional de los Derechos Económicos, Sociales y Culturales (PIDESC) y 22 del Pacto Internacional de Derechos Civiles y Políticos (PIDCP). La correcta dimensión que debe adquirir el derecho a la negociación colectiva, que es de rango constitucional, en el caso del sector público, no es la de un cercenamiento total para el servidor como se pretende con la normativa impugnada, sino que su ejercicio está sujeto a ciertas limitaciones en atención a la observancia del ordenamiento jurídico, a los límites del gasto público y a las regulaciones que existen en la materia. Si los transitorios son parte del derecho temporal debido a que su objetivo es solucionar conflictos en las leyes de forma transitoria con la finalidad de dar un tratamiento jurídico distinto y de carácter excepcional, no puede pretender el legislador que dicha norma sea aplicada con carácter indeterminado en los transitorios que se impugnan en esta acción de inconstitucionalidad toda vez que la cesantía, la anualidad y la denuncia de la convención colectiva no son temas temporales debido a que los temas que se pretenden regular son de carácter indeterminado y, por lo tanto, aunque no sea procedente, esos transitorios se van a seguir aplicando durante toda la vigencia de la norma, lo cual desnaturaliza su objetivo. Con el Transitorio XXXVI segundo párrafo impugnado también se vulnera el principio de indelegabilidad de las funciones estatales porque la Asamblea Legislativa ha querido delegar ciertas funciones propias en el Poder Ejecutivo y éste, a su vez, con el decreto ejecutivo n.°41654-MIDEPLAN-H citado, sustituir a la Asamblea Constituyente y a la Asamblea Legislativa al interpretar y ampliar la aplicación de los contenidos del Título III de la ley n.°9635 a las universidades públicas y a la CCSS. Solicita que, por conexidad se analice la constitucionalidad del decreto ejecutivo n.°41654-MIDEPLAN-H publicado el 18 de febrero de 2019 y particularmente el art. 3. Finaliza solicitando que se tenga a su representado como coadyuvante activo y que se declare con lugar la acción de inconstitucionalidad en todos sus extremos.

11.- A través de documento presentado en la Secretaría de la Sala el 10 de abril de 2019, se apersona Róger Muñoz Mata en su condición de Secretario General de la Unión de Empleados del Banco de Costa Rica (UNEBANCO) para solicitar que se admita a su representado como coadyuvante activo por cuanto tiene interés legítimo en vista de que la modificación de LSAP n.°2166 incluyó, dentro de su ámbito de regulación, a la administración descentralizada, sea instituciones autónomas, semiautónomas, empresas públicas del Estado y municipalidades, con lo cual, quedaron incorporados los bancos del Estado que originalmente no estaban comprendidos dentro de la cobertura de esa Ley de Salarios pero que ahora, a merced de la ley n.°9635, quedan sujetos a las disposiciones del Capítulo III y siguientes contenidos en el Título III de esa ley y, por lo tanto, su representado tiene un interés legítimo en este proceso en tutela del interés colectivo de sus afiliados y de las personas trabajadoras del Banco de Costa Rica (BCR), ya que las normas impugnadas en esta acción en materia de auxilio de cesantía, anualidades, incentivos, compensaciones salariales y otras, tienen relevancia para los trabajadores que representa porque son derechos que tienen reconocidos sus afiliados, regulados en las normas del convenio colectivo o en disposiciones reglamentarias, que se están viendo afectados por aquellas normas legales que lesionan sus derechos adquiridos y situaciones jurídicas consolidadas cuya tutela le compete a su representado al amparo del art. 60 constitucional. Las disposiciones impugnadas menoscaban directamente el derecho de negociación colectiva, no solo tratándose de la regulación puntual de los extremos salariales indicados, sino también la sustantividad del derecho de negociación colectiva así como su contenido esencial en todo el sector público, y el derecho del sindicato que representa de cara a la próxima negociación del convenio colectivo vigente puesto que se está enervando el principio de autonomía colectiva.

El art. 39 y el Transitorio XXVII son inconstitucionales porque el recorte del auxilio de cesantía a un importe máximo de ocho años es incompatible con la evolución que ha tenido el desarrollo de ese derecho en Costa Rica y quebranta el principio de progresividad de los derechos fundamentales, el debido proceso sustantivo, la negociación colectiva y es abiertamente discriminatorio contra los sindicatos. El art. 26 de la CADH dispone que los Estados Parte se comprometen a adoptar providencias para lograr progresivamente la plena efectividad de los derechos que se derivan de las normas económicas, sociales y sobre educación, ciencia y cultura contenidas en la Carta de la Organización de Estados Americanos (OEA), lo cual tiene una dimensión positiva que implica que los Estados están comprometidos a desarrollar de manera progresiva los derechos económicos, sociales y culturales tendiente a su plena efectividad y universal satisfacción, pero también una dimensión negativa que implica la irreversibilidad de la protección acordada, es decir, la prohibición de que alguna medida legislativa menoscabe o desmejore una situación jurídica favorable reconocida a las personas. En el caso concreto, las normas cuestionadas en lugar, como corresponde, de desarrollar y fortalecer el auxilio de cesantía, menoscaban ese derecho y en lugar de promover la máxima efectividad de ese derecho, lo que imponen es una regulación regresiva, incompatible con el principio de progresividad.

Violan la razonabilidad y proporcionalidad porque la regresión de ocho años carece de todo fundamento y ese tope ex lege no tiene equivalencia o relación de proporcionalidad con el promedio de la carrera o antigüedad laboral de los servidores públicos La reducción del tope del auxilio de cesantía, de manera abrupta, podría tener efectos desfavorables en la gestión de los servicios públicos porque desincentiva la permanencia del funcionario en la Administración Pública a pesar de que facilita la acumulación de experiencia que en definitiva se traducirá en una mejor gestión de los servicios públicos. También favorece la discriminación y desigualdad entre sindicatos y asociaciones solidaristas porque éstas tienen más beneficios en esta materia. Se vulnera el principio de autonomía colectiva contenido en el art. 62 constitucional que autoriza la negociación de convenciones colectivas de trabajo en el sector público; numeral que cumple la función del principio de legalidad constitucional en virtud del cual las convenciones colectivas de trabajo quedan reconocidas en el nivel jerárquico más alto del ordenamiento incluyendo las convenciones en el sector público. La reforma reciente al Código de Trabajo mediante ley n.°9343 reconoce el derecho de negociación colectiva en el sector público pero la normativa impugnada lo restringe o prohíbe, con lo cual hay prohibición absoluta de negociar reglas del auxilio de cesantía distintas a las preceptuadas en el art. 39 impugnado. El Transitorio XXVII en conjunto con el art. 39 de cita, quebrantan el principio de irretroactividad de la ley porque enervan el derecho de las personas a que se les reconozca el auxilio de cesantía correspondiente a los años que tenían acumulados a la fecha en que entró a regir la ley, independientemente de que el derecho esté reconocido en un convenio colectivo, ley o cualquiera otra fuente del ordenamiento, lo que vulnera una situación jurídica consolidada que no puede ser inadvertida por una nueva ley. En relación con el Transitorio XXXI, manifiesta que jamás se podría sostener que las anualidades que los servidores tenían acumuladas a la fecha en que entró a regir la nueva ley, puedan someterse a ésta porque ello sería incompatible con el principio de irretroactividad de la ley. De igual manera es contrario a este principio que se pretenda aplicar la nueva forma de cálculo y el pago de esas anualidades con ese nuevo régimen legal en menoscabo de situaciones jurídicas consolidadas y por ello considera que se deben seguir pagando de manera porcentual, como se hacía. Ese Transitorio XXXI podría ser razonable si el legislador le hubiera configurado un marco de duración determinada en el tiempo y se hubiera emitido como medida extraordinaria y temporal, pero no de manera indefinida como se promulgó. No es razonable ni proporcional la modificación del parámetro de cálculo de anualidad que se hizo a un monto absoluto, pero además carece de razonabilidad técnica al partir de porcentajes diferenciados, según se trate de clases profesionales o no profesionales, en el orden del 1.94% o 2.54% respectivamente, sin fundamento técnico y violando la libre negociación colectiva al no permitir plantear otra modalidad de cálculo. Como la regulación del art. 50 no estipuló ninguna disposición transitoria, la conversión en la forma de calcular los incentivos no debería aplicar para los servidores que estaban prestando sus servicios cuando se promulgó la ley, de modo que cualquier otra interpretación sería manifiestamente contraria no solo al texto de la propia disposición legal, sino abiertamente irreconciliable con el principio de irretroactividad de la ley, lo cual no podría tener sustento constitucional.

El art. 57 inciso l) desnaturaliza la anualidad que tiene como objetivo remunerar un período anual de labores, con lo cual, el reconocimiento de la anualidad en junio de cada año, carece de toda lógica y de proporcionalidad, además de que elimina el reconocimiento del tiempo laborado en el sector público, a contrapelo con el principio de patrono público único.

Concluye que el párrafo segundo del Transitorio XXXI lesiona el principio de negociación colectiva porque impone la obligación de que las convenciones se sometan no solo a disposiciones de esta ley, sino, además, a cualquier otra reglamentación del Poder Ejecutivo.

Solicita que la acción de inconstitucionalidad sea declarada con lugar en todos sus extremos.

12.- Mediante escrito presentado el 12 de abril de 2019, José Luis Soto Rodríguez, secretario general del Sindicato Unión del Personal del Instituto Nacional de Seguros (UPINS), presenta solicitud de coadyuvancia activa y considera que llevan razón los accionantes, de modo que las normas cuestionadas son abiertamente inconstitucionales.

Su representado ha iniciado procesos ordinarios laborales en el Juzgado Laboral del II Circuito Judicial de San José que se tramitan bajo expedientes n.º19-000479-0166-LA y n.º19-000580-0166-LA que tienen como fin el reconocimiento de las normas contenidas en la convención colectiva del Instituto Nacional de Seguros (INS) y UPINS y las situaciones jurídicas consolidadas de los trabajadores del INS y de Bomberos de Costa Rica.

En la opinión consultiva n.º2018-019511 que atendió la consulta de constitucionalidad sobre el proyecto de la que hoy es la ley n.º9635, la Sala Constitucional manifestó que tanto la Constitución Política como los convenios de la OIT, protegen el derecho a la libre negociación colectiva, por lo cual, limitar las convenciones colectivas por medio de una ley, obligando a las partes a reformar lo que ahí se estipuló o imponiendo las regulaciones de la ley n.º9635 resulta inconstitucional porque deja sin contenido el derecho fundamental a la libre negociación colectiva. Con la entrada en vigencia de las normas cuestionadas, no solo se está limitando la posibilidad de negociar derechos por medio de convenciones colectivas, sino que, tal y como lo indica la PGR en su pronunciamiento n.ºC-060-2019, el Gobierno está obligando a las administraciones a aplicar lo estipulado en la ley n.º9635 así como lo que modificó de la LSAP, lo que deja sin efecto las normas contenidas en las convenciones colectivas, sin que éstas se estén derogando expresamente. Recuerda que las convenciones colectivas tienen fuerza de ley que le permite tanto a la institución, como a los sindicatos, tener la seguridad jurídica de que lo ahí pactado va a cumplirse y, por ello, no pueden las normas impugnadas, limitar ni derogar en forma tácita los derechos contenidos en una norma de una convención colectiva sin desvirtuar su naturaleza. Resultan inconstitucionales las normas impugnadas porque también contravienen lo dispuesto en los arts. 188 y 189 de la Constitución, según las cuales, las instituciones autónomas ‒como el caso del INS‒, tienen independencia administrativa y sólo están sujetas a la ley en materia de gobierno, de modo que es inconstitucional que la ley n.º9635 pretenda regular y limitar su independencia administrativa, lo cual atenta contra su autonomía. Solicita se declare con lugar la acción con sus consecuencias.

13.- A través de escrito presentado por Gonzalo Francisco de Jesús Delgado Ramírez, en su condición de presidente con facultades de apoderado generalísimo sin límite de suma de la Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado (UCCAEP) y Álvaro Sáenz Saborío en su condición de apoderado especial de esa Unión, entregado en la Secretaría de la Sala el 12 de abril de 2019, se solicita que se tenga a ese gremio como coadyuvante pasivo y pide que se declare sin lugar esta acción de inconstitucionalidad.

Las anualidades no son un derecho laboral fundamental, sino una mera creación legislativa sujeta a cambios que el propio legislador puede realizar, sea eliminarlas, reglamentarlas y reformarlas de acuerdo con las realidades económicas del país.

En el caso concreto, las anualidades han venido creciendo más que la inflación, lo cual era irrazonable, desproporcionado e inconveniente a nivel fiscal. El sistema de aumentos anuales de salarios debe ser similar al de los salarios en el sector privado, en donde el aumento se produce de conformidad con el índice inflacionario porque, de lo contrario, los empleados públicos continuarán gozando de una situación privilegiada respecto del resto de los trabajadores, lo que contraría al principio de igualdad y atenta contra el ideal de un Estado de bienestar social; situación que ha generado una desproporción en el sentido de que el promedio de salarios de la Administración Pública es muy superior al del resto de los trabajadores del país. Los salarios mínimos de los trabajadores públicos deben ser uniformes y su aumento debe estar determinado por el índice inflacionario como parámetro objetivo, siendo que no existe un supuesto “derecho constitucional a las anualidades”, como alega la parte accionante y, de existir, debería entonces darse también para el trabajador privado.

Puntualizan que la existencia de las anualidades no está condicionada a la eficiencia del empleado público, sino que se trata de un plus salarial que se pagaba y crecía de manera automática para los funcionarios públicos, lo que se convirtió en un aumento anual de salarios sin criterio alguno y sin relación con la inflación; por lo anterior, su regulación, eliminación, o disminución, no viola norma fundamental o constitucional alguna. El legislador no está obligado a otorgar beneficios ad perpetuam o sine die, pues las necesidades de la sociedad son cambiantes, de modo que una legislación que en una época fue beneficiosa para la comunidad, puede ser necesario cambiarla o incluso abolirla, si así la coyuntura lo exige. La escala salarial, en función de la jerarquía y la responsabilidad, está justificada por parámetros objetivos, por eso es razonable que el sistema del reconocimiento de anualidades varíe de conformidad con la jerarquía del funcionario, la complejidad de sus capacidades técnicas, de tal forma que haya equidad en la remuneración, lo cual no viola el principio de proporcionalidad porque, a diferencia del empleado privado, la única forma de establecer escalas y diferencias en las prerrogativas y obligaciones de los servidores públicos, es por vía de ley. Las normas impugnadas no implican obstáculo alguno de acceso a los cargos públicos por mérito, como alega la parte accionante, estableciendo desigualdades entre los trabajadores antiguos y nuevos, pues existen otros criterios técnicos objetivos, parámetros y mediciones de idoneidad para el ejercicio de los cargos públicos, como lo son las evaluaciones de los distintos regímenes, atestados, calificaciones, experiencia o grados académicos, lo que no tiene nada que ver con el régimen de antigüedad. La legislación impugnada no contraría el debido proceso sustancial porque lo que pretende es imponer una relación de mayor equidad y justicia con los trabajadores privados, pues como es sabido, las anualidades son una prebenda o un privilegio que se circunscribe al sector público, lo cual introduce una situación odiosa en la totalidad del régimen laboral y el Estado Social, razón por la cual suceden situaciones de todos conocidas, como lo es el hecho de que un trabajador en la empresa privada reciba, en ocasiones, una décima parte de lo que recibe un trabajador del sector público por hacer la misma labor. Las normas impugnadas no agreden el principio de eficiencia pública, pues las anualidades no tienen relación alguna con un sistema objetivo de calificación y méritos que hagan pensar que las anualidades inciden en la eficiencia del sistema de servicio público. Las normas pueden ser variadas siempre y cuando se respeten parámetros como el de la jerarquía normativa, la competencia, la fuente productora de la norma y su competencia, y el respeto a la irretroactividad de los derechos adquiridos por ley, todo lo cual consideran que no se ha violado en la normativa impugnada, esto por cuanto no pueden considerarse situaciones jurídicas consolidadas, o derechos adquiridos, a aquéllos que surjan o nazcan de convenciones colectivas, reglamentos o simples regulaciones estatutarias, en tanto se trate de situaciones objetivas, de manera que, en este caso, lo que el legislador hizo fue simplemente modificar a futuro, situaciones objetivas creadas por leyes previas. La Sala ha sido reiterativa en su jurisprudencia en cuanto a que la relación entre los servidores públicos y el Estado es de carácter estatutario, por lo que no es posible obtener beneficios de convenciones colectivas suscritas en ámbito estatal ya que esa prerrogativa solo está limitada a las empresas públicas y a los servicios económicos del Estado, regidos por el derecho privado de conformidad con la legislación de la Administración Pública por lo que no pueden alegarse derechos adquiridos derivados de beneficios obtenidos de convenciones colectivas para servidores del Estado. Si está prohibida la negociación de convenciones colectivas entre los servidores del Estado, entonces no se puede invocar que las normas impugnadas agredan la libertad de negociación colectiva, por ello, se pueden incluso modificar los montos del pago de auxilio de cesantía sin transgredir la libertad de negociación de convenciones colectivas. SEBANA incurre en el error de considerar que toda norma que otorgue algún beneficio es por sí sola inmutable y no puede ser reformada, pero olvida que solo las situaciones subjetivas están amparadas por la irretroactividad de la norma. En el presente caso, los derechos adquiridos esencialmente se refieren a los que ya pertenecen al patrimonio personal por lo que el legislador sí puede variar la normativa respecto de potenciales derechos futuros, pues esos no son derechos adquiridos, sino una expectativa más. La normativa impugnada no lesiona derecho alguno de las asociaciones solidaristas, puesto que es posterior a la Ley de Asociaciones Solidaristas, cumpliéndose así el mismo principio en el sentido de que el legislador puede aprobar leyes posteriores que modifiquen la realidad normativa. Los convenios internacionales de la OIT tienen un rango inferior a la Constitución, por lo cual no pueden contrariar los numerales 191 y 192 constitucionales. Finalmente, la normativa impugnada no es inconstitucional y por ello piden que se declare sin lugar esta acción de inconstitucionalidad.

14.- Mediante escrito presentado el 12 de abril de 2019, se apersona Luis Gerardo Chavarría Vega, en su condición de secretario general de la Unión Nacional de Empleados de la Caja y la Seguridad Social (UNDECA), y solicita que se tenga a su representado como coadyuvante activo en esta acción de inconstitucionalidad.

El art. 39 y el Transitorio XXVII impugnados resultan inconstitucionales por varios motivos; en primer lugar, por el tope impuesto al auxilio de cesantía por un máximo de ocho años, lo cual resulta totalmente incompatible con la evolución que ha tenido el desarrollo de ese derecho en Costa Rica y que implica un quebranto al principio de progresividad de los derechos fundamentales, al debido proceso sustantivo, al derecho a la negociación colectiva y por ser discriminatorio contra los sindicatos. La finalidad del numeral 63 constitucional consiste en proteger a los trabajadores que pierdan su empleo a consecuencia de un despido sin justa causa, pero ese numeral no está prohibiendo que a la persona trabajadora se le pueda reconocer el auxilio de cesantía en otras circunstancias. Señala que debido a la evolución que ha tenido históricamente el instituto del auxilio de cesantía en Costa Rica, no tiene una naturaleza exclusivamente indemnizatoria porque se reconoció también cuando el trabajador se jubila o se pensiona, configurándose así como una expectativa de derecho sin ser de naturaleza reparatoria; situación que, de la mano con la promulgación de la Ley de Asociaciones Solidaristas, rompió con el tope mínimo establecido en el art. 29 del Código de Trabajo, siendo que el art. 39 y el correspondiente Transitorio impugnado, violan esta evolución histórica del auxilio de cesantía, consolidado como un derecho personal, indisputable del trabajador, que no está sujeto a topes arbitrarios, además de que se puede considerar desproporcionado, porque un funcionario público, para consolidar el derecho jubilatorio, necesita por lo menos cumplir 62 años ‒los hombres‒ y 60 años ‒las mujeres‒, con una cantidad de cuotas que equivale a no menos de treinta y ocho años de servicio. Un tope de ocho años como el que impone la normativa impugnada queda totalmente desajustado y desprovisto de toda razonabilidad y proporcionalidad. La reducción del tope de auxilio de cesantía de manera abrupta podría tener efectos desfavorables en la gestión de los servicios públicos, porque desincentiva la permanencia del funcionario en la Administración Pública, cuya continuidad facilita la acumulación de experiencia, siendo que ese nuevo tope, deja en una situación de discriminación a los sindicatos frente a las asociaciones solidaristas porque mientras que a las convenciones colectivas se les impone un tope de ocho años, los aportes patronales correspondientes a los trabajadores afiliados a las asociaciones solidaristas, no tienen ningún límite o tope; y a su vez, quebrantan el principio de autonomía y negociación colectiva así como el principio de irretroactividad de la ley.

En cuanto al art. 50 y el Transitorio XXXI impugnados, la nueva regla establecida para el pago del incentivo de anualidad, no debe aplicar para los servidores públicos que estaban laborando a la fecha de vigencia de la ley n.º9635 y, por lo tanto, no se podría sostener que las anualidades que los servidores tenían reconocidas y acumuladas a la fecha que entró a regir la ley, puedan someterse a las nuevas reglas, de modo que una interpretación de esta especie sería inconstitucional ya que viola el principio de irretroactividad de la ley en perjuicio de derechos adquiridos y situaciones jurídicas consolidadas de aquellos servidores públicos, en menoscabo de las anualidades acumuladas a la fecha de vigencia.

El Transitorio XXXI quebranta el principio de necesidad, proporcionalidad y razonabilidad, pues viene a transformar el parámetro de cálculo de la anualidad, de un factor porcentual a un monto nominal o absoluto, que se mantendría invariable, es decir, se congela ad perpetuam el importe de anualidad, lo que implicará que su valor real se deteriore progresivamente a expensas de la inflación, deteriorando la situación económica del país.

Con respecto al art. 54 impugnado, no se estipuló ninguna disposición transitoria, por lo que, este trato diferenciado, permite sostener que la conversión en la norma de calcular los incentivos, no aplica para los servidores que estaban prestando sus servicios cuando se promulgó dicha ley, de modo que, pretender interpretarla de otra manera sería totalmente inconstitucional porque se estarían quebrantando las situaciones jurídicas consolidadas de las personas que ya adquirieron derechos a tenor de la normativa que reguló aquellos incentivos o complementos salariales, sea que esa normativa corresponda a una ley, convención colectiva o cualquier otra fuente normativa del ordenamiento jurídico. Esta norma tendría un efecto devastador en el nivel de los salarios de los servidores públicos cuyos incentivos o compensaciones salariales se mantendrían congelados.

En relación con el art. 55 impugnado, argumenta que se determinó que no era inconstitucional siempre que se entienda como la Sala Constitucional lo interpretó, y el art. 56 impugnado, no es por sí mismo inconstitucional porque puede interpretarse que constituye una especie de cláusula general de salvaguarda de los derechos adquiridos y situaciones jurídicas consolidadas de los servidores públicos, cuyo alcance permea todas las disposiciones que contiene el Título Tercero y los correspondientes transitorios de la ley n.º9635.

El art. 57 inciso l) desnaturaliza la anualidad cuyo objetivo es remunerar un período anual de labores de modo que su reconocimiento en junio de cada año, carece de toda lógica, de proporcionalidad, y elimina el reconocimiento del tiempo laborado en el sector público, a contrapelo del principio de patrono público único.

Concluye que en relación con el Transitorio XXXI, el segundo párrafo de éste, viola el principio de negociación colectiva porque impone la obligación de que las convenciones se sometan no sólo a disposiciones de esta ley, sino además, a cualquier otra reglamentación del Poder Ejecutivo. Finaliza solicitando que se declare con lugar la acción planteada 15.- Mediante resolución de las 09:54 hrs. de 25 de abril de 2019 la Presidencia de la Sala Constitucional realizó dos prevenciones:

“De previo a resolver las solicitudes de coadyuvancia, se previene al gestionante Marvin Atencio Delgado, cédula número 6-0178-0481, en su condición de Secretario General del Sindicato de Profesionales en Ciencias Médicas de la Caja Costarricense de Seguro Social e Instituciones Afines (SIPROCIMECA), que deberá aportar la personería jurídica vigente del sindicato que representa, donde se acredite la condición que aduce ostentar con respecto a esa entidad. Asimismo, se previene a Álvaro Adrián Madrigal Mora, cédula de identidad número 1-0675-0987, en su condición de Secretario General del Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN), que deberá aportar nuevamente el escrito de interposición de su coadyuvancia, toda vez que el documento digital que consta en el expediente se encuentra incompleto (falta el folio 58)”.

16.- Por resolución de las 13:10 hrs. de 2 de mayo de 2019 la Presidencia de la Sala realizó la siguiente prevención:

“De previo a resolver la solicitud de coadyuvancia, se previene al gestionante Juan Carlos Chaves Araya, cédula de identidad n° 107210335, en su condición de Secretario General del Sindicato de Trabajadores del Banco Popular y de Desarrollo Comunal (SIBANPO), que deberá aportar la personería jurídica vigente del sindicato que representa, donde se acredite la condición que aduce ostentar con respecto a esa entidad”.

17.- Por resolución de las 09:29 hrs. de 8 de mayo de 2019, la Presidencia de la Sala resolvió lo siguiente:

se tienen como coadyuvantes pasivos a los señores Enrique Egloff Gerli en su condición de presidente de la Asociación Cámara de Industrias de Costa Rica y a Álvaro Sáenz Saborío en su calidad de apoderado especial de la Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado, lo anterior porque su interés es que se declare sin lugar esta acción de inconstitucionalidad; a los señores Juan Carlos Chaves Araya en su condición de secretario general de SIBANPO, Miguel Ernesto Carranza Díaz como funcionario público, Marvin Atencio Delgado en su calidad de secretario general del SIPROCIMECA, Álvaro Adrián Madrigal Mora como secretario general de SITUN, Róger Muñoz Mata en su condición de secretario general de UNEBANCO, José Luis Soto Rodríguez en su calidad de secretario general de UPINS y Luis Gerardo Chavarría Vega como secretario general de UNDECA, se les tiene como coadyuvantes activos, pues su interés es que se declare con lugar esta acción; se tuvo por contestada la audiencia conferida a la PGR; y se turna la acción al magistrado ponente a quien por turno corresponde su estudio de fondo.

18.- El 22 de marzo de 2019 se interpuso la acción de inconstitucionalidad n.°19-004931-0007-CO por parte del señor ALBINO VARGAS BARRANTES, en su condición de SECRETARIO GENERAL y REPRESENTANTE JUDICIAL Y EXTRAJUDICIAL de la ASOCIACIÓN NACIONAL DE EMPLEADOS PÚBLICOS Y PRIVADOS (ANEP). Los alegatos fueron los siguientes:

“1.- Artículo 26 adicionado a la Ley No. 2166. Lesiona el principio de autonomía municipal y los artículos 11, 169, 170 y 188 constitucionales. Esta norma nace con la idea de amortiguar el gasto público, sustentada en la crisis del Gobierno, y a pesar de tratarse de una situación de Gobierno Central se incluyan dentro de su aplicación a las instituciones descentralizadas y las autónomas en general, como es el caso de las municipalidades en los alcances de esta Ley, es violatorio de los artículos 11, 169, 170 y 188 de la Constitución Política sobre su autonomía. La norma impugnada, violenta la autonomía normativa, administrativa y tributaria. Adicionalmente, con el artículo 26 impugnado se le está dando al Poder Ejecutivo potestad de dirección y administración sobre las instituciones descentralizadas y autónomas, que por disposiciones constitucionales le están limitadas.

2. Artículo 28, párrafos 2° y 4°, así como el 6° del Reglamento No. 41564-MIDEPLAN-H, señala que lesiona los principios de autonomía, seguridad jurídica, razonabilidad y proporcionalidad, progresividad de derechos y autonomía de la voluntad, así como el contenido del artículo 28 constitucional. La norma impugnada resulta inconstitucional en la medida en que impone a las instituciones públicas en general y principalmente a las autónomas y descentralizadas, una obligación de suscribir contratos de dedicación por un tiempo determinado en esta Ley, violentando la autonomía de las instituciones de decidir en qué términos según sus intereses y condiciones particulares, por cuanto tiempo (duración del contrato) podrán firmar este tipo de contratos con sus colaboradores. El establecer en este articulo la obligación de firmar contratos de dedicación exclusiva en el rango temporal señalado (de uno a cinco años como máximo) imposibilita, además, que por medio de normas específicas como negociaciones colectivas o reglamentos internos de trabajo, se puedan establecer normas sobre el particular, más beneficiosas para el trabajador o más acordes a las necesidades institucionales, lo que lesiona los principios de progresividad de los derechos laborales, y el principio protector del derecho laboral. En relación con el principio de progresividad, señala que es un principio interpretativo según el cual los derechos no pueden disminuir, por lo cual, al solo poder aumentar, progresan gradualmente. En relación con el párrafo 4° de la norma, tiene vicios de inconstitucionalidad en la medida en que violenta el principio de seguridad jurídica, al establecerse de manera ambigua, la prohibición expresa para los funcionarios que sin tener un contrato de dedicación exclusiva ni recibir contraprestación económica por ello, deben abstenerse de participar en actividades que comprometan su imparcialidad o favorezcan el interés privado sobre el público.

3.- Artículo 30 y el artículo 7° del Reglamento No. 41564- MIDEPLAN-H, aduce que violenta los principios de seguridad jurídica, razonabilidad, principio protector y no regresividad de los derechos laborales, así como el artículo 34 constitucional. Ambas normas contienen vicios de inconstitucionalidad en la medida en que suponen un retroceso de derechos y garantías para la parte más vulnerable de la relación laboral, que es el trabajador. El hecho de que por medio de estas disposiciones normativas se le genere una situación de incerteza jurídica a los funcionarios a quienes no se les haya prorrogado sus contratos, inclusive aquellos contratos que fueron suscritos antes de la entrada en vigencia de la Ley 9635, y al prohibir la prórroga tácita se crea una situación de desventaja y de incerteza, violatoria del principio protector.

4.- Artículo 31, inciso 1), sostiene que lesionan los principios de seguridad jurídica e igualdad y el artículo 33 constitucional. La norma no incluye dentro de los puestos que podrían estar sujetos al pago del sobresueldo de dedicación exclusiva y prohibición, todas las modalidades posibles de contratación dentro de la Administración Pública. La disposición, en la medida en que establece un numerus clausus de las personas que puedan estar sujetas al pago de la dedicación exclusiva y de prohibición dentro de la Administración Pública, genera una clara desigualdad y una situación de inseguridad jurídica, en relación con otros funcionarios, cuyas categorías no están contempladas.

5.- Artículos 32 y 33 adicionados a la Ley No. 2166, violenta los principios de seguridad jurídica, igualdad, razonabilidad y proporcionalidad e interdicción de la arbitrariedad y el artículo 33 constitucional. Establecer limitaciones como las señaladas en los artículos 32 y 33, crea una clara situación de desigualdad entre los funcionarios que tiene un contrato de dedicación exclusiva o prohibición y por ende se les paga el rubro correspondiente, frente a los funcionarios que no tienen este incentivo salarial, y aun así el Estado les prohíbe el ejercicio de su profesión, según las normas citadas, lo cual es todas luces inconstitucionales.

6.- Artículos 35 y 36 adicionados a la Ley 2166, violentan los principios progresividad de los derechos, de igualdad, eficiencia y eficacia, razonabilidad, proporcionalidad y los artículos 7, 33, 50, 56, 57 constitucionales. Los nuevos porcentajes de reconocimiento de sobresueldos de dedicación exclusiva y prohibición en condiciones menos beneficiosas, lesionan el principio de progresividad de los derechos, señalado anteriormente. La regulación aprobada desmejora las condiciones laborales dentro del sector público, justificado en la mala situación fiscal del país, la cual no puede ser permanente. Sin embargo, las reformas aprobadas no preven que la situación de los trabajadores cambie, si la situación económica del país se reestablece, por lo que aquello se transforma en una sanción permanente. Las nuevas reglas de compensación para los funcionarios públicos, lesionan los principios de progresividad de los derechos y de eficiencia y eficacia en la Administración Pública. Esto va a generar, a corto plazo, una fuga de profesionales con experiencia, al no haber condiciones salariales atractivas que los mantenga dentro del sistema. Esto, abonado al congelamiento de otros sobresueldos como la anualidades y demás incentivos, tendrá un impacto directo sobre la eficiencia y eficacia de la función que realiza la Administración. El rebajo practicado a los sobresueldos de dedicación exclusiva y prohibición, es irracional y carece de un estudio técnico que pueda respaldar ese menoscabo en las condiciones laborales, sin que exista certeza de que sea el causante del problema fiscal del país, cuando se ha señalado que las causas del déficit fiscal se derivan de problemas más complejos como lo son la evasión y elución fiscal. En un futuro próximo, habrán funcionarios realizando funciones iguales o similares, pero percibiendo un ingreso totalmente diferente. El conjunto de normas acusadas en este apartado, deja claro que la finalidad de la ley de "estandarizar y unificar" los regímenes de empleo público es falsa, y que el Estado está creando diferencias groseras e injustificadas entre funcionarios de la misma categoría, promoviendo la violación del principio constitucional de igualdad.

7.- Artículo 39 adicionado a la Ley No. 2166, señala que lesiona los principios de negociación colectiva, racionalidad, proporcionalidad, progresividad de los derechos y condición más beneficiosa, así como los artículos 33 y 62 constitucionales. Esta disposición cierra la posibilidad para el sector público de suscribir convenciones colectivas, que tienen fuerza de ley entre las partes, lo que lesiona el artículo 62 constitucional. La norma impugnada no solo lesiona el derecho a la negociación colectiva, sino también los derechos adquiridos, las situaciones jurídicas consolidadas de los funcionarios que para el momento en que la norma entró en vigencia (3 de diciembre de 2018), ya habían adquirido condiciones laborales que no pueden ser afectadas. Por otra parte, esta disposición deja de lado que existen convenciones colectivas y reglamento o estatutos que ya contienen disposiciones sobre el pago de incentivos o compensaciones en forma porcentual. La negociación colectiva es un derecho fundamental contenido en el artículo 62 de la Constitución Política, de modo que la posibilidad de negociar mejores condiciones de trabajo entre las partes que suscriben una convención colectiva es un derecho fundamental que debe ser tutelado. Prohibir de manera expresa la posibilidad de negociar un tope de auxilio de cesantía mayor, a través de un acuerdo de partes, limita no solo el derecho de negociación colectiva, sino también la posibilidad de obtener mejores condiciones de trabajo para los funcionarios, lo cual lo vacía de contenido. El artículo 7 de la Constitución Política establece que los tratados y convenios internacionales tienen autoridad superior a las leyes. Por su parte, la libertad sindical es un derecho contenido en el artículo 16 de la Convención Americana, en el artículo 8 del Protocolo a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales, Protocolo de San Salvador; también en el artículo 23 de la Declaración Universal de Derechos Humanos, y el artículo 22 de la Declaración Americana sobre los Derechos y Deberes del hombre y, por tanto, debe ser observado en Costa Rica. El convenio 87 de la Organización Internacional del Trabajo, denominado “Convenio sobre la libertad sindical y la protección del derecho de sindicación”, debidamente ratificado por Costa Rica, establece la obligación del Estado costarricense de poner en práctica las disposiciones de dicho convenio. El artículo 39 impugnado, lesiona el artículo 4 de ese convenio, que ordena que el Estado debe procurar, fomentar la negociación colectiva y no limitarla o entorpecerla y reconoce que la convención colectiva es el mecanismo por excelencia para que por medio de las organizaciones sociales se mejoren las condiciones de empleo. El hecho de que la situación económica del país sea difícil, no convierten las negociaciones colectivas en inconstitucionales.

8.- Artículo 40 y el artículo 16 del Decreto Ejecutivo No. 41564-MIDEPLAN-H, estima que lesiona la autonomía municipal, así como los principios de eficiencia y eficacia, la seguridad jurídica, el derecho constitucional a la negociación colectiva, la progresividad de los derechos laborales y el principio protector del derecho laboral. La norma constituye una injerencia del Estado, inconstitucional, por afectar las posibilidades de autogobierno que posee el régimen Municipal. Se trata de una norma de carácter prohibitivo, que elimina a los gobiernos locales la posibilidad de determinar sus propias necesidades y posibilidades en materia salarial y establecer incentivos para que el personal de trabajo se mantenga en sus labores. Es violatorio del principio de progresividad de los derechos laborales, pues provoca regresión en algunas instituciones que ya pagan el incentivo del quinquenio, sea por la vía legal (artículo 90, inciso c) de la Ley General de Policía, artículo 27 de la Ley de Personal de la Asamblea Legislativa) o reglamentaria (artículos 99 y 100 del Reglamento Autónomo del Instituto Costarricense de Turismo) o por la vía de la negociación colectiva (Junta de Protección Social de San José).

9.- Artículo 46 adicionado a la Ley No. 2166 y el artículo 22 del Decreto Ejecutivo No. 41564- MIDEPLAN-H, lesionan la autonomía municipal y la de los entes descentralizados en general, así como los principios constitucionales de eficiencia, eficacia, y seguridad jurídica. La inconstitucionalidad de la norma es evidente, en tanto, en relación con el artículo 26 del Título III de la Ley No. 9635, le otorga potestades a la Administración Central, por medio del Ministerio de Planificación de “definir los lineamientos, y las normativas administrativas que tiendan a la unificación, simplificación y coherencia del empleo en el sector público, velando que instituciones del sector público respondan adecuadamente a los objetivos, las metas y las acciones definidas”. Esto constituye una intromisión clarísima en las potestades de administración, políticas y de organización de los entes descentralizados, en violación directa de los tres grados de autonomía que la Constitución y las leyes de creación les han otorgado a cada una de esas administraciones, despojándolas de su potestad de autoadministración. Cada uno de los entes descentralizados, es una persona jurídica distinta, con un fin legal específico y que atiende necesidades concretas establecidas por ley. Para ello se les asigna un presupuesto, que en muchos casos es propio pues proviene de impuestos creados a su favor o de un giro comercial. Por otra parte, el Ministerio de Planificación es ajeno a la realidad de cada institución y la comunidad o interés público que atiende, pese a lo cual se le otorga potestad para decidir en múltiples aspectos del régimen de empleo público. También se produce una violación al principio de seguridad jurídica, pues la dualidad en la regulación (régimen descentralizado y potestades regulatorias del Poder Ejecutivo), causa un estado de inseguridad para los entes y sus trabajadores.

10.- Artículo 47 adicionado a la Ley No. 2166, lesiona la autonomía municipal y de los entes descentralizados, así como los principios de eficiencia, eficacia, seguridad jurídica, igualdad e interdicción de la arbitrariedad. La norma tiene los mismos vicios de constitucionalidad indicados para el artículo 46, pues ordena a los entes descentralizados aplicar determinadas metodologías de evaluación, interfiriendo la Administración Central en las potestades administrativas otorgadas constitucionalmente a cada una de las instituciones, en violación clara de su autonomía administrativa. El término “salvedades respectivas” es ambiguo; ni la ley ni el reglamento mencionan cuáles son. La ambigüedad de la norma no es coincidencia sino que atiende al propósito del Poder Ejecutivo de derogar singularmente una norma a favor de quien quiera o la institución que desee, adquiriendo poder sobre las instituciones descentralizadas. Existe también violación al principio de igualdad y al de Interdicción de la Arbitrariedad, en tanto la Administración puede desaplicar sus propios métodos de evaluación cuando así lo desee, sin criterios objetivos establecidos en la ley. La violación al principio de igualdad deriva del párrafo 1° de la norma que establece “indicadores cuantitativos de cumplimiento de metas individuales de productos y servicios prestados”. Los servicios prestados por la Administración Pública no se equiparan nunca, al tipo de servicios prestados en el sector privado, cómo para establecer métodos de evaluación de carácter cuantitativos.

11.- Artículo 48 adicionado a la Ley No. 2166, señala que también viola los principios constitucionales de autonomía municipal y de los entes descentralizados, así como los de seguridad jurídica, igualdad, razonabilidad, proporcionalidad e interdicción de la arbitrariedad. Al igual que con los artículos 46, 37 y 48, este artículo constituye una intromisión de la Administración Central en las competencias administrativas de los entes descentralizados. La norma, vista a la luz de los artículos referidos, contiene disposiciones arbitrarias. Crea una nueva obligación para los funcionarios públicos, de cualquier nivel, en cuanto a llevar la actualización y mantenimiento al día de la información para su evaluación de desempeño, en un sistema informático, so pena de imputarle la comisión de una falta grave. Se trata de una nueva obligación que se traduce en más trabajo y menos tiempo para atender las obligaciones cotidianas; tampoco aclara a cuáles trabajadores se refiere. Por otra parte, establece que un 80% de la evaluación será medición de metas y un 20% “responsabilidad de la jefatura”. Así, se otorga un quinto del porcentaje total de la evaluación del trabajador a las consideraciones subjetivas de cada jefatura, entendiendo que ese 20% es la diferencia entre la obtención o no de la anualidad de los funcionarios, otorgando poder a las jefaturas de dejar a sus subalternos, sin ningún criterio objetivo visible, sin los aumentos por tiempo servido por tantos períodos como ellos quieran.

12.- Artículo 50 adicionado a la Ley No. 2166 y el artículo 1°, inciso a) de su Reglamento, lesionan los principios constitucionales de la autonomía municipal y de los entes descentralizados y, con ello, el principio de legalidad. Asimismo, los principios de progresividad de los derechos laborales, irretroactividad de la ley, razonabilidad y proporcionalidad, interdicción de la arbitrariedad, y los principios tributarios de no confiscatoriedad, capacidad económica y progresividad. El Estado pretende inutilizar en el tiempo, el monto que se paga por concepto de anualidad y vaciarlo de contenido, eliminando el derecho a esta retribución que ayuda a los trabajadores a que sus salarios mantengan su poder adquisitivo frente al costo de la vida. La norma no indica cuál es el “monto nominal” designado y deja esa tarea para que el Ejecutivo lo defina vía reglamento. Esto violenta el principio de interdicción de la arbitrariedad, al eliminar de las leyes los montos porcentuales incluidos en la Ley de Salarios de la Administración Pública y disponer que se pasa a un monto nominal no determinado, con lo cual se otorga una discrecionalidad abusiva e indebida a la Administración Central. Esta, también definirá el mismo monto a las Municipalidades y entes descentralizados, debido a su relación con el artículo 26 del Título III, lo cual lesiona la autonomía constitucional dispuesta en favor de tales entes. Adicionalmente, el legislador dispuso aumentar el conjunto de bienes y servicios gravados con el impuesto al valor agregado (IVA), mientras que los aumentos por tiempo servido, que impedían la pérdida de poder adquisitivo, se fija en un monto nominal indeterminado que sólo perderá valor en el tiempo. Esto se traduce en la práctica en una pérdida de valor adquisitivo por parte de los trabajadores que les impedirá consumir muchos de los bienes gravados con el IVA y mantener su estilo de vida. Las situaciones jurídicas consolidadas de los funcionarios y funcionarias públicas que ingresaron a laborar antes de la entrada en vigencia de la Ley No. 9635, está siendo violentada por las normas que reformaron el artículo 12 de la Ley de Salarios de la Administración Pública y los Transitorios XXVII y XXXI) en el tanto establecen nuevas formas de pago, montos fijos de anualidades para todos los funcionarios públicos, aún para los que por normas especiales (convenciones colectivas, reglamentos internos de trabajo, reglamento autónomos de trabajo de servicio, acuerdos de Concejos), etc. tengan otra modalidad de pago de pluses, incentivos, anualidades, quinquenios. Si bien en el Transitorio 56 de la Ley se dispone que no podrán aplicarse de manera retroactiva en perjuicio de los trabajadores las normas promulgadas, se ha hecho un análisis inadecuado de lo que se debe entender por derecho adquirido y situaciones jurídicas consolidadas.

13.- Artículo 51 adicionado a la Ley No. 2166, por violación a los principios constitucionales razonabilidad y proporcionalidad y a los derechos a la negociación colectiva, libertad sindical e inderogabilidad singular de los reglamentos. Manifiesta que el propósito de la norma es desincentivar la negociación colectiva, prohibiendo que los funcionarios públicos que negocien convenciones colectivas, se beneficien de la misma. Esto constituye una violación del artículo 4 del Convenio 98 de la Organización Internacional del Trabajo.

14.- Artículos 52 adicionado a la Ley No. 2166 y 21 del Decreto Ejecutivo No. 41564-MIDEPLAN-H. Manifiesta que lesionan la autonomía municipal y de los entes descentralizados, y los principios de legalidad, razonabilidad, proporcionalidad, progresividad de los derechos laborales así como el derecho constitucional de negociación colectiva. Señala que la norma lesiona la autonomía administrativa de los entes descentralizados en tanto se les ordena como regular su sistema remunerativo. Si bien la ley prevé que no se varíe el salario, ordena a las instituciones como administrar los salarios, con lo que cometen un ius variandi abusivo. Existen trabajadores que tienen planificadas sus obligaciones de acuerdo a la periodicidad bisemanal, pues así han recibido el salario durante años. El solo cambio de la modalidad de pago puede suponer un perjuicio para estos funcionarios. El que el Estado, por medio del legislador, les ordene a estas instituciones adecuarse al presente artículo y su transitorio, violenta de forma directa el derecho de la Constitución y el convencional, al desconocer estos derechos de rango superior al legal, causando un retroceso en los derechos laborales y, por ende, violentando por igual el principio de progresividad de los mismos. La norma no es razonable ni proporcionada, pues de acuerdo al Transitorio XXIX no debe haber disminución o aumento; en ese sentido, no hay razón algún para afectar la autonomía de los entes. Al no existir un fin palpable, la norma carece de toda razón y proporción.

15.- Artículos 53 adicionado a la Ley No. 2166 y 15 del Decreto Ejecutivo No. 41564-MIDEPLAN-H, por violación a los principios constitucionales de autonomía de los entes descentralizados, derecho a la negociación colectiva, principio de igualdad, igualdad salarial, seguridad jurídica e idoneidad del funcionario público. El artículo 192 de la Constitución Política disponen que los servidores públicos serán nombrados a base de idoneidad comprobada. La norma impugnada supone un retroceso en relación con el propósito de contratar los funcionarios idóneos, al disponer que solo se reconocerán puntos de carrera profesional cuando ellos cubran las capacitaciones que reciban. Esto constituye un desincentivo serio para los profesionales del Estado por mejorar sus condiciones académicas y de capacitación. Adicionalmente, la norma provoca la aparición de dos tipos de funcionarios: unos que pueden invertir en su capacitación y otros que dependen de que la Administración invierta en eso. Ambos realizarían las mismas funciones, pero el supuesto de la capacitación provocaría que perciban ingresos diferentes, lo que lesiona el principio de igualdad. El incentivo por capacitación podría estar dispuesto en una convención colectiva, en cuyo caso, la norma también lesionaría el derecho de negociación colectiva. Finalmente, la redacción de la norma provoca inseguridad jurídica pues su redacción es ambigua y no permite determinar con certeza cuál fue el espíritu del legislador: si reconocer hasta cinco años de capacitación o pagar solamente durante cinco años.

16.- Artículos 54 adicionado a la Ley No. 2166 y 17 del Decreto Ejecutivo No. 41564-MIDEPLAN-H por violación a los principios constitucionales de autonomía municipal y de los entes descentralizados, principio de legalidad, progresividad de los derechos laborales, derecho de negociación colectiva, razonabilidad y proporcionalidad, interdicción de la arbitrariedad, principios tributarios de no confiscatoriedad, capacidad económica y progresividad. Al igual que el artículo 50 impugnado, esta norma vacía de contenido a futuro cualquier incentivo existente dispuesto por norma legal, convencional o reglamentaria, al decretarla nominalmente, sujetándola a la pérdida del valor adquisitivo de la moneda. Se trata de una pésima técnica legislativa que lesiona la progresividad de los derechos y la autonomía de los entes descentralizados y que incide directamente en el poder adquisitivo de los funcionarios públicos, cuyo salario se vería confiscado. Es clara la relación irrazonable y desproporcionada de lo que busca el legislador: mayores impuestos al consumo y disminución de derechos laborales. El perjuicio no es solo para la clase profesional, sino también para los peones municipales, los policías administrativos, etc. El legislador pretende refinanciar el Estado a costa de los derechos de los costarricenses, sobre todo, de los funcionarios públicos, independientemente de su nivel salarial.

17.- Artículo 55 adicionado a la Ley No. 2166 por violación a los principios constitucionales de reserva de ley, autonomía municipal y de los entes descentralizados, principio de legalidad, progresividad de los derechos laborales y derecho de negociación colectiva. Es clara la intención del legislador que busca que no exista otra vía para la creación de incentivos que no sea la legislativa. Esto lesiona el derecho de negociación colectiva y violenta la autonomía municipal y de los entes descentralizados, cuyas potestades derivan de la Constitución Política y las respectivas leyes. La potestad reglamentaria en materia de administración de que gozan los entes menores se ve socavada por una norma legal que pretende legislador en un campo ajeno. Por esto se lesiona el principio de legalidad.

18.- Artículo 57, incisos f), g), h), i), m), n), o) y p) del Título III de la Ley No. 9635. El inciso f), por violación al artículo 192 constitucional sobre la idoneidad e inamovilidad de los funcionarios públicos, así como la estabilidad laboral de los mismos. Los demás, por violación a los principios de igualdad, igualdad salarial y el inciso i) por violación a los principios de razonabilidad, proporcionalidad y seguridad jurídica. Sobre los incisos g), h), i), m), n), o) y p), ya se indicó que existe desigualdad evidente promovida por el legislador sin justificación alguna, al determinar que algunos funcionarios recibirán un porcentaje de pago de prohibición del 65% del salario base, mientras otros, en igualdad de condiciones con respecto al nivel académico y funciones, se les compensará solamente con un 30%. El inciso i) es una disposición ambigua, contraria al principio de seguridad jurídica pues reforma el artículo 5 de la Ley No. 5867, Ley de Compensación por Pago de Prohibición de 15 de diciembre de 1975. La norma reformada indica que la compensación se calculará sobre el salario más bajo indicado en la escala de sueldos de la Administración Pública que emite la Dirección General del Servicio Civil. La norma original disponía que tal compensación se calcularía sobre el salario de base correspondiente a cada institución. El objetivo de pagar los porcentajes de prohibición a los profesionales, utilizando el salario más bajo de la escala, violenta los principios de razonabilidad y proporcionalidad, en la medida que al profesional se le compensa la limitación de ejercer su profesión, con un monto que no corresponde a lo que dicho profesional podría obtener si no estuviera limitado legalmente. En cuanto al inciso f), reforma el párrafo 1° del artículo 47 de la Ley No. 1581, Estatuto de Servicio Civil de 30 de mayo de 1953. A través de la reforma, el legislador derogó la obligación estatal de indemnizar al trabajador incluido en el Estatuto del Servicio Civil. También derogó el artículo 37 de ese Estatuto al que se remitía por medio del artículo 58, inciso b) de la presente ley. Las normas derogadas tiene una razón de ser en tanto el constituyente consideró necesario el incluir el régimen de empleo público dentro del cuerpo normativo mayor para garantizar la idoneidad y la estabilidad. Con sustento en esta última, la indemnización dispuesta en el artículo 37 garantizaba que el jerarca administrativo no pudiera aplicar los casos de excepción (como lo es la reorganización), de forma indiscriminada, para despedir funcionarios. Las normas acusadas de inconstitucionales rompen con ese propósito, y equiparan al funcionario público sometido al régimen del servicio civil con cualquier trabajador privado. Esto es contrario a lo que pretendió el constituyente.

19.- Sobre los artículos 5 y 11 de la Ley No. 9635. Señala que lesionan el principio de autonomía, pues permiten al Poder Ejecutivo imponer políticas presupuestarias a todas las instituciones sin determinar el grado de independencia de cada una de ellas. En relación con el artículo 11, al disponer que las instituciones en general, deben determinar su gastos corriente, relacionándolo directamente con la deuda del Gobierno central y limitando el gasto corriente de todo el sector público, sin tomar en consideración la realidad de cada institución autónoma. Por su parte, el artículo 13, inciso c) restringe la forma en esas instituciones regulan los aumentos salariales, lo cual es una potestad establecida constitucionalmente a favor de ellas.

20.- Artículo 15 de la Ley No. 9635. Lesiona los artículos 7, 11, 50 y 74 de la Constitución Política y el principio de progresividad de los derechos fundamentales. La Sala Constitucional ha reconocido la obligatoriedad que tiene el Estado de respetar los montos de los destinos específicos establecidos por norma legal, máximo cuando los mismos tiene como objetivo el financiamiento de programas de bien social, atención a poblaciones vulnerables o el cumplimiento de derechos fundamentales en general. Darle potestad al Poder Ejecutivo de varias esos montos o destinos es una clara desviación de poder y una seria violación a derechos fundamentales que el Estado debe garantizar. La omisión del Ministerio de Hacienda de girar fondos especiales de manera tan abierta, sin que la norma haga ninguna salvedad, es irracional y vulnera el Derecho de la Constitución. No es posible que por la crisis fiscal, el Estado deje de atender sus obligaciones.

21.- Artículos 17 de la Ley No. 9635 lesiona los principios de autonomía y razonabilidad, así como los artículos 11, 169, 179 y 188 constitucionales. Esta norma es violatoria de la independencia de las instituciones autónomas del cumplimientos de sus fines; no es válido que se les ordene que deben sufragar la deuda del Gobierno Central con recursos que le son propios y que están destinados a cumplir fines específicos.

22.- Artículos 23, 24 y 25 de la Ley No. 9635 violan el principio de autonomía y de progesividad de los derechos humanos, según el cual “…a medida que mejora el nivel de desarrollo de un Estado, mejore el nivel de compromiso para garantizar los derechos…”. El artículo 23, fuente de inconstitucionalidad invocada para las tres normas, contiene una lista de criterios para la asignación presupuestaria del Estado costarricense. La asignación presupuestaria, coloca a la protección de derechos y a la progresividad de los mismos en la novena posición, por detrás, incluso, de la disponibilidad de recursos financieros, el cumplimiento de metas institucionales y las prioridades del gobierno de turno. Es preciso analizar el peligro que la jerarquización de los criterios supone para la población titular de esos derechos humanos que, de acuerdo a la lista, se financiarían después de otros compromisos. El orden de las prioridades estatales plasmado en esta ley, le permitirá a cualquier institución de derecho público invocar la falta de presupuesto con el fin de no financiar los derechos humanos que el Estado está obligado a proteger, o bien al Estado establecer los presupuestos desatendiendo o minimizando el cumplimiento de los derechos humanos. Los artículos 24 y 25 están íntimamente relacionados con el 23, en el entendido de que la Dirección Nacional de Presupuesto deberá usar aquellos criterios para presupuestar las transferencias a las instituciones del Estado. (…) - Para efectos de legitimación, señala que deriva del artículo 75, párrafo 2° de la Ley la Jurisdicción Constitucional. La ley que impugnan afecta los intereses de la colectividad en su conjunto, tanto en su ámbito individual como colectivo, pues contiene normas de aplicación general. También tiene normas aplicables a un grupo con un interés social y común; específicamente, el Título III de la Ley, afecta a los funcionarios públicos de este país y a sus familias, con lo cual se afectan sus intereses difusos. Siendo los funcionarios públicos un grupo más o menos determinado, pero que no les une un vínculo jurídico común a todos ellos con el accionante, estima que se están ante la defensa de intereses difusos y no necesariamente colectivos. Además, la presente acción se dirige también hacia normas determinadas del Titulo I y Título IV del mismo cuerpo de normas, en que se afecta a una colectividad aún mayor, como son en su caso los derechos constitucionales de los contribuyentes, los administrados del régimen municipal y a los mismos gobiernos locales desde su autonomía concedida en la Constitución Política, así como al conjunto de funcionarios públicos que laboran en diversas instituciones públicas que son acreedores de cierto nivel de autonomía, así como del ejercicio de derechos fundamentales y constitucionales que como se dirá en adelante se ven amenazados con la aprobación de una seria de normas de la Ley de Fortalecimiento de las Finanzas Públicas. Manifiesta que su representada tiene entre sus objetivos, participar en todas aquellas decisiones que afecten los intereses de los trabajadores de los servicios públicos y de la empresa privada. Asimismo, intervenir y solidarizarse con todos aquellos problemas que afecten nacional o internacionalmente, a los trabajadores en su condición de clase. La Asociación Nacional de Empleados Públicos y Privados se compromete en todo el espectro de la realidad nacional a generar las discusiones y luchas por una sociedad más justa, igualitaria, participativa y solidaria, y en razón de ello estiman estar legitimados para invocar las normas constitucionales y legales pertinentes en razón de conseguir dichos objetivos. Las normas que se acusan de inconstitucionales, son de carácter general y afectan, no solo a las personas afiliadas a su representada, sino a todo funcionario público, afiliado o no, que se ve sometido a una ley que violenta las normas y principios constitucionales y los derechos en abstracto de los mismos. Algunas de estas normas lesionan el Estado Social de Derecho, lo cual afecta una colectividad aún mayor. Consideran que están en su derecho y su deber de realizar las acciones respectivas para defender esos intereses difusos que debe proteger la Jurisdicción Constitucional. Otro aspecto que impugnan a través de esta acción, es la violación a los dos grados de autonomía que la Constitución Política otorga a los gobiernos locales. Todos los habitantes del país, incluidos sus afiliados, viven en alguno de los 82 cantones que forman el país, están sujetos a su normativa y a las decisiones de sus Concejos. Su organización tiene cerca de 3.645 funcionarios municipales afiliados, los cuales se están viendo afectados por las disposiciones sobre empleo público y afectación al régimen municipal en general, en conjunto con la ampliación del impuesto de ventas al impuesto del valor agregado, todo esto contenido en el artículado de la Ley No. 9635. Por otra parte, la organización que representa es suscriptora de varias convenciones colectivas en el sector público. Muchas de ellas se encuentran en entes descentralizados e instituciones autónomas. La aplicación del articulado específico de la Ley No. 9635 vacía de contenido las mismas, en violación de a la normativa constitucional, convencional y legal que protege el derecho de negociación colectiva. La normativa nacional e internacional señalada, otorga a los sindicatos titularidad para entablar negociaciones colectivas en nombre de los trabajadores. Esa legitimación debe trascender la defensa de los intereses de los trabajadores que se encuentran en supuestos reales o potenciales de negociación colectiva, que se puedan ver afectado por normativas irracionalmente restrictivas en detrimento de ese derecho. Por esto, desde el punto de vista de la defensa de los intereses difusos, consideran que el sindicato que representa, posee suficiente legitimación para accionar ante esta jurisdicción, por lo que no es necesario asunto previo que permita la interposición de la misma”.

19.- Mediante resolución de las 10:36 hrs. de 24 de mayo de 2019 la Presidencia de la Sala resolvió y aceptó una solicitud de inhibitoria del magistrado Fernando Cruz Castro planteada en la acción de inconstitucionalidad n.°19-004931-0007-CO.

20.- En resolución interlocutoria del Pleno de la Sala Constitucional n.º2019-010635 (Sala integrada por los magistrados Castillo V., Hernández L., Salazar A., Araya G., Esquivel R., Salas T., Fernández A.) de las 9:20 hrs. de 12 de junio de 2019, se ordenó acumular la acción de inconstitucionalidad n.º19-004931-0007-CO promovida por ALBINO VARGAS BARRANTES, en su condición de SECRETARIO GENERAL y REPRESENTANTE JUDICIAL Y EXTRAJUDICIAL de la ASOCIACIÓN NACIONAL DE EMPLEADOS PÚBLICOS Y PRIVADOS (ANEP) a la n.º19-002620-0007-CO que quedó como expediente principal y que se le tenga como una ampliación de ésta. Esto por la evidente conexidad que existe entre los reproches planteados en ambos procesos y a fin de evitar resoluciones contradictorias que pudieren afectar los derechos e intereses de las partes involucradas. En dicha resolución se desestimaron algunos agravios y se dispuso la admisión de la acción de inconstitucionalidad contra varios numerales de la Ley de Fortalecimiento de las Finanzas Públicas. El por tanto de la resolución dice lo siguiente:

“Se rechaza de plano esta acción en cuanto al artículo 26 de la Ley No. 2166 y los artículos 5, 11 y los Transitorios XXVII, XXXI y XXXVI de la Ley No. 9635.- Adicionalmente, se rechaza de plano la alegada violación al principio de autonomía en relación con los artículos 28, 40, 46, 47, 48, 50, 52, 53, 54, 55 de la Ley No. 2166, 17, 23, 24 y 25 de la Ley No. 9635 y artículos 1, inc 1°), 6, 15, 16, 17, 21 y 22 del Decreto Ejecutivo No. 41564-MIDEPLAN-H. Asimismo, se rechaza de plano la violación a los artículos 169, 170, 188 y 189 de la Constitución Política de los artículos 26 y 55 de la Ley No. 2166, artículos 5, 11 y 17 de la Ley No. 9635.

En cuanto a las demás disposiciones, acumúlese esta acción a la que bajo expediente No. 19-002620-0007-CO se tramita ante esta Sala y téngase como ampliación de la misma”.

En consecuencia, se tiene que mediante dicha sentencia se amplió el curso de la acción contra las siguientes disposiciones según el texto expreso de la resolución supra mencionada:

“Las normas objeto de impugnación y que resultan admisibles a tales efectos, son los artículos 28, párrafos 2 y 4, 30, 31 inc.1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 52, 53, 54, 55, 57 incisos f), g), h), i), m), n), o) y p), adicionados a la Ley No. 2166, el Título IV de la Ley de Fortalecimiento de las Finanzas Públicas No. 9635 de 5 diciembre de 2018, artículos 23, 24, 25 y los artículos 1, inciso a), 3, 4, 7, 9, 14, 15, 16, 17, 21 y 22 del Decreto Ejecutivo No. 41564-MIDEPLAN-H, estos últimos por conexidad”.

21.- Mediante resolución de las 15:14 hrs. de 27 de setiembre de 2019 se tuvo por ampliada esta acción de inconstitucionalidad n.°19-002620-0007, en los términos expuestos en la acción 19-004931-0007-CO a ella acumulada, en el sentido de que también se impugnan los arts. 28, 30, 31 inciso 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 incisos f), g), h), i), m), n), o) y p) de la ley n.°2166, arts. 15, 17, 23, 24, 25, del Título IV de la ley n.°9635 de 5 de diciembre de 2018 y los arts. 1, inciso a), 3, 6, 7, 15, 16, 17, 21 y 22 del decreto ejecutivo n.°41564-MIDEPLAN-H, por estimarlos contrarios a los principios de igualdad, seguridad jurídica, razonabilidad y proporcionalidad, progresividad de derechos y autonomía de la voluntad.

22.- En escrito presentado en la Secretaría de la Sala el 15 de octubre de 2019 se apersona Enrique Egloff Gerli en su condición de Presidente de la Asociación Cámara de Industrias de Costa Rica y manifiesta que se apersona para ser admitido como coadyuvante pasivo en la ampliación de esta acción de inconstitucionalidad que se tramitó originalmente mediante el expediente n.º 19-004931-0007-CO y que ha sido acumulada a este expediente (19-002620-0007-CO). El derecho a celebrar convenciones colectivas corresponde de manera exclusiva a los trabajadores amparados a un régimen de empleo privado y, en el caso de los empleados públicos, la celebración de tales convenciones es abiertamente incompatible con los principios jurídicos que informan al régimen de empleo público. Existe la posibilidad de suscribir convenciones colectivas y arreglos directos en los entes públicos con régimen privado de empleo, aunque tales negociaciones no pueden violar los límites legales y los impuestos por directrices gubernamentales. La Sala Constitucional ha señalado que es válido que los trabajadores que no participan de la gestión pública de la Administración puedan celebrar convenciones colectivas de trabajo de modo que los que tienen régimen de empleo de naturaleza laboral (no pública), como las Empresas del Estado, sí puedan negociar colectivamente de acuerdo con las disposiciones que informan el derecho colectivo de trabajo. Todas las normas pueden ser modificadas hacia el futuro por otra de igual o superior rango sin que ello implique violación del principio de irretroactividad y no se consideran situaciones jurídicas consolidadas ni derechos adquiridos, los que se derivan de convenciones colectivas, reglamentos o estatutos por cuanto se trata de normas relativas a situaciones objetivas y no a actos concretos que sí califican como situaciones jurídicas subjetivas. En consecuencia, ninguna de las normas impugnadas por supuesta violación al principio de irretroactividad de la ley está viciada de inconstitucionalidad porque lo que hizo el legislador fue modificar con efectos futuros, situaciones objetivas creadas por la legislación anterior. Si las convenciones colectivas están prohibidas en el sector público, debe concluirse que los servidores públicos no pueden obtener ningún derecho a su amparo porque sería ilícito y no puede tener la protección y el reconocimiento del Estado. Reitera que las normas impugnadas son constitucionalmente válidas, pues encuentran cobertura en el art. 191 de la Constitución Política que es aplicable a todos los órganos y entes del Estado. Finaliza solicitando que se declare sin lugar la acción de inconstitucionalidad.

23.- Mediante escrito aportado en la Secretaría de la Sala el 24 de octubre de 2019, Álvaro Madrigal Mora en su condición de secretario general del Sindicato de Trabajadores y Trabajadoras de la Universidad Nacional (SITUN), solicita que se tenga a su representado como coadyuvante activo en la acción de inconstitucionalidad n.º 19-004931-0007-CO mediante la cual se ha ampliado la presente que ahora figura como expediente principal. Su representada está legitimada para plantear esta gestión toda vez que agrupa los intereses colectivos y difusos de sus agremiados. La normativa impugnada en la acción n.º19-004931-0007-CO vulnera los principios de seguridad jurídica, razonabilidad, proporcionalidad, progresividad de derechos y autonomía de la voluntad. Si bien es cierto la economía del país debe reformarse, ello debe hacerse de manera racional y con justificaciones técnicas que lo respalden, en apego a la normativa que rige la materia y sin violar los derechos adquiridos de los funcionarios públicos. Las normas no tienen respaldo a pesar de que van en detrimento de la clase trabajadora, afectando el nivel de vida y dignidad laboral de las personas, contraviniendo además la libre negociación colectiva y el principio de reserva de ley en la creación de nuevas compensaciones salariales. Afirma que es inconstitucional que se obligue a las instituciones públicas a renegociar sus convenciones colectivas a la baja, lo que además viola el principio de progresividad de los derechos fundamentales. Estima que lo alegado por el representante legal de ANEP en la acción n.º 19-004931-0007-CO tiene asidero legal al lesionar los principios indicados, por lo que pide que se declare la inconstitucionalidad en los términos en que se ha solicitado.

24.- Se apersona Julio Alberto Jurado Fernández en su condición de Procurador General de la República mediante escrito presentado en la Secretaría de la Sala el 24 de octubre de 2019, a fin de rendir informe sobre la ampliación hecha a esta acción de inconstitucionalidad por parte de la ANEP.

En cuanto al reclamo sobre el régimen de la dedicación exclusiva En Costa Rica, la “dedicación exclusiva” es convencional, es decir, producto del acuerdo formal entre la entidad patronal (Administración Pública) y el servidor público profesional en el sentido de que éste último se dedicará de forma exclusiva al ejercicio de las funciones del cargo público que ocupa, renunciando al ejercicio privado de su profesión y, por el cual, el primero le retribuirá económicamente a modo de plus ‒no como componente salarial permanente‒ un porcentaje adicional específico calculado sobre el salario base de aquél puesto específico. Agrega que a nivel judicial se ha reconocido que la suscripción o no de ese contrato de dedicación exclusiva por parte de las administraciones públicas, involucra una innegable potestad facultativa, es decir, una liberalidad en el sentido de que la base o no de su otorgamiento, resulta abiertamente discrecional. Antes de la reforma introducida por la Ley n.°9635, ese convenio inter partes se regulaba por disposiciones emitidas por la DGSC en caso de las personas adscritas a ese régimen y debía ser refrendado por los Departamentos de Recursos Humanos de cada institución, surtiendo efectos durante el plazo convenido y una vez fenecido, tal convenio era ineficaz sin que se pueda afirmar que existiera un derecho subjetivo a favor del servidor para la prórroga del contrato, ni una correlativa obligación de la Administración de suscribir uno nuevo, pues, como se dijo, ese convenio involucra potestades discrecionales de la Administración por lo que no es cierto, como se afirma en la acción, que exista una situación consolidada para la extensión de ese vínculo contractual y mucho menos que ello se derive del Derecho de la Constitución. Bajo este contexto, muchos de los vicios acusados carecerían de relevancia constitucional, pues el régimen de dedicación exclusiva es materia de regulación legal. La regulación del régimen de “dedicación exclusiva” instaurado con la ley n.°9635 y en especial con las reformas que hizo a la LSAP, forma parte del régimen retributivo propio del “estatuto” funcionarial sobre el cual existe una expresa autorización constitucional para que el legislador, en ejercicio de su potestad inagotable, configure y regule las condiciones de empleo que deben imperar en todo el sector público, especialmente referido a su estrato profesional. Con la nueva regulación legal, se establecieron una serie de postulados y normas en materia retributiva que tienden a la unificación, simplificación y coherencia transversal de los diferentes subsistemas de empleo preexistentes en el sector público ‒incluyendo a la administración central y a la descentralizada‒ con independencia del grado de autonomía de cada institución, o del tipo de servicios que se prestan al Estado. La Procuraduría General, en ejercicio de su función consultiva vinculante, en dictamen n.°C-281-2019 de 1° de octubre de 2019, determinó que dado el ámbito de aplicación general de esa nueva normativa y su innegable vocación de uniformidad y homogeneidad como opción constitucionalmente válida para regular las condiciones retributivas del empleo en todo el sector público ‒incluyendo cálculo de salarios, sus componentes y dedicación exclusiva, entre otros‒, priva sobre cualquier otra disposición de rango legal o inferior, preexistente, a nivel sectorial, a modo de derogación tácita total o parcial, por incompatibilidad normativa de sus contenidos, reconociéndose inclusive su prevalencia sobrevenida con respecto a convenciones colectivas preexistentes, sobre todo cuando esta nueva legislación va dirigida expresamente a derogar con vigencia a futuro, las normas convencionales que tengan un contenido específico incompatible con ella (dictamen n.°C-060-2019 de 5 de marzo de 2019). El régimen jurídico de la función pública en general se caracteriza porque las condiciones de empleo no se establecen en un contrato o por convenio colectivo, sino que se determinan por normas objetivas que pueden ser modificadas unilateralmente por el órgano competente y por ello se afirma que el funcionario no tiene con la administración una relación contractual sino estatutaria, de manera que los subprincipios derivados del principio protector del derecho laboral que invoca el accionante, no resultan aplicables en los términos en que lo alega. En tal sentido, afirma que lo que el accionante califica como una discriminación por supuesta imposición de dedicación exclusiva sin retribución, es en realidad un régimen de incompatibilidad funcional que busca potenciar los principios de imparcialidad e independencia que deben regentar el ejercicio de la función pública. La función pública está regentada por un conjunto de valores, principios y normas de un alto contenido ético y moral, con el propósito de garantizar la imparcialidad, la objetividad, la independencia y evitar incluso el nepotismo en el ejercicio de la función pública, como típica manifestación de conflicto de intereses, prevaleciendo el interés público sobre el interés particular, por lo que, en criterio de su representada, los reclamos que se plantean en la acción en cuanto al tema de la dedicación exclusiva, no son atendibles.

En relación con los arts. 35 y 36 adicionados a la ley n.°2166 respecto de los que se amplía la acción: pertenecer al régimen de dedicación exclusiva no constituye un derecho fundamental como lo entiende la parte accionante y recuerda que la dedicación exclusiva es un acuerdo o convenio entre el patrono público y el servidor, de modo que, si éste no está de acuerdo con la remuneración económica que percibiría, está en posibilidad de no suscribir el contrato respectivo. La LFFP respetó los derechos adquiridos y las situaciones jurídicas consolidadas de los funcionarios que ya tenían suscrito y vigente un contrato de dedicación exclusiva, para lo cual se aseguró que el salario total de los servidores activos al 4 de diciembre de 2018, no sería disminuido según el Transitorio XXV y además estableciendo que quienes tuviesen contratos de dedicación exclusiva vigentes, mantendrían los porcentajes que otorgaba la normativa anterior. Argumenta que luego, mediante decreto n.º41564, el Poder Ejecutivo emitió el “Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley n.º9635 referente al Empleo Público” que en sus arts. 4 y 5 también preservaron los derechos adquiridos y las situaciones jurídicas consolidadas de los funcionarios activos a la fecha en que entró en vigencia la ley n.º9635. Para la Procuraduría, los cambios introducidos por la ley n.º9635 en materia de dedicación exclusiva no vulneran el Derecho de la Constitución, sobre todo si se toma en cuenta que dichos cambios no afectaron a los funcionarios que habían ingresado al régimen antes de la entrada en vigencia de esa ley. Los sindicatos accionantes no han demostrado el alegato que plantean según el cual, los porcentajes de compensación económica por dedicación exclusiva aplicables a los funcionarios que ingresaron al servicio público después de la vigencia de la ley n.º9635 sean lesivos del principio de razonabilidad, para lo cual, debieron aportar prueba técnica y argumentos sólidos que les permitieran demostrarlo. Su representada no considera que la nueva regulación sobre dedicación exclusiva torne ruinoso el salario de los profesionales que ingresen a laborar al sector público a partir de la vigencia de la ley n.º9635 toda vez que se trata de una compensación accesoria al salario que se basa en una figura contractual y renunciable por parte del trabajador, por lo que no es cierto que la dedicación exclusiva sea un derecho humano, ni tampoco que su disminución afecte el principio de progresividad. En adición a lo anterior, señala que tampoco es cierto que la ley n.º9635 vaya a producir rebajos excesivos, desproporcionados e irrazonables en el salario de los profesionales, pues no se va a afectar a quienes estaban activos al 4 de diciembre de 2018, pero además debe resaltarse que la regulación legal del régimen funcionarial es una atribución expresa y discrecional del legislador.

Sobre el art. 39 adicionado a la LSAP que prohíbe negociar tope de cesantía distinto: indica que la legislación impugnada establece un nuevo tope máximo de ocho años con vigencia diferida según el régimen Transitorio que positiviza el tope máximo admisible en esta materia y por convención colectiva según lo dispuesto por la Sala Constitucional en la sentencia n.°2018-008882. Los reparos planteados en este punto por la parte accionante, giran en torno al tema de la prevalencia o no de una ley sobrevenida ‒ley n.º9635 frente a las regulaciones existentes en convenciones colectivas vigentes‒. Para la Procuraduría, las convenciones colectivas están supeditadas a la ley, aún cuando ésta sea sobrevenida y vaya dirigida a derogar expresamente las normas convencionales que tengan un contenido específico, con vigencia a futuro respetando los derechos adquiridos y las situaciones jurídicas consolidadas; en consecuencia, en criterio de su representada, no existen razones de constitucionalidad que justifiquen dar prevalencia a los mandatos de una convención colectiva o de algún otro instrumento normativo, sobre la ley. Una solución similar aplica para las convenciones colectivas renegociadas y homologadas con posterioridad al 4 de diciembre de 2018, pues ahora deben adaptarse en todos sus extremos a lo establecido en la ley n.º9635 y demás regulaciones que dicte el Poder Ejecutivo conforme al Transitorio XXXVI de esa ley. Recuerda que este tipo de normas suelen llamarse de derecho imperativo ‒necesario absoluto‒, pues exhiben una voluntad del legislador de no admitir otra regulación de una materia determinada que la contenida en la ley aplicable; normas que suponen una indisponibilidad que impide a los sujetos destinatarios desvincularse de la norma, de modo que, en su actuación, se tienen que ajustar en todo momento a los límites reglados que dicta el precepto normativo debido a que su contenido está agotado por la ley, de modo que, con respecto de ellas, no es posible complementación alguna por parte de convenios o convenciones colectivas, sin que sea posible la autonomía de la voluntad, sea individual o colectiva, por lo que en estos casos, la Administración tiene que proceder del modo determinado en la norma sin que exista ningún margen ya que toda conducta contraria a ley sería anulable. Esto no implica irrespetar los derechos adquiridos o las situaciones jurídicas consolidadas de los destinatarios de las convenciones colectivas porque la aplicación de los mandatos legales que riñan con lo pactado en dichos convenios, rige hacia futuro de modo que los beneficios laborales incorporados al patrimonio de cada persona por la aplicación de las cláusulas convencionales derogadas por la ley, se mantendrán en el patrimonio de cada una de las personas que los percibió; no obstante, el derecho a la cesantía se adquiere hasta que se produzca el cese de la relación de servicio y que éste obedezca a alguna de las causales que justifican el pago de esa indemnización, con lo cual, antes de que ello ocurra, lo que tiene el interesado es una simple expectativa de derecho que no podría prevalecer sobre disposiciones de rango legal como las introducidas a la LSAP por medio de la LFFP. La Procuraduría no considera que la modificación en este tema que se hiciera a la LSAP infrinja el art. 34 constitucional por irrespetar derechos adquiridos o situaciones jurídicas consolidadas de los funcionarios del sector público.

Sobre el alegato en cuanto a los arts. 40 de la LSAP y el 16 del decreto n.º41564-MIDEPLAN: del análisis de ambos numerales no se desprende que la intención del legislador ‒en uso de las amplias potestades configurativas del Estatuto de la función pública que le otorga la Constitución‒ haya sido la de derogar las disposiciones de distinto rango que regían la remuneración de los servidores públicos, sino la de adecuar esa normativa a un marco general y transversal aplicable a cada uno de los componentes salariales existentes en lo que resulte normativamente incompatible con ella, siendo un ejemplo de ello que los incentivos o compensaciones existentes a la entrada en vigencia de la ley que estuvieran en términos porcentuales, a futuro pasarán a ser un monto fijo nominal. El hecho de que el art. 40 de la LSAP, en relación con el 16 del reglamento al Título III de la ley n.°9635, haya decidido dejar sin efecto algunos sobresueldos específicos como el de confidencialidad y discrecionalidad, bienios, quinquenios y cualquier otro relacionado con acumulación de años de servicio distintos a la anualidad, respalda la afirmación de que los sobresueldos existentes antes de la entrada en vigencia de esa ley ‒y que no sean los mencionados en el art. 40 aludido‒, se mantienen vigentes y son aplicables al personal de las instituciones a las que se refiere el art. 26 de la LSAP, incluido el personal que se nombre en el futuro, pero nominalizados. La reserva de ley para la creación de nuevos sobresueldos aplica a partir de la entrada en vigencia de la ley n.º9635 y hacia futuro.

En relación con el art. 46 de la LSAP y el art. 22 del reglamento n.º41564-MIDEPLAN: argumenta que, con las reformas impugnadas, no se buscó instaurar un estatuto de empleo público unitario en términos formales o un único instrumento normativo, sino establecer una serie de postulados y normas en materia retributiva que tienden a la unificación, simplificación y coherencia transversal de los diferentes subsistemas de empleo preexistentes en el sector público ‒administración central y descentralizada‒ con independencia del grado de autonomía de cada institución, o del tipo de servicios que se prestan al Estado. Según estos numerales impugnados, la rectoría que la ley n.º9635 otorga a MIDEPLAN es para emitir políticas generales y asesorar a las instituciones públicas para lograr la unificación, simplificación y coherencia en materia de empleo público, ello a partir de políticas de eficiencia y eficacia administrativas, siguiendo criterios de planificación y medición de resultados de la gestión pública conforme al ordinal 140 inciso 8) constitucional. Indica que la intención del legislador no fue derogar las atribuciones otorgadas a otras dependencias públicas en sus respectivas leyes de creación; opción que es jurídicamente viable y que nada afecta el Derecho de la Constitución en los términos acusados.

Sobre el art. 47 de la LSAP: indica que, según el accionante, con este numeral se lesionan los principios de eficiencia y eficacia, seguridad jurídica, igualdad e interdicción de la arbitrariedad debido a que el término “salvedades respectivas” es ambiguo y permite derogar singularmente normas indeterminadas sobre métodos de evaluación, sin criterios objetivos, y con conceptos que establecen métodos no equiparables de evaluación de carácter cuantitativo propios del sector privado. En relación con este alegato, considera que se trata de un aspecto de simple y estricto interés de la legalidad ordinaria mediante el cual no se acusan presuntas infracciones de normas y principios constitucionales en los términos del art. 73 incisos a) y b) de la LJC, sino que refiere a un claro aspecto de interpretación y aplicación normativa del alcance del ordinal 47 de la LSAP reformada por la citada ley n.°9635. Esto no puede ser objeto de una acción de inconstitucionalidad porque a través de ésta no se puede controlar la correcta aplicación del Derecho, de modo que lo relativo a este tema, deberá ser conocido en la jurisdicción ordinaria competente, que en este caso podría ser la Contencioso Administrativa.

En cuanto al numeral 48 de la LSAP: la parte accionante considera que lesiona los principios de seguridad jurídica, igualdad, razonabilidad, proporcionalidad e interdicción de la arbitrariedad al crear una nueva obligación para los funcionarios públicos, de llevar actualización y mantenimiento de información para la evaluación de su desempeño, so pena de imputarle responsabilidad por falta grave y limitando además el tiempo para atender obligaciones cotidianas. En cuanto a este extremo recuerda que en el régimen jurídico particular de la función pública, las condiciones de empleo no se establecen por contrato o convenio colectivo, sino por normas objetivas ‒leyes o reglamentos‒ que pueden modificarse unilateralmente, de ahí que la relación es estatutaria, a modo de un régimen específico de empleo público o de ordenación del personal, fundado y regido por principios de Derecho Público, razón por la cual las reformas de la función pública, siempre están conectadas con una estrategia preconcebida ‒política pública‒ de modernización de la Administración, todo delimitado por las breves referencias al régimen jurídico de la función pública que hace la Constitución Política en sus arts. 191 y 192 y que son postulados que han de ser tomados en cuenta por cualquier modelo burocrático que quiera desarrollarse. Aduce que, en este contexto, asociado directamente al incentivo de anualidad, está la evaluación de desempeño que ha operado un cambio de paradigma, pues se supera aquel criterio subjetivo de mera valoración del rendimiento individual del servidor en su trabajo en general, y se trasciende metodológicamente a criterios objetivos sobre la base de indicadores cuantitativos de cumplimiento de metas individuales de productos y servicios prestados, vinculados directamente a procesos y proyectos que realice la dependencia a la que pertenece el servidor (arts. 45 a 50 de la LSSAP, introducidos por la ley n.°9635), y su vinculación con el pago de la anualidad es evidente porque ahora depende del resultado de la evaluación del desempeño. Por esta especial y novedosa conformación operada en la evaluación de desempeño, resultan infundados los vicios de inconstitucionalidad acusados, porque el legislador ‒en ejercicio de su amplia potestad inagotable de configurar el Estatuto de los funcionarios públicos (arts. 102, 121.1 y 191 constitucionales)‒, pretendió establecer con claridad, postulados y normas que tiendan a la unificación, simplificación y coherencia de los diferentes subsistemas existentes de la gestión de los recursos humanos en el Sector Público. Lo relativo a la determinación de faltas administrativas, cumple con los postulados del principio de tipicidad en materia disciplinaria, y lo concerniente a su aplicación en concreto, será en la vía ordinaria competente donde pueda analizarse.

Respecto del art. 50 de la LSAP en relación con el art. 1 inciso a) del reglamento n.º41564-MIDEPLAN: el legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores como parte del denominado “Estatuto de funcionarios públicos” (art. 191 constitucional) y, por ello, el monto económico que se otorgue por concepto de anualidades va en función de la intensidad con la que el legislador quiera incentivar la permanencia en el puesto de los funcionarios públicos y con la posibilidad económica de cancelar las sumas que se derivan de ese incentivo. Argumenta que, en criterio de su representada, el legislador podría, incluso, eliminar el pago de anualidades e incentivar la eficiencia y la permanencia en el servicio público mediante un mecanismo distinto al que se emplea ahora, ello por cuanto, la obligación de reconocer anualidades no está estipulada en normas de rango constitucional, sino legal, por ser parte del régimen o sistema retributivo propio del denominado “Estatuto” funcionarial. El carácter permanente que está implícito al otorgar a la anualidad un valor nominal ‒que es estable en el tiempo‒, se justifica en la necesidad de lograr una situación de equilibrio en las finanzas públicas, lo que va más allá de superar una crisis económica pasajera, pues constituye un objetivo económico que es deseable que se mantenga en el tiempo. Indica que si se establece que una vez transcurrido cierto lapso, se deben revertir los cambios hechos en las normas legales que regulan las remuneraciones del sector público, es posible que se vuelva a caer en indeseables estados de inestabilidad económica. El Estado tiene la obligación de propiciar la eficiencia en la prestación de los servicios públicos y para ello es necesario fomentar la eficiencia del empleo público; objetivo que no sólo puede ser alcanzado mediante el pago de anualidades. Parte de la garantía de eficiencia consiste en asegurar que existan recursos económicos suficientes para hacer frente a los egresos que genera la planilla del Estado, lo cual solo se logra mediante reconocimientos salariales razonables, ajustados a la situación económica del país, y a la disponibilidad de recursos. Las disposiciones sobre empleo público contempladas en la LSAP relacionadas, entre otros temas, con la forma en que deben calcularse los salarios y sus componentes en el Sector Público, incluidas las anualidades, priman sobre cualquier otra disposición de rango legal o inferior preexistentes a nivel sectorial, de modo que, como derogación tácita –total o parcial‒, por incompatibilidad normativa de sus contenidos, prevalecerá la LFFP por sobre otras normas especiales, en lo que resulten incompatibles (dictámenes de la PGR n.°C-060-2019 de 5 de marzo de 2019 y n.°C-281-2019 de 1° de octubre de 2019).

Sobre el art. 51 de la LSAP: recuerda que el derecho a la negociación colectiva de los servidores públicos es un derecho de configuración legislativa, por lo que su ámbito de aplicación y sus alcances pueden ser definidos por normas de rango legal sin que ello lesione normas constitucionales. El art. 62 de la Constitución Política no tenía la intención de ser aplicado a las relaciones de empleo público y como prueba de ello se tiene que el Convenio n.°98 de la OIT sobre el Derecho de Sindicación y Negociación Colectiva de 1949 excluyó de su ámbito de aplicación a los funcionarios públicos de la Administración del Estado, lo que evidencia que, para ese año (que coincide con el de la promulgación de la Constitución Política vigente) no estaba prevista la posibilidad de que las relaciones de empleo público se rigieran por normas convencionales sino, más bien, por normas estatutarias, emitidas unilateralmente por el Estado. Esto también concuerda con lo dispuesto en el art. 191 constitucional en el sentido de que “Un estatuto de servicio civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de la administración”; norma que refleja una visión uniformadora de las reglas que deben imperar en las relaciones de empleo entre el Estado y sus servidores, que resulta compatible con las regulaciones sobre negociación colectiva establecidas en la LFFP. La determinación bilateral de las condiciones de trabajo ‒entre los representantes de la Administración y del personal‒, tiene un alcance limitado en Costa Rica y no se puede comparar con la negociación colectiva en la empresa privada, además de que el grado de autonomía de los funcionarios públicos es más limitado que el reconocido a los trabajadores del sector privado y precisamente por ello las disposiciones normativas de las convenciones colectivas deben ajustarse y enmarcarse estrictamente dentro del ordenamiento jurídico vigente que, de por sí, limita la extensión y objeto de la negociación. Es decir, las disposiciones normativas de las convenciones colectivas deben ajustarse a las normas legales existentes y no pueden afectar, y mucho menos derogar, disposiciones normativas de mayor jerarquía que tengan carácter imperativo o prohibitivo y de orden público. Recuerda que no puede conferirse el mismo trato al uso y disposición de fondos públicos (que son los que financian las relaciones de empleo público), que el que se otorga al uso de fondos privados, pues los primeros deben estar orientados a la búsqueda de la satisfacción del interés público y no son disponibles por las partes que negocian una convención colectiva en el ámbito público.

Los principios de eficiencia en el manejo de los fondos públicos, racionalidad del gasto, conducción sana de las finanzas públicas, etc., que son de rango constitucional, deben armonizarse con la posibilidad de negociación colectiva en el sector público que no puede ser irrestricta, sino que debe adaptarse a las posibilidades económicas del país. Este art. 51 establece un tipo específico de incompatibilidad que trata de evitar un eventual conflicto de intereses; incompatibilidad funcional que hay que relacionarla con el art. 48 de la Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública. Estima que, en razón de lo dicho, los vicios acusados son inatendibles.

En cuanto a los arts. 52 de la LSAP y el 21 del reglamento n.°41564-MIDEPLAN: reitera que no se puede perder de vista la vocación y carácter de generalidad y uniformidad con que se emitió la LFFP en aras de someter a criterios uniformes, todo lo concerniente a la política salarial de la administración pública. Una de las medidas de reordenación para la contención y reducción del gasto de personal de las administraciones públicas, es lo relativo a la periodicidad de pago de los salarios de los funcionarios, de modo que el salario pactado por unidad de tiempo mensual se cancelará en una periodicidad o frecuencia quincenal, para lo que se deberán hacer los ajustes correspondientes dentro de los tres meses posteriores a la vigencia de la ley n.º9635, lo que incluye la adecuación de los sistemas tecnológicos de pago disponibles, así como la realización de los cálculos y ajustes necesarios para asegurar que el cambio de modalidad de pago legalmente prescrito, no produzca una disminución o aumento en el salario de los servidores. Manifiesta que, conforme a tales normas legales, de claro carácter de derecho necesario, imperativo y de contenido absoluto, que todas las instituciones públicas cubiertas por aquella normativa legal, tendrían que normar la modalidad o periodicidad de pago salarial de sus servidores, y no otra. Reitera que esta ley n.º9635 sobrevenida, prevalece sobre lo dispuesto en cualquier otra disposición de rango legal o inferior preexistente a nivel sectorial, como convenciones colectivas anteriormente suscritas, esto a modo de derogación tácita –total o parcial‒ por incompatibilidad normativa de sus contenidos. Los alegatos planteados respecto de este numeral no son atendibles.

Sobre el art. 53 de la LSAP y el numeral 15 del Reglamento n.º41564-MIDEPLAN: señala que el incentivo de carrera profesional tiene como objetivo último asegurar que la administración cuente con el personal altamente capacitado que necesita para un adecuado desempeño de la función pública, lo cual dependerá de la regulación normativa. Reafirma que el régimen de los derechos de los funcionarios públicos no es estático sino variable por esencia, sobre todo en lo referido a aquéllos derechos de contenido económico cuya cuantía puede modificarse dentro de los límites de la Constitución, pues el servidor no tiene un derecho adquirido frente al legislador o a la potestad normativa de la administración empleadora para que se le mantenga una determinada regulación de sus derechos; por el contrario, debe someterse a un proceso continuo de ajustes y reformas por razones de interés general. El cambio operado con la ley n.º9635 no pretende crear una diferenciación odiosa ni una desmejora salarial como infundadamente se acusa, sino que se basa razonablemente en consideraciones y limitaciones presupuestarias-financieras imperantes en las que se justifica válidamente la necesidad real de lograr un equilibrio en las finanzas públicas, lo que va más allá de superar una crisis económica pasajera o coyuntural, pues constituye un objetivo económico que es deseable que se mantenga en el tiempo, sin que ello implique una vulneración del derecho a la igualdad en la ley como lo alega la parte accionante.

Art. 54 de la LSAP y art. 17 del reglamento n.°41564-MIDEPLAN: reitera que el legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores como parte del “Estatuto de funcionarios públicos” y debe entenderse que el monto económico que se otorgue por concepto de incentivos o pluses, va en función de la intensidad con la que el legislador quiera incentivar la permanencia en el puesto de los funcionarios públicos, y con la posibilidad económica de cancelar las sumas que se derivan de ese incentivo. Mantener porcentuales los componentes salariales preexistentes implica una erogación mayor de recursos que no guarda congruencia con la intención de equilibrar las finanzas públicas que impera actualmente y por ello correspondía al legislador decidir ₋como ya lo hizo₋, para nominalizarlos y propiciar así el equilibrio de las finanzas públicas, sin que optar por una u otra decisión implique violación alguna a normas o principios constitucionales en vista de que esas alternativas son constitucionalmente válidas frente a la regulación básica del régimen constitucional del empleo público (art. 191 Constitucional), que le compete al legislador configurar (arts. 105 y 121.1 Ibídem). El carácter permanente que está implícito al otorgar a dichos componentes salariales un valor nominal que es estable en el tiempo, no tiene como finalidad desmejorar la situación de los empleados públicos, sino que se justifica válidamente en la necesidad real de lograr una situación de equilibrio en las finanzas públicas. Reitera que la norma no los deroga, sino que establece la forma en que han de calcularse a futuro, ya no porcentualmente sino mediante un monto nominal fijo, como se ha venido indicando, así como también que no se puede pretender que la situación estatutaria quede congelada en el tiempo, de modo que ha sido criterio consolidado que el funcionario carece de un derecho adquirido general al mantenimiento de una determinada regulación de sus condiciones de trabajo o a impedir su modificación. Reitera la posición de la PGR en cuanto a que las convenciones colectivas están supeditadas a la ley, aún cuando ésta última sea sobrevenida, sobre todo cuando va dirigida expresamente a derogar las normas convencionales que tengan un contenido específico (en este caso con vigencia hacia el futuro, respetando los derechos adquiridos y las situaciones jurídicas consolidadas). Concluye que los alegatos tampoco son atendibles.

En cuanto al art. 55 de la LSAP: señala que, a partir de la opinión consultiva de la Sala Constitucional n.°2018-019511, se puede limitar o prohibir la acción sindical para los funcionarios públicos que participan de la gestión pública y que, por tanto, no tienen derecho a celebrar convenios colectivos; en consecuencia, así entendida esa norma legal, no resultaría inconstitucional.

Art. 57 incisos f), g), h), i), m), n), o) y p) así como el Título III de la LSAP: por medio del dictamen C-281-2019 de 1° de octubre de 2019, la PGR indicó que ante cualquier contradicción entre la regla general para el pago de la compensación económica por prohibición prevista en el art. 36 de la LSAP (la cual contempla el pago de un 30% para licenciatura o superior), y lo dispuesto, por ejemplo, en el inciso a) del artículo 1° de la ley n.°5867 (el cual establece, para ese mismo supuesto, el pago de un 65% de compensación), o cualquier otra ley anterior sobre la misma materia, debe primar la pretensión de generalidad y uniformidad que inspiró la reforma a la LSAP operada por medio de la LFFP, de ahí que, la antinomia existente entre el numeral 36 de la LSAP que establece como parámetro para el cálculo de la compensación económica por prohibición el salario base de cada servidor, y el art. 5 de la “Ley de Compensación por el pago de Prohibición” que dispone que el pago de la compensación por la prohibición a la que se refiere el art. 244 de la Ley Orgánica del Poder Judicial (LOPJ) debe calcularse sobre el salario más bajo indicado en la escala de sueldos de la Administración Pública, siguiendo siempre la pretensión de generalidad y uniformidad que inspiró la reforma a la LSAP, debe ser resuelta a favor de la regla general y uniforme establecida como parámetro unificador; esto es que el parámetro para el cálculo de la compensación económica aludida debe ser el del salario base de cada servidor. Así las cosas, la compensación económica por prohibición estaba establecida en un 65% en el inciso a) del art. 1° de la ley n.°5867 y ahora en el art. 36 de la LSAP se contempla un pago de un 30% por el mismo concepto; antinomia que supone la derogación tácita de uno de los dos preceptos, considerando la PGR que debe primar lo dispuesto en el art. 36 de la LSAP, no sólo por ser la norma más reciente, sino también porque en ella se refleja la pretensión de generalidad y uniformidad que inspiró la reforma en materia de empleo público operada por medio de la LFFP. Argumenta que, seguir otro criterio, implicaría desviarse de la finalidad de la reforma a la LSAP consistente en establecer lineamientos generales sobre la manera en que han de reconocerse los incentivos y las compensaciones económicas derivadas de las relaciones de empleo en todo el sector público. Indica que, de igual modo, en aras de mantener la uniformidad pretendida y para que haya congruencia con los principios constitucionales de igualdad y razonabilidad, en cuanto a la forma de calcular la compensación económica por prohibición, se debe de aplicar lo previsto en el art. 36 de la LSAP (sobre el salario base de cada funcionario) y no el dispuesto en el art. 5 de la ley n.º5867 (sobre el salario más bajo de la escala de sueldos de la Administración Pública). Agrega que, tomando en consideración la derogación expresa del inciso f) del art. 37 del Estatuto de Servicio Civil y la modificación del art. 47 de ese mismo cuerpo legal hecha por los arts. 58 inciso b) y 57 inciso f) introducidos a la LSAP por la ley n.°9635, así como la aplicación de su régimen transitorio (Transitorio XXVII y art. 13 inciso a) e in fine del decreto ejecutivo n.°41564-MIDEPLAN-H), y en especial por la inexistencia de identidad entre las indemnizaciones normativamente previstas al efecto, según ordinal 111 inciso d) del Reglamento del Estatuto de Servicio Civil, también debe concluirse que: a) si la reorganización operada requiere prescindir de empleados cubiertos por convenciones colectivas, la indemnización procedente por auxilio de cesantía, no podrá ser mayor a los doce años mientras se mantengan vigentes tales instrumentos colectivos (dictamen de la PGR n.°C-060-2018 de 05 de marzo de 2019); b) para empleados excluidos de la aplicación de esos instrumentos colectivos que pudieran ser cesados por reorganización, es aplicable el art. 39 de la ley n.°9635 que es de eficacia inmediata, que prevalece sobre el art. 27 inciso c) del Reglamento del Estatuto de Servicio Civil y que indica que el tope máximo es de ocho años de cesantía; c) en el supuesto de rebaja o disminución salarial aludida, deberá seguirse aplicando la indemnización especial reglamentariamente prevista, a modo de regla general, por el citado ordinal 111 inciso d) del Reglamento del Estatuto de Servicio Civil, hasta tanto no se ejerza con respecto a ella la potestad derogatoria o de reforma reglamentaria que ostenta el Poder Ejecutivo (art. 140.3) de la Constitución Política). La garantía de estabilidad en el puesto o cargo público sigue existiendo a nivel legal y, como consecuencia de ello, cualquier cese injustificado conlleva reconocimiento de prestaciones legales, de modo que no existe una artificiosa o forzada equiparación al régimen laboral privado, como infundadamente se acusa en la acción de inconstitucionalidad y, en consecuencia, los vicios acusados son inatendibles, por infundados.

Sobre los reclamos respecto de los arts. 15, 23, 24 y 25 del Título IV sobre responsabilidad fiscal de la Ley n.°9635: en criterio de la parte accionante, esos numerales le dan potestades al Poder Ejecutivo respecto de varios destinos específicos con desviación de poder, afectando metas institucionales y derechos fundamentales; sin embargo, en criterio de la PGR, los vicios acusados son del todo infundados porque el establecimiento de reglas fiscales por los Estados occidentales se ha convertido en un vehículo popular para imponer una cierta disciplina fiscal frente a los problemas de déficit fiscal y aumento de deuda pública. La necesidad de mantener cierto equilibrio entre ingresos y gastos públicos en que se resume el principio de estabilidad presupuestaria, encuentra respuesta en el primer párrafo del art. 176 de la Constitución Política y, a partir de ahí, la jurisprudencia de la Sala Constitucional ha extraído el fundamento del principio constitucional del equilibrio financiero o presupuestario, reafirmado en la sentencia n.°2018-019511. Se está ante un mandato constitucional que vincula a todos los poderes públicos y que queda fuera de la disponibilidad o competencia del Estado y demás entes públicos, con independencia de su grado de autonomía. La regla fiscal, consistente en una regla sobre el gasto corriente, es solo una de las distintas opciones de gestión de las finanzas públicas existentes en el proceso presupuestario y al ser de rango infraconstitucional ‒ley n.°9635‒, la Asamblea Legislativa no quedaría vinculada a futuro, por lo que podría legislar en sentido contrario, incluso adoptando legislación que amplíe los gastos a cargo del Presupuesto de la República, si fuese necesario. Según lo ha interpretado la Procuraduría y ha sido avalado por la Sala como una manifestación legítima del principio constitucional de equilibrio presupuestario, la LFFP conlleva un cambio de paradigma en cuanto a la regulación de los destinos específicos y el establecimiento de un piso en orden a la presupuestación de los recursos públicos. Contrario a lo que se acusa, para su representada, la ley n.°9635 como manifestación del principio de equilibrio presupuestario, permite al Ministerio de Hacienda presupuestar la asignación de recursos dispuesta por las leyes que crean destinos específicos a partir de la valoración de las condiciones fiscales y otros imperativos de política pública y, por lo tanto, le permite ajustar esa asignación a los recursos financieros con que se cuente y, en el ejercicio de esas nuevas facultades, el Poder Ejecutivo tiene como límites los destinos específicos creados por la Constitución, así como los creados por ley para financiar un servicio social en forma exclusiva. Por el contrario, no constituyen un límite los destinos referidos a tributos destinados a financiar en forma general los gastos públicos, como pueden ser los destinos a cargo de impuestos como la renta o ahora el impuesto al valor agregado. Conforme lo ordena el art. 24 de la LFFP, el Ministerio de Hacienda y el Poder Ejecutivo están obligados a asignar una suma no menor a la asignada en el presupuesto de 2019 por lo que esa asignación del presupuesto vigente, se constituye en la cantidad mínima que debe ser concedida y el Ministerio de Hacienda puede asignar una mayor cantidad de recursos que lo presupuestado en 2019, pero nunca mermarlo a fin de garantizar la no afectación de servicios prestacionales asociados.

En relación con el art. 17 del Título IV sobre responsabilidad fiscal de la ley n.º 9635: su representada considera, como lo ha manifestado en otras ocasiones, que no es inconstitucional en el sentido de que solo puede ser aplicado a los superávits libres, no así a los recursos con destinos específicos determinados por la Constitución, que sólo podrían dar lugar a superávit específico no libre o atados, indisponibles para el legislador ordinario o presupuestario.

Concluye la Procuraduría sugiriendo que la acción que ha sido ampliada, sea declarada sin lugar en todos sus extremos.

25.- Rinde informe María del Rocío Aguilar Montoya en su calidad de Ministra de Hacienda, a través de documento presentado en la Secretaría de la Sala el 29 de octubre de 2019, y manifiesta que, en términos generales, los reclamos de la parte accionante están dirigidos hacia dos cuestionamientos:

• a)en primer lugar lo relativo a la afectación salarial que sufren los servidores públicos como consecuencia de las variantes referidas a dedicación exclusiva, prohibición, convenciones colectivas, modificación de la forma de cálculo de componentes salariales, entre otros; reclamos que, en su criterio, se limitan a enunciar criterios subjetivos o errados en los que prevalece la idea de que lo relativo a empleo público es inmutable y estático a través del devenir del tiempo, lo cual es una perspectiva de permanencia invariable que resulta incorrecta en una realidad en la cual dicha temática está sujeta a cambios, tal y como lo ha señalado la PGR, sobre todo en lo que se refiere a los derechos de contenido económico (sistema retributivo). Recuerda que dentro de los límites que establece la Constitución, es innegable que la Administración ostenta un “ius variandi” sobre el contenido y alcance de los derechos en el empleo público. La promulgación de los arts. 28, 30, 31 inciso 1), 32, 33, 35, 36 adicionados a la LSAP por la ley n.°9635 y su reforma, en concordancia con los numerales 3, 6 y 7 del decreto ejecutivo n.°41564-MIDEPLAN-H y sus reformas, todos relativos a la dedicación exclusiva, no implica un retroceso en el desarrollo normativo de los derechos laborales y recuerda que aquélla tiene una naturaleza contractual porque se trata de un régimen consensual que permite al Estado contar con un cierto grupo de funcionarios que no ejerzan la profesión liberalmente sino que brinden la totalidad de sus servicios a la institución contratante a cambio de una retribución económica o un plus salarial; régimen al que acude el funcionario libre y voluntariamente, previa valoración de si le conviene o no suscribir el contrato o si le resulta más atractivo ejercer libremente su profesión y cualquier otra actividad a nivel público o privado. Por tales razones, las manifestaciones de la parte accionante son infundadas porque, desde su otorgamiento, la dedicación exclusiva no es un derecho del servidor sino que se confiere cuando la Administración valora que requiere que el funcionario no labore de forma privada. Como cualquier contrato, el de dedicación exclusiva debe tener establecida su vigencia así como los procedimientos o trámites que se requieren para extenderlo, de ahí que el promulgar normativa que contemple esos extremos, cumple con los principios de seguridad jurídica, razonabilidad y proporcionalidad, contrario a lo que alega la parte accionante y no implica una regresión de derechos laborales. No hay incerteza jurídica para quienes suscribieron contratos con anterioridad a la entrada en vigencia de la ley n.°9635 y sus reformas, cuando por el contrario, la propia ley contempla disposiciones que buscan dar certeza y seguridad jurídica en torno a la aplicación de las nuevas variantes que se presenten. El art. 31 inciso 1) impugnado incluye a las personas que laboran en propiedad, interinamente, en suplencia o en puestos de confianza, por lo que se desconoce cuál es la modalidad de la relación de servicio que en criterio de la parte accionante, estaría quedando excluida. Por su parte, en cuanto a las limitaciones contenidas en los arts. 32 y 33 impugnados, aduce que tienen su razón de ser en evitar que los funcionarios puedan comprometer su imparcialidad e inclusive ejercer sus otras profesiones durante el tiempo en que se encuentran en jornada de trabajo, debiendo recordarse el concepto de superposición horaria que implica el desempeño simultáneo de los cargos y que implica una prohibición o imposibilidad de desempeñar dos cargos públicos en forma simultánea. Las normas impugnadas en esta acción no conllevan ninguna acción arbitraria, ni abusiva y, por tanto, no son lesivas del principio de interdicción de la arbitrariedad. El legislador está facultado para regular, de manera general, las relaciones de empleo en todo el sector público, ello a la luz de lo dispuesto en el art. 191 de la Constitución Política que admite la posibilidad de que un solo estatuto ‒de rango legal‒ regule las relaciones entre el Estado ‒en sentido amplio‒ y sus servidores. Con sustento en lo que ha dicho la PGR, afirma que es público y notorio que la intención del legislador con la emisión de la LFFP y concretamente con su Título III relacionado con el tema de empleo público fue la de establecer parámetros generales aplicables a la totalidad de las relaciones de empleo del sector público que incluye tanto la Administración Central como la descentralizada, con independencia del grado de autonomía de cada institución, o del tipo de servicios que se prestan al Estado. Añade que dentro de los efectos de la LSAP no se encuentra el de derogar los sobresueldos preexistentes a la ley n.°9635 sino adecuarlos a las reglas generales a las que deben someterse todos los sobresueldos que se cancelan en el sector público, estableciendo la forma en que han de cancelarse a futuro, ya no porcentualmente sino mediante un monto nominal fijo, así como también que el parámetro para el cálculo de la suma a pagar por cada sobresueldo debe ser el salario base de cada servidor y no su salario total. Para salvaguardar los derechos adquiridos, y por haberlo dispuesto así el Transitorio XXV de la LFFP, el salario total de los servidores que se encontraban activos al 4 de diciembre de 2018 cuando entró en vigencia esa ley, no puede ser disminuido. De esta manera, las normas impugnadas, lejos de conllevar actuaciones arbitrarias, discriminatorias, desproporcionadas e irracionales, se encaminan al establecimiento de un marco de regulación uniforme, por vía legal, de todas las relaciones de empleo en el sector público. Los porcentajes de dedicación exclusiva y prohibición pueden ser revisados y ajustados como ocurrió en la ley n°9635 sin que ello implique una vulneración del marco constitucional, por lo que estima que los alegatos relativos a este tema y a la prohibición, no resultan inconstitucionales.

Lo anterior también es aplicable respecto de los alegatos expuestos por la parte accionante en torno al reconocimiento de aumentos anuales y en lo inherente a las modificaciones de la prohibición, ello por cuanto las reformas introducidas por la ley n.°9635 resultan acordes a la Constitución.

En cuanto a los alegatos que se plantean por la parte accionante sobre los arts. 39, 40, 51, 52, 53,54, 55 adicionados por la ley n.º9635 así como a los arts. 16, 17 y 21 del decreto ejecutivo n.°41564–MIDEPLAN- H, considera muy acertadas las manifestaciones de la PGR en cuanto a que el legislador ordinario es el primer llamado a regular las condiciones y limitaciones bajo las cuales se cancela esa indemnización, de acuerdo con la política que sobre el tema se mantenga en un determinado momento socioeconómico, pero debe respetar siempre el marco constitucional establecido en el art. 63 Constitucional así como la jurisprudencia constitucional según la cual el pago de la cesantía no puede ser ilimitado y debe tener un tope razonable, de manera que lo que se negocie en una convención colectiva, debe sujetarse al principio de razonabilidad y evitar pactar rompimientos del tope de cesantía que impliquen un uso indebido de fondos públicos que afecten los servicios que está llamada a brindar la institución o que carezcan de razón objetiva alguna que permita la diferenciación establecida a favor de ese grupo de funcionarios. En el art. 39 de la ley n.º9635 se dispuso que ahora el tope de cesantía no podrá superar los ocho años; sin embargo, para evitar problemas de transitoriedad de la ley nueva frente a convenciones colectivas preexistentes para las situaciones pendientes o en tránsito al momento del cambio legislativo y mientras entra plenamente en vigor ese numeral, se establecieron los Transitorios XXVII y XXXVI según los cuales se exceptuó a funcionarios cubiertos por convenciones colectivas que otorgan más de ocho años de cesantía quienes pueden seguir disfrutando ese derecho mientras estén vigentes las actuales convenciones que así lo contemplen pero en ningún caso podrá ser una indemnización superior a los doce años y en caso de que se renegocie alguna convención, ésta deberá adaptarse en todos sus extremos a lo establecido en la ley n.º9635 y demás regulaciones que dicte el Poder Ejecutivo. Recuerda que, contrario a lo que afirma la parte accionante, el derecho a la cesantía se adquiere hasta que se produzca el cese de la relación de servicio y mientras ello no ocurra, lo que el interesado tiene es una mera expectativa de derecho que no prima por encima de disposiciones legales como las que fueron adicionadas en la LSAP mediante la reforma hecha por la ley n.º9635 y por ello considera que los arts. 50, 54, 56 y 57 impugnados, no infringen lo dispuesto en el numeral 34 constitucional y no irrespetan derechos adquiridos ni situaciones jurídicas consolidadas.

En lo que se refiere a las convenciones colectivas, existe prevalencia jerárquica de la ley sobrevenida sobre éstas, por derogación expresa y, en Costa Rica, si bien se reconoce la existencia de las convenciones colectivas en el Sector Público así como la obligatoriedad de lo acordado en ellas, esto no implica atribuirle rango constitucional o de ley al contenido de ningún convenio, sino que éste deberá mantenerse dentro de la legalidad administrativa, pues son las leyes estatales las competentes para fijar la jerarquía de las fuentes jurídicas y el art. 57 del Código de Trabajo ha dispuesto que el convenio colectivo está subordinado a las leyes. No es dable alegar la inmutabilidad o inalterabilidad del convenio colectivo frente a la ley ‒incluso aunque se trate de una norma estatal sobrevenida‒ puesto que, en virtud del principio de jerarquía normativa, es el convenio colectivo el que debe respetar y someterse a la ley y no al contrario, máxime cuando está de por medio la tarea permanente del legislador de configurar con carácter de orden público, el régimen jurídico aplicable a los funcionarios y empleados públicos. Aunque los convenios colectivos en el sector público tienen fuerza vinculante entre las partes que los han suscrito y constituyen la norma más directa y específica que regula las relaciones jurídico-laborales existentes entre ellas, lo cierto es que desde el punto de vista formal y material, en el sistema de fuentes del Derecho, está siempre supeditada a la ley que, como fuente de derecho de mayor rango jerárquico, tiene capacidad permanente para regular las condiciones laborales y se incorpora de forma automática al contrato de trabajo, pudiendo incluso tener, a diferencia de la convención colectiva, eficacia general, por lo que en caso de conflicto, la ley impone su primacía frente a la convención colectiva. Por tal razón, no hay derecho alguno a que lo establecido en el convenio colectivo permanezca inalterado y sea inmune a lo dispuesto en una ley posterior hasta el momento en que pierda vigencia, de manera que la existencia de convenciones colectivas no puede imposibilitar la producción de efectos dispuestos por las leyes. Con la modificación legal operada por la ley n.º9635 no se busca la negación ni la supresión de la negociación colectiva, ni su ejercicio efectivo como facultad negociadora de los sindicatos, tampoco se está dejando inoperante o sin contenido, sino que lo pretendido es la adaptación a futuro de las condiciones de trabajo para que se ajusten a las nuevas circunstancias imperantes que, por disposición del legislador, obligan a medidas coyunturales de reordenación y racionalización, para la contención y reducción del gasto de personal de las Administraciones Públicas, exigidas por el proceso de consolidación fiscal y sostenibilidad de las cuentas públicas, a fin de frenar el déficit público y alcanzar la gradual recuperación del equilibrio presupuestario. Considera, como lo hace la PGR, que establecer ciertas restricciones a la negociación colectiva en el sector público es particularmente necesario cuando el país está en una situación de desequilibrio económico que ha sido de dominio público, y cuya atención ha requerido sacrificios no solo de las personas ligadas al Estado por una relación de empleo público, sino de todos los sectores económicos y sociales, por lo que afirma que lo dispuesto por la ley n.º9635 no limita, ni viola la libertad sindical, como tampoco la posibilidad de llevar a cabo negociaciones colectivas.

• b)un segundo grupo de reclamos de la parte accionante está dirigido a atacar las disposiciones relativas a la asignación de los destinos específicos derogados contenidas en el Título IV de la ley n.º9635. Ciertamente, con la entrada en vigencia de este Título IV a partir del 1° de enero de 2020, se produce la derogatoria de una serie de destinos específicos como lo disponen los arts. 31, 32, 33, 34, 35, 36, 37 y 38 de esa ley. Recuerda que, entre los objetivos de la ley n.º9635, se encuentra el permitir una mejor asignación de los recursos presupuestarios para hacer frente a la crisis fiscal que enfrenta el país por lo que se dispone que las asignaciones presupuestarias, incluso para los programas sociales, responderán a las condiciones fiscales en un año determinado y no a los porcentajes o sumas dispuestas en las normas que crearon el destino específico; legislación que establece:
• 1)un cambio en orden a la regulación de los destinos específicos: señala que el presupuesto de la República se ha visto afectado con la creación de destinos específicos por leyes ordinarias que dificultan la programación y asignación de los recursos presupuestarios según las necesidades públicas, las prioridades del desarrollo económico y social, la disponibilidad de recursos con que se cuente y, por ende, se dificulta al Ejecutivo el poder asignar los recursos y decidir sobre su ejecución. Agrega que la ley n.º9635 produce una modificación sustancial a la relación entre ley ordinaria-ley presupuestaria desde dos puntos de vista: en primer lugar, derogando determinados destinos específicos creados por ley y, en segundo lugar, porque autoriza que la Ley de Presupuesto incida sobre las obligaciones de gasto previstas por ley ordinaria a efecto de que sean ajustadas conforme las condiciones fiscales del país para alcanzar el objetivo del equilibrio presupuestario. Manifiesta que así, el Poder Ejecutivo al elaborar el proyecto de presupuesto, y la Asamblea Legislativa al aprobarlo, pueden ajustar las asignaciones de recursos a que están obligados en virtud de leyes que crean destinos específicos, según las condiciones fiscales, con lo cual, de la sujeción estricta a los porcentajes y sumas establecidas por el legislador, se pasa a una posibilidad de valoración de los recursos financieros con que se cuenta para dar el contenido a la obligación de gasto que establece la ley, así como otros imperativos de política pública para presupuestar una cantidad menor a la que correspondería en aplicación de esa ley creadora de la obligación. Diversas disposiciones de la ley determinan que, bajo ciertas condiciones, la Ley de Presupuesto no contemplará o bien aprobada, el Ministerio de Hacienda no girará las transferencias presupuestarias o los destinos específicos originados en leyes ordinarias que estuvieren vigentes, lo que implica que la asignación presupuestaria no estará determinada por la ley ordinaria creadora del destino y por tanto, la entidad beneficiaria no verá asegurados los recursos dispuestos por la ley ordinaria, lo que considera como una disposición de Responsabilidad Fiscal. Indica que, por ejemplo, en el supuesto del art. 15, la presupuestación de los destinos específicos dependería de la disponibilidad de los ingresos, los niveles de ejecución presupuestaria y la existencia de superávit libre. Manifiesta que las decisiones de asignación de recursos se hacen depender no de la ley que estableció el financiamiento de esos órganos, sino de “criterios de suficiencia fiscal”, lo que significa que existan los recursos financieros suficientes, del respeto de los derechos fundamentales y las prioridades del Plan Nacional de Desarrollo, lo que modifica sustancialmente la relación entre ley ordinaria y ley presupuestaria, pero además amplía las facultades del Ministerio de Hacienda en orden a la asignación de los recursos, flexibilizando la rigidez estructural de las finanzas públicas. Ello no significa, en modo alguno, que a través de la asignación de los recursos, el Poder Ejecutivo pueda dejar sin financiamiento determinados programas u órganos, ello por cuanto el art. 22 lo obliga a garantizar el financiamiento de las instituciones y los programas de desarrollo social y económico. La solvencia económica estatal debe estar enfocada al fortalecimiento y desarrollo de un sistema político solidario que resguarde los derechos de los estratos económicamente más débiles de la sociedad; objetivo que debería ser alcanzado porque entre los criterios determinantes de la asignación de los recursos (art. 23 impugnado) se encuentra el fin social de la institución beneficiada, la prestación de servicios públicos de beneficio colectivo, el efectivo cumplimiento de los derechos fundamentales, el principio de progresividad de los derechos humanos y no solo la disponibilidad de los recursos financieros. El límite a las nuevas facultades del Poder Ejecutivo estaría referido a los destinos específicos creados por la Constitución, o bien aquéllos creados por ley para financiar un servicio social en forma exclusiva, lo que excluye, entonces, los destinos referidos a tributos destinados a financiar ‒en forma general‒ los gastos públicos como pueden ser los destinos a cargo de impuestos como la renta, o ahora el impuesto al valor agregado.
• 2)Una modificación del financiamiento de FODESAF: señala que este conjunto de novedosas disposiciones permite afirmar que, a partir de la vigencia de la LFFP, los organismos beneficiarios de recursos con destino específico, verán modificado su financiamiento porque ahora va a estar determinado por los nuevos criterios establecidos por el legislador, así como también porque, a futuro, ese financiamiento no va a estar ligado a una fuente de ingresos en especial, al producto de determinados tributos u otro tipo de recursos ‒salvo que estos hayan sido conservados por la ley n.º9635‒ toda vez que las asignaciones presupuestarias ahora no van a estar referidas a una específica, con lo que el ámbito de los destinos específicos creados por ley, sufre una modificación sustancial.
• 3)El establecimiento de un “piso” en orden a la presupuestación de los recursos: indica que la Sala Constitucional al conocer la consulta del proyecto de la ahora ley n.º9635 (opinión consultiva n.º2018-019511) manifestó que la derogación de destinos específicos no equivale inexorablemente al socavamiento de derechos prestacionales y al incumplimiento de los deberes del Estado Social de Derecho, así como también que las leyes que dan sustento a aquéllos, no son inmutables ni se encuentran excluidas de la libre configuración del legislador; todo lo contrario, compete al Parlamento definir los medios más aptos para satisfacer tales derechos prestacionales sin que la producción legislativa vacíe o disminuya irrazonablemente el contenido presupuestario de los programas estatales a tal grado que se considere vulnerado el principio del Estado Social de Derecho. Argumenta que en los términos en que lo indicó la Sala en la referida sentencia, los numerales 23, 24 y 25 de la ley n.º 9635 se constituyen en “cláusulas de protección” que permiten mitigar o contrarrestar las eventuales disminuciones presupuestarias que se pudieren dar.

Las manifestaciones del accionante en cuanto a las nuevas potestades del Ministerio de Hacienda y al contenido de los arts. 23, 24 y 25 de la ley n.º9635, se trata de afirmaciones subjetivas, carentes de fundamentación, toda vez que, por el contrario, la constitucionalidad de esas normas deriva del hecho de que se constituyen en las medidas o mecanismos legales que el legislador estableció como garantía frente a la derogatoria de varios destinos legales que el mismo cuerpo normativo contempla, lo cual ya fue también avalado por la Sala Constitucional. En cuanto al art. 17 impugnado, manifiesta que se trata de una norma que está referida a recursos que no se pudieron ejecutar, por lo que constituyen un superávit libre y en los términos de ese numeral, lo que se pretende es darles un uso eficaz, eficiente y efectivo y, por tanto, no se considera inconstitucional. No es inadecuada la búsqueda continua para robustecer el desarrollo de un sistema político solidario ‒que es uno de los objetivos principales de un Estado como el de Costa Rica‒, lo incorrecto es cuando en ese afán se descuida un aspecto de la realidad que tiene que ver con que exista solvencia económica para atender las demandas de la ciudadanía, en especial cuando se trata de los estratos más vulnerables, de modo que sin unas finanzas saludables, las aspiraciones del Estado Social de Derecho no pasarán de ser eso, un anhelo. Finaliza solicitando que se rechace la inconstitucionalidad de los arts. 28, 30, 31 inciso 1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57 incisos f), g), h), i), m), n), o) y p) de la ley n.º2166 modificados y adicionados por el Título III de la ley n.º9635 de 5 de diciembre de 2018, su reforma y los arts. 1, inciso a), 3, 6, 7, 15, 16, 17, 21 y 22 del decreto ejecutivo n.º41564-MIDEPLAN-H y sus reformas, por considerar que no violan los arts. 7, 28, 33, 34, 50, 56, 57 73, 129 y 167 de la Constitución Política.

26.- Sobre la acción de inconstitucionalidad n.°19-022051-0007-CO.- Mediante escrito presentado en la Secretaría de la Sala a las 10:40 hrs. de 19 de noviembre de 2019, se apersonan Carlos Stradi Granados, mayor, casado, ingeniero, vecino de San José, con cédula 1-0663-0636, en su condición de presidente del Sindicato de Ingenieros del ICE y Afines (SIICE) y Mario Ching Rosales, mayor, casado, con édula 1-0585-0325 en su calidad de presidente de la Asociación Sindical de Empleados Industriales de las Comunicaciones y la Energía (ASDEICE), para formular acción de inconstitucionalidad en contra de los arts. 39, 50, 54, 56, 57 inciso l) este en cuanto reforma el art. 12 y en contra de los Transitorios XXVII y XXXI de la ley n.º2166 que es LSAP reformada y adicionada por el art. 3 de la ley n.º9635 de 5 de diciembre de 2018. Argumentan que la legitimación para presentar esta acción proviene del art. 75 párrafo segundo de la LJC por cuanto la actuación de sus representadas se adscribe a la tutela y preservación de intereses difusos y colectivos.

• a)primer motivo de inconstitucionalidad por violación al debido proceso sustantivo: cuestionan los arts. 50, 57 inciso l) en cuanto reforma el art. 12 y Transitorio XXXI de la LSAP reformada por la ley n.º9635. Estas normas también deben ser relacionadas con el art. 58 inciso c) que deroga al art. 5 y con los arts. 48 y 49 referidos a la evaluación del desempeño. Para determinar si las reformas legales introducidas en este punto cumplen con el llamado debido proceso sustantivo, deben ser sometidas a un test de razonabilidad a fin de conocer su necesidad, su idoneidad y su proporcionalidad, como parámetros constitucionales.

Aseveran que dicha normativa, al carecer de razonabilidad, idoneidad y proporcionalidad, vulnera el debido proceso sustantivo y, con esto, las disposiciones contenidas en los arts. 9, 11, 121, 191 y 192 de la Constitución Política, al crearse un sistema de pagos de anualidades que atenta contra el sistema de méritos y el principio de eficiencia que contemplan estos numerales. Además, reclaman que fuera en una norma transitoria que se caracteriza por su carácter momentáneo ‒con un inicio y un final en el tiempo‒, en donde se estableciera el porcentaje de anualidad con que debe arrancar el cálculo de lo que será luego el monto nominal e inmodificable de anualidad, así como la fecha a partir de la cual debe arrancar ese cálculo; regulación que debió incluirse en una norma de fondo y no en una de carácter transitorio.

• b)segundo motivo de inconstitucionalidad por violación del principio de irretroactividad de la ley e irrespeto a las situaciones jurídicas consolidadas: indican que las normas cuestionadas por este motivo son los arts. 39, 50, 54, 56 y 57 inciso l) de la LSAP y los Transitorios XXVII y XXXI de la LFFP. Aducen que en este punto no se trata de la adaptación en el tiempo de los derechos provenientes de contratos de dedicación exclusiva o de las reglas para el pago del auxilio de cesantía ‒cuando éste se encuentra regulado en instrumentos especiales como lo puede ser una convención colectiva o un estatuto especial como es el caso del ICE‒ y el tope es superior a lo establecido en el art. 39 de la LSAP adicionada por ley n.º9635; sino que, por el contrario, las disposiciones de los Transitorios XXVI y XXVII, lo que hacen es reformar y vaciar ese derecho de su contenido original, sin considerar los derechos adquiridos ni las situaciones jurídicas consolidadas conforme lo preceptúa el art. 34 de la Constitución Política. Argumenta que, salvo las excepciones indicadas de los Transitorios XXVI y XXVII, es un defecto general de la ley n.º9635 que cuando se trata de los temas relativos a sobresueldos, no se respeten las situaciones jurídicas consolidadas de las personas trabajadoras que ya adquirieron derechos a tenor de la normativa anterior que los regla, ya sea que esa normativa provenga de una ley, de un estatuto especial, o de otra fuente válida.

La ley fue omisa en la solución de conflictos de leyes en el tiempo y ello es visible a lo largo de todas sus disposiciones, salvo en lo relativo a la dedicación exclusiva donde se respetan los contratos de dedicación exclusiva firmados antes de la entrada en vigencia de la ley y, de forma menos rigurosa, también en materia de cesantía, pues en este caso la ley impone un tope que no respetó la contabilidad de los años que se habían incorporado al patrimonio de derechos de los empleados del sector público con base en normas de convenciones colectivas que estaban vigentes para cuando entró a regir la reforma de ley, por lo que el legislador irrespetó el contenido de las situaciones jurídicas subjetivas de los empleados públicos.

Finalmente, argumentan que la técnica jurídica que utilizó el legislador en los arts. 39, 50, 54, 56 y 57 inciso l), en relación con el art. 12, todos de la LSAP, y Transitorios números XXVII y XXXI de la ley n.º9635, resulta inconstitucional porque omitió considerar que, de conformidad con el art. 34 de la Constitución Política, no se podía ignorar la existencia de derechos subjetivos derivados de actos propios, ni situaciones jurídicas consolidadas nacidas de instrumentos tales como convenciones colectivas, reglamentos y estatutos de personal.

Finalizan solicitando que se declare la inconstitucionalidad de las normas aquí impugnadas.

27.- Mediante sentencia interlocutoria del Pleno de la Sala Constitucional de las 10:15 hrs. de 18 de diciembre de 2019, se dispuso acumular la acción de inconstitucionalidad n.º19-022051-0007-CO a la que se tramita en el expediente n.º19-002620-0007-CO ‒que ahora es el principal‒ y que se tenga como una ampliación de ésta.

28.- Sobre la acción de inconstitucionalidad n.°19-023575-0007-CO.- A través de escrito presentado en la Secretaría de la Sala a las 13:21 hrs. de 10 de diciembre de 2019, se apersona Mélida Cedeño Castro, mayor, divorciada, educadora, vecina de Heredia, con cédula de identidad 9-0058-0394, en su carácter de presidenta de la Asociación de Profesores de Segunda Enseñanza (APSE), para plantear acción de inconstitucionalidad en contra del art. 53 párrafo tercero de la LSAP adicionada por la LFFP n.º9635, contra el decreto ejecutivo n.º41564-MIDEPLAN-H y contra la resolución n.°DG-139-2019 de la DGSC por considerar que vulneran lo dispuesto en los arts. 34, 40, 45, 56, 57 y 74 de la Constitución Política.

Argumenta que la legitimación para presentar este proceso proviene del art. 75 párrafo segundo de la LJC por cuanto su representada trabaja por la tutela y protección de los derechos laborales de personas trabajadoras del sector educación y, por lo tanto, ostenta legitimación a partir de los intereses colectivos que protege. Su representada está legitimada porque las normas impugnadas afectan directamente el núcleo de derechos e intereses del colectivo que representa la APSE.

La carrera profesional es un sistema que existe en la Administración Pública con el que se pretende promover la superación profesional y laboral de los servidores profesionales con la finalidad de que su desempeño alcance estándares de eficiencia que contribuyan efectivamente en la calidad y oportunidad de las prestaciones en beneficio del servicio público que se brinda a la ciudadanía, que comprende un incentivo económico de carácter salarial que se reconoce a los servidores en función de los puntos obtenidos por títulos profesionales o capacitación. Ese régimen está normado en las resoluciones n.º DG-064-2008, modificadas por la resolución n.ºDG-139-2019 de 24 de julio de 2019 que regula la carrera profesional de los servidores profesionales cubiertos por el Título I del Estatuto de Servicio Civil y la n.º DG-333-2005 de los servidores cubiertos por el Título II del Estatuto de Servicio Civil, todas de la DGSC. El incentivo económico que por concepto de carrera profesional se haya otorgado a una persona trabajadora, configura un derecho perfeccionado, subjetivo, que se incorpora al patrimonio del trabajador; sin embargo, a pesar de lo anterior, el numeral impugnado establece que el reconocimiento de nuevos puntos por carrera profesional, únicamente se reconocerá y remunerará hasta por un plazo máximo de cinco años. Tal limitación temporal en el reconocimiento de nuevos puntos de carrera profesional resulta totalmente arbitraria, pero además lesiona los arts. 34, 40, 45, 56, 57 y 74 de la Constitución Política. Finaliza solicitando que se declare la inconstitucionalidad de la norma en los términos solicitados.

29.- En sentencia interlocutoria del Pleno de la Sala Constitucional de las 9:20 hrs. de 15 de enero de 2020, se ordenó acumular la acción de inconstitucionalidad n.º19-023575-0007-CO, a la que se tramita en el expediente principal n.º19-002620-0007-CO y que se tenga como una ampliación.

30.- Los edictos a los que se refiere el párrafo segundo del art. 81 de la Ley de la Jurisdicción Constitucional y en los que se comunica la ampliación de curso de la acción de inconstitucionalidad, fueron publicados en los números 25, 26 y 27 del Boletín Judicial, de los días 07, 10, y 11 de febrero de 2020.

31.- En escrito presentado en la Secretaria de la Sala el 27 de febrero de 2020 se apersona [Nombre 002], mayor, casado, abogado, con cédula 1-0718-0497, en su condición de apoderado especial judicial del Sindicato Nacional de Médicos Especialistas (SINAME) para indicar que, debido a la ampliación que se hiciera de esta acción de inconstitucionalidad, solicita que se tenga a su representado como coadyuvante activo por considerar que la decisión que se adopte por la Sala en relación con las normas alegadas, tendrá incidencia directa en el ámbito de los intereses de los agremiados del sindicato que representa. Aduce que el art. 17 del decreto ejecutivo n.º41564-MIDEPLAN-H debe ser declarado inconstitucional porque viola los derechos adquiridos y las situaciones jurídicas consolidadas de los funcionarios públicos, ya que se le está otorgando un efecto retroactivo en perjuicio a la norma, en detrimento de los administrados, en completo desacato del art. 34 constitucional. Argumenta que lo establecido en ese numeral del reglamento de la ley n.º9635 es contrario a la Constitución Política porque nominaliza todas las anualidades y pluses salariales a pesar de que esos montos se establecieron como porcentuales desde su creación y esto crea una afectación a los derechos económicos de los administrados, dejándolos en completa desprotección y sin seguridad jurídica a pesar de que esos son derechos que provienen de negociaciones colectivas. en atención al principio de irretroactividad, no se puede admitir que una ley posterior influya en este tipo de relaciones forjadas al amparo de la ley. El ordenamiento jurídico debe proteger la intangibilidad de estos derechos adquiridos y situaciones jurídicas consolidadas que están siendo amenazadas por las normas impugnadas. Solicita que se acepte esta coadyuvancia y se declare con lugar la acción de inconstitucionalidad promovida.

32.- En escrito entregado en la Secretaría de la Sala el 22 de enero de 2021 se apersona [Nombre 003], mayor, jubilado, casado, vecino de San Isidro de Pérez Zeledón, con cédula n.º [Valor 002], para solicitar que se le tenga como coadyuvante activo en la acción de inconstitucionalidad n.º 19-002620-0007-CO. Manifiesta que coincide con los alegatos ahí planteados por la parte accionante y pide que se declare con lugar esta acción.

33.- Mediante memorial de 23 de marzo de 2023 se apersonó al proceso el señor Melvin Reyes Durán en su condición de apoderado especial judicial de Ana Cristina Forn Moraga, Ana Lorena Rodríguez Castillo, Carlos Eduardo de Jesús Álvarez Rodríguez, Magdalena Castro Varela, Iris Solano Portilla, Ivone Odette Furgeson Redguard, Luis Alfredo Meza Sierra, Ruperto López Umaña. Solicitan el pronto despacho de este asunto, pues la normativa impugnada tiene relación con un proceso que tienen instaurado ante el Tribunal Contencioso Administrativo y Civil de Hacienda.

34.- El 1° de junio de 2023 se apersonó el señor Sergio Antonio Rodríguez Brenes a solicitar el pronto despacho de este asunto.

35.- El 22 de junio de 2023 el señor Albino Vargas Barrantes adjuntó una gestión de pronto despacho.

36.- El 09 de agosto de 2023 la magistrada Garro Vargas presentó gestión de inhibitoria.

37.- Mediante resolución de las 11:06 hrs. de 17 de agosto de 2023 la Presidencia de la Sala acogió la gestión de inhibitoria de la magistrada Garro.

38.- El 24 de agosto de 2023 se adjuntó al proceso la solicitud de inhibitoria de los magistrados Castillo, Cruz, Rueda, Salazar, Araya y Garita.

39.- En sorteo efectuado por la Presidencia de la Corte Suprema de Justicia quedó electa la magistrada Alexandra Alvarado Paniagua.

40.- Por resolución suscrita por la magistrada presidenta a.i. Ana María Picado Brenes al ser las 10:13 hrs. de 31 de agosto de 2023 se admitió la inhibitoria planteada por el Pleno de la Sala.

41.- En sorteo efectuado por la Presidencia de la Corte Suprema de Justicia quedaron electos los magistrados Sánchez Navarro, Picado Brenes, Lara Gamboa, Rosibel Jara, Aracelly Pacheco y Ana Cristina Fernández.

42.- El 22 de setiembre de 2023 se ingresó la excusa de la magistrada suplente Rosibel Jara Velásquez al considerar que varias normas impugnadas le resultan aplicables a su persona.

43.- El 22 de setiembre de 2023 la magistrada suplente Alexandra Alvarado Paniagua presentó su solicitud de inhibitoria. Manifestó que lo que se resuelva se relaciona e incide con el pago del salario que percibe periódicamente dentro del Poder Judicial.

44.- El 22 de setiembre de 2023 la magistrada suplente Ana Cristina Fernández Acuña presentó gestión de inhibitoria.

45.- El 29 de setiembre de 2023 se ingresó la gestión de inhibitoria de la magistrada suplente Ileana Sánchez Navarro.

46.- El 23 de octubre se volvió a remitir la gestión del señor Vargas Barrantes.

47.- En fecha 13 de noviembre de 2023 se ingresó al Escritorio Virtual la solicitud de inhibitoria de la magistrada Ingrid Hess Herrera.

48.- El 21 de noviembre de 2023 la magistrada Picado Brenes adjuntó su solicitud de inhibitoria.

49.- Mediante resolución de las 16:10 hrs. de 21 de noviembre de 2023 la Presidencia a.i. de la Sala Constitucional resolvió lo siguiente:

“Visto el objeto de este proceso y dadas las manifestaciones de las magistradas Ingrid Hess Herrera, Ileana Sánchez Navarro, Rosibel Jara Velásquez, Ana Cristina Fernández Acuña, Alexandra Alvarado Paniagua y Ana María Picado Brenes, en cuanto a tener interés directo en lo que se resuelva en este asunto, al laborar para el Poder Judicial y ser jubilada judicial -la última-, lo procedente es acoger las inhibitorias y tenerlas por separadas del conocimiento de esta acción de inconstitucionalidad (En el mismo sentido resolución de las 10:13 horas del 31 de agosto de 2023) Comuníquese lo pertinente a la Presidencia de la Corte Suprema de Justicia, a efectos de que se proceda a su sustitución, de conformidad con el artículo 6 de la Ley de la Jurisdicción Constitucional”.

50.- A través de sorteo realizado por la Presidencia de la Corte se consignó que “debido a que originalmente había pedido 6 suplentes y únicamente hay 4 disponibles, el sorteo se realizó con los suplentes que hay disponibles”. Los magistrados electos fueron Alejandro Delgado Faith, Ronald Salazar Murillo, Jorge Isaac Solano Aguilar y Hubert Fernández Argüello”.

51.- El 12 de enero de 2024 formuló gestión de inhibitoria el magistrado Alejandro Delgado Faith.

52.- El 6 de febrero de 2024 se apersonó al proceso Paola Loría Castillo a solicitar la pronta resolución de esta acción de inconstitucionalidad.

53.- El 13 de marzo de 2024 se agregó al expediente la solicitud de inhibitoria planteada por el magistrado Ronald Salazar Murillo.

54.- El 8 de abril de 2024 se apersonó la señora Karen Carvajal Loaiza (ANEP) a aportar copia del dictamen PGR-C-036-2024 del 04 de marzo del 2024 relacionado con el control de convencionalidad.

55.- El 10 de abril de 2024 presentó una solicitud de inhibitoria el magistrado Fernández Argüello.

56.- Mediante resolución de las 16:03 hrs. de 12 de abril de 2024 la Presidencia de la Sala Constitucional ‒magistrado Fernando Castillo Víquez‒ resolvió lo siguiente:

“Se rechaza la inhibitoria formulada por el magistrado Alejandro Delgado Faith. Se tiene por separados del conocimiento de este proceso a los magistrados Ronald Salazar Murillo y Hubert Fernández Argüello. Se declaran habilitados para conocer este proceso a los magistrados Fernando Castillo Víquez, Fernando Cruz Castro y Paul Rueda Leal. Comuníquese. Continúese con la tramitación del expediente”.- 57.- Mediante resolución de las 16:10 hrs. de 17 de abril de 2024, la magistrada instructora del proceso, Aracelly Pacheco Salazar, dispuso otorgar audiencia a la Procuraduría General de la República y al Ministerio de Hacienda e integrar a este proceso al Ministerio de Planificación Económica y a la Dirección General de Servicio Civil. Lo anterior, para que se refieran a los alegatos planteados en la acción de inconstitucionalidad n.°19-023575-0007-CO, interpuesta por Mélida Cedeño Castro, en su carácter de presidenta de APSE y acumulada a este proceso. Concretamente, por los siguientes motivos:

“La carrera profesional es un sistema que existe en la Administración Pública con el que se pretende promover la superación profesional y laboral de los servidores profesionales con la finalidad de que su desempeño alcance estándares de eficiencia que contribuyan efectivamente en la calidad y oportunidad de las prestaciones en beneficio del servicio público que se brinda a la ciudadanía, que comprende un incentivo económico de carácter salarial que se reconoce a los funcionarios en función de los puntos obtenidos por títulos profesionales o capacitación. Ese régimen está normado en la resolución n.ºDG-064-2008, modificada por la resolución n.ºDG-139-2019 de 24 de julio de 2019 que regula la carrera profesional de los servidores profesionales cubiertos por el Título I del Estatuto de Servicio Civil y la n.ºDG-333-2005 de los servidores cubiertos por el Título II del Estatuto de Servicio Civil, todas de la Dirección General de Servicio Civil (DGSC). El incentivo económico que por concepto de carrera profesional se haya otorgado a una persona trabajadora configura un derecho perfeccionado, subjetivo, que se incorpora al patrimonio del trabajador; sin embargo, a pesar de lo anterior, el numeral impugnado ‒ art. 53 párrafo 3° de la Ley de Salarios de la Administración Pública, reformada por la Ley de Fortalecimiento de las Finanzas Públicas, n.°9635‒ establece que el reconocimiento de nuevos puntos por carrera profesional, únicamente se reconocerá y remunerará hasta por un plazo máximo de cinco años. Tal limitación temporal en el reconocimiento de nuevos puntos de carrera profesional, a juicio de la accionante, resulta totalmente arbitraria, pero además lesiona los arts. 34, 40, 45, 56, 57 y 74 de la Constitución Política”.

58.- El 7 de mayo de 2024 rindió su informe IVÁN VINICIO VINCENTI ROJAS, en su condición de PROCURADOR GENERAL DE LA REPÚBLICA.

Sobre la legitimación:

Se estima que la accionante goza de legitimación suficiente para promover esta acción de inconstitucionalidad, según el numeral 75, párrafo segundo, de la LJC, ya que acciona en defensa de un interés corporativo, en concreto, en resguardo de los intereses de los asociados a ese sindicato.

Sobre el fondo:

Sobre el “Estatuto de funcionarios públicos” Dice la PGR que tradicionalmente lo que caracteriza el régimen jurídico de la función pública en general, es que las condiciones de empleo no se establecen en un contrato o por convenio colectivo, sino que se determinan minuciosamente por normas objetivas, leyes o reglamentos de Derecho Público –arts. 9 y 112.1 de la de la LGAP‒ que, dependiendo de su naturaleza y de su jerarquía, pueden ser modificados unilateralmente por el órgano competente, sin que pueda exigirse que la situación estatutaria quede congelada en los términos en que se hallaba regulada al tiempo de su ingreso. De ahí que se afirme que el funcionario no tiene con la Administración una relación contractual, sino estatutaria, pues desde que ingresa al servicio de las Administraciones Públicas se coloca en una situación jurídica objetiva, por esencia mutable. Esto en aras de alcanzar una clara finalidad preestablecida: un mejor y eficiente desempeño y organización administrativas, acorde a las circunstancias siempre cambiantes ‒art. 4 de la LGAP‒. Idea omnipresente incluso en nuestro marco constitucional originario de la función pública, según el cual: “Un estatuto de servicio civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de la administración” (art. 191 constitucional). De modo que la propia Constitución establece una reserva expresa para la regulación por ley de los diversos ámbitos de la Función Pública, entre los que se cuenta el denominado “Estatuto” funcionarial, que incluye entre sus contenidos esenciales, el régimen o sistema retributivo de los funcionarios públicos. Lo cual, según han advertido al contestar las acciones de inconstitucionalidad tramitadas bajo los expedientes números 19-6416-0007-CO, 19-12772-0007-CO y 20-000491-0007-CO, se constituye en una autorización para que el legislador, en ejercicio de su amplia e inagotable libertad de conformación normativa –arts. 9, 105, 121.1 y 191 constitucionales‒, configure y regule las condiciones de empleo que deben imperar en el Sector Público. De ahí que es el legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores; esto como parte del denominado “Estatuto de funcionarios públicos” (arts. 105, 121.1 y 191 constitucionales).

Con la LFFP no se buscaba instaurar, a modo de homogeneidad artificial, un estatuto unitario en términos formales; es decir, un único instrumento normativo, sino que con ella se establecieron una serie de postulados y normas en materia retributiva que, como parte de la política salarial de la Administración Pública (art. 140 inciso 7) constitucional), en líneas generales y con una clara pretensión de generalidad, tienden a la unificación, simplificación y coherencia transversal de los diferentes subsistemas de empleo preexistentes en el Sector Público, que incluye tanto la Administración Central, como la descentralizada, con independencia del grado de autonomía de cada institución, o del tipo de servicios que se prestan al Estado. Partiendo de lo anterior, han sido claros y contundentes en advertir que dentro de los efectos de la reforma de la LSAP no se encuentra el derogar de forma total y absoluta los regímenes retributivos preexistentes a la ley 9635, sino adecuarlos a las reglas homogeneizadoras a las que deben someterse a futuro los salarios y sobresueldos que hasta hoy se siguen cancelando en las instituciones públicas enunciadas. Dado su ámbito de aplicación general y su innegable vocación de uniformidad y homogeneidad, como una opción constitucionalmente válida de regular las condiciones retributivas del empleo en todo el sector público (art. 191 constitucional), afirman que las disposiciones normativas contempladas en la LSAP, introducidas por la ley 9635, relacionadas, entre otros temas, con la forma en que deben calcularse y pagarse los salarios y sus componentes, la evaluación de desempeño, periodicidad del pago, exclusión temporal de aumento y tope a las remuneraciones en las instituciones públicas contempladas en su ámbito de cobertura, priman sobre cualquier otra disposición de rango legal o inferior preexistentes a nivel sectorial; esto a modo de derogación tácita –total o parcial‒por incompatibilidad normativa de sus contenidos.

A partir de la reforma se infiere el denominado principio de “indemnidad salarial”, según el cual: el salario total de los servidores públicos que a la entrada en vigencia de esta última ley se encuentren activos en las instituciones contempladas dentro del ámbito de aplicación de su Título III, no podrá ser disminuido y se les respetarán los derechos adquiridos que ostenten. De modo que, entre otras cosas, los cambios del régimen salarial establecidos con la vigencia de aquella ley serán aplicados “a futuro”, sin poder aplicarse de forma retroactiva en perjuicio de los funcionarios ya nombrados y sus derechos patrimoniales.

De este modo, en resguardo de los derechos adquiridos y situaciones jurídicas consolidadas, la normativa cuestionada establece que los servidores acogidos al régimen de Carrera Profesional antes del 4 de diciembre de 2018 ‒fecha de rige de la supracitada ley 9635‒, sean del Título I o del Título II del Estatuto de Servicio Civil, conservarán sin limitación temporal, mientras subsista de manera ininterrumpida su relación de empleo, la cantidad de puntos acumulados y reconocidos antes de aquella fecha y la respectiva compensación económica. Y solo para la actualización y reconocimiento de nuevos puntos y demás aspectos regulados en la materia de la Carrera Profesional, estarán sujetos a las modificaciones normativas instauradas. Como es obvio, esas normas no retrotraen, de manera general, sus efectos en perjuicio de derechos adquiridos ni de situaciones jurídicas consolidadas. Al contrario, ajustan el tránsito del contenido de cada uno de los casos regulados bajo la normativa antigua con las nuevas disposiciones establecidas en la norma. Lo anterior no significa, de ningún modo, irrespetar los derechos adquiridos o las situaciones jurídicas consolidadas de los profesionales beneficiarios de la carrera profesional, como infundadamente se acusa en esta acción, pues la aplicación de los nuevos mandatos legales e infra legales rige hacia futuro; lo que implica que los beneficios laborales incorporados al patrimonio de cada persona por la aplicación del régimen jurídico anterior de la carrera profesional, se mantendrán incólumes en el patrimonio de cada una de las personas que los percibió, según las reglas o condiciones bajo las cuales le fueron reconocidos. En tal sentido, no se puede considerar que las normas legales e infra legales impugnadas sean inconstitucionales por violación al principio de irretroactividad de la ley ‒art. 34 constitucional‒, ni que conculquen el principio de intangibilidad patrimonial ‒art. 45 Ibíd.‒, como infundadamente se acusa, pues realmente no implicaron perjuicio alguno en su salario total conformado previamente a la reforma instaurada. Y los puntos de carrera profesional ya devengados antes del 4 de diciembre de 2018, forman parte indiscutible del patrimonio de los servidores públicos beneficiarios y no pueden ser rebajados bajo ninguna circunstancia, pues ingresaron a sus patrimonios con anterioridad a la reforma legal y así se dispuso por parte del legislador.

No es cierto que la nueva regulación sobre la carrera profesional, que introduce una vigencia de cinco años ‒para los puntos adquiridos y retribuidos por ese concepto con posterioridad al 4 de diciembre del 2018‒ resulte contraria al principio de no confiscación, pues se trata de una compensación económica, cuantitativamente ínfima, accesoria, complementaria y opcional al salario total, que en términos de la propia Sala no afecta el núcleo esencial del salario mínimo constitucionalmente protegido ‒art. 57 constitucional‒ (sentencias números 2011-014174, 2019-021130 y 2022-019113). Por lo que no puede afirmarse que resulte ser confiscatoria en los términos acusados, máxime cuando la accionante no fundamenta ni desarrolla alguna argumentación técnica, precisa y sólidamente sustentada al respecto en su escrito de interposición.

Tampoco se advierte alguna vulneración al principio de irrenunciabilidad de derechos sociales ‒art. 74 constitucional‒, pues como no hay un derecho a la inmutabilidad del ordenamiento, la materia de los complementos salariales para quienes estén todavía bajo el esquema de salario compuesto es materia tangible y disponible por el legislador, por no ser parte del régimen constitucional laboral (salario mínimo, art. 57), pues es la legislación ordinaria la que debe fijarlos y regularlos y, en este caso, la normación impugnada, por su contenido, ni siquiera entraña infracción del principio de irretroactividad.

Conclusión

En suma, el cambio legal operado con el Título III de la ley n.°9635 en materia retributiva, que es de aplicación general en el Sector Público, no busca en crear una desmejora salarial como infundadamente se acusa, sino que se basa razonablemente en consideraciones y limitaciones presupuestarias-financieras imperantes en las que se justifica válidamente la necesidad real de lograr un equilibrio en las finanzas públicas; necesidad que va más allá de superar una crisis económica pasajera o coyuntural, pues constituye un objetivo económico que es deseable que se mantenga en el tiempo. Concluye que esta acción de inconstitucionalidad debe desestimarse completamente, por razones de fondo, según lo expuesto.

59.- Rindió informe LAURA FERNÁNDEZ DELGADO, en su condición de MINISTRA DE PLANIFICACIÓN NACIONAL Y POLÍTICA ECONÓMICA.

Antecedentes En el contexto de la lucha contra el déficit fiscal, se realizó un ingente esfuerzo por contener el gasto y sanear las finanzas públicas. Los accionantes pueden o no estar de acuerdo con algunas de las medidas que se tomaron o considerar que se cometieron excesos en ese cambio de paradigma que se tuvo que realizar. Sin embargo, las medidas de contención del gasto quedaron plasmadas, con la aprobación mayoritaria por parte de la Asamblea Legislativa y con la debida consulta de constitucionalidad a la Sala Constitucional Enfatiza que la situación económica que afronta el Estado costarricense sigue siendo compleja y sostenida y a partir del ejercicio económico 2020, la deuda pública traspasó el tope del sesenta por ciento (60%) del Producto Interno Bruto (PIB) establecido en la LFFP en el apartado de Responsabilidad Fiscal y si bien, en razón de todas las medidas, ajustes y esfuerzos realizados por el Gobierno de la República (especialmente por el Ministerio de Hacienda y ese despacho, conforme la competencia atinente), al cierre del ejercicio económico 2023, la deuda pública alcanzó el sesenta y uno punto uno por ciento (61.1%) del PIB, lo que sigue superando el umbral normativamente previsto, por lo que subsiste el interés general, superior y actual, por mantener la vigencia de las normas. Por tanto, la Administración Pública sigue propugnando por el equilibrio entre las finanzas públicas, las restricciones presupuestarias y el respeto de los derechos adquiridos y situaciones jurídicas consolidadas de las personas servidoras públicas.

Sobre el fondo: carrera profesional Cita lo dispuesto en los dictámenes de la PGR números C-366-2020 de 16 de setiembre de 2020, PGR-C-223-2021 de 9 de agosto de 2021, PGR-C-120-2022 de 31 de mayo de 2022.

A partir de la entrada en vigencia de la LFFP, el incentivo de carrera profesional será reconocido a las personas servidoras públicas por aquellos títulos o grados académicos que no sean requisito para el puesto, pero que sean atinentes al mismo. Para ser considerado dentro del rubro de carrera profesional, el costo de las actividades de capacitación debe ser cubierto por la persona servidora pública, sea que las curse o no en horario laboral, siempre y cuando sean atinentes al cargo que desempeña. En aquellas actividades de capacitación que no sean sufragadas por instituciones públicas, puede otorgarse mediando la debida motivación, permiso con goce de salario para recibir la capacitación. Los nuevos puntos de carrera profesional serían remunerados por el plazo de máximo cinco años, vencido el cual deben excluirse. A contrario sensu, los puntos reconocidos con anterioridad al 4 de diciembre de 2018, seguirían sufragándose según los parámetros previos, pero como monto nominal. A las personas servidoras públicas de nuevo ingreso y aquéllas que no estaban sujetas al régimen de carrera profesional al momento de entrada en vigencia de la ley (dentro o fuera del Régimen de Servicio Civil), debería retribuírseles el incentivo de conformidad con las reglas establecidas por la LFFP (salvo que encuentren dentro de los supuestos que establece la Ley Marco de Empleo Público (LMEP) para aplicar el salario global). Excepcionalmente, podrían reconocerse puntos de carrera profesional, según los parámetros previos a la entrada en vigencia a la LFFP, en los casos de aquellas solicitudes presentadas ante las Oficinas de Gestión Institucional de Recursos Humanos de previo a la publicación de dicha ley y que no hubieran sido tramitadas por causas atribuibles a la Administración. Por otra parte, reglamentariamente la continuidad laboral se configura, en tanto no haya transcurrido un plazo mayor a un mes calendario sin que la persona servidora pública preste sus servicios para el Estado. En este sentido, debe retomarse la Teoría del Estado Patrono Único, la cual no solo aplica para el reconocimiento de anualidades, sino para el reconocimiento de todos los derechos laborales adquiridos por la persona en su desempeño en la función pública. Este aspecto fue incluido entre las consideraciones que fundamentaron la adición del inciso f) del art. 14 citado, mediante el decreto ejecutivo n.°41904-MIDEPLAN-H de 9 de agosto de 2019.

De igual forma, de la aplicación del art. 56 en concordancia con lo establecido en el Transitorio XXV del Título III de la ley 9635, el Estado (como patrono único, mientras subsista la continuidad laboral) queda compelido a salvaguardar montos salariales como manifestación del principio de indemnidad salarial, los derechos adquiridos y las situaciones jurídicas consolidadas de las personas servidoras públicas cubiertas por el ámbito de aplicación de la ley, de manera que los montos que ya habían ingresado a la esfera patrimonial de las personas servidoras públicas al momento de aprobación de dicha ley, no pueden ser reducidos o realizar una aplicación retroactiva, de manera indebida. Sin embargo, los derechos adquiridos y las situaciones jurídicas consolidadas sobre los montos reconocidos por concepto de carrera profesional antes de la entrada en vigencia de la LFFP, no pueden ser equiparados con las expectativas de derecho que las personas servidoras públicas puedan tener sobre el reconocimiento de nuevos puntos, ni tampoco aspirar a un reconocimiento que exceda el tope máximo fijado por la ley, pues indiscutiblemente se incurriría en una flagrante violación al principio de legalidad.

Solicita que se declare sin lugar la acción de inconstitucionalidad.

60.- Rinde informe FRANCISCO CHANG VARGAS en su condición de DIRECTOR GENERAL DE LA DIRECCIÓN GENERAL DE SERVICIO CIVIL.

Comienza aclarando que el régimen retributivo de la Administración Pública se erige sobre una premisa de igualdad, justicia y trato digno de las personas funcionarias públicas; así como en función de las responsabilidades del cargo que estos ejerzan. Lo anterior no sólo en un afán de cumplir con los derechos constitucionales de toda persona servidora, sino también en aras de que las instituciones públicas cumplan a cabalidad, con eficiencia y eficacia los fines que legalmente les han sido encomendamos, a tenor de lo dispuesto en art. 4 de la LGAP.

Las personas funcionarias que prestan servicios a las instituciones cubiertas por el Régimen de Méritos y que ingresaron a la Administración previo a la entrada en vigencia de la LMEP les resulta de aplicación el régimen retributivo regulado en la LSAP, de conformidad con lo dispuesto en el numeral primero y cuarto de ese cuerpo normativo. Es decir, las remuneraciones de estos se basan en la escala de sueldos que emite esa Dirección General y gozan de la protección contenida en el numeral 48 del Estatuto de Servicio Civil, ley n.°1581 del 30 de mayo de 1953 y sus reformas.

Las normas cuestionadas de ninguna manera contienen roces de constitucionalidad, en tanto la accionante lo que cuestiona es la eliminación del plus salarial que no puede, ni debe ser considerado como un derecho adquirido, por las razones que se expondrán en el siguiente acápite, de tal suerte que ello no puede traducirse ni considerarse como una afectación directa al salario de sus representados.

Reforzando la tesitura expuesta, enfatiza que la Sala Constitucional en la resolución n.°23953-2022 señaló que los incentivos salariales no pueden considerarse como un derecho adquirido única y exclusivamente cuando dependen de un hecho o situación objetiva para su otorgamiento; tal y como sucede en el caso que nos ocupa, en el que la normativa relacionada al otorgamiento del incentivo por carrera profesional se supedita al cumplimiento de requisitos legalmente establecidos.

Concluye entonces que al referirse al otorgamiento de incentivos salariales, tales como el reconocimiento de puntos por concepto de carrera profesional no estamos en presencia de un acto administrativo generador de derechos adquiridos como erróneamente plantea la accionante; por el contrario, se trata de un beneficio otorgado y condicionado no solo al cumplimiento de determinados supuestos y requisitos, sino también que su disfrute queda legalmente condicionado a un periodo previamente establecido, de modo que su supresión no puede considerarse como un ius variandi abusivo de la Administración, al cumplirse la condición temporal ‒cinco años‒ del disfrute del citado plus salarial.

No es posible aseverar que el cese del reconocimiento del incentivo por carrera profesional constituya una violación al principio de intangibilidad de los actos propios, pues tanto doctrinariamente como jurisprudencialmente se ha sostenido que este principio solo puede ser vulnerado cuando la Administración pretenda anular de oficio un acto administrativo generador de derechos adquiridos o de situaciones jurídicas consolidadas, situación que no es equiparable al que nos ocupa. Al respecto, se aclara que el art. 34 de la Constitución Política prohíbe dar efecto retroactivo a actos generadores de derechos adquiridos o situaciones jurídicas consolidadas que hayan nacido bajo el imperio de normas legales, siempre que ello se traduzca en un perjuicio para el o los interesados. En otros términos, este principio impide dar efectos jurídicos retroactivos a una nueva norma en perjuicio de derechos adquiridos o situaciones jurídicas consolidadas al amparo de otra. Empero, ello no es óbice para aseverar que una norma nacida a la vida jurídica no pueda ser modificada o suprimida por una ley posterior; sino que lo que se pretende con ese principio es únicamente tutelar los presupuestos fácticos acaecidos con anterioridad a la nueva reforma legal. Al respecto, trae a colación la exposición de motivos del proyecto n.°20.5806, pues de esta se determina que la LFFP fue producto de la precaria situación económica imperante en el país al momento de su emisión, por lo que el legislador ‒ejerciendo las potestades que le confiere el ordenamiento jurídico‒ determinó que el objetivo principal de la citada reforma era no solo modificar, sino también asegurar el cumplimiento de estas regulaciones, particularmente las referentes al régimen de remuneraciones y pago de incentivos salariales para los funcionarios de la Administración Central, el Poder Legislativo, el Poder Judicial, el TSE y Administración descentralizada: autónomas y semiautónomas, empresas públicas del Estado y municipalidades. La ley n.°9635 nació a la vida jurídica producto de la complicada situación económica que enfrentaba y enfrenta a nuestro país y su finalidad primordial era estabilizar las finanzas públicas y servir como un medio de contención del gasto público creando cuatro pilares fundamentales, dos tendientes a reducir el déficit fiscal a corto plazo, mientras que los dos restantes buscaban generar disciplina fiscal y una mayor calidad en el gasto público en el mediano y largo plazo, tal y como se extrae de la exposición de motivos. Al respecto, cita la motivación de la emisión de la LMEP y se refiere a criterios de la CGR que habían advertido lo siguiente:

“[E]l esquema actual de remuneraciones impacta la sostenibilidad fiscal, dadas las características ya mencionadas de su estructura, por lo que resulta necesario profundizar la discusión sobre sistemas más eficientes, que respondan a los principios ya señalados así como a parámetros de razonabilidad, eficiencia, eficacia y responsabilidad fiscal”.

Entonces, concluye que el legislador no solo podía, sino que tuvo que introducir cambios en la normativa legal vigente en materia de remuneraciones de las personas servidoras, sin que ello implique la violación del principio de irretroactividad e intangibilidad patrimonial, ya que lo que constitucionalmente se prohíbe es suprimir un beneficio legalmente otorgado, no así la posibilidad de la Administración de regular situaciones a futuro, como sucede en este caso al regular el legislador nuevas condiciones, requisitos y plazos para el otorgamiento del incentivo salarial por concepto de carrera profesional. En este apartado debe considerarse que los señores diputados al promulgar la ley 9635, respetaron los citados principios, lo cual puede ser constatado de la lectura del numeral 56 el y Transitorio XXV de ese cuerpo legal.

Acota que el Derecho Comparado ofrece ejemplos suficientes sobre este tema, concluyendo que no existe un derecho adquirido a mantener invariables las remuneraciones de las personas funcionarias públicas y, al efecto, cita un extracto de la sentencia 327:2111 del 8 de junio de 2004 emitido por el Superior Tribunal de Justicia de la Provincia de Río Negro de Argentina del que se desprenden las siguientes consideraciones:

“[L[a intangibilidad del sueldo del empleado público no está asegurada por ninguna disposición constitucional, ni existe, por ende, un derecho adquirido a mantener un nivel de la remuneración futura sin variantes y en todas las circunstancias” Tesis reiterada por la Suprema Corte de Justicia de Mendoza Argentina, que dictó sentencia definitiva el 25 de agosto del 2009, en la causa n.°80507, disponiendo que no es inconstitucional variar el alcance de las disposiciones relacionadas con pagos salariales futuros de los empleados públicos.

Situación similar al caso que nos ocupa se presentó en España, país que durante el año 2010 debido a la crisis fiscal que atravesaba adoptó el Real Decreto- ley 8/2010 del 20 de mayo de ese mismo año y al ser sometido al tamiz constitucional, el Tribunal Constitucional Español en Pleno Auto 85/2011, de 7 de junio de 2011 resolvió no admitir a trámite la cuestión de inconstitucionalidad 8173-2010, planteada por la Sala de lo Social de la Audiencia Nacional en relación con diversos preceptos del Real Decreto-ley 8/2010, de 20 de mayo, por el que se adoptaron medidas extraordinarias.

De conformidad con el análisis del derecho comparado realizado, en nuestro medio debe tenerse presente que el legislador atendiendo el numeral 34 de la Constitución Política emitió la ley 9635, pero esta reforma legal no implicó violación alguna al principio de indemnidad salarial de conformidad con el contenido de los arts. 56 y Transitorio XXV de ese cuerpo legal, al mantener las remuneraciones que las personas servidoras percibían antes de su entrada en vigencia y al no aplicarse los cambios legales de manera retroactiva sino a futuro. En este mismo orden de ideas, es preciso reiterar que, los cambios dispuestos en la LFFP en relación con el reconocimiento del incentivo salarial carrera profesional en cuanto a su reconocimiento y pago, empezaron a regir a partir de la entrada en vigencia de esa ley ‒4 de diciembre de 2018‒, por ende, no hay afectación alguna a situaciones jurídicas previas a esa data al respetarse los salarios de las personas servidoras que prestaban servicios para el Estado costarricense previo a la entrada en vigencia de citada ley.

Congruente con esta postura jurídica y el cambio legal introducido en nuestro medio, esa Dirección General, atendiendo las competencias que constitucional y legalmente le han sido asignadas, emitió la resolución n.°DG-139-2019 del 24 de julio del 2019, que modificó las resoluciones números DG-064-2008 del 28 de febrero del 2008 y DG-333-2005 del 30 de noviembre de 2005, esto con el propósito de ajustar estas regulaciones a los preceptos establecidos en la ley 9635 y su reglamento.

Las actuaciones realizadas por esa Dirección General no solo resultaron oportunas y diligentes, sino que también se ajustaron a las normas vigentes, y fueron desarrolladas en franco apego al principio de legalidad.

En lo relativo a la supuesta lesión al art. 74 de la Constitución Política, refiere que en lo que respecta a este último agravio, debe indicarse que la parte accionante no aportó elementos de hecho o de derechos que permitan a esa Dirección General ejercer una defensa efectiva y pronunciarse sobre la posible violación de este principio. Sin embargo, aclara que, a su criterio, las normas cuestionadas no resultan violatorias del principio de irrenunciabilidad de los derechos laborales afectos por estas, ello por cuanto nuestra Constitución Política, en el art. 57, lo que contempla es el derecho que tiene toda persona trabajadora a percibir un salario mínimo, o en caso de las personas funcionarias lo que garantiza es que estos no podrán devengar un salario inferior al establecido para su categoría salarial. En ese sentido, la cesación del reconocimiento de puntos por carrera profesional del incentivo, al no tratarse de un derecho adquirido sino de un plus salarial otorgado por la Administración por un plazo determinado, de ninguna manera transgrede el principio de irrenunciabilidad de los derechos laborales de las personas servidoras públicas.

Concluye que no hay inconstitucionalidad alguna y solicita que se declare sin lugar el recurso.

61.- Rindió informe Nogui Acosta Jaén, en su condición de Ministro de Hacienda.

Sobre la naturaleza salarial de la carrera profesional La carrera profesional tiene por finalidad estimular la superación académica y laboral de los servidores, para que se mantengan en un constante aprendizaje y actualización, y que se aplique en el desempeño de sus funciones.

Sobre la supuesta lesión al art. 57 de la Constitución Política El incentivo de carrera profesional es considerado como un plus y/o beneficio salarial, el cual dependerá de si la persona servidora tiene títulos profesionales o de capacitación y además estos cumplen con lo señalado en la normativa que regula dicho incentivo para su reconocimiento. Por otra parte, tal y como ha señalado la jurisprudencia administrativa, la relación existente entre el Estado y el funcionario es de derecho público, el cual se inserta en un régimen estatutario, se sujeta a un status legal, a los deberes de imparcialidad, objetividad e independencia que caracteriza el ejercicio de la función estatal y a la facultad de modificación unilateral en manos de la Administración. Por esa razón el régimen de los derechos de los funcionarios públicos no es un régimen estático, sino variable, ya que el servidor no puede resistirse a su potestad normativa, aún en los derechos de contenido económico, dentro de los límites constitucionales del art. 34 de la Constitución Política, es decir de manera retroactiva a menos que afecte derechos subjetivos o situaciones jurídicas consolidadas, por lo que debe someterse a un proceso más o menos continuo de ajustes y reformas por razones de interés general.

Advierte que en aplicación del principio de indemnidad salarial, los servidores que se les haya reconocido los puntos de carrera profesional antes del 4 de diciembre de 2018 conservarán ‒sin limitación temporal y mientras se mantenga la relación laboral‒ la cantidad de puntos acumulados y reconocidos antes de aquella fecha, y con base en los cuales perciben la respectiva compensación económica; pero los puntos obtenidos posterior a la entrada en vigencia de ley 9635 y demás aspectos regulados en materia de carrera profesional estarán sometidos a las modificaciones normativas introducidas por la citada ley. No se produce la violación al salario señalada, pues los derechos de contenido económico pueden modificarse dentro de los límites de la Constitución (art. 34 constitucional).

La protección reforzada del salario El Derecho Laboral está caracterizado por una serie de principios propios, siendo un clásico el principio protector. La jurisprudencia de la Sala Segunda ha señalado que el principio protector en las relaciones laborales regidas por el derecho público está sujeto siempre al de legalidad, siendo que resulta imposible su aplicación si con ello se produce un quebranto normativo.

En ese orden de ideas, explica que el art. 53 párrafo tercero de la ley no atenta contra el principio protector. El sentido de la ley 9635 no es buscar una diferenciación ni desmejora salarial, sino que la misma se planteó a efectos de obedecer a limitaciones de índole presupuestarias y financieras, con el claro objetivo de buscar mantener un balance en las finanzas públicas y que este objetivo económico se mantenga en el tiempo y no solo resulte aplicable a una crisis fiscal. En ese sentido, es obligación del Estado garantizar el principio de eficiencia asegurando los recursos necesarios para hacer frente a las obligaciones patronales frente a los funcionarios públicos y los egresos por concepto de pago de planillas que este debe realizar, ajustados a la realidad que atraviesa las finanzas del país. El pago de pluses salariales o incentivos debe guardar relación con el equilibrio de las finanzas públicas. Dicha reforma introducida con la ley 9536 pretende propiciar este equilibrio sin que ello signifique que haya violado normas y/o principios constitucionales. Es importante señalar que, para salvaguardar los salarios, y por haberlo dispuesto así el Transitorio XXV de la LFFP, el salario total de los servidores que se encontraban activos al 4 de diciembre del 2018 ‒fecha en que entró en vigencia esa ley‒ no puede ser disminuido.

Sobre la supuesta lesión al art. 34 de la Constitución Política El párrafo final del art. 53 de cita, no deroga el incentivo de carrera profesional existente antes de la creación de la ley 9635, si no que establece un límite temporal al reconocimiento y remuneración del incentivo económico de carrera profesional, hasta por un máximo de cinco años. Los servidores que se les haya reconocido los puntos de carrera profesional antes del 4 de diciembre de 2018 conservarán ‒sin limitación temporal y mientras se mantenga la relación laboral‒ la cantidad de puntos acumulados y reconocidos antes de aquella fecha, y con base en los cuales perciben la respectiva compensación económica, pero los puntos obtenidos posterior a la entrada en vigencia de ley 9635 y demás aspectos regulados en materia de carrera profesional, estarán sometidos a las modificaciones normativas introducidas por la citada ley.

Es importante reiterar lo dicho, en cuanto a que el régimen de derechos de los funcionarios públicos no es un régimen estático, si no variable, sobre todo en lo referido a los derechos de contenido económico, modificable dentro de los límites del art. 34 de la Constitución Política. Es decir, no puede pretenderse que la situación estatutaria quede congelada o permanezca para siempre de manera estática, sino que esta puede ser modificable o variar por ley o reglamentariamente, incluso suprimida por una norma posterior. Efectivamente, no existe un derecho a la inmutabilidad del ordenamiento jurídico, el legislador ordinario mantiene incólume su potestad de dictar las leyes, reformarlas, derogarlas y darles interpretación auténtica (ordinal 121 inciso 1) constitucional).

No considera esa Cartera que se estén violando derechos adquiridos, toda vez que la ley 9536 previno la afectación de derechos adquiridos refiriéndose específicamente a estos en el Transitorio XXV de la LFFP, el salario total de los servidores que se encontraban activos al 4 de diciembre del 2018, fecha en que entró en vigencia esa ley, no puede ser disminuido y se les respetarán los derechos adquiridos que ostenten.

Sobre la presunta lesión al principio de intangibilidad del patrimonio La reforma realizada al art. 53 de la LSAP, no deroga el incentivo de carrera profesional, pues los puntos obtenidos antes de la entrada en vigencia de dicha ley se conservan por el término que dure la relación estatutaria. Se modifica la condición en la que se van a otorgar después de su vigencia siendo que solo se reconocerán los puntos de carrera nuevos por un plazo de 5 años. En ese sentido, el art. 191 de la Constitución Política, así como la jurisprudencia judicial y administrativa que lo informa, posibilitan la regulación uniforme, por vía legal, de todas las relaciones de empleo en el sector público, sin que ello pueda considerarse como una violación a los principios constitucionales señalados. La ley salvaguarda los derechos adquiridos y la no disminución del salario, tal y como se observa en el Transitorio XXV de la LFFP, por lo que, en este sentido, la norma impugnada no viola el principio de intangibilidad del patrimonio.

Sobre la presunta lesión al principio de irrenunciabilidad El principio de la irrenunciabilidad implica la imposibilidad de que los trabajadores renuncien a los derechos concedidos por la legislación laboral (ordinal 74 Constitución Política y art. 11 Código de Trabajo). Los derechos de los trabajadores son irrenunciables, ahora bien, sobre este particular, es importante señalar que con la modificación operada en la ley 9635 no se busca la supresión de los derechos de laborales, sino que la ley estableció el Transitorio XXV de la LFFP, a efecto de salvaguardar los derechos adquiridos, así como lo referente a respetar las condiciones salariales de los servidores que se encontraban activos al 4 de diciembre del 2018, fecha en que entró en vigencia esa ley.

Finalmente, se refiere al estado de las finanzas públicas, para concluir que es claro que el Estado se encuentra en la obligación de garantizar el principio de eficiencia asegurando los recursos necesarios para hacer frente a las obligaciones, ajustados a la realidad que atraviesa las finanzas del país, por lo que el pago de pluses salariales o incentivos debe guardar relación con el equilibrio de las finanzas públicas.

Solicita declarar sin lugar la acción de inconstitucionalidad.

62.- En memorial recibido en la Secretaría de la Sala el 5 de julio de 2024 se apersonó el señor [Nombre 004] a solicitar ser tenido como parte en este expediente.

63.- El 31 de octubre de 2024 se adjuntó una gestión de pronto despacho.

64.- Mediante memorial de 21 de enero de 2025 el magistrado suplente, Jorge Isaac Solano Aguilar, adjuntó solicitud de inhibitoria.

65.- Por resolución de la Presidencia de la Sala de las 11:39 hrs. de 24 de enero de 2025 se rechazó la solicitud de inhibitoria del magistrado Solano Aguilar.

66.- En los procedimientos se ha cumplido las prescripciones de ley.

Redacta la magistrada PACHECO SALAZAR; y,

Considerando:

I.- Cuestiones de Trámite:

• 1)Sobre las coadyuvancias admitidas Mediante resolución de la Presidencia de este Tribunal de las 9:29 hrs. de 8 de mayo de 2019, se dispuso lo siguiente en relación con las solicitudes de coadyuvancia presentadas hasta ese momento:
• a)se tienen como coadyuvantes pasivos a los señores Enrique Egloff Gerli en su condición de presidente de la Asociación Cámara de Industrias de Costa Rica y a Álvaro Sáenz Saborío en su calidad de apoderado especial de la Unión Costarricense de Cámaras y Asociaciones del Sector Empresarial Privado, lo anterior porque su interés es que se declare sin lugar esta acción de inconstitucionalidad; b) se tienen como coadyuvantes activos a los señores Juan Carlos Chaves Araya en su condición de secretario general del SIBANPO, Miguel Ernesto Carranza Díaz como funcionario público, Marvin Atencio Delgado en su calidad de secretario general de SIPROCIMECA, Álvaro Adrián Madrigal Mora como secretario general del SITUN, Róger Muñoz Mata en su condición de secretario UNEBANCO, José Luis Soto Rodríguez en su calidad de secretario general de la UPINS y Luis Gerardo Chavarría Vega como secretario general de UNDECA, coincidiendo todos en su interés para que se declare con lugar esta acción.
• 2)Sobre las coadyuvancias posteriores Debido a la ampliación de curso que se hiciera a partir de los argumentos planteados en la acción de inconstitucionalidad n.º19-004931-0007-CO que fuera acumulada a ésta, se presentaron solicitudes de coadyuvancia que se resuelven de la siguiente manera:
• a)[Nombre 002], en su condición de apoderado especial judicial del SINAME, solicitó que se tuviera a su representado como coadyuvante activo por considerar que la decisión que se adopte por la Sala en relación con las normas alegadas, tendrá incidencia directa en el ámbito de los intereses de los agremiados de aquél sindicato. El art. 83 de la LJC señala que en los quince días posteriores a la primera publicación del aviso al que se refiere el art. 81 párrafo segundo de la LJC, aquéllos que tuvieren interés legítimo, podrán apersonarse a fin de coadyuvar en las alegaciones que pudieren justificar la procedencia o no de la acción de inconstitucionalidad, o para ampliar, en su caso, los motivos de inconstitucionalidad en relación con el asunto que les interesa. En el caso concreto, según se observa, fue el 27 de febrero de 2020 cuando el representante del SINAME solicitó que se le tuviera como coadyuvante activo al estimar que su representado tiene interés legítimo en esta acción. En consecuencia y, siendo que la primera publicación del aviso de la ampliación de curso de esta acción se dio el 7 de febrero de 2020, lo procedente es tener a este gestionante como coadyuvante activo dentro de este proceso.
• b)[Nombre 003], cédula [Valor 002], presentó el 22 de enero de 2021 en la Secretaría de este Tribunal, una solicitud para que se le tenga como coadyuvante activo en esta acción; no obstante, su pretensión resulta extemporánea toda vez que, como se indicó, el primer aviso fue publicado el 7 de febrero de 2020 y él acudió a este Tribunal, casi un año después, con lo cual su gestión, está fuera del plazo al que se refiere el art. 83 de la LJC y por lo tanto debe ser rechazada.
• c)En memorial recibido en la Secretaría de la Sala el 5 de julio de 2024 se apersonó el señor [Nombre 004] a solicitar ser tenido como parte en este expediente. Sin embargo, su gestión es extemporánea y debe ser rechazada.

II.- Sobre la integración de la Sala para conocer este asunto Luego de realizar los procedimientos correspondientes, tal y como se consigna en los resultandos de este expediente, el conocimiento de este expediente quedó asignada a los siguientes magistrados: Fernando Castillo Víquez, Fernando Cruz Castro, Paul Rueda Leal, Jorge Isaac Solano Aguilar, Fernando Lara Gamboa, Aracelly Pacheco Salazar y Alejandro Delgado Faith.

Sobre la AdmisiBIlidad:

III.- Sobre los presupuestos formales de admisibilidad y legitimación Esta Sala ha señalado, de forma reiterada, que la acción de inconstitucionalidad es un proceso con determinadas formalidades que, si no se reúnen, la imposibilitan para pronunciarse sobre el fondo del asunto. El art. 75 de la LJC regula la legitimación para interponer acciones de inconstitucionalidad y prevé situaciones distintas. En el párrafo primero se exige la existencia de un asunto pendiente de resolver, sea en sede judicial –incluyendo los recursos de hábeas corpus o de amparo‒, o en la administrativa ‒en el procedimiento de agotamiento de esta vía‒, en el que se invoque la inconstitucionalidad de la norma cuestionada como medio razonable de amparar el derecho o interés que se considera lesionado en el asunto principal. En los párrafos segundo y tercero se regula la acción directa que son los casos en los que no se requiere del asunto base bajo los siguientes supuestos: a) cuando por la naturaleza del asunto no exista lesión individual y directa; b) se trate de la defensa de intereses difusos o que atañen a la colectividad en su conjunto; y c) cuando la acción sea promovida por el Procurador General de la República, el Contralor General de la República, el Fiscal General de la República y el Defensor de los Habitantes.

De esta manera, solo en casos excepcionales que la ley establece, no será necesaria la existencia de ese requisito y se ha aclarado por parte de este Tribunal que “los supuestos contenidos en el art. 75 párrafo segundo constituyen una excepción a la regla establecida en el párrafo primero (vía incidental) que deben ser valorados cuidadosamente” (sentencia n.°2022-003938).

IV.- La legitimación de los accionantes en EL CASO CONCRETO Según se desprende de autos, en las diferentes acciones que han sido acumuladas a este expediente principal, los actores justifican la legitimación que ostentan en lo establecido en el párrafo segundo del art. 75 de la LJC al afirmar que acuden en defensa de intereses difusos de los funcionarios públicos, pero también de los agremiados de las diferentes asociaciones y sindicatos que representan. Esta Sala examinó dicha fundamentación y en la sentencia interlocutoria n.º2019-010635 de las 9:20 hrs. de 12 de junio de 2019 (dictada en la acción acumulada n.º19-004931-0007-CO), se indicó expresamente que no se compartía el criterio de que estaban acudiendo en defensa de intereses difusos y se manifestó que, en el caso concreto, se está en presencia de intereses corporativos, también derivados de los intereses colectivos que son los que se pretenden defender por parte de las asociaciones y sindicatos apersonados. Igualmente la Sala manifestó en esa resolución que hay una clara relación entre el cuestionamiento de las normas y los intereses de sus afiliados que produce legitimación para interponer esta acción de inconstitucionalidad. Sin embargo, también se advirtió lo siguiente:

“[E]sa relación no alcanza para tutelar los derechos de las familias de sus afiliados o de una colectividad aún mayor, formada por los contribuyentes, los administrados del régimen municipal, los gobiernos locales y los funcionarios públicos que laboran en diversas instituciones públicas que son acreedores de cierto nivel de autonomía. Aceptar que la Asociación está legitimada para defender los interese de ese grupo, más amplio, general y diverso, supondría aceptar la existencia de una especie de acción popular, la cual es reserva de ley en nuestro ordenamiento jurídico, de manera que debe estar expresamente dispuesta por esta, lo que no es el caso” (ver sentencia interlocutoria n.º2019-010635 de las 9:20 hrs. de 12 de junio de 2019 dictada en el expediente n.º 19-0004931-0007-CO). (Lo destacado no corresponde al original).

De conformidad con esa resolución, debe advertirse entonces prima facie, que la legitimación de los accionantes lo es únicamente para efectos de cuestionar normas legales o reglamentarias que presuntamente afecten el ámbito laboral y salarial de los trabajadores, no así para cuestionar otros aspectos de política pública que no se relacionan de modo directo con aspectos estrictamente laborales.

El criterio de la Sala ha sido reiterado en varias resoluciones posteriores. Por ejemplo, en la sentencia interlocutoria n.°2021-022948:

“III.- DE LA INADMISIBILIDAD DE LA PRESENTE ACCIÓN, RESPECTO DE LA ALEGADA INFRACCIÓN A LA AUTONOMÍA DE LA CAJA COSTARRICENSE DE SEGURO SOCIAL. En el sub lite, los accionantes formulan como primer reproche una presunta infracción a la autonomía institucional reforzada que se reconoce en el texto constitucional a la Caja Costarricense de Seguro Social (artículos 73 y 188 de la Constitución Política). En cuanto a este punto en particular, debe indicarse que este Tribunal Constitucional ha resuelto, de forma reiterada, que la defensa de la autonomía de una institución debe hacerla ante esta instancia esa misma entidad y no un tercero (votos Nos. 2008-014190 de las 10:00 hrs. del 24 de septiembre de 2008, 2008-017295 de las 14:48 hrs. del 19 de noviembre del 2008 y 2016-01669 de las 09:30 hrs. del 03 de febrero de 2016). Dicho criterio fue ratificado por esta Sala, recientemente, al conocer de una acción de inconstitucionalidad análoga a la presente, interpuesta por otra organización sindical (ANEP) que también pretendía impugnar diversos artículos de la citada Ley de Salarios de la Administración Pública (reformada mediante Ley No. 9635), justamente, por presunta infracción la autonomía de las municipalidades y distintas instituciones autónomas. En esa ocasión, este Tribunal emitió el voto No. 2019-010635 de las 9:20 horas del 12 de junio de 2019, en el que se indicó –respecto a este punto- que: (…) Este criterio fue confirmado nuevamente por este Tribunal, con posterioridad, al rechazar sendas acciones de inconstitucionalidad, mediante votos Nos. 2019-19597 y 2019-22464, en razón de varias acciones interpuestas por el Sindicato de Trabajadores del Instituto Nacional de Aprendizaje en contra de diversa normativa por presunta infracción a la autonomía de esa institución. En tales sentencias se reiteró que los representantes de las organizaciones sindicales no están legitimados para accionar, de forma directa, en presunta defensa de la autonomía de una institución autónoma, sino que la defensa de la autonomía de una institución debe hacerla esa misma entidad. Ergo, esta acción resulta inadmisible en cuanto a este reproche en particular”. (Consideraciones reiteradas en sentencias números 2022-023912, 2023-010777, 2024-007057).

Así las cosas, debe decirse que, para este Tribunal, es claro que [Nombre 001] en su condición de secretario general de SEBANA; Albino Vargas Barrantes en su carácter de secretario general de la ANEP; Carlos Stradi Granados en su calidad de presidente del SIICE en conjunto con Mario Ching Rosales como presidente de ASDEICE; y finalmente, Mélida Cedeño Castro en su condición de presidenta de la APSE, se encuentran debidamente legitimados para acudir por esta vía ante este Tribunal, a partir de lo dispuesto en el art. 75 párrafo segundo de la LJC, en defensa de intereses corporativos derivados de intereses colectivos que son los que pretenden defender, tal y como se indicó en la resolución de curso de este expediente (19-002620-0007-CO) y en la referida resolución interlocutoria n.º2019-010635, dictada en la acción acumulada n.º19-004931-0007-CO). En lo relativo a las coadyuvancias activas, se advierte igualmente que su admisión es para efectos de coadyuvar en lo relativo a la defensa de los derechos laborales de las personas agremiadas a los correspondientes sindicatos y no, como se ha advertido en los antecedentes, para realizar la defensa de la autonomía institucional de las instituciones para las cuales trabajan.

Cabe insistir que, en tesis de principio, estas acciones son admisibles en lo que atañe a la defensa concreta de los servidores públicos agremiados a los distintos sindicatos accionantes. Por lo tanto, al examinar pormenorizadamente los agravios planteados, se detallarán cuáles normas son inadmisibles de análisis ante este Tribunal, justamente atendiendo a la legitimación que ostentan los accionantes. En ese sentido, si bien prima facie se admiten las acciones planteadas, con posterioridad se detallará cuáles agravios deben desestimarse en virtud de que la legitimación de los sindicatos no puede asimilarse a una acción popular en que se cuestione todo el contenido de la LFFP.

El magistrado Cruz Castro salva el voto y admite además la legitimación de los accionantes sobre la defensa de las autonomías institucionales, responsabilidad fiscal y destino de los superávits libres.

CONSIDERANDOS DE FONDO V.- Sobre la metodología de análisis de la acción.

Para facilitar el estudio de la normativa impugnada, en los considerandos siguientes se analizará cada uno de los artículos cuestionados incluyendo todos los temas que tienen relación directa con lo que se impugna por parte de los accionantes. De igual manera en cada punto en concreto se hará una breve referencia a lo que indican los coadyuvantes, PGR, Ministerio de Hacienda, MIDEPLAN y DGSC para finalmente hacer el análisis de constitucionalidad por parte de este Tribunal.

De previo, se realizan consideraciones generales relacionadas con el contexto de la aprobación de la normativa impugnada, reflexiones sobre el necesario equilibrio que debe existir entre la aprobación de políticas públicas salariales y el resguardo de los derechos fundamentales de los servidores públicos, sobre la mutabilidad del ordenamiento jurídico, los principios de progresividad y no regresividad, los derechos adquiridos, una aclaración sobre la aplicación de esta normativa y el principio general que rige los procesos de control de constitucionalidad como lo es la necesaria fundamentación de los agravios.

VI.- De previo. Contexto y aprobación de la normativa impugnada.

De previo a examinar en concreto el elenco de agravios planteados, se hace necesario valorar el contexto en el que se dio la reforma. Como se desarrollará a continuación, la LFFP recibe impulso y aprobación legislativa en un momento crítico de la situación fiscal costarricense, en el que uno de los ejes es procurar la uniformidad y la contención del gasto en lo relativo a la planilla de los servidores públicos.

En efecto, lo relativo al pago de los salarios de los empleados estatales ha sido objeto de preocupación desde hace varios años por parte de las autoridades públicas, de manera que se ha venido impulsando y llamando la atención de que en un contexto de crisis fiscal resulta relevante tomar acciones permanentes orientadas a ordenar el gasto en remuneraciones y, muy particularmente, en lo relativo a los incentivos salariales. Así, por ejemplo, en la Memoria Anual de la Contraloría General de la República (CGR) del año 2015, se hizo un análisis del aumento en el gasto por concepto de remuneraciones y se realizaron las siguientes advertencias:

“• El gasto en remuneraciones del sector público alcanzó ¢5.132.158 millones, 5,7% más que en 2014. No obstante su participación dentro del gasto total es cada vez mayor al pasar al pasar de 24,2% en 2010 a 26,3% en 2015.

• El Gobierno Central absorbe 41,4% del total del gasto en remuneraciones, y su tasa de crecimiento es de 7,3% superior a la del sector público.

• La relación incentivos salariales/remuneraciones básicas en el Sector Público pasa de 0,99 en 2010 a 1,1 en 2015. Los incentivos crecen 6,1% en 2015 mientras que las remuneraciones básicas crecen 4,8%.

• Dada la coyuntura fiscal actual, resulta relevante tomar acciones permanentes orientadas a ordenar el gasto en remuneraciones, de tal forma que se rija por los principios de razonabilidad, eficiencia y eficacia”. (Lo destacado no corresponde al original).

En dicha memoria, igualmente la CGR advirtió que si bien el gasto en remuneraciones es de grandísima importancia para el funcionamiento de la Administración Pública, tales pagos deben regirse por los principios de eficiencia, eficacia y economía, siendo que la dispersión de regímenes salariales y la erogación de altos incentivos conllevan a un comportamiento “no sostenible de la remuneraciones”. La CGR advirtió que le correspondería a la Asamblea Legislativa aprobar las normas y propuestas legislativas para regular la materia:

“Sin lugar a dudas, el gasto en remuneraciones es de gran importancia para un funcionamiento efectivo de la administración pública, no obstante, debe regirse por principios de razonabilidad, eficiencia, eficacia y economía. La dispersión de regímenes salariales actuales, las políticas salariales y dispendiosos incentivos salariales conllevan a un comportamiento no sostenible de las remuneraciones. Situación que resulta crítica para una partida que absorbe prácticamente la cuarta parte de los recursos públicos y de un carácter recurrente. Como se ha mencionado en otras secciones de esta Memoria del Año Económico, en la corriente legislativa existen ya varias propuestas orientadas a contener este gasto, corresponde al legislador su análisis y aprobación en aras de promover soluciones de carácter permanente”. (Lo destacado no corresponde al original).

Posteriormente, en la Memoria Anual de 2017, la CGR realizó un análisis sobre de qué se trata el déficit fiscal en nuestro país y se explicaron varios motivos de cómo se pudo generar. Entre las causales que se enuncian está justamente el crecimiento en los sistemas de remuneración del sector público:

“Otra causa del crecimiento del gasto, son los sistemas de remuneración del sector público que propician el crecimiento inercial: anualidades, puntos profesionales (por antigüedad, cursos y títulos profesionales, etc.), recalificación de plazas y puestos, ajustes extraordinarios de salarios, aumento en el número de funcionarios, leyes que crean programas o funciones del Gobierno y originan más gasto, creación de nuevas unidades por reorganización, entre otros. El diseño del esquema remunerativo actual comprende el pago de incentivos, los cuales suelen tener un comportamiento más dinámico en comparación con los salarios base. En promedio para el periodo 2012-2017 los incentivos crecieron a una tasa del 6,3% en comparación al 5,2% promedio de las remuneraciones básicas. Lo anterior, por cuanto algunos de estos incentivos se ajustan por concepto de inflación o en su defecto se encuentran fuertemente asociados a la cantidad de años servidos, como es el caso de las anualidades.

Los incentivos también han llegado a ser superiores a los salarios base, ya que en el agregado del sector público, por cada ¢100 000 de salario base se desembolsaron ¢109 106 por concepto de incentivos, y en algunas instituciones los incentivos no sólo igualan al salario base sino que lo duplican, es decir, hasta dos tercios de la remuneración de un funcionario puede corresponder al pago de incentivos, reflejando la desnaturalización que han tenido los incentivos en los esquemas de salario base más componentes, pues paulatinamente pasaron de ser una retribución adicional a ser más importantes que el propio salario. Esta relación incentivos/salarios base ha crecido de forma sostenida a lo largo del tiempo, por ejemplo, en 2013 por cada ¢100 000 de salario base, se pagaron ¢104 093 en incentivos. Cabe señalar que la magnitud de esta relación difiere de acuerdo con el sector institucional, pues es mayor en las instituciones descentralizadas no empresariales y menor en los Gobiernos Locales (1,3 versus 0,7 respectivamente).

La tendencia al crecimiento en el gasto salarial, no sólo en el Gobierno Central, sino en entidades con régimen de autonomía que se financian por medio de transferencias del Gobierno, repercute en el resultado fiscal del Gobierno”. (Lo destacado no corresponde al original).

En dicho informe se advirtió, además, que era vital concretar reformas legales para regular aspectos remunerativos del empleo público y que la inacción en dicha materia estaba socavando la sostenibilidad fiscal:

“En síntesis, el esquema remunerativo, el comportamiento del empleo y de la inflación definen la tendencia del gasto en remuneraciones; donde la administración únicamente tiene algún control sobre el segundo aspecto, mientras que los regímenes salariales y la inflación resultan variables exógenas. La concreción de reformas para ordenar el empleo público y simplificar los regímenes salariales es de suma importancia en la atención del tema fiscal. La inacción constituye uno de los principales riesgos que socavan la sostenibilidad fiscal, al tiempo que perpetúa las inequidades y contrasentidos de los regímenes actuales”. (Lo destacado no corresponde al original).

De los anteriores informes de la CGR, se constata que al menos desde el año 2015 se venía insistiendo en la necesidad de simplificar y contener el gasto en salarios como una medida para atacar el déficit fiscal.

De este modo, se tiene que la LFFP se adoptó en un contexto en el que el Gobierno y el Poder Legislativo determinaron que era imperioso adoptar medidas de todo orden a efecto de “solventar el desequilibrio fiscal en forma sostenible” y procurar una solución al problema estructural de las finanzas públicas (contención del gasto y aumento en los ingresos). Lo anterior, en razón de que todos los indicadores económicos apuntaban hacia un severo déficit fiscal y un desequilibrio en las finanzas públicas.

De hecho, al examinar los propios antecedentes de este Tribunal, se tiene que en la opinión consultiva n.°2018-019511 que justamente examinó las dudas de constitucionalidad planteadas en relación con el proyecto de ley que pretendía aprobar la LFFP, la Sala advirtió que el contexto que rodeaba la aprobación del proyecto de ley no podía pasar desapercibido y se realizó el siguiente enunciado que justamente sirvió de parámetro para valorar la constitucionalidad de las reformas legislativas:

“[E]n el expediente legislativo n.°20.580 constan criterios técnicos e informes de varias autoridades con competencia en la materia que, a los efectos de este proceso, constituyen prueba suficiente para concluir que merced al irrespeto al principio constitucional del equilibrio financiero, cobijado en el artículo 176 de la Constitución Política, nuestro país presenta una situación fiscal tan deteriorada que amenaza la sostenibilidad financiera del Estado”. (Lo destacado no corresponde al original).

Luego del análisis de sendos criterios técnicos que constaban en el expediente legislativo, la Sala valoró que ‒de conformidad con los especialistas y el propio Gobierno‒ la situación fiscal del país no garantizaba la sostenibilidad financiera del Estado y, por lo tanto, no solamente era deseable, sino que era insoslayable que el Estado costarricense adoptara medidas para garantizar las cualidades y principios de nuestro Estado Social y de Derecho. Lo anterior, bajo una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. Al respecto, este Tribunal advirtió lo siguiente:

“Desde este panorama, la Sala observa suficientes criterios técnicos para (acreditar) que, en estos momentos, la situación fiscal del país no garantiza la sostenibilidad financiera del Estado y, por ende, del cumplimiento de sus obligaciones constitucionales.

Sobre el particular, frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable.

Ahora bien, no atañe a la Sala definir en concreto qué tipo de remedios se deben aplicar ni cuál es el más adecuado, toda vez que ello forma parte de la política económica del Estado, que a su vez constituye materia de gobierno. En realidad, el control de constitucionalidad se encuentra constreñido a velar por que las soluciones se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país (en una república democrática, libre, independiente, multiétnica y pluricultural, cuyo Gobierno es popular, representativo, participativo, alternativo y responsable), todo lo cual implica un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego.

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”. (Lo destacado no corresponde al original).

Más adelante, la Sala se vuelve a referir al contexto de aprobación de la normativa en cuestión a efecto de concluir que el adecuado respeto de los derechos sociales y prestacionales es una aspiración que está en función del sano y apropiado manejo de las finanzas públicas y que es preciso que exista un equilibrio entre los derechos prestacionales y la solvencia económica del Estado, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda.

Por lo tanto, se parte justamente de la necesidad de adoptar medidas legales, administrativas y materiales que permitieran revertir las vísperas de una crisis fiscal de gravedad particularmente seria, que fue caracterizada como insostenible, lo que implicaba una amenaza al Estado Social de Derecho. Al respecto, la Sala realizó las siguientes reflexiones:

“Como ya se ha dicho en este pronunciamiento, para que un Estado Social de Derecho pueda cumplir sus fines constitucionales y legales se debe resguardar la sostenibilidad fiscal del país; es decir, de forma inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica del Estado, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda. De ahí que el Estado Social de Derecho “Ideal” sea el Estado Social de Derecho “Posible”, pues el endeudamiento y el manejo irresponsable de las finanzas públicas, aunque sean llevados a cabo con la consigna de paliar problemas sociales, cuando alcanzan niveles desproporcionados pueden llegar a poner en riesgo la sostenibilidad financiera del país, lo que no solo acarrea su debilitamiento económico (incluso a niveles de muy difícil o traumático manejo), sino también acrecienta la posibilidad de perder los programas sociales y los avances socioeconómicos ganados a la fecha. A mayor abundamiento, como punto de arranque, esta sentencia parte de que el proyecto impugnado se orienta por el principio constitucional del equilibrio presupuestario, dentro de un contexto en el que hay suficiente acervo probatorio como para verificar una crisis fiscal de gravedad particularmente seria, que ha sido caracterizada ya sea como insostenible, ya sea como una amenaza al Estado Social de Derecho, según criterio técnico de diversas autoridades del sector universitario, económico y de control (Instituto de Investigaciones Económicas de las Universidad de Costa Rica, Banco Central, Contraloría General de la República, Programa Estado de La Nación, entre otros). Se constata que tal debilitamiento económico del país puede socavar las bases del estado benefactor y solidario, lo que precisamente pone en riesgo al propio Estado Social de Derecho. En la tarea de solucionar tal problema, goza el legislador de una amplia libertad de configuración, respecto de la cual a la Sala Constitucional no le atañe definir en concreto qué tipo de remedios se deben aplicar ni cuál es el más adecuado, toda vez que ello es parte de la política económica del Estado, que a la vez constituye materia de gobierno. La función de la jurisdicción se constriñe a velar por que las soluciones se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como la organización y las estructuras políticas contempladas en la Ley Fundamental, cimientos de nuestro sistema político democrático”. (Lo destacado no corresponde al original).

Los magistrados Salazar Alvarado y Araya García puntualizaron que no le correspondía a la Sala definir si efectivamente nuestro país estaba atravesando o no una crisis fiscal; sin embargo, sí reconocieron que, en atención a sendos criterios técnicos que constaban en el expediente legislativo, se podía valorar el contexto y examinar las reformas legales que se estaban proponiendo. No obstante, advirtieron que la potencial crisis financiera no podría justificar, por esa mera circunstancia, que se vaciaran de contenido los derechos fundamentales de los habitantes, pues ello podría implicar en el fondo, un vaciamiento del Estado Social de Derecho. En lo conducente, realizaron las siguientes reflexiones:

“Es preciso enfatizar, que a esta Sala no le corresponde definir, en concreto, si el país está o no atravesando por una crisis fiscal, ni las características de esta -en caso de que la hubiera-; y, mucho, menos qué tipo de remedios se deben aplicar, ni cuáles son los más adecuados, ni la oportunidad y conveniencia de las medias financieras y de reducción del gasto público adoptadas, todo lo cual se enmarca dentro de la política macro-económica del Estado, materia típica de gobierno. Tampoco le corresponde decantarse por una solución u otra. Es a las dependencias administrativas competentes a las que, a través de criterios técnicos y actuariales, corresponde definir si existe una crisis fiscal en el país, en qué medida, así como sus características y consecuencias económicas y sociales. Esto, sin embargo, no obsta para que este Tribunal, en atención a esos criterios técnicos -como lo es el Informe Económico AL-DEST-IIN-114-2019, del 2 de marzo de 2018, del Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa (ver folio 1477 de expediente legislativo); el oficio N° DFOE-SAF-0183, del Área de Fiscalización del Sistema de Administración Financiera de la Contraloría General de la República de 13 de abril de 2018 (visible a folio 4525 del expediente legislativo) y los oficios JD-5846/04, de 26 de setiembre de 2018, , y el DEC-AAE-0083-2018, de 16 de octubre de 2018, del Secretario General y del Departamento de Análisis y Asesoría Económica, ambos del Banco Central de Costa Rica (visibles a folios 15805 y 20519, respectivamente, del expediente legislativo); entre otros- pueda valorar la situación -no definirla- para, dentro de ese contexto, realizar el análisis de constitucionalidad que es lo que le corresponde. Estas consideraciones son propias de un Tribunal de la naturaleza de esta Sala, pues no solo no puede ser ajeno a la realidad financiera y social del país, sino que este tema se inserta dentro del principio constitucional de equilibrio financiero que el Constituyente del 49 estableció en el artículo 176, de la Constitución Política, el cual tiene graves repercusiones en el Estado Social de Derecho. Empero, la crisis financiera del Estado no puede justificar, por sí sola y por sí misma, la restricción ni la enervación de los derechos fundamentales. En este sentido, a este Tribunal sí le compete determinar, si las medidas propuestas son o no acordes con el Derecho de la Constitución, de modo que el contenido de los derechos constitucionales no se vacíe en aras de buscar una sanación de las finanzas públicas. Existen, en esta materia, límites intangibles para el legislador. En este contexto, no se puede admitir un menoscabo exacerbado de las garantías sociales, en especial de los derechos prestacionales, sin que ello implique un desmantelamiento del Estado Social de Derecho”. (Lo destacado no corresponde al original).

La magistrada Hernández López también se refirió al contexto de aprobación normativa como un parámetro de razonabilidad y proporcionalidad, advirtiendo, eso sí, que es un aspecto contingente que podría llegar a mejorar:

“Otro aspecto que resulta medular aclarar, es que si bien esta sentencia contiene referencias a la actual coyuntura económica (según los estudios técnicos aportados en autos), ese contexto se ha tomado en cuenta, en tanto las autoridades competentes se fundan en éste para justificar que algunas de las medidas adoptadas son determinables para la sostenibilidad económica de las responsabilidades del Estado. En ese sentido, las referencias a esa coyuntura, desde mi perspectiva, se han hecho con el fin de valorar la razonabilidad y proporcionalidad como parámetros constitucionales de algunas de las medidas consultadas. Al actuar de esa forma, entiendo que se reafirma la necesidad -reconocida además claramente por la propia doctrina- de que las decisiones de este órgano tengan en cuenta y operen siempre en un contexto social y económico concreto, de modo que -dentro de tales circunstancias específicas- se logre la mejor ponderación, protección y equilibrio posible de los derechos fundamentales de los administrados, pero sin afectar la viabilidad, perdurabilidad y estabilidad de la Constitución Política, como instrumento jurídico y político que hace posible la materialización del pacto social; lo contrario sería arriesgarse a terminar en las antípodas del estado constitucional de derecho, con una Carta fundamental, en el aire, con derechos que existen sólo en el papel es decir, con un estado fallido, incapaz de garantizar sus obligaciones, en particular las de los derechos prestacionales, (especialmente las de las poblaciones más vulnerables niños, niñas, tercera edad, programas de pobreza, seguridad, salud, justicia y paz entre otros) los que quedarían vacíos de contenido. Nada exime a un estado constitucional de derecho de cumplir sus obligaciones de garantizar, en forma programática, el cumplimiento de estas responsabilidades, que además forman parte de su razón de ser. En ese sentido, distintos contextos (económicos, políticos o sociales) pueden influir en la forma en que un Tribunal Constitucional, al cumplir su labor de protección y control, dota de sentido y alcance concretos, especialmente a los denominados principios constitucionales, por su textura abierta, y orienta a las autoridades sobre el alcance de las normas programáticas de un determinado estado, en un momento y en unas circunstancias históricas determinadas; no podría ser de otra forma ni lo ha sido nunca, cuando se trata de la tarea de edificación de un Estado democrático y social de Derecho, del que también este Tribunal participa, en cuanto le corresponde –por su función de guardián de la Constitución Política- y como parte de su rol, el de velar por la estabilidad y perdurabilidad del pacto social. Tal es el real sentido de lo expuesto en esta sentencia, que como se indicó, no puede servir para prejuzgar de manera exacta y rígida, sobre los cuestionamientos que a futuro -frente a casos concretos y en contextos diferentes-, puedan plantearse ante la Sala, pues, no sería correcto que -por ejemplo- los parámetros específicos de razonabilidad y proporcionalidad empleados bajo un contexto determinado se mantengan, sin ajuste, frente a los cambios o mejoras que puedan presentarse a futuro; de manera que en un contexto de bonanza económica, la razonabilidad y proporcionalidad de algunas de las medidas adoptadas, no tendría el mismo significado desde el punto de vista constitucional. Desde mi perspectiva por ejemplo, no sería sostenible constitucionalmente, que ante una estabilidad o bonanza económica futura, se mantuvieran vigentes algunas de las restricciones de crecimiento al gasto social -destinado a las poblaciones en mayor estado de vulnerabilidad y de los derechos de los trabajadores-, que se han impuesto en el contexto actual”.

Debe de indicarse que la LFFP incluyó una serie de disposiciones relativas a modificaciones en materia tributaria, concretamente sobre la Ley del Impuesto sobre el Valor Agregado (Título I), la Ley de Impuesto a los Ingresos y Utilidades (Título II); se agregaron una serie de normas que vinieron a reformar la LSAP (Título III) ‒que se refiere justamente al objeto que se va a examinar en esta acción‒; también se introdujeron disposiciones relativas a la responsabilidad fiscal (Título IV); y finalmente reglas transitorias para hacer operativas las reformas en cuestión.

En lo atinente a la incidencia en los salarios de los servidores públicos, la exposición de motivos del proyecto de ley explicó cuál era el propósito de la iniciativa, a saber: orientar las remuneraciones de la función pública hacia un esquema de eficiencia y calidad en el gasto público. De este modo, la exposición de motivos del proyecto de ley refirió lo siguiente:

“b) Adición a la ley de los salarios públicos Con la reforma a la ley de salarios públicos se busca orientar las remuneraciones de la función pública hacia un esquema de eficiencia y calidad en el gasto público. Para ello se establece: i) Topes a los mayores salarios de la Administración Pública; ii) Un sistema de remuneración de salarios único para jerarcas; iii) La regulación legal de los regímenes de prohibición y dedicación exclusiva, y iii) La conversión de la anualidad en un mecanismo de evaluación de la excelencia individual, pero que tenga en cuenta el cumplimiento de las metas institucionales y del Plan Nacional de Desarrollo. Esto último busca reducir la paradoja de contar con funcionarios calificados de excelentes, quienes sin embargo prestan servicios en entidades que no han cumplido las expectativas.

La compensación de los altos jerarcas debe basarse en la naturaleza de su trabajo y en las competencias a desempeñar. Para muchos puestos de responsabilidad, el salario base representa tan solo el 20% del salario total, ajustándose sus remuneraciones a través de los más diversos pluses, que son menos transparentes y controlables, y que pueden tener como resultado retribuciones evidentemente abusivas, sobre todo si se toma como parámetro la realidad de nuestro mercado laboral.

En este sentido, el establecimiento de topes para los puestos mejor remunerados podría traer el doble beneficio de, por un lado, evitar compensaciones abusivas y, por otro, equiparar las retribuciones de los altos jerarcas que desempeñan funciones de igual responsabilidad.

Por otra parte, es indudable que el sistema de evaluación de desempeño del sector público no sólo es complejo, sino que facilita la inflación de las calificaciones y se realiza de espaldas de la prestación de los servicios propiamente dicha, que es a fin de cuentas lo que le interesa a la ciudadanía.

Además, según datos del INEC, en Costa Rica existen aproximadamente 305.000 funcionarios públicos, lo que representa un número cercano del 15% de la fuerza laboral. Determinar si esa cantidad es excesiva no depende de sí misma, sino de los resultados obtenidos.

Un adecuado sistema de evaluación, basado en la facilidad para su comprensión, en la transparencia para que sus resultados sean conocidos públicamente y en el mérito de los funcionarios, tendría como necesario correlato el incentivo para el mejor desempeño individual y en la prestación de servicios. Esto redundaría también en el mejor análisis de los recursos destinados a nuestra fuerza laboral pública, e incluso en la posibilidad de redireccionarlos a aquellas áreas de mayor demanda o incidencia.

Por estas razones, se presenta ante las señoras y señores diputados el siguiente proyecto de ley:” (Lo destacado no corresponde al original).

En el Informe Integrado (Jurídico) n.°AL-DEST-IJU-110-2018 del Departamento de Estudios, Referencias y Servicios Técnicos, del 21 de marzo de 2018, relativo al proyecto de ley tramitado en el expediente n.°20.580, sobre el proyecto de ley de LFFP, se pusieron en evidencia justamente las intenciones del legislador de poner coto al crecimiento descontrolado de las finanzas públicas a partir de varias normas que procuran evitar el aumento exponencial de los salarios de los servidores públicos y unificar la política salarial de la Administración Pública. Dicho informe, en lo conducente, estableció lo siguiente:

“Como se observa, la norma pretende que toda la Administración Pública, se rija por un salario único.

Este supuesto ya ha sido implementado en instituciones como la Contraloría General de la República, con la intención de manejar en forma adecuada y racionalizada los pluses salariales que hasta la fecha se otorgan a los funcionarios públicos.

El limitar el crecimiento de las denominadas retribuciones públicas ha constituido un objetivo del legislador, relativamente reciente y articulado a través de diversos mecanismos, como en este caso, tendentes a restringir no sólo la cuantía de tales retribuciones en el sector público mediante el establecimiento legal de topes o techos máximos, sino también frenar el incremento del gasto público.

Sobre el particular, la Sala Constitucional ha advertido lo siguiente:

“(…) los efectos que sobre las finanzas públicas y por ende, para el país en general producen los desequilibrios en el régimen salarial del Estado, hacen plenamente justificable y hasta constitucionalmente necesario someter a criterios uniformes todo lo concerniente a la política salarial de la Administración Pública. (....)”. (Voto N°3309-94 de las 15:00 horas del 05 de julio de 1994).

Por ello no extraña la propuesta del presente proyecto de Ley que pretende hacer efectiva una medida de política económica general, de innegable carácter presupuestario, dirigida a contener la expansión relativa de uno de los componentes del gasto público, como es el relativo a las retribuciones funcionariales y de altos cargos.

Si bien es cierto no existe en nuestro ordenamiento jurídico una norma que respalde concretamente la competencia del Estado para fijar límites o topes máximos, de carácter global, a las retribuciones del personal al servicio de las Administraciones públicas, ha de considerarse que aun cuando el Poder Ejecutivo -estricto sensu- tenga entre sus atribuciones el “Disponer la recaudación e inversión de las rentas nacionales” (art. 140.7 de la Constitución), y de ello se ha derivado las potestades de fijación salarial (resolución N° 1822-01 de 15:46 horas del 7 de marzo del año 2001, Sala Constitucional), expresamente la Carta Magna establece que ha de hacerlo “de acuerdo con las leyes”. Y lo propuesto se trata innegablemente de una propuesta legal que pretende fijar límites o topes máximos de las retribuciones de todo el personal al servicio del sector público, bajo un esquema uniforme, con base a los principios de igualdad y solidaridad, dirigida a contener la expansión relativa a uno de los componentes esenciales del gasto público y reducir el déficit público”. (Lo destacado no corresponde al original).

En el mes de abril del año 2018, la Comisión Permanente Ordinaria de Asuntos Hacendarios dictaminó ‒por mayoría‒ favorablemente el proyecto de ley y en el dictamen que rindieron al Plenario también hicieron referencia al contexto económico de aprobación de las reformas propuestas. En lo atinente a esta acción de inconstitucionalidad, interesa destacar el propósito de los legisladores de ajustar los elementos salariales que suponen un disparador del gasto público:

“B) CONTEXTO FISCAL Y LA PROPUESTA PRESENTADA En los últimos años, se ha dado un aumento en la recaudación tributaria del país, que ha llevado a que los ingresos fiscales sean cercanos al promedio de los ingresos fiscales en países de América Latina y el Caribe, no obstante, y a pesar de dicha mejora y de los esfuerzos realizados para reducir el gasto, los recursos resultan insuficientes para financiar los gastos actualmente necesarios en el país.

Los altos niveles de déficit han provocado un rápido aumento de la deuda pública que hace cada vez más difícil cubrirla con los ingresos tributarios actuales. El presupuesto del Gobierno Central pasó de un superávit del 0.57% del PIB en 2007 a un déficit del 6.2% en años recientes. La deuda pública se elevó de aproximadamente el 25% del PIB en 2008, a más del 40% en 2015 . El nivel de endeudamiento en Costa Rica es elevado en comparación con el promedio estimado en los países de la región. Por otra parte, el endeudamiento expresado como porcentaje de los ingresos públicos alcanza niveles insostenibles y ha crecido más que en los demás países de la región. En 2015, el nivel de endeudamiento en Costa Rica fue casi tres veces mayor que los ingresos anuales del Gobierno, lo cual posiciona a Costa Rica en el segundo puesto más alto de la región después de El Salvador.

Si no se aborda convenientemente, el déficit fiscal de Costa Rica podría ser insostenible, y la deuda pública, podría llegar a alcanzar valores críticos que pondrían en riesgo el crecimiento del país. Para equilibrar el presupuesto, Costa Rica debe obtener nuevos ingresos y, al mismo tiempo, controlar el gasto público, se necesita corregir las distorsiones que generan por ejemplo, a raíz de la excesiva destinación específica que se le ha dado a los ingresos fiscales y que limita de manera sustancial las decisiones gubernamentales sobre financiación pública, así como también es necesario establecer las normas para la desaceleración del gasto, y control de los disparadores del gasto, todo lo cual, unido a una reforma en la estructura tributaria, son los elementos necesarios que se requieren para hacer que Costa Rica se ubique en el camino que lleva a la sostenibilidad fiscal.

(…)

Todo lo anterior, pone de manifiesto la necesidad de aprobar la reforma planteada la cual contiene los siguientes pilares:

Mejora en la estructura de los impuestos que permita una mejora recaudatoria y acercarse a un equilibrio presupuestario, lo cual pasa por:

(…)

Establecer mejoras en las definiciones de prohibición y dedicación exclusiva, poner tope a las anualidades, y demás regulaciones que ordenan la materia de empleo público. (…)”. (Lo destacado no corresponde al original).

Posteriormente, se acreditó que el expediente pasó a conocimiento de una comisión especial: “Comisión especial encargada de dictaminar el expediente 20.580, Ley de Fortalecimiento de las Finanzas Públicas, que tiene el expediente legislativo 20.730”. En dicha comisión se llevaron a cabo una serie de consultas y entrevistas. Se acreditó, por ejemplo, que en la sesión ordinaria n.°28 del jueves 21 de junio de 2018 se recibió en entrevista a la entonces Ministra de Hacienda, quien hizo una amplia explicación del proyecto de ley. Particularmente, en lo relativo al empleo público, ella lamentó que el país se hubiera tardado en tomar acciones concretas con el propósito de uniformar los temas salariales y realizó proyecciones en lo relativo a nominalizar los pluses. Lo anterior, sin que se llevaran a cabo afectaciones sobre el salario de los servidores públicos. Sobre estos puntos, constan las siguientes declaraciones:

“En este estudio de opiniones y sus gestiones que recién sacó ayer la Contraloría y que hizo público, hay recomendaciones bien interesantes que me parecer deberían de ser tomadas en cuenta en esa potencial ley de empleo público.

Respecto a la estimación que se hizo, para efectos de los noventa y seis mil millones, es una estimación que parte de lo siguiente.

Hoy día, son como ciento quince mil empleado, ciento veinte mil empleados de Gobierno, del Presupuesto de la República, ciento treinta si se incluyen todos.

Ellos tienen un salario base promedio anual de seis millones de colones. Entonces, lo que se hizo fue utilizar la antigüedad promedio, que anda más o menos ─antigüedad en cuanto al número de anualidades─ en el orden de catorce o quince, si mal no recuerdo.

Lo que se estimó es bajo varios supuestos: una inflación del 3% y un pago del 100% de la anualidad, ¿cuál es el impacto en el crecimiento de ese incentivo en los años venideros y cuál sería la situación si, en lugar de mantenerla porcentual, se hace una estimación fija?

Bajo ese supuesto de que voy agregándole una anualidad a ese grupo y que cada vez que hago el aumento salarial no es que le aumento la anualidad de ese año, sino el inventario de las que trae, da una determinada cantidad. Y, luego, se le agrega no solo el tema del ahorro de la anualidad, sino del resto de las cargas sociales que se evitarían producto de ese no ajuste de la manera automática e inercial que tienen las anualidades.

Se supone, ¿verdad?, porque esto está hecho a base, por supuesto, de supuestos, como dije, que cada uno se va ganando una anualidad cada año, porque como usted sabe en el sector público, en el Gobierno Central prácticamente el 99%, no sé si habrá alguna excepción, se gana la anualidad completa.

(…)

Diputada Yorleny León Marchena:

Siempre en el marco de ese cuadro, doña Rocío, y gracias por ampliarnos esa información. Me surge una duda con respecto a la participación que tuvo ayer el señor ministro de Trabajo y la comparecencia que hace usted el día de hoy.

En este cuadro hay un rubro que habla de pago constante de cada anualidad y temprano usted nos explicó, entonces, cómo salen esos noventa y seis mil millones que están ahí, que representa el 0.21, ¿verdad?

Para que este efecto de medidas se dé, tiene que llevarse entonces, en la práctica esa situación que las anualidades van a pasar de ser, en lugar de porcentajes, van a pasar a ser nominales y demás.

Pero ayer el ministro de Trabajo en reiteradas oportunidades indicó que ningún trabajador en este país vería afectado su salario de ninguna manera. Ahora me surge la duda de cuál es la interpretación correcta.

Señora Rocío Aguilar Montoya:

Ninguna duda. No se le reduce el salario que hoy día recibe cada uno de los servidores públicos. Lo que se modifica es hacia adelante, cómo se calculan determinados componentes.

Yo les ponía el ejemplo de un año en que la inflación fue de cero y en ese año no hubo ajuste salarial y, a pesar de que no hubo ajuste salarial, las remuneraciones crecieron un 1.93. Y eso es un efecto de que hay incrementos salariales que están desganchados, será, de lo que ocurra con costo de vida, que es el caso clásico de la anualidad, del bienio, del mérito y a otro, tienen otro nombre ¿verdad?, pero que son incrementos automáticos como porcentaje de la base.

Entonces, aquí no se le está quitando a ninguno ese beneficio que hoy día tiene, lo que se está modificando es la manera que se calcula hacia adelante. Y, como yo decía, aquí lo que se busca es que se pueda manejar de mejor manera la política salarial y que cuando yo hago un incremento en la base, no me empiecen a flotar otra serie de beneficios que al estar anclados porcentualmente a la base, crecen de manera desproporcionada.

Viendo, por ejemplo, no solo para el Gobierno Central, si uno se asoma al informe presupuestario que hace la Contraloría de todo el conjunto institucional, llama la atención cómo las remuneraciones crecen a una tasa más baja que los incentivos y la razón es precisamente esa, que los incentivos andan en esa forma divorciados.

Si uno lo hubiera logrado, tomar la decisión, —creo que yo hice el cálculo muy temprano en la mañana— en el 2014, si mal no recuerdo, el haberlos desenganchado, hubiera generado un ahorro como de… dije ciento quince mil millones, habría que hacer mejor la matemática, pero eso lo hice en términos muy generales.

Eso es lo que se quiere evitar. ¿Y qué debería uno buscar hacia el mediano plazo? Que vuelva a tener realmente valor el salario base. El salario base hoy día es como el 40 %, pero porque nadie lo volvió a tocar porque se volvió intocable, porque si yo toco el salario base automáticamente me crece el resto de cosas.

Diputada Yorleny León Marchena:

Entonces, doña Rocío, vamos a ver. Mi salario actual no se va a ver modificado, pero mi expectativa salarial a partir de los componentes a futuro, sí se van a ver afectados. Esa es la afectación. ¿Es correcto?

Señora Rocío Aguilar Montoya:

Es una manera de describirlo, y esto es importante porque aquí tenemos que empezar a hacer la distinción entre derechos adquiridos y expectativas de derecho. Y sobre otro concepto que la misma Sala ha desarrollado de forma que me parece excelente, del concepto de la inmutabilidad del derecho, ninguno de nosotros tiene derecho a que no se vaya a modificar eso hacia adelante.

Por supuesto que si esa modificación implica que me modificaron mi derecho adquirido, pues, hay que indemnizarlo. Pero si de lo que estamos hablando es de la expectativa de derecho, que es un poco este tema al que hice referencia, ahí el tema es diferente, eso se puede variar”.

Adicionalmente, en la sesión ordinaria n.°29 del 27 de junio de 2018 se recibió la comparecencia de la señora contralora General de la República, quien realizó importantes reflexiones sobre la urgencia en la aprobación de la LFFP:

“Nos referíamos en esa oportunidad a una realidad fiscal caracterizada por un déficit de más de seis puntos porcentuales del PIB, asociado a una deuda pública que rosa el límite de la sostenibilidad y que se ha venido alimentando por casi treinta años de financiamiento de gasto corriente con endeudamiento y que hunde sus raíces en prácticas políticas y decisiones que se han instaurado sin una visión de mediano plazo sobre sus consecuencias en la finanzas públicas y que se han convertido en un problema que es un asunto estructural”.

Específicamente, en lo relativo al tema salarial, la contralora realizó las siguientes explicaciones:

“Con respecto al título tres, este se trata de una modificación a la Ley de Salarios de la Administración Pública y pretende, primero, regular límites y criterios generales para el reconocimiento de compensaciones por concepto de dedicación exclusiva y prohibición, indicando, además, que se pagará sobre solo salario base.

De forma más específica, el texto modifica el incentivo de dedicación estableciendo porcentajes del 55, el 20 y el 30% según el grado académico del funcionario y, además, establece que estos contratos deberán ser por un año como mínimo y cinco años como máximo. La prohibición se establecería en un 65 para los licenciados y superior y un 30 para los bachilleres.

Declara como incentivos improcedentes la discrecionalidad, la confidencialidad, los bienios, los quinquenios y similares. Regula el auxilio de cesantía, según lo establecido en el Código de Trabajo a ocho años.

Establece un límite a las remuneraciones para todos los servidores públicos de veinte salarios base mensual de la categoría más baja de la escala de sueldos de la Administración Pública; veinticinco en el caso del Presidente, y treinta en el caso de los funcionarios de instituciones que operan en competencia, lo cual representa distorsiones respecto del nivel de responsabilidad y remuneración recibida, y esto lo habíamos señalado también en marzo”.

Posteriormente, se abogó por fortalecer la prestación del servicio público con la noción de condiciones salariales uniformes:

“Dada su importancia en materia fiscal y social, me voy a referir brevemente al tema de empleo público. Y aquí aclarar que el empleo público es un medio para contribuir e incrementar la capacidad del Estado para ofrecer bienes y servicios que mejoren la calidad de vida de los ciudadanos.

No es solamente compensación o remuneración el tema de empleo público. Eso es solo una parte, que todo debe de funcionar eficaz y eficientemente para brindar los resultados esperados.

Entre otros componentes de este sistema, tenemos el reclutamiento, la selección, la carrera administrativa, la evaluación del desempeño, los perfiles, las competencias; todo lo cual debe diseñarse para que el empleo público, que es fundamental para el crecimiento económico y social del país, sea vigoroso, justo, equilibrado, equitativo y transparente.

En ese sentido, diferentes documentos de la Contraloría han abogado por una necesaria visión integral y la creación de una política definida sobre el empleo público, ante la diversidad del sistema remunerativo vigentes en el sector público, caracterizados por salarios base desiguales e incentivos salariales de muy variada naturaleza que se encuentran consignados en leyes, decretos, convenciones colectivas y reglamentaciones internas.

(…)

Específicamente, en el tema de los esquemas remunerativos, nuestro más reciente trabajo corresponde al estudio sobre retos para la modernización del esquema remunerativo en los ministerios de Gobierno, donde se identificaron principios generales hacia los que pueden orientarse los esquemas de remuneraciones con el objeto de atraer y contar con personal motivado, efectivo y eficiente. Es decir, pagar salario igual por el mismo trabajo, pagar diferentes salarios solamente en presencia de diferencias en el trabajo realizado en las responsabilidades y las calificaciones requeridas, pagar salarios en el Gobierno comparables en la medida de lo posible al de las debilidades equivalentes en el sector público, revisar periódicamente y sistemáticamente los esquemas de remuneración para garantizar su continua validez.

La aplicación de estos principios tiene un impacto importante en cinco áreas como son la gobernanza, y ahí está la utilización de los recursos públicos y la transparencia, la política económica, la implementación de la política fiscal, la distribución de los bienes y servicios públicos y la sostenibilidad fiscal.

(…)

En conclusión sobre este título tres del proyecto, se considera que es una señal positiva hacia el ordenamiento de las remuneraciones, las cuales deben avanzar hacia un equilibrio a lo interno, pero también a lo externo de las instituciones.

La Contraloría propone iniciar una transición hacia un sistema remunerativo en el que los incentivos salariales se vayan ajustando a los principios mencionados anteriormente, lo cual es importante como un paso a un régimen de remuneraciones más uniforme, así como abordar otros temas cruciales del empleo público necesarios para impactar la eficiencia en la gestión pública”. (Lo destacado no corresponde al original).

Teniendo claro el contexto de aprobación de la normativa y los propósitos de la Asamblea Legislativa es que se van a examinar cada uno de los alegatos planteados. Se hace énfasis que este argumento se agregó a efecto de valorar la motivación final de la reforma, sin que ello por sí mismo sea una condición que legitime todas las disposiciones relativas a empleo público y disposiciones salariales.

VII.- SOBRE UN NECESARIO EQUILIBRIO ENTRE LAS POLÍTICAS SALARIALES Y EL RESGUARDO DE LOS DERECHOS FUNDAMENTALES DE LOS SERVIDORES PÚBLICOS Teniendo en cuenta la grave situación fiscal de nuestro país, este Tribunal considera que el Estado costarricense en sentido amplio debe aspirar a un sano equilibrio entre el respeto a los derechos fundamentales de las personas trabajadoras ‒un salario que asegure condiciones de bienestar y dignidad, el respeto a los derechos adquiridos y el derecho a la negociación colectiva, entre otros‒ y la orientación de las finanzas públicas y concretamente el sistema de las remuneraciones hacia un esquema de eficiencia y calidad en el gasto público. Lo anterior, con el propósito de ir frenando las brechas salariales y las disparidades que han venido afectando justamente las finanzas públicas. Para lograr lo anterior, se deben tomar en consideración los principios de igualdad, razonabilidad y proporcionalidad en el reconocimiento de mejoras salariales, de modo que no haya una severa afectación en la disposición de los fondos públicos y una injusta disparidad entre los propios servidores públicos. Por ejemplo, cuando este Tribunal, en la sentencia n.°2018-008882 examinó el tope al monto de la cesantía que válidamente puede mejorarse a través de la negociación colectiva, realizó las siguientes consideraciones:

“El problema que la mayoría de la Sala encuentra aquí -y que no parece haber sido abordado específicamente con anterioridad- surge cuando la magnitud del beneficio se contrasta, no solo a lo interno del conjunto de empleados favorecidos por la Convención, como se hizo en las sentencias citadas, sino cuando la magnitud de ese pago de auxilio de cesantía se analiza dentro del universo completo de los servidores públicos en sentido amplio; esta extensión del marco comparativo se justifica en el tanto en que para todos los empleados al servicio de las instituciones estatales, la fuente de financiamiento de ese pago por auxilio de cesantía es una y la misma: los tributos y los precios públicos que pagan todos las personas que habitan la República. Y no obsta que, tanto en este caso como en muchos otros, se trate de empresas estatales actuando en un mercado en competencia y administrando fondos de consumidores, ahorrantes y prestatarios, pues, en el tanto en que tales instituciones son del Estado y cuentan con su respaldo, su salud y prácticas financieras pueden ser -y son de hecho- sumamente relevantes para las finanzas públicas, como lo demuestra con claridad la conocida condición actual de Bancrédito y las estimaciones que se han dado sobre la afectación que su cierre tendrá en presupuesto nacional.

Así pues, debe afirmarse que las disposiciones de naturaleza económica que acuerden los administradores de las instituciones públicas cuando negocian colectivamente con sus trabajadores, no pueden evadir la necesaria coherencia y proporcionalidad en relación con lo que constituye el marco general de beneficios económicos que el Estado (en su concepto amplio) ha venido reconociendo a lo largo del tiempo, en favor de sus trabajadores, ni puede dejarse de tomar en cuenta las posibilidades financieras de las entidades en general y la manera en que estas disposiciones van a incidir en los gastos y obligaciones económicas estatales, dado que tales compromisos determinan y son determinadas a la vez por las distintas variables y situaciones económicas y repercuten directamente en la situación económica general del país.

Al asumir este enfoque, la mayoría de la Sala verifica la existencia de una amplísima brecha entre el pago de auxilio de cesantía aplicable a la enorme mayoría de los servidores públicos, cuyo tope es de 8 años, y el pago que recibirán los trabajadores del Banco Crédito Agrícola y otros trabajadores estatales cubiertos también por convenciones colectivas que, en idénticas circunstancias, podrían recibir un desembolso directo en su favor de hasta 20 meses de salario por el mismo auxilio de cesantía. Se trata de una diferencia de un ciento cincuenta por ciento, (150%) que desde la perspectiva de la mayoría de quienes integramos esta Sala, resulta abismal y por ende, debería contar claros e incontestables argumentos que la justifiquen, pero que más bien carece de ellos y resulta desproporcionada e insostenible en semejante magnitud.

Debe recordarse, por una parte, que esta Sala, en sintonía con el desarrollo de los derechos fundamentales vinculados con el entorno laboral, ha ejercido con gran mesura su labor de control constitucional en esta materia, comprendiendo que la naturaleza fundamental del derecho de negociación colectiva -uno de los pilares fundamentales del derecho al trabajo- tiene como finalidad legítima el mejoramiento de las condiciones laborales de los trabajadores y ello conlleva necesariamente la generación de diferenciaciones y disparidades que de modo alguno son injustas o ilógicas en sí mismas y menos aún pueden tildarse de inconstitucionales, por el mero hecho de beneficiar a un grupo de personas que ha logrado tales reivindicaciones a través del instrumento de la negociación colectiva. Pero lo anterior no puede desactivar completamente la necesidad de que las mejoras a las cuales se compromete el Estado sean proporcionadas y razonables, no solo respecto de la condición en que quedan los demás trabajadores estatales no protegidos por convenciones colectivas, sino respecto la carga que la sociedad debe soportar para cubrir tales sumas. De tal modo, una diferencia del 150 por ciento (es decir, una diferencia a mitad de camino entre un doble y un triple de las sumas normales) entre lo que pueda corresponder a unos servidores públicos por encima de todos los otros por el mismo concepto se ubican mucho más allá de lo puede entenderse como proporcionado y aceptable como reivindicación legítima en la condición de los trabajadores estatales”. (Lo destacado no corresponde al original.

Este criterio de la Sala se ha venido reiterando en múltiples sentencias, como por ejemplo, 2019-008679, 2019-009222, 2019-0009723, 2020-00320, 2020-014208 y 2021-025969, entre otras, en las que la Sala expresamente advirtió que “por la situación financiera del Estado costarricense, debía reexaminar su posición original”. De modo que el reconocimiento de ciertos derechos y mejoras laborales también están sujetos a aspectos contingentes como lo es la situación financiera y fiscal del Estado costarricense.

Esta tesis, si se mira detalladamente, no es una postura novedosa, sino que en realidad esta Sala ha valorado positivamente que la política salarial de la Administración Pública se someta a ciertos estándares de uniformidad para evitar perjuicios respecto de las finanzas públicas. Así, por ejemplo, tenemos que en la sentencia n.°1994-3309 esta Sala se refirió a la constitucionalidad de la Ley de Creación de la Autoridad Presupuestaria, n.°6821 de 19 de octubre de 1982 que estableció en su art. 1° que una de las funciones principales de la Autoridad Presupuestaria es la formulación de directrices de la política presupuestaria del sector público incluso en los aspectos relativos a salarios. En dicha oportunidad, la Sala señaló lo siguiente:

“De manera que si en el artículo 9 de la ley impugnada se otorgó a la Autoridad Presupuestaria la facultad de velar porque hayan salarios iguales para trabajos iguales, garantizando de esta manera el principio constitucional de derecho a un salario igual en "idénticas condiciones de eficiencia" e impartiendo así los criterios necesarios para uniformar el régimen de salarios de todos los servidores públicos, las actuaciones de la Autoridad Presupuestaria deben respetar los artículo 57 y 68 de la Constitución Política en tanto establecen:

"Artículo 57: Todo Trabajador tendrá derecho a un salario mínimo, de fijación periódica por jornada normal, que le procure bienestar y existencia digna. El salario será siempre igual para trabajo igual en idénticas condiciones de eficiencia." Asimismo el párrafo 1 del artículo 68 de la Constitución Política indica que:

"Artículo 68: No podrá hacerse discriminación respecto al salario, ventajas o condiciones de trabajo entre costarricenses y extranjeros, o respecto de algún grupo de trabajadores..." Por el contrario, los efectos que sobre las finanzas públicas y por ende, para el país en general producen los desequilibrios en el régimen salarial del Estado, hacen plenamente justificable y hasta constitucionalmente necesario someter a criterios uniformes todo lo concerniente a la política salarial de la Administración Pública”. (Lo destacado no corresponde al original. Ver además sentencias 1994-6471, 1994-5297, 1995-6577 y 2003-09954, entre otras).

Más recientemente, en la sentencia n.°2024-007057 esta Sala se refirió a las disposiciones reglamentarias que hacen operativa la normativa de empleo público emitida en virtud de la LFFP y la Sala afirmó justamente que tales regulaciones obedecen al “interés público de reducir el gasto público y, consecuentemente, disminuir la crisis fiscal del país”.

No obstante, del mismo modo, se debe advertir que no se puede perder de vista que no es válido el vaciamiento de los derechos fundamentales de los trabajadores del sector público con el afán de solventar la problemática de las finanzas públicas. La crisis fiscal que viene padeciendo Costa Rica obedece a varios motivos que deben atenderse integralmente. Supra se hizo mención justamente de las memorias anuales de la CGR. En la del año 2017 se enumeraron varios motivos y si bien se hace mención a la necesidad de poner coto al crecimiento desproporcionado de las remuneraciones, también se enumeran otros motivos como por ejemplo el diseño institucional y atomización del aparato público costarricense con duplicidad de funciones en varias instituciones que no necesariamente redundan en la eficiencia de la Administración Pública; tratamientos tributarios diferenciados en favor de ciertas actividades o personas y la evasión fiscal, por enumerar algunas causales.

Por tanto, si bien este Tribunal acepta la premisa general de que el Estado Legislador puede regular y estandarizar normas de empleo público dado que no hay un derecho adquirido a que determinadas regulaciones se mantengan incólumes, ello no debe implicar de modo alguno sacrificar al funcionariado público a que perciban vaciamientos en sus derechos fundamentales. En tal sentido, justamente como se señaló previamente, se hace preciso equilibrar la balanza, dado que la estabilidad y la dignidad de los salarios de los empleados públicos también es un eje del Estado Social y Democrático de Derecho. Al respecto, debe partirse que de conformidad con lo dispuesto en el art. 56 constitucional, el desempeño en su trabajo es una obligación del servidor, pero también le da el derecho de obtener por él la remuneración correspondiente, en forma oportuna y en un monto que le procure bienestar y existencia digna (artículo 57 de la Constitución Política).

Ahora bien, conviene advertir que las regulaciones relativas a las remuneraciones de los servidores públicos no deben quedarse estancadas. Tal y como se examinó, era sano y necesario que se interviniera a fin de establecer disposiciones salariales uniformes y evitar aumentos exponenciales fuera de toda realidad económica y social conforme al estado de las finanzas nacionales. No obstante, esto por sí mismo es contingente o dinámico, de modo que estas regulaciones no deben quedarse congeladas en el tiempo en perjuicio de los servidores públicos, al punto que los salarios no sean atractivos ‒lo que podría impactar la eficiencia de la Administración Pública‒ o no garanticen condiciones mínimas de dignidad y de bienestar de los trabajadores. Por tanto, es obligación del Estado costarricense, incluso en virtud del principio de progresividad, valorar conforme a las condiciones fiscales y de eficiencia en los controles de gastos público, cómo aspirar a que los salarios de los trabajadores públicos garanticen condiciones de dignidad y bienestar. Al respecto, cabe tener presente que en el art. 56 de la Constitución Política se reconoce el derecho fundamental al trabajo como una situación dual, derecho-responsabilidad. Pero también se consagra la obligación para el Estado de asegurar que todas las personas tengan acceso a empleo que sea “debidamente remunerado”. Esto significa que las personas tienen derecho a recibir un salario justo y adecuado por su trabajo, que les permita mantener un nivel de vida digno. Dice el art. 56, lo siguiente:

“Art 56.- El trabajo es un derecho del individuo y una obligación con la sociedad. El Estado debe procurar que todos tengan ocupación honesta y útil, debidamente remunerada, e impedir que por causa de ella se establezcan condiciones que en alguna forma menoscaben la libertad o la dignidad del hombre o degraden su trabajo a la condición de simple mercancía. El Estado garantiza el derecho de libre elección de trabajo”.

Además, el art. 57, al referirse al salario, establece que hay un derecho al salario mínimo y que este debe ser de fijación periódica, para procurar el bienestar y la existencia digna de los trabajadores, lo que nos confirma que los aspectos salariales son dinámicos y deben valorarse a la luz de las circunstancias sobrevinientes de modo que se le reconozca bienestar a la persona trabajadora. En sintonía con lo anterior, podemos constatar que el art. 23 punto 3) de la Declaración Universal de Derechos Humanos establece que “Toda persona que trabaja tiene derecho a una remuneración equitativa y satisfactoria, que le asegure, así como a su familia, una existencia conforme a la dignidad humana y que será completada, en caso necesario, por cualesquiera otros medios de protección social”. El art. 7 del Pacto Internacional de Derechos Económicos, Sociales y Culturales también establece que los Estados Parte reconocen el derecho de toda persona al goce de condiciones de trabajo equitativas y satisfactorias que le aseguren en especial una remuneración que proporcione como mínimo a todos los trabajadores un salario equitativo y condiciones de existencia dignas para ellos y para sus familias. Además, el Convenio de la OIT C131 - Convenio sobre la fijación de salarios mínimos, 1970 (núm. 131) de la, ley n.°5851-A del 09 de diciembre de 1975 nos confirma que lo relativo a la fijación periódica de los salarios mínimos ‒lo cual podría extrapolarse para la revisión periódica de las reglas salariales de los servidores públicos o en general ‒ obedece a situaciones contingentes que pueden ser examinadas y valoradas conforme nuevos elementos valorativos, como los siguientes:

“Entre los elementos que deben tenerse en cuenta para determinar el nivel de los salarios mínimos deberían incluirse, en la medida en que sea posible y apropiado, de acuerdo con la práctica y las condiciones nacionales, los siguientes:

(a) las necesidades de los trabajadores y de sus familias habida cuenta del nivel general de salarios en el país, del costo de vida, de las prestaciones de seguridad social y del nivel de vida relativo de otros grupos sociales; (b) los factores económicos, incluidos los requerimientos del desarrollo económico, los niveles de productividad y la conveniencia de alcanzar y mantener un alto nivel de empleo”.

En consecuencia, se reitera que este Tribunal está consciente de la necesidad y la fundamentación de la LFFP como un mecanismo legislativo para establecer reglas generales para las remuneraciones en la función pública con el claro propósito de poner coto a eventuales aumentos salariales que no son consecuentes con la realidad fiscal de nuestro país. Y, sobre el particular, en tesis de principio, se deja establecido que resulta legítimo que el legislador module esta temática de las remuneraciones en atención a los objetivos trazados y debidamente explicados en el considerando anterior. También atendiendo a la necesidad de profesionalizar la función pública a través de la eficiencia en el servicio público y aspirando a la idoneidad comprobada de los servidores públicos. Lo anterior, sin lesionar los derechos previamente reconocidos y sin vaciar de contenido derechos fundamentales o principios esenciales del Estado Social costarricense. Además, sin que quepa que estas materias queden anquilosadas en perjuicio de los derechos de los trabajadores, máxime si, como se ha desarrollado en estos considerandos, existen obligaciones impuestas por el Derecho de la Constitución en el sentido de que las remuneraciones sean justas y equivalentes para garantizar condiciones de bienestar y dignidad de todos los trabajadores –en otras palabras, satisfacer apropiadamente sus necesidades básicas y las de sus familias‒. Al respecto, se rescatan las consideraciones realizadas por la CGR en la comparecencia oral en la Asamblea Legislativa en el sentido de que es obligación de las autoridades públicas “revisar periódicamente y sistemáticamente los esquemas de remuneración para garantizar su continua validez”.

En lo relativo a las remuneraciones. cabe señalar finalmente y como premisa general que no existe como tal un derecho fundamental a que el salario se calcule de una determinada manera, sino que el monto sea digno y su fijación sea periódica en aras de garantizarle al trabajador la posibilidad de garantizarse a sí mismo y su familia condiciones de dignidad y bienestar. En ese sentido, se advierte, tal y como lo ha puesto de manifiesto esta Sala en otros antecedentes, que nadie tiene un “derecho a la inmutabilidad del ordenamiento”, es decir, a que las reglas nunca cambien y, en esa medida, el legislador cuenta con la potestad de variar las condiciones o requisitos bajo las cuales se reconocen diversos pluses salariales a los servidores públicos, los cuales en tesis de principio están sometidos a un régimen estatutario que establece reglas de orden público en lo relativo a las compensaciones salariales. Lo anterior, claro está, siempre que no se lesionen derechos adquiridos de los servidores o se establezcan reglas irrazonables que lesionen de algún modo principios de orden constitucional como la razonabilidad, proporcionalidad e igualdad y no discriminación carente de sustento jurídico.

Finalmente, en lo relativo al derecho al salario digno, es preciso hacer referencia a las consideraciones realizadas por esta Sala en la sentencia n.°2019-016791 en donde este Tribunal se refirió justamente a este derecho fundamental y al hecho de que al alegarse lesiones a este principio deben aportarse suficientes argumentos relativos a la generalidad de los empleados públicos y no argumentarse de forma genérica y abstracta la supuesta lesión al derecho al salario digno. En lo conducente, se resolvió lo siguiente:

“Sobre el derecho al salario digno. El sindicato alega que el artículo 24, de la Convención Colectiva impugnada, es un instrumento que mejora el salario de los funcionarios municipales, porque el que se tiene, se acusa, no es decoroso. Pide desestimar la acción, fundamentado en que ese salario estaría protegido por ser un derecho humano. Señala el artículo 25, de la Declaración Universal de Derechos Humanos, que establece:

“/. Toda persona tiene derecho a un nivel de vida adecuado que le asegure, asi como a su familia, la salud y el bienestar. y en especial la alimentación, el vestido, la vivienda , la asistencia médica y los servicios sociales necesarios; tiene asimismo derecho a los seguros en caso de desempleo, enfermedad, invalidez, viudez, vejez y otros casos de pérdida de sus medios de subsistencia por circunstancias independientes de su voluntad\ Ahora bien, esta Sala se ha referido al derecho al salario en la función pública, con lo siguiente:

"Si el trabajo se concibe como un derecho del individuo cuyo ejercicio beneficia a la sociedad y que en cuanto al funcionario garantiza una remuneración periódica, no podría aceptarse que el Estado reciba una prestación sin cancelarle al servidor público el correspondiente salario o que se le entregue tardíamente. El salario como remuneración debida al servidor en virtud de una relación estatutaria, por los servicios que haya prestado o deba prestar, no es sólo una obligación del empleador, sino un derecho constitucionalmente protegido " (Sentencia N° 2009-008062 de las 21:35 horas del 13 de mayo de 2009).

En este sentido, el Sindicato lleva razón en que el Estado, o en su caso, la Municipalidad, debe cancelarle al funcionario el salario que le corresponda por el trabajo realizado. De igual forma, la Sala ha establecido que el artículo 57, de la Constitución Política, establece la protección de los trabajadores con el derecho a un salario mínimo, el cual podría ser compuesto conforme a la libertad que tiene el legislador o su intérprete, para definir su contenido y composición del salario mínimo (Sentencia N° 2017-16272 de las 11:30 horas del 11 de octubre de 2017). Para la Sala, no hay duda que el derecho al trabajo es un derecho humano que merece protección, que asegura al individuo la realización de muchos otros derechos y que le permite poder alcanzar una forma de vida adecuada y con dignidad, para él y su familia. Pero, estima este Tribunal Constitucional, que para despejar el argumento de la indignidad del salario expuesto por el Sindicato, se debe definir primero, que el derecho humano a un salario digno debe entenderse como la remuneración que le debe un empleador por el trabajo que presta el trabajador, en virtud de un contrato de trabajo (escrito o verbal), y que procura una existencia digna. En este sentido, debe haber acceso a un salario determinado por medio de una política nacional que debe asegurar una vida digna y familiar. Este tipo de remuneración debe ser fijada por los Estados, mediante los mecanismos establecidos en la normativa internacional (Convenios de la 011 N°s 26, 95, y 131, entre otros instrumentos), así como por el párrafo segundo, del artículo 57, Constitucional, con el propósito de evitar salarios ruinosos e indecorosos para las personas. En su sentido práctico, se refiere a un problema de política salarial (de empleadores públicos y privados), el cual debe ser de observación general por todos los respectivos patronos. Pero, claro está, que existe un problema de suficiencia que no puede estar asociado a cada trabajador, considerado individualmente y a sus propias necesidades, ni las de su familia; sino, que se debe aspirar a una media salarial que deberán estimar los representantes del Estado, empleadores y trabajadores con la retribución justa por el trabajo en el contexto nacional, con ayuda de los mecanismos económicos y sociales, para procurar una existencia digna y familiar a los trabajadores. Se reitera, como ocurre con muchos de los derechos económicos, sociales y culturales, no pueden definirse respecto de soluciones concretas, ni de un individuo, ni sus necesidades concretas, sino de la colectividad, establecida integralmente por estudios técnicos desde una justa media o promedio.

De este modo, para justificar la indignidad del salario, como se pretende, debe tomarse en cuenta una serie de condiciones que no están presentes en el expediente, porque si se afirma que los servidores municipales no reciben un salario decoroso, ello debería argumentarse y probarse. En ese orden de ideas, afirmar que el salario recibido en la Municipalidad de Limón no es decoroso, y si implica problemas salariales de tal magnitud que no permite alcanzar niveles por debajo de los mínimos legales, esto no resulta creíble, toda vez que debemos partir de que si se trata de los funcionarios municipales, se les cancela un salario cuya fijación cuenta ya con estudios técnicos y sus respectivos aumentos, determinados por la autoridad pública respectiva, así como sus aprobaciones institucionales correspondientes. Tampoco podría pensarse que el Estado podría ser cómplice de autorizar sumas inferiores a las exigidas para el sector privado. Echa de menos la Sala, que el Sindicato no aporta otra información útil, y atinente a ese punto, de manera que no se puede sostener, en abstracto, que el cuestionamiento por la inconstitucionalidad de la mejora salarial impugnada, constituya una infracción al ejercicio efectivo del derecho humano al salario. Aunque se acusa que el salario de los trabajadores municipales es muy bajo, es lo cierto, que los salarios del Estado, deben responder a criterios técnicos y no podrían por ende ser inferiores a los establecidos por el Decreto Ejecutivo de salarios mínimos para el resto de los trabajadores”. (Lo destacado no corresponde al original).

VIII.- SOBRE LA MUTABILIDAD DEL ORDENAMIENTO JURÍDICO Como recién se apuntó, cabe indicar, como premisa general, que nadie tiene un “derecho a la inmutabilidad del ordenamiento”, es decir, a que las reglas nunca cambien y, en esa medida, el legislador cuenta con la potestad de variar las condiciones o requisitos bajo las cuales se reconocen diversos pluses salariales a los servidores públicos. En la sentencia n.°2021-011957 esta Sala se refirió al principio de la mutabilidad del ordenamiento jurídico en materia de seguridad social y dijo lo siguiente:

“LXXVI.- Redacta la Magistrada Hernández López. Sobre el principio de mutabilidad en materia de seguridad social. Argumenta un sector de los accionantes que comprenden los alcances del principio de mutabilidad del ordenamiento jurídico por cuanto éste responde a realidades, pero también afirman que la mutabilidad debe hacerlo flexible, adaptable y conveniente para regular la vida en sociedad, considerando que la Ley 9544 no permite que ello se aplique pues, en una sola burbuja de efectos jurídicos idénticos, se coloca a funcionarios que tienen circunstancias personales muy disímiles asumiendo la carga de la reforma en igualdad de condiciones. En relación con este principio debe recordarse que esta Sala en reiteradas ocasiones ha señalado que nadie tiene derecho a la inmutabilidad del ordenamiento, es decir, a que las reglas nunca cambien (ver sentencia número 6134-98 de las 17 horas 24 minutos de 26 de agosto de 1998) y tratándose de regímenes especiales de jubilaciones y pensiones, el legislador cuenta con plena potestad de realizar las modificaciones que estime pertinentes para darle sostenibilidad al régimen, pero además porque se trata de sistemas solidarios que se van construyendo con el aporte de trabajadores, patronos y el Estado en la proporción legalmente establecida, de manera que a efecto de garantizar el cumplimiento de principios básicos de la seguridad y protección social, es competencia, pero además obligación del legislador, el adoptar las medidas que sean necesarias para mantener el equilibrio actuarial en esos regímenes y ello implica, que la mutabilidad del ordenamiento en esta materia, está dirigida a satisfacer el interés de la colectividad y no los intereses particulares que pudieren tener algunos de sus miembros. Recuérdese que, inclusive, en esta materia, en atención a los fines sociales que tutela, pudiere ser posible que eventualmente se diera alguna modificación que pudiere considerarse regresiva, pero ello sería válido en la medida en que sea por ley, esté justificado en criterios técnicos y atienda parámetros de razonabilidad y proporcionalidad. Desde esta perspectiva entonces, este alegato es improcedente y se considera que, en el caso concreto, la mutación del ordenamiento que ha operado en el Fondo de Jubilaciones y Pensiones del Poder Judicial a partir de la reforma impugnada, se ajusta al Derecho de la Constitución por cuanto está dirigida a conseguir un objetivo que es de carácter social, solidario y colectivo: garantizar la solvencia de aquel Fondo por 100 años más en beneficio de sus miembros actuales y futuros”. (Lo destacado no corresponde al original).

Estas consideraciones pueden ser aplicadas también en la materia salarial de los servidores públicos del Estado. Hay premisas que son esenciales y siempre deben respetarse: el derecho al salario mínimo, la aspiración a salarios dignos que aseguren un ámbito de bienestar a las personas, la revisión del salario para hacer frente al aumento en el costo de vida y la prohibición de que se apliquen reformas en perjuicio de derechos patrimoniales que ya han ingresado al ámbito de derechos de la persona servidora pública. Sin embargo, ello no se traduce en un derecho a que las reglas de pago se mantengan incólumes, máxime que cuando se aprobó esta normativa, se constató una crisis fiscal que justificó de manera general las reformas legales destinadas a uniformar políticas salariales y evitar aumentos salariales desligados de la realidad nacional.

IX.- Sobre el principio de progresividad y no regresividad.

En la opinión consultiva n.°2018-019511 que se refirió al proyecto de ley de aprobación de la LFFP la Sala Constitucional se pronunció en relación con la tutela de los derechos prestacionales y los principios de progresividad y no regresividad, avalando que la tutela y realización de estos derechos se puede ver impactada por aspectos contingentes que requiere un ajuste en el nivel de protección. Todo lo anterior bajo la adecuada fundamentación de las medidas que deban adoptarse. En lo conducente, la Sala dijo lo siguiente:

“[C]uando se trata de aplicar control de convencionalidad en materia de derechos prestacionales, un aspecto relevante por considerar es la sostenibilidad financiera y disponibilidad de recursos económicos del Estado, incluso según su nivel de desarrollo, lo cual depende del contexto económico en un momento histórico dado y del fundamento técnico que se tenga para justificar algún tipo de medida, de manera que siempre se procure la mayor realización posible de tales derechos de acuerdo con lo que las circunstancias económicas lo permitan. Precisamente, ese logro progresivo del que hablan las normas sin duda alguna constituye un objetivo por alcanzar, pero sujeto a una condición inexcusable: que efectivamente haya recursos”.

De importancia para la resolución de las cuestiones planteadas por los accionantes, se debe de advertir que la Sala fue enfática en señalar que los principios de progresividad y no regresividad no implican el derecho a la inmutabilidad del ordenamiento jurídico. Este Tribunal, citando sus propios precedentes, advirtió que el Estado se ve obligado a no adoptar medidas, políticas, ni aprobar normas jurídicas que empeoren, sin justificación razonable y proporcionada la situación de los derechos alcanzada hasta entonces. Sin embargo, se advirtió que este principio no supone una irreversibilidad absoluta, pues todos los Estados viven situaciones nacionales de naturaleza económica, política, social o por causa de la naturaleza, que impactan negativamente en los logros alcanzados hasta entonces y obligan a replantearse a la baja el nuevo nivel de protección. En línea con esas consideraciones, la Sala resolvió lo siguiente:

“Ni el derecho de progresividad ni el de no regresividad se oponen a la mutabilidad propia del derecho (modificación permanente e inevitable), por cuanto ningún derecho es inmutable o eterno, toda vez que ello significaría la petrificación del ordenamiento y haría que el Derecho dejara de ser un medio dinámico para la resolución de los problemas de la sociedad, los cuales perennemente varían con el tiempo. Lo que sí demandan los principios mencionados es que la tónica sea aspirar siempre y de preferencia a aumentar la cobertura de los derechos humanos e igualmente de los prestacionales en aras del Estado Social de Derecho; empero, tal meta no es ajena al contexto socio económico de una coyuntura histórica determinada ni a la obligación de efectuar un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego (verbigracia, entre el principio del Estado Social de Derecho y el del Equilibrio Presupuestario), de manera que en el contexto de una insostenibilidad financiera del Estado particularmente seria, debidamente acreditada desde el punto de vista técnico, se puedan tomar medidas para paliar la situación, siempre que estas se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país (en una república democrática, libre, independiente, multiétnica y pluricultural, cuyo Gobierno es popular, representativo, participativo, alternativo y responsable), lo que implica que los remedios en cuestión no pueden vaciar de contenido a ningún derecho constitucional, situación que en la especie y en estos momentos no se observa que ocurra con la regulación cuestionada”. (Lo destacado no corresponde al original).

X.- SOBRE LOS DERECHOS ADQUIRIDOS En la sentencia n.°2005-16394 la Sala se refirió a los derechos adquiridos, explicándolo en el siguiente sentido:

“Pues, bien, como adquirido, se debe entender aquel derecho (en cuanto expresión de una relación jurídica concreta que se proyecta sobre un determinado sujeto) que ha ingresado efectivamente en el patrimonio de una persona, de modo tal que no podría eliminarse sin causar un concreto y evidente menoscabo en las condiciones que ya ostentaba con anterioridad. Así, no podría entrar dentro de esta concepción, una mera expectativa a futuro, aún cuando se contara con parámetros objetivos para hacer el cálculo de lo que podría constituir su posible consecuencia efectiva, pues lo cierto es que en este último estadio aún no ha pasado a formar parte de la esfera patrimonial del sujeto, ergo, no puede considerarse entonces "adquirido". El espíritu del artículo 34, impide a la nueva ley incidir sobre los efectos jurídicos ya producidos en determinadas situaciones concretas, derechos subjetivos que ya contaban con una expresión individualizada en el patrimonio de una persona al momento de sobrevenir la nueva legislación. Bajo este razonamiento, ha de admitirse que la proyección futura de una determinada relación jurídica, no puede verse cobijada por esta garantía constitucional, pues tal cosa apareja una suerte de "congelamiento" o petrificación del ordenamiento y de la potestad legislativa y reglamentaria del Estado, que no compagina con el principio derivado del artículo 129 constitucional, cuando señala que "las leyes son obligatorias y surten efectos desde el día que ellas designen". Lo anterior, por cuanto ante toda posible variación en el régimen jurídico atinente a determinada materia, cualquiera podría alegar su "derecho adquirido" a que se mantengan o conserven las condiciones normativas anteriores, lo que en buena lógica resulta claramente inadmisible. Volviendo a lo dicho líneas atrás, la interdicción constitucional rige únicamente para los derechos asumidos, integrados al patrimonio. En cambio, sobre las situaciones pendientes, futuras, sobre lo no consumado aún, sólo es posible poseer una expectativa. Dentro de una relación jurídica que se mantiene en el tiempo, no existe aplicación retroactiva cuando las nuevas condiciones normativas se aplican al desarrollo futuro de la relación, sin incidir sobre los efectos ya consumados en la situación anterior (RSC N.°05291, 10:42 horas, 2930 de junio, 2000)”. (Lo destacado no corresponde al original).

La distinción que acá se realiza es particularmente relevante para examinar los agravios planteados, pues en la mayoría de los casos se pretende catalogar como derechos subjetivos a algunos incentivos salariales o reglas de cálculo sobre tales incentivos que, como tales, no han ingresado al patrimonio de los servidores públicos, todo lo cual se irá detallando a continuación.

XI.- ACLARACIÓN PREVIA. APLICACIÓN DE LA NORMATIVA CUESTIONADA A LAS INSTITUCIONES CUBIERTAS POR LA LFFP De previo se hace preciso aclarar, tal y como se consignó en la sentencia n.°2024-007057, que la constitucionalidad de las normas que acá se examinan está supeditada a que su aplicación se limite a aquellas instituciones que legítimamente están cubiertas por la LFFP, tal y como se delimitó en la opinión consultiva n.°2018-19511. En la supra citada sentencia, esta Sala realizó las siguientes advertencias:

“En resumen, el proyecto de ley que dio origen a la ley que aquí se reglamenta, mediante el decreto ejecutivo nro. 41729-MIDEPLAN-H publicado en el Alcance Digital nro.113 de La Gaceta Digital nro. 94 de 22 de mayo de 2019, denominado "Reforma a los artículos 14, 17 y 22 del Decreto Ejecutivo No. 41564-MIDEPLAN-H, Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley No. 9635 del 3 de diciembre de 2018, referente al Empleo Público”, no requería de mayoría calificada, únicamente porque bajo una interpretación sistemática que hizo esta Sala de las normas ahí señaladas, se descartó que, en materia salarial y relativa a la evaluación de desempeño de sus funcionarios, el Poder Judicial estuviera sujeto a esa normativa, toda vez que sus leyes especiales son las que lo rigen.

(…)

Ahora bien, lo dicho hasta aquí, no aplica a los funcionarios de la institución excluida, pues, tal y como se explicó ut supra, la aplicación de la ley se debe dar en apego a la opinión consultiva nro. 2018-19511, tomando en consideración que a la institución excluida en dicha opinión, no se les debe aplicar la Ley de Fortalecimiento de las Finanzas Públicas, ni tampoco las normas que en esta acción se impugnan del reglamento de la citada ley, concretamente la reglamentación del título III referente al empleo público.

(…)

Por mayoría se declaran sin lugar las acciones acumuladas, en el entendido de que las normas del decreto cuestionado se deben de aplicar únicamente a los funcionarios de las instituciones que no están excluidas de la aplicación de la Ley de Fortalecimiento de las Finanzas Públicas en la materia salarial de conformidad con lo dispuesto por la opinión consultiva nro. 2018-19511, de las 21:45 horas del 23 de noviembre de 2018, mencionada en los considerandos”.

Iguales advertencias corresponde realizar acá. Es decir que las normas de la LFFP que reformaron la LSAP se irán examinando con detalle conforme a los agravios planteados, siempre en el entendido de que no aplican a los servidores de las instituciones excluidas de la LFFP en materia salarial de conformidad a los lineamientos de la opinión consultiva analizada.

XII.- SOBRE LA NECESARIA FUNDAMENTACIÓN DE LOS AGRAVIOS En virtud de algunas precisiones que se realizarán más adelante, es necesario dejar establecido que esta Sala ha sido rigurosa en lo relativo a la fundamentación de los agravios. En la sentencia n.°2023-19520 se dijo lo siguiente:

“II.- SOBRE LA NECESARIA FUNDAMENTACIÓN DEL ESCRITO EN EL QUE SE FORMULE LA ACCIÓN DE INCONSTITUCIONALIDAD. Según se indicó, la acción de inconstitucionalidad es un proceso con determinadas formalidades, que, si no se reúnen, imposibilitan a la Sala conocer de la impugnación que se pretende. Uno de esos requisitos corresponde a la necesaria fundamentación del escrito en el que se formule la acción de inconstitucionalidad. La Ley de la Jurisdicción Constitucional, en su artículo 3, dispone que “Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales”. Ahora bien, para que este Tribunal tenga por configurada la infracción y pueda declarar la inconstitucionalidad de la norma o acto impugnado, con la consecuente anulación y expulsión del ordenamiento jurídico, quien promueva una acción de inconstitucionalidad tiene la carga de demostrar cómo esa disposición infringe el Derecho de la Constitución y, además, debe indicar por qué debe estimarse la demanda. Esto es denominado por esta Sala como la carga de la argumentación, es decir, que “una norma que facialmente (sic) sea contraria a la Constitución, vuelca la carga de la argumentación a quienes sostengan que en realidad no hay conflicto entre esa norma y la Constitución Política; lo contrario sucede si se acciona contra una norma que en primer examen no parece contraria a la Constitución, en cuya hipótesis es el accionante el que debe avanzar con los argumentos que convenzan acerca de la inconstitucionalidad” (véase la sentencia No. 0184-95 de las 16:30 horas del 10 de enero de 1995). En una sentencia posterior, esta Sala expuso, en cuanto a la falta de exposición de los argumentos de inconstitucionalidad en materia de acciones de inconstitucionalidad, lo siguiente:

“La acción de inconstitucionalidad se interpone con el argumento de que el Decreto Ejecutivo impugnado es nocivo, lesiona e infringe los derechos fundamentales a un ambiente sano y ecológicamente equilibrado, el derecho a la salud y a los compromisos internacionales suscritos con el Protocolo de Kyoto. Pese a la oportunidad otorgada a los accionantes, se confirma lo que indica la Procuraduría General de la República, de que no existe un análisis concreto de las disposiciones del Decreto Ejecutivo impugnado que se consideran inconstitucionales, sino que el mismo se limita a establecer discrepancias de forma genérica y en abstracto contra la totalidad del Reglamento, más aún contra toda actividad que desempeñan los ingenios Azucareros y Haciendas, pues sostienen que causan inconvenientes en la calidad de vida y en la salud de los habitantes circunvecinos, sin concretar qué argumentos de constitucionalidad se deben tomar en cuenta en contra de cada una de las disposiciones o grupos del normas del Reglamento impugnado. […] El párrafo primero del artículo 78 de la Ley de la Jurisdicción Constitucional establece la obligación de autenticar los escritos de interposición de acciones de inconstitucionalidad, toda vez que se estima necesario que existan argumentos esgrimidos por un profesional en Derecho, que no descarta este Tribunal responda a un serio estudio del fondo técnico y científico de una determinada materia, dada la diversidad y universalidad de las normas del ordenamiento jurídico. A diferencia de los procesos de garantías, es decir, los recursos de hábeas corpus y de amparo, que los puede interponer directamente cualquier interesado ante la jurisdicción constitucional en defensa de sus derechos fundamentales, generalmente contra actos u omisiones que le lesionan en su esfera particular (aunque no siempre como en los casos ambientales), en los procesos de defensa de la Constitución Política (como la acción de inconstitucionalidad), el legislador confió al abogado autenticante una labor cuya exigencia es aún mayor, si se quiere más elaborada y exhaustiva que debe plasmar en el libelo de interposición en razón de su oficio profesional, para demostrar al Tribunal la lesión a la norma constitucional por parte de una norma de menor rango, socavando el principio de supremacía constitucional contenida en el artículo 10 de la Constitución Política. Precisamente la elaboración material y formal de la Ley, así como de las demás disposiciones secundarias, suponen un proceso sumamente costoso para el Estado, en la que de muchas maneras para su elaboración ha participado la sociedad civil organizada a favor o en contra, y cuyos procedimientos de formación, aprobación y promulgación no debe analizarse a la ligera. En este sentido, debe reconocer esta Sala que existe un reducido espacio para este Tribunal para socorrer las ausencias manifiestas de los profesionales en derecho que autentican los escritos en esta jurisdicción constitucional, sin exponer la imparcialidad y análisis que se debe a cada una de las acciones de inconstitucionalidad.” (Sentencia No. 2012-05285 de 15:03 horas de 25 de abril de 2012).

El citado artículo 78 de la Ley de la Jurisdicción Constitucional exige, en tal sentido, que en el escrito en que se interponga la acción se expongan “sus fundamentos en forma clara y precisa”. (…)

Finalmente, en el voto nro. 2020-000319 de las 12:15 horas del 8 de enero de 2020, esta Sala reiteró que:

“(…) dado el formalismo dispuesto legalmente para los procesos de control de constitucionalidad. la carga argumentativa en el trámite de una acción de inconstitucionalidad recae en el accionante, quien debe explicar, sin ambages, la contradicción existente entre una normativa infraconstitucional y el bloque de constitucionalidad, así como la legitimación que le asiste”. (Lo destacado no corresponde al original).

De este modo, corresponde dejar establecido de previo y como premisa general que en virtud de la gravedad de un proceso de control de constitucionalidad y dado el formalismo dispuesto legalmente para estos procesos, la carga argumentativa en el trámite de una acción de inconstitucionalidad recae en el accionante y, la ausencia de motivación suficiente (argumentos y pruebas de los alegatos), no puede ser remediada o suplida por esta Sala. Este Tribunal ha insistido, en tal sentido, que no basta alegar de forma genérica y abstracta la ausencia de razonabilidad de una norma o supuestas discriminaciones. Estos argumentos deben ser debidamente demostrados. Por ejemplo, en la sentencia n.°2023-015596 se advirtió lo siguiente:

“En otras palabras, la acción de inconstitucionalidad se refiere a meros escenarios hipotéticos ‒crecimiento exponencial del gasto público, detrimento de los servicios públicos y aumento de la carga tributaria‒ que tampoco están debidamente fundamentados en proyecciones económicas serias y reales (que justamente es la omisión que reprocha el accionante). De manera que, en los términos en que fue planteada la acción, sin argumentos sólidos o probanzas, y apenas a un mes de aprobada, no permiten acreditar una supuesta irrazonabilidad que haya amenazado los principios constitucionales invocados por el accionante. (…) Por demás, si bien se acusa una irrazonabilidad técnica en las medidas adoptadas, el accionante no aporta ningún elemento que permita el análisis que propone. Esta Sala ha sido conteste en cuanto a la necesidad de aportar parámetros objetivos para poder definir la concurrencia o no de un sesgo técnico en la adopción de este tipo de normas. La insuficiencia en esta cuestión somete a este Tribunal a una especulación sobre el contenido de la norma cuestionada y le impone la carga de realizar comparaciones y valoraciones sin contar con los parámetros o elementos mínimos para ello. De ahí que no encuentre mérito para disponer la inconstitucionalidad de la normativa cuestionada”. (Lo destacado no corresponde al original).

De constatarse la ausencia de una adecuada fundamentación y prueba de los agravios, el reproche deberá ser desestimado Lo anterior, sin perjuicio claro está, que en un escenario posterior y con una fundamentación más completa y debidamente acreditada se pueda revalorar la presunta afectación al Derecho de la Constitución (art. 87 de la LJC).

Agravios de la acción n.°19-2620-0007-CO XIII.- Cambio de regulación en lo relativo a las anualidades Normas impugnadas El secretario general de SEBANA cuestiona, en primer lugar, la constitucionalidad de las disposiciones relativas a la regulación de las anualidades a partir de la aprobación de la ley n.°9635. Las normas impugnadas dicen lo siguiente:

“Art. 50- Sobre el monto del incentivo. A partir de la entrada en vigencia de esta ley, el incentivo por anualidad de los funcionarios públicos cubiertos por este título será un monto nominal fijo para cada escala salarial, monto que permanecerá invariable.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 57.1 l) Se reforma el artículo 12 de la Ley N.°2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957. El texto es el siguiente:

Artículo 12- El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año.

Si el servidor fuera ascendido, comenzará a percibir el mínimo de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos.

TRANSITORIO XXXI. Para establecer el cálculo del monto nominal fijo, según lo regulado en el artículo 50, en el reconocimiento del incentivo por anualidad, inmediato a la entrada en vigencia de esta ley, se aplicará el uno coma noventa y cuatro por ciento (1,94%) del salario base para clases profesionales, y el dos coma cincuenta y cuatro por ciento (2,54%), para clases no profesionales, sobre el salario base que corresponde para el mes de enero del año 2018 para cada escala salarial”.

Numerales que, a juicio del accionante, deben ser relacionados con otras normas de la LSAP que también fueron modificadas por la ley n.°9635. Como, por ejemplo, el art. 58 inciso c) que derogó al art. 5 y los numerales 48 y 49 referidos a la evaluación del desempeño y que, tienen en común, la correlación entre el pago de anualidades y la existencia de un sistema de méritos. El art. 5 hacía referencia al principio de eficiencia de la Administración al señalar que los aumentos anuales serían concedidos por méritos, en tanto ahora con la nueva normativa, se indica que el resultado de la evaluación anual será el único parámetro para el otorgamiento del incentivo por anualidad de cada funcionario. Dice el art. 58 c):

“Art. 58- Derogatorias. Se derogan las siguientes disposiciones:

(…)

• c)El artículo 5 de la Ley N.°2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957”.

La norma derogada decía lo siguiente:

“Art. 5º.- De conformidad con esta escala de sueldos, cada categoría tendrá aumentos o pasos, de acuerdo con los montos señalados en el artículo 4º anterior, hasta llegar al sueldo máximo, que será la suma del salario base más los pasos o aumentos anuales de la correspondiente categoría.

Todo servidor comenzará devengando el mínimo de la categoría que le corresponde al puesto, salvo en casos de inopia a juicio del Ministro respectivo y de la Dirección General de Servicio Civil. Los aumentos anuales serán concedidos por méritos a aquellos servidores que hayan recibido calificación por lo menos de "bueno", en el año anterior, otorgándoseles un paso adicional, dentro de la misma categoría, hasta llegar al sueldo máximo.

(Así reformado por artículo 1 de la ley Nº 6408 de 14 de marzo de 1980)”.

Mientras que las disposiciones de evaluación del desempeño establecen lo siguiente:

“Art. 48- Criterios para la evaluación del desempeño. Cada jefatura de la Administración Pública, al inicio del año, deberá asignar y distribuir a todos los funcionarios entre los procesos, proyectos, productos y servicios de la dependencia, estableciendo plazos de entrega y tiempo estimado para su elaboración. Será responsabilidad de cada superior jerárquico dar seguimiento a este plan de trabajo anual; su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

Para el seguimiento regular y frecuente de las actividades del plan de trabajo, cada administración deberá establecer un sistema informático al efecto, alimentado por cada funcionario con las actividades diarias vinculadas a dichos procesos, proyectos y productos, y el cumplimiento de plazos y tiempos. Será responsabilidad de cada funcionario, incluido todo el nivel gerencial, la actualización y el mantenimiento al día de la información necesaria para la evaluación de su desempeño, de conformidad con los procesos, proyectos, productos y servicios asignados particularmente, sus plazos de entrega y tiempos estimados para su elaboración, en dicho sistema informático que la Administración pondrá a su disposición. Su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

El incentivo por anualidad se concederá únicamente mediante la evaluación del desempeño para aquellos servidores que hayan cumplido con una calificación mínima de "muy bueno" o su equivalente numérico, según la escala definida. El ochenta por ciento (80%) de la calificación anual, se realizará sobre el cumplimiento de las metas anuales definidas para cada funcionario, de conformidad con lo dispuesto en el presente capítulo, y un veinte por ciento (20%) será responsabilidad de la jefatura o superior.

Art. 49- Efectos de la evaluación anual. El resultado de la evaluación anual será el único parámetro para el otorgamiento del incentivo por anualidad a cada funcionario.

Las calificaciones anuales constituirán antecedente para la concesión de estímulos que establece la ley y sugerir recomendaciones relacionadas con el mejoramiento y el desarrollo de los recursos humanos. Será considerado para los ascensos, las promociones, los reconocimientos, las capacitaciones y los adiestramientos, y estará determinado por el historial de evaluaciones del desempeño del funcionario. Igualmente, el proceso de evaluación deberá ser considerado para implementar las acciones de mejora y fortalecimiento del potencial humano.

Anualmente, la Dirección General de Servicio Civil dictará los lineamientos técnicos y metodológicos para la aplicación de los instrumentos de evaluación del desempeño, los cuales serán de acatamiento obligatorio”.

Agravios de la parte accionante (acción n.°19-2620-0007-CO) Sobre la constitucionalidad del art. 50 y el Transitorio XXXI (test de razonabilidad y proporcionalidad) La reforma al art. 50 y lo dispuesto en el Transitorio XXXI deben ser sometidos a un test de razonabilidad para conocer su necesidad, su idoneidad y su proporcionalidad, como parámetros constitucionales en atención a lo dispuesto por el principio del debido proceso.

En cuanto a la necesidad de la nueva normativa en materia de pago de anualidades, no queda clara la intención del legislador a la hora de convertir el porcentaje de la anualidad en un monto fijo y permanente, como tampoco es claro el motivo por el cual se fija precisamente el porcentaje de anualidad que contempla el Transitorio XXXI, haciendo la separación entre clases profesionales y clases no profesionales.

Lo que las normas establecen es un porcentaje anclado en los salarios que devengaban en enero de 2018, del cual deriva un monto nominal, que no varía en el tiempo, independientemente de los años que un servidor labore en el sector público. Para cuando se aprobó la ley, este salario de referencia que el legislador utilizó ya había sido modificado por los reajustes salariales de ley.

Con este mecanismo introducido en la ley, se evita que haya un aumento hacia futuro del pago de anualidades, lo que conduciría ‒hipotéticamente‒ a una reducción del gasto público en salarios; no obstante, ese argumento carece de lógica interna porque si la necesidad de reducir el pago de anualidades y de salarios en el sector público obedece a un criterio económico, no puede pretenderse regular de una vez para siempre la reducción salarial, tal como si las condiciones económicas del país fueran a perdurar sine die.

La normativa impugnada tampoco es idónea, pues si el monto de las anualidades se ancla en los salarios que correspondían a cada escala salarial para el mes de enero de 2018, tales montos no sólo no van a crecer en el tiempo, sino que van a llegar a tener un valor muy cercano a cero por efecto de la devaluación monetaria y la inflación, sin que exista una relación lógica ni razonable entre el objetivo de la anualidad ‒como un estímulo económico que permita mejorar la eficiencia de los empleados del sector público‒ o entre la anualidad como una fórmula para premiar a quienes son evaluados anualmente en el ánimo de cumplir con el sistema de méritos que contempla la Constitución Política, y un pago que conforme avanzan los años, pierde todo significado real.

El art. 50 y el Transitorio XXXI tampoco son proporcionales con el fin que se proponen, pues se elimina hacia futuro el pago de anualidades y esa es la verdadera finalidad implícita. El sacrificio que imponen esas normas a los empleados que devengan un salario compuesto es totalmente radical y confiscatorio dado que, en el futuro, devengar un salario compuesto, con pago de anualidades, no tendrá ningún significado real para tales empleados porque aquéllas se eliminan hacia el futuro, tornándolas insubsistentes, sin ningún contenido económico real y convertidas en un pago simbólico.

Inconstitucionalidad del art. 57 inciso 1) en cuanto reforma el art. 12 de la LSAP reformado por la ley n.°9635. Sobre el pago en junio y la no revalorización El pago de la anualidad antes debía hacerse en el primer día del mes más cercano a la fecha de ingreso o reingreso del funcionario al puesto pero, con la reforma, los pagos de anualidad se harán en la primera quincena de junio de cada año, lo que estima abiertamente inconstitucional, pues además de crear un sacrificio desproporcionado e injustificado en contra de las personas que tienen derecho a la antigüedad cuando su fecha de ingreso o de reingreso es anterior al mes de junio, ello se contrapone a la naturaleza misma de la anualidad, cuyo cometido es remunerar un período anual de labores y no cualquier período construido en forma arbitraria o artificiosa por el legislador, por lo que la norma no resulta idónea, no es lógica ni razonable. Además, el art. 12 inciso d) ‒que permitía considerar el tiempo acumulado en otras entidades del sector público para efectos del pago de anualidades‒ fue eliminado, lo que es irrazonable y discriminatorio, además de lesivo del principio de proporcionalidad porque las personas que han laborado en otras entidades del sector público, se verían obligadas a iniciar el conteo a partir de cero en cada entidad en la que laboren, lesionando la doctrina del Estado como patrono único que, como concepto jurídico, ha ido perfilándose en la jurisprudencia de Sala Segunda y Sala Constitucional. La norma tampoco es idónea porque desincentiva el traslado o el reingreso de empleados y funcionarios públicos a las distintas entidades del Estado, contribuyendo a dificultar el sistema constitucional de un acceso a la función pública mediante méritos.

Asimismo alega que es discriminatoria porque le confiere una ventaja desproporcionada a las personas que prefieren mantenerse en una misma institución en forma indefinida, por sobre aquellas que aspiran a mejorar su condición o a brindar un mejor servicio público en otro lugar del sector público y, en segundo lugar, porque se crea una discriminación entre todas las personas que, con anterioridad a la ley n.°9635, lograron para efectos de anualidades, contabilizar los años laborados en otras entidades del sector público, respecto de aquéllas que quisieran trasladarse o reingresar a éste después de la aprobación de la ley n.°9635.

Resume que los arts. 50, 57 inciso l) y el Transitorio XXXI, al carecer de razonabilidad, idoneidad y proporcionalidad, vulneran el debido proceso sustantivo y con esto las disposiciones contenidas en los arts. 9, 11 y 121 de la Constitución Política, pero también una violación indirecta de los arts. 191 y 192 constitucionales al crearse un sistema de pago de anualidades que atenta contra el sistema de méritos y el principio de eficiencia.

Argumenta lesión al principio de razonabilidad porque un Transitorio fue el que dispuso el porcentaje de anualidad con que debe arrancar el cálculo de lo que será luego el monto nominal e inmodificable de anualidad así como la fecha a partir de la cual iniciará ese cálculo, lo que, en su criterio, debió haber sido incluido en una norma de fondo para que+++++++++++ sea parte del cuerpo legal permanente.

Agravios de la parte accionante (acción acumulada n.°19-004931-0007-CO) El Estado pretende inutilizar en el tiempo el monto que se paga por concepto de anualidad y vaciarlo de contenido, eliminando el derecho a esta retribución que ayuda a los trabajadores a que sus salarios mantengan su poder adquisitivo frente al costo de la vida.

Alegatos de la parte accionante (acción acumulada n.°19-022051-0007-CO) En virtud de la identidad en el objeto, se procederá a incluir en este apartado los alegatos de la acción n.°19-022051-0007-CO promovida por ASDEICE.

En dicha acción se cuestionó que las normas impugnadas en este acápite lesionan el principio del debido proceso sustantivo y no cumplen el test de razonabilidad.

En cuanto a la necesidad de la nueva normativa en materia de pago de anualidades, reiteran que no queda clara la intención del legislador a la hora de convertir el porcentaje de la anualidad en un monto fijo y permanente, como tampoco es claro el motivo por el cual se fija precisamente el porcentaje de anualidad que contempla el Transitorio XXXI, haciendo la separación entre clases profesionales y clases no profesionales. La normativa impugnada tampoco cumple los requisitos de idoneidad y de proporcionalidad. En cuanto a lo primero, si el monto de las anualidades se ancla en los salarios que correspondían a cada escala salarial para el mes de enero de 2018, tales montos no solo no van a crecer en el tiempo, sino que van a llegar a tener un valor muy cercano a cero, por efecto de la devaluación monetaria y la inflación. Por lo tanto, no existe una relación lógica ni razonable entre el objetivo de la anualidad ‒como un estímulo económico que permita mejorar la eficiencia de los empleados del sector público‒, o entre la anualidad como una fórmula para premiar a quienes son evaluados anualmente en el ánimo de cumplir con el sistema de méritos que contempla la Constitución Política, y un pago que conforme avanzan los años pierde todo significado real. Los artículos 50 y el Transitorio XXXI tampoco son proporcionales con el fin que se proponen, pues se elimina hacia futuro el pago de anualidades, confiriéndole de esta manera a la reforma legal una finalidad implícita, como lo es la desaparición en el tiempo de las anualidades. Subrepticiamente, se introduce el pago de un salario único o total, eliminando en la práctica el sistema de salario compuesto que actualmente rige buena parte del sector público. En el caso particular del ICE, a la fecha de presentar esta acción, el salario base más pluses sigue siendo la modalidad de salario predominante, conforme la regulación que se hace en el Estatuto de Personal que es un acto administrativo unilateral del Consejo Directivo de la institución del cual dimanan derechos subjetivos para sus empleados. Uno de los derechos subjetivos que se origina en ese Estatuto es el derecho al pago de anualidades en una escala de 3.56% sobre el salario base de cada categoría; sin embargo, en la práctica, las normas impugnadas van a dejar sin efecto esos derechos subjetivos, sustituyendo el esquema de derechos de los empleados por otro que infringe los principios de razonabilidad y proporcionalidad. El sacrificio que imponen las citadas normas a los empleados que devengan un salario compuesto es totalmente radical y confiscatorio, dado que, en el futuro, devengar un salario compuesto, con pago de anualidades, no tendrá ningún significado real para tales empleados. En cuanto a la sustitución que realizó la ley n.°9635 del texto del art.12 de la LSAP, antes el pago de la anualidad debía hacerse en el primer día del mes más cercano a la fecha de ingreso o reingreso del funcionario al puesto, pero con la reforma, los pagos de anualidad deben hacerse en la primera quincena de junio de cada año, lo que estima abiertamente inconstitucional. Por su parte, exponen que el inciso b) del anterior art. 12 de la LSAP establecía que si el puesto anterior que ocupaba una persona ascendida le hubiese dado derecho a uno o más aumentos anuales, al pasar a un puesto superior tendría derecho a que se revaloraran las anualidades percibidas anteriormente, de acuerdo con la nueva categoría a que fuera ascendida; norma que se modificó en la ley impugnada al señalar que “bajo ningún supuesto se revalorizarán los incentivos ya reconocidos”. La norma anterior guardaba una lógica y cumplía con el principio de proporcionalidad en cuanto pretendía que el ascenso de puesto afectara positivamente a la persona que optara por una plaza superior, estimulando a los empleados del sector público para que pudieran optar por puestos superiores; sin embargo, con la reforma se desincentiva a las personas para ocupar puestos de mayor responsabilidad al congelar sus anualidades anteriores y no permitirle optar por una revalorización de éstas. En cuanto al inciso d) del art. 12 anterior que permitía considerar el tiempo acumulado en otras entidades del sector público para efectos del pago de anualidades, la eliminación de esta disposición en el art. 12 reformado, resulta irrazonable y discriminatoria así como lesiva del principio de proporcionalidad porque las personas que han laborado en otras entidades del sector público, se verían obligadas a iniciar el conteo de sus anualidades cuando pasen a otras instituciones o empresas públicas, a partir de cero, violando la doctrina del Estado como patrono único que, como concepto jurídico, ha ido perfilándose tanto en la jurisprudencia de la Sala Segunda de la Corte Suprema de Justicia como de la Sala Constitucional. La norma tampoco es idónea, desde el punto de vista lógico y racional, porque desincentiva el traslado o el reingreso de empleados y funcionarios públicos a las distintas entidades del Estado, lo que dificulta el sistema constitucional de un acceso a la función pública mediante méritos. Se trata de una norma discriminatoria en un doble sentido: primero porque le confiere una ventaja desproporcionada a las personas que prefieren mantenerse en una misma institución en forma indefinida por sobre aquellas que aspiran a mejorar su condición o a brindar un mejor servicio público en otro lugar del sector público y, en segundo lugar, porque se crea una discriminación entre todas las personas que con anterioridad a la ley n.º9635 lograron que se contabilizaran ‒para efectos de anualidades‒ los años ya laborados en otras entidades del sector público, respecto de aquellas personas que quisieran trasladarse o reingresar a éste después de la aprobación de la ley n.º9635.

Informe de la PGR El legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores, por lo que debe entenderse que el monto económico que se otorgue por concepto de anualidades va en función de la intensidad con la que el legislador quiera incentivar la permanencia en el puesto de los funcionarios públicos y con la posibilidad económica de cancelar las sumas que se derivan de ese incentivo. El legislador podría, incluso, eliminar el pago de anualidades, e incentivar la eficiencia y la permanencia en el servicio público mediante un mecanismo distinto al que se emplea ahora, pues la obligación de reconocer anualidades no está estipulada en normas de rango constitucional, sino legal.

Su representada sí coincide con la parte accionante en cuanto a que no existe razón lógica alguna para que el pago de la anualidad se realice, en todos los casos, a partir de la primera quincena del mes de junio de cada año y no hay justificación para que las personas que cumplan su anualidad inmediatamente después de esa fecha, deban esperar lapsos que podrían ser de casi un año para recibir la compensación respectiva; situación que resulta irrazonable y discriminatoria, pues quienes cumplen la anualidad en mayo o en junio, por ejemplo, recibirían su compensación en condiciones temporales más favorables que quienes la cumplan en julio o en agosto de cada año, por lo que la Procuraduría considera que el sistema debería permitir que, una vez hecha la evaluación del desempeño y demostrado el nivel de eficiencia requerido por la normativa vigente, sea posible reconocer el incentivo económico a más tardar, en el mes siguiente a la fecha en que el funcionario cumpla su anualidad.

Insiste en que es el legislador quien tiene la facultad para decidir cuáles aspectos de la relación de servicio son los que deben incentivarse mediante el pago de anualidades, o mediante la revalorización de ese beneficio, todo ello de acuerdo con las posibilidades económicas imperantes. Considera que es evidente que revalorizar los incentivos económicos ya adquiridos en caso de que el funcionario sea ascendido de puesto, podría ser un incentivo importante para fomentar la carrera administrativa; sin embargo, aduce que ello implica una erogación de recursos que podría no guardar congruencia con la intención de equilibrar las finanzas públicas y ante esa situación, corresponde al legislador decidir ₋como ya lo hizo₋ si incentiva la carrera administrativa, o si propicia el equilibrio de las finanzas públicas, sin que optar por una u otra decisión implique violación alguna a normas o principios constitucionales.

Estima que la supresión de la frase del art. 12 de la LSAP que indicaba que a los servidores del sector público se les reconocería el tiempo de servicio prestado en otras entidades del sector público para efectos de aumentos anuales, resulta contrario a la doctrina del Estado como Patrono Único que surgió como una forma de asegurar a los trabajadores que se trasladan de una institución del Estado a otra, la continuidad en el disfrute de los derechos que se reconocen en todo el sector público; sin embargo, aduce que a pesar de ello, no es posible afirmar que dicha doctrina sea intangible para el legislador, pues su creación se produjo por normas de rango legal, y no constitucional, lo que conduce a afirmar válidamente que así como el legislador autorizó el reconocimiento del tiempo servido en las distintas instituciones del Estado para efectos del pago de anualidades, es el mismo legislador quien está facultado para modificar esa autorización, cuando estime que sea necesario para lograr el equilibrio de las finanzas públicas.

Los efectos permanentes de una norma transitoria: En cuanto a que una disposición transitoria establezca efectos permanentes, argumenta que tal reparo podría ser útil para reflejar que se ha infringido el deber de seguir una buena técnica legislativa; sin embargo, considera que tal infracción no podría generar la inconstitucionalidad de la norma, pues no se trata de un vicio sustancial que justifique anular la voluntad expresa de la ley.

También es preciso tomar en consideración el informe dado por la PGR en la acción de inconstitucionalidad n.°19-015299-0007-CO en que se informó lo siguiente:

“Sobre el tema de derechos adquiridos, esa Sala ha indicado que son aquellos que han ingresado definitivamente al patrimonio de su titular, por lo que no se consideran como tales las simples expectativas, y que las situaciones jurídicas consolidadas son las que no pueden ser modificadas nunca (sentencia n.° 670-1994 de las 8:46 horas del 23 de diciembre de 1994). También ha sostenido que el derecho adquirido es aquella circunstancia ya consumada, en la que una cosa, material o inmaterial, ha ingresado o incidido sobre la esfera patrimonial de la persona, de manera que ésta experimenta una ventaja o un beneficio constatable. (Sentencia 2765-1997 de las 15:03 horas del 20 de mayo de 1997).

Por su parte, ésta Procuraduría, en lo que respecta al tema específico de derechos adquiridos en materia salarial, ha sostenido que el sistema remunerativo puede modificarse a futuro, siempre que no se afecte el monto global del salario.

(…)

En síntesis, el legislador puede realizar cambios en las condiciones bajo las cuales se prestan servicios al Estado, siempre que se respeten los derechos adquiridos y las situaciones jurídicas consolidadas de las personas que mantenían una relación de servicio antes de la realización de esos cambios. El respeto a los derechos adquiridos implica, en lo que a la materia salarial se refiere, no disminuir el salario percibido por las personas a las que van dirigidos los cambios normativos.

En la situación específica que se analiza, considera esta Procuraduría que tanto la Ley de Fortalecimiento de las Finanzas Públicas, como el Reglamento al Título III de esa ley (decreto n.° 41564 de 11 de febrero del 2019), respetan los derechos salariales adquiridos por los servidores a los que van dirigidos los cambios relativos al cálculo de los componentes salariales. (…)

Concretamente, en lo que concierne a las anualidades, la forma de calcularlas dispuesta en las disposiciones cuestionadas no lleva consigo una disminución del salario total que percibían los servidores públicos al 4 de diciembre del 2018, fecha de entrada en vigencia de la ley de Fortalecimiento de las Finanzas Públicas, pues las sumas ya percibidas por ese incentivo se mantienen en el salario de cada servidor, sin disminución alguna, de manera tal que la nominalización a la que alude el artículo 50 de la Ley de Salarios de la Administración Pública se empezó a aplicar a partir de la entrada en vigencia de esa ley.

Distinta hubiese sido la situación si a las anualidades ya acumuladas por cada funcionario, calculadas de acuerdo con las disposiciones vigentes al momento en que las obtuvieron, se les hubiese aplicado las nuevas reglas de cálculo, pues eso sí implicaría una disminución del salario total de cada servidor; sin embargo, no es eso lo que disponen las normas que se impugnan, por lo que la aplicación de éstas últimas no ha implicado disminución alguna en el salario total de los servidores públicos”.

Alegatos de los coadyuvantes Coadyuvantes activos El secretario general de SIBANPO y el secretario general del SIPROCIMECA, se manifestaron a favor de las tesis del accionante.

El señor Álvaro Adrián Madrigal Mora como secretario general del SITUN manifiesta que el incentivo de anualidades se encuentra vinculado estrechamente con el reconocimiento del tiempo servido en el sector público que, en el caso de la UNA, se trata de un plus salarial denominado anualidad que, a esa fecha, constituye un 4% sobre el salario base por cada año laborado para la institución y que está disociado de cualquier tipo de evaluación anual, incluido mediante negociación salarial en las diferentes convenciones colectivas. Argumenta que también se ha reconocido la importancia de la permanencia y experiencia de los trabajadores en otras instituciones públicas de educación superior y por ello la convención colectiva lo reconoce a todos sus trabajadores académicos y administrativos, pero que también está incluido en el Convenio de Coordinación de la Educación Superior Universitaria Estatal de Costa Rica, suscrito por los cuatro rectores de las universidades estatales. El objetivo que origina y sustenta este reconocimiento es la permanencia y experiencia en el sector público en contraposición con el sector privado porque los fines u objetivos de ambos, no son los mismos. Considera que es irracional y desproporcionado que se haya fijado un mismo monto nominal fijo invariable para toda la escala salarial cuando ésta es un conjunto de categorías diferenciadas ya que cada cargo o puesto, tiene un perfil y otros elementos que le asignan un salario específico diverso de acuerdo con el volumen y responsabilidades del cargo. La disposición del art. 50 impugnado afecta los derechos adquiridos de los trabajadores del sector público porque no se establece ninguna diferenciación entre los que ya están incorporados y adquirieron su derecho de anualidad en forma porcentual y ahora, de pronto, se pretende transformarlo a una suma nominal fija invariable, lo cual es una afectación directa al salario que atenta contra el principio de protección del salario como componente fundamental de la relación laboral con el Estado como patrono. El Transitorio XXXI complementa, de manera permanente, lo dispuesto en el art. 50 impugnado al establecer los porcentajes que luego definirán los montos nominales fijos de la anualidad que, al congelarse en el tiempo, perderán su valor real, lo que implica una discriminación en relación con las diferencias de los porcentajes que existían (1,94 % y 2,54 %) y que ahora se pretenden calcular sobre un salario base de una fecha anterior a la vigencia de la ley n.°9635.

El secretario general de UNEBANCO manifiesta que jamás se podría sostener que las anualidades que los servidores tenían acumuladas a la fecha en que entró a regir la nueva ley puedan someterse a ésta porque ello sería incompatible con el principio de irretroactividad de la ley. De igual manera es contrario a este principio que se pretenda aplicar la nueva forma de cálculo y el pago de esas anualidades con ese nuevo régimen legal en menoscabo de situaciones jurídicas consolidadas y por ello considera que se deben seguir pagando de manera porcentual, como se hacía. Ese Transitorio XXXI podría ser razonable si el legislador le hubiera configurado un marco de duración determinada en el tiempo y se hubiera emitido como medida extraordinaria y temporal, pero no de manera indefinida como se promulgó. La normativa carece de razonabilidad técnica al partir de porcentajes diferenciados, según se trate de clases profesionales o no profesionales, en el orden del 1.94% o 2.54% respectivamente, sin fundamento técnico y violando la libre negociación colectiva al no permitir plantear otra modalidad de cálculo. El art. 57 inciso l) desnaturaliza la anualidad que tiene como objetivo remunerar un período anual de labores, con lo cual, el reconocimiento de la anualidad en junio de cada año, carece de toda lógica y de proporcionalidad, además de que elimina el reconocimiento del tiempo laborado en el sector público, a contrapelo con el principio de patrono público único.

El representante de UNDECA cuestiona que la nueva regla establecida para el pago del incentivo de anualidad, no debe aplicar para los servidores públicos que estaban laborando a la fecha de vigencia de la ley n.º9635 y, por lo tanto, no se podría sostener que las anualidades que los servidores tenían reconocidas y acumuladas a la fecha que entró a regir la ley, puedan someterse a las nuevas reglas, de modo que una interpretación de esta especie sería inconstitucional ya que viola el principio de irretroactividad de la ley en perjuicio de derechos adquiridos y situaciones jurídicas consolidadas de aquellos servidores públicos, en menoscabo de las anualidades acumuladas a la fecha de vigencia. El Transitorio XXXI quebranta el principio de necesidad, proporcionalidad y razonabilidad, pues viene a transformar el parámetro de cálculo de la anualidad, de un factor porcentual a un monto nominal o absoluto, que se mantendría invariable, es decir, se congela ad perpetuam el importe de anualidad, lo que implicará que su valor real se deteriore progresivamente a expensas de la inflación, deteriorando la situación económica del país. El art. 57 inciso l) desnaturaliza la anualidad cuyo objetivo es remunerar un período anual de labores de modo que su reconocimiento en junio de cada año, carece de toda lógica, de proporcionalidad, y elimina el reconocimiento del tiempo laborado en el sector público, a contrapelo del principio de patrono público único.

Coadyuvantes pasivos El presidente de la Asociación Cámara de Industrias de Costa Rica alegó que las anualidades son una creación exclusiva del legislador, por lo que el primer argumento de la acción se refiere a un caso típico de discrecionalidad legislativa, porque el aumentar, disminuir o eliminar las anualidades puede ser variado en el tiempo según cambien las condiciones económicas y fiscales del país.

Los representantes de la UCCAEP manifestaron que las anualidades no son un derecho laboral fundamental, sino una mera creación legislativa sujeta a cambios que el propio legislador puede realizar, sea eliminarlas, reglamentarlas y reformarlas de acuerdo con las realidades económicas del país. En el caso concreto, las anualidades han venido creciendo más que la inflación, lo cual era irrazonable, desproporcionado e inconveniente a nivel fiscal. Puntualizan que la existencia de las anualidades no está condicionada a la eficiencia del empleado público, sino que se trata de un plus salarial que se pagaba y crecía de manera automática para los funcionarios públicos, lo que se convirtió en un aumento anual de salarios sin criterio alguno y sin relación con la inflación; por lo anterior, su regulación, eliminación, o disminución, no viola norma fundamental o constitucional alguna. El legislador no está obligado a otorgar beneficios ad perpetuam o sine die, pues las necesidades de la sociedad son cambiantes, de modo que una legislación que en una época fue beneficiosa para la comunidad, puede ser necesario cambiarla o incluso abolirla, si así la coyuntura lo exige.

Resolución de la Sala Constitucional En lo relativo a la acción de inconstitucionalidad n.°19-022051-0007-CO que fue acumulada a este expediente es preciso advertir que los accionantes alegan una presunta lesión al art. 121 de la Constitución Política, sin embargo, no hubo un desarrollo concreto de dicho argumento en el sentido de cuál es la presunta contradicción entre las disposiciones impugnadas y el contenido del referido artículo inconstitucional. Por lo tanto, al no realizarse una apropiada motivación de dicho agravio, sino que se trató de un mero enunciado, el argumento debe desestimarse desde un inicio.

Generalidades sobre las anualidades El concepto de anualidad lo encontramos recogido en el art. 1° del Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley n.°9635 referente al Empleo Público, n.°41564-MIDEPLAN-H, que lo define en los siguientes términos:

“a) Anualidad: incentivo salarial concedido a los servidores públicos como reconocimiento a su permanencia de forma continua prestando sus servicios a la Administración Pública en aquellos casos que hayan cumplido con una calificación mínima de "muy bueno" o su equivalente número numérico en la evaluación anual, y a título de monto nominal fijo para cada escala salarial”.

Como se aprecia, la anualidad se trata de un incentivo salarial ‒un mecanismo de compensación‒, es decir no forma parte del núcleo salarial de los servidores públicos, el cual es concedido como un reconocimiento a su permanencia de forma continua prestando sus servicios a la Administración Pública de forma eficiente. Así por ejemplo, en el dictamen C-262-2007 del 6 de agosto de 2007, la PGR realizó las siguientes explicaciones:

“Los artículos 5 y 12 de la Ley de Salarios de la Administración Pública regulan el sobresueldo de anualidad, con el cual se reconoce un importe de dinero por cada año de antigüedad que el servidor acumule al servicio del sector público.

“El complemento salarial denominado ‘anualidad’, es un reconocimiento otorgado por la Administración, cuya finalidad es premiar la experiencia adquirida de sus funcionarios que han permanecido en forma continua prestando sus servicios a ésta. Básicamente, este incentivo es un premio por la antigüedad del funcionario que ha dedicado su esfuerzo, experiencia y conocimiento adquirido en el transcurso de los años para ponerlo al servicio de un solo patrono, en este caso del Estado y sus instituciones.” (Dictamen C -242-2005 del 1 de julio de 2005.)

El sobresueldo por anualidad parte de la concepción de que el Estado es un único centro de imputación de derechos laborales, principio que comúnmente es conocido como teoría del Estado como patrono único, por lo que independientemente del ente u organismo público específico en el cual desarrolla su actividad productiva el trabajador, el beneficio de anualidad le es reconocido”. (Lo destacado no corresponde al original).

Al tratarse de un componente adicional al salario, esta Sala ha afirmado expresamente que “otorgar o reconocer anualidades, responde a los criterios de oportunidad y conveniencia que el legislador plasmó en la legislación, que bien puede reformar en el futuro” (sentencia n.°2014-001227). Partiendo de esa premisa y de que no hay un derecho a la inmutabilidad del ordenamiento jurídico, es claro que perfectamente el legislador está facultado para regular hacia el futuro los términos y montos mediante los cuales se puede reconocer este tipo de incentivos salariales. También, siguiendo la misma lógica, el legislador puede perfectamente regular los requisitos necesarios para aspirar de forma legítima a este reconocimiento salarial. Lo anterior, claro está, dejando a salvo los derechos adquiridos (art. 34 constitucional) y otros principios de orden constitucional como la razonabilidad y la no discriminación.

Sobre la constitucionalidad del art. 50 de la LSAP y el Transitorio XXXI (razonabilidad) La norma legal impugnada establece que a partir de la entrada en vigencia de la ley el incentivo por anualidad será de un monto nominal fijo para cada escala salarial, siendo un monto invariable. Además, el Transitorio XXXI establece los montos sucesivos a reconocer para las clases profesionales o no profesionales.

En primer lugar, el accionante asevera que no queda clara cuál es la intención del legislador con estas decisiones. Al respecto, conforme al análisis de los antecedentes examinados y los informes allegados al expediente, es posible concluir que la intención del legislador al reformar las disposiciones relativas al pago de anualidades estaba dirigida a que dicho sobresueldo se pagara, a futuro, como una suma nominal fija, sin que ello implicara afectar el monto de las anualidades ya acumuladas, ni el salario total de los funcionarios públicos. Esto es, ponerle un tope para evitar un aumento desmesurado en los pagos salariales, pero sin afectar de modo alguno los montos salariales ya percibidos y consolidados en el estatus salarial de cada servidor. De los antecedentes que constan en el expediente legislativo y que fueron enumerados supra, se aprecia que el objetivo es que el monto de la anualidad fuera uno fijo a efecto de evitar que estas tuvieran revalorizaciones por costo de vida u otros factores que, a la larga, inflaban en demasía el monto del incentivo correspondiente (“ese no ajuste de la manera automática e inercial que tienen las anualidades” ‒Comparecencia de la ministra de Hacienda ante la Asamblea Legislativa).

Habría que advertir, como ya se dijo supra, que el legislador puede realizar cambios en las condiciones bajo las cuales se prestan servicios al Estado. Es decir, tiene la competencia para dictar los lineamientos generales de regulación de las remuneraciones y, en ese sentido, conviene dejar establecido que no existe un derecho fundamental a que se mantenga un mecanismo regulatorio en concreto. Lo anterior, siempre que se respeten los derechos adquiridos y las situaciones jurídicas consolidadas de las personas que mantenían una relación de servicio antes de la realización de esos cambios y, además, se respeten principios constitucionales como razonabilidad y no discriminación. Lo anterior, a juicio de esta Sala, queda resguardado en términos generales con lo dispuesto en la propia ley al establecer en el art. 56 de la LSAP que “los incentivos, las compensaciones, los topes o las anualidades remunerados a la fecha de entrada en vigencia de la ley será aplicados a futuro y no podrán ser aplicados de forma retroactiva en perjuicio del funcionario o sus derechos patrimoniales”. Además, el Transitorio XXV de la LFFP ordena que:

“El salario total de los servidores que se encuentren activos en las instituciones contempladas en el artículo 26 a la entrada en vigencia de esta ley no podrá ser disminuido y se les respetarán los derechos adquiridos que ostentan”. (Lo destacado no corresponde al original).

Mientras que el art. 3 del Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley n.°9635 referente al Empleo Público, n.°41564-MIDEPLAN-H dispone que:

“Corresponden a derechos adquiridos, los incentivos, sobresueldos, pluses, remuneraciones adicionales o cualquier otro de naturaleza equivalente, que previo a la entrada en vigencia de la Ley N°9635, integraban el salario total del servidor público, en propiedad o interino”.

Con lo anterior se acredita que las regulaciones que el legislador está autorizado a ejecutar se dejaron establecidas hacia el futuro dejando incólumes los montos ya percibidos por los servidores activos.

En cuanto a la necesidad, esta Sala constató que sí hay una motivación legítima, como lo es justamente atender la crisis fiscal causada, entre varios motivos, por la falta de uniformidad de las remuneraciones salariales en el sector público. Corresponde enfatizar que el cumplimiento del principio de equilibrio financiero o presupuestario en este caso, es una justificación objetiva y razonable para concluir que la motivación del legislador es conforme con el Derecho de la Constitución, máxime si se toma en cuenta la situación fiscal tan deteriorada que tiene el Gobierno central, que pone en peligro la viabilidad del Estado Social de Derecho y de la economía costarricense en su conjunto.

En esa línea, corresponde advertir que esta Sala ha constatado que a través de este tipo de sobresueldos se ha incurrido en lesiones a las finanzas públicas. Por ejemplo, en la sentencia n.°2006-17440 se resolvió lo siguiente:

“VII.- Anualidades de un mínimo del 3%. Estiman los accionantes que resulta inconstitucional que el Consejo Nacional de Producción reconozca un porcentaje de anualidad mayor al de los demás trabajadores, sin que se disponga un tope máximo, lo cual violenta el principio de legalidad. Al respecto, establece el numeral 36 de la Convención Colectiva de Trabajo del Consejo Nacional de Producción:

“Artículo 36°: La Institución por antigüedad pagará automáticamente un mínimo de un 3% anual sobre los salarios base, conforme el trabajador cumpla cada anualidad.” Esta Sala no estima que el hecho de que se fije un porcentaje de anualidad mayor a los funcionarios del Consejo Nacional de Producción con respecto a los demás trabajadores, resulte discriminatorio, pues ello responde a la política salarial de cada institución y encuentra sustento en la Ley de Salarios de la Administración Pública. Sin embargo, lo que sí puede esta Sala valorar es la razonabilidad del monto fijado, pues un uso abusivo de esta atribución, puede significar un evidente menoscabo a las finanzas públicas. Es en cuanto a este punto que la Sala observa la inconstitucionalidad de una parte de la norma impugnada, pues establece que la antigüedad se pagará con un “mínimo” del 3% anual sobre los salarios base, con lo cual es evidente que dicha cláusula no establece un tope, y que en consecuencia, faculta para que la Administración disponga ilimitadamente de los recursos públicos. Ello sin duda resulta contrario al Derecho de la Constitución, pues constituye una liberalidad desproporcionada a favor del Consejo Nacional de Producción que no puede justificarse. En consecuencia, dada la apertura normativa de la cláusula en cuestión, esta Sala estima procedente anular la frase “un mínimo de” contenida en el artículo 36 de la Convención Colectiva analizada”.

También se puede consultar la sentencia n.°8254-2020 en la que, por lo demás, esta propia Sala reiteró que el reconocimiento de este tipo de incentivos no puede estar desligado del proceso de evaluación del desempeño:

“B. 2.- SOBRE EL AUMENTO SALARIAL BASADO EN LA Antigüedad DEL TRABAJADOR. Se impugna la disposición que permite a los trabajadores recibir aumentos de salario anualmente, con base en los porcentajes establecidos en el Transitorio I de la Convención Colectiva. Estos incrementos se producen de forma escalonada, conforme se detalla en la disposición que se transcribe a continuación:

“TRANSITORIO I. A los trabajadores que cumplen su aniversario en el segundo semestre del 2007 el aumento por antigüedad se aplicará en cuanto se homologue esta convención y retroactivamente desde la fecha de cumplimiento del aniversario (…).

c.- Después del primer quinquenio, y hasta los 10 (diez) años de servicio, el trabajador recibirá un aumento de salario, por cada año de servicio eficiente, de un 7%(siete por ciento)de su salario base y a partir del año 11 (once) y hasta el 25 (veinticinco) un 4% (cuatro por ciento) y a partir del año 26 (veintiséis) y hasta su retiro del Instituto, de un 3% (tres por ciento) de su salario base.

d.- (…)”.

De este modo, el trabajador tendrá derecho a los aumentos porcentuales de salario por cada año de servicio eficiente, lo que implica que existe o debe existir un sistema de evaluación del desempeño del trabajador, con el que se hace acreedor del aumento escalonado. A pesar de que los accionantes señalan, que se trata de una norma que otorga la anualidad de forma automática por el transcurso del tiempo, coincide esta Sala con la lectura que hace la PGR de la disposición. Lo anterior no quiere decir que la Sala varíe la jurisprudencia que califica como inconstitucional los incrementos fijos establecidos con solo el transcurso del tiempo (sentencia No. 17438-2006). Esta posición se mantiene y se reafirma en este caso. El problema de relevancia constitucional de la norma que en esta oportunidad analizamos, es cuantitativo, no nominal, pues la fuente del aumento se constataría, anualmente, conforme al producto final valioso del trabajador (considerado individualmente), de forma similar a lo regulado en la Ley General de Salarios de la Administración Pública.

Ahora bien, en cuanto al aumento del 7%, sobre el salario por cada paso o anualidad, donde el aumento más significativo se produce al inicio de la relación laboral con el INS, porcentaje que es el cuestionado por el accionante. Es importante para esta Sala establecer la existencia de un quebrantamiento al principio de razonabilidad de las normas.

Aunque justamente una Convención Colectiva podría superar los mínimos legales de aumentos salariales por pasos anuales, lo cierto es que estos deben pasar un examen de razonabilidad. En el criterio de la Sala, al ser el INS una institución autónoma, aunque su relación con la mayoría de los empleados es una de derecho común o laboral, se encuentra sujeto a los criterios de legalidad financiera, a la razonabilidad y proporcionalidad de sus actuaciones. El sindicato UPINS no aportó mayores criterios para explicar que la norma tiene una finalidad importante, más que asegurar que la Convención Colectiva permite reafirmar la lealtad y fidelización de sus empleados. En concreto, no hay ningún antecedente que justifique una regla como la impugnada, la que parece excesiva si lo que se quiere es mantener a los empleados en la institución, pues si en efecto fue creada como un mecanismo para evitar el éxodo de los empleados con el rompimiento del monopolio de los seguros del INS, actualmente, ésta se encuentra en un régimen de mercado que no justifica ese tipo de acción. La Sala, en consecuencia, se inclina por considerar que el 7% de aumento es contrario a los principios de legalidad, austeridad y razonabilidad en el gasto público (véase las sentencias Nos. 6347, 6728-2006 y 3267-2012). Independientemente de si estaría dirigido a producir lealtad, fidelidad del trabajador, un 7% resulta ser una suma significativa, puesto que algunos empleados estarían consolidando sus primeras armas en el trabajo cumplidos los cinco años, y no habría una relación lógica y justa con una compensación con tan alto porcentaje. Más aún, esta Sala estima que los trabajadores deben ser eficientes en sus labores, recibiendo beneficios por el buen desempeño, siguiendo criterios objetivos, razonables y proporcionales. Pero aumentar un 7% del salario base después del primer quinquenio hasta los diez años, es una forma muy particular de administrar la experiencia e idoneidad de los trabajadores, pues quienes tienen menos experiencia al inicio recibirían un mayor aumento salarial, y recibirían un menor aumento los de mayor experiencia. Aunado a lo anterior, en el informe de la presidencia ejecutiva del INS se establece que el artículo 54 de la Convención Colectiva de Trabajo dispone actualmente de un incremento salarial anual del 6.8% y el 9.99%, según sea la categoría del puesto a partir del primero y hasta el quinto año de servicio. Esto evidencia que el aumento en el porcentaje de anualidades tiene un mayor impacto a lo largo del tiempo como, por ejemplo, que por este rubro el presupuesto de 2007 se duplicó para el año 2015. En consecuencia, debe declararse con lugar la acción, sea la inconstitucionalidad del 7% del incremento anual de los trabajadores. Respecto de los demás porcentajes establecidos en el inciso c) se declara sin lugar, pero esta Sala declara constitucionales estos porcentajes siempre y cuando se otorguen condicionados a la aprobación de la evaluación del desempeño”.

Con lo cual, es comprensible que el legislador impulsara una legislación para regular este tipo de compensaciones y estableciera reglas a efecto de impedir que estas crezcan de forma desmedida con lo cual se cumplan las condiciones de razonabilidad en su determinación.

Ahora bien, dado que otorgar o reconocer anualidades, responde a criterios de oportunidad y conveniencia que el legislador debe establecer, no se considera que el mecanismo regulatorio establecido sea abiertamente irrazonable o desproporcionado. Dentro de las prerrogativas legislativas, el legislador podía elegir el monto a reconocer hacia el futuro, haciendo incluso una legítima distinción entre porcentajes a reconocer para las clases profesionales y no profesionales.

Es verdad que lo relativo a las remuneraciones no necesariamente debe quedar estancado, tal y como se expuso supra, pero en lo atinente a los pluses y el crecimiento de estos ‒atendiendo a la grave situación fiscal‒ es disponible para el legislador y como ahora era urgente topar estos pluses para resguardar el estado de las finanzas públicas, también es verdad que a futuro pueden disponerse mecanismos compensatorios más favorables para retener el personal, pero ello responderá a una política pública propia del legislador que conforme al estado actual de las finanzas públicas no se puede anticipar.

Por lo demás, los accionantes de los expedientes números 19-02620-0007-CO y 19-022051-0007-CO realizaron planteamientos genéricos sobre el mecanismo ideado por el legislador, argumentando que carece de razonabilidad y proporcionalidad, que lesiona el debido proceso sustantivo, que carece de lógica interna, que con el paso del tiempo estos pluses van a tener un valor cercano a “cero” y que el sacrificio es radical y “confiscatorio”. Sobre el particular, esta Sala debe reiterar la resolución de esta Sala n.°2024-007057, en el sentido de que estos enunciados genéricos sin una adecuada fundamentación y sin prueba de sus afirmaciones, corresponden ser rechazados. Al respecto, ya la Sala resolvió lo siguiente:

“b.- Sobre la improcedencia parcial de los alegatos de la parte accionante en esta acción. Una vez analizados los escritos de interposición de este proceso, se desprende que existen alegatos de la parte accionante que no fueron debidamente fundamentados o que no constituyen temas de constitucionalidad, sino de legalidad y, por ende, impiden a este Tribunal pronunciarse respecto de los mismos.

1- Según ha indicado esta Sala en reiteradas ocasiones, la acción de inconstitucionalidad es un proceso con determinadas formalidades, que, si no se reúnen, imposibilitan a esta jurisdicción conocer de la impugnación que se pretende. Uno de esos requisitos corresponde a la necesaria fundamentación del escrito en el que se formule la acción de inconstitucionalidad. La Ley de la Jurisdicción Constitucional, en su artículo 3, dispone que “Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales”. Ahora bien, para que este Tribunal tenga por configurada la infracción y pueda declarar la inconstitucionalidad de la norma o acto impugnado, con la consecuente anulación y expulsión del ordenamiento jurídico, quien promueva una acción de inconstitucionalidad tiene la carga de demostrar cómo esa disposición infringe el Derecho de la Constitución y, además, debe indicar por qué debe estimarse la demanda. Esto es denominado por esta Sala como la carga de la argumentación, es decir, que “una norma que facialmente (sic) sea contraria a la Constitución, vuelca la carga de la argumentación a quienes sostengan que en realidad no hay conflicto entre esa norma y la Constitución Política; lo contrario sucede si se acciona contra una norma que en primer examen no parece contraria a la Constitución, en cuya hipótesis es el accionante el que debe avanzar con los argumentos que convenzan acerca de la inconstitucionalidad” (véase la sentencia nro. 1995-0184 de las 16:30 horas del 10 de enero de 1995).

(…)

La parte accionante alega lo siguiente: a) La vulneración al derecho a un salario digno y justo, por considerar que los rebajos son excesivos, desproporcionados e irrazonables, no solo por el cálculo que aplicarán al pago de las anualidades, sino también respecto de cómo se realizará subjetivamente la valoración. Se indica que el porcentaje de disminución en el pago de las anualidades es tal, que contraría los criterios de equidad, justicia, proporcionalidad y razonabilidad, porque ese valor nominal llega a casi cero y no va a crecer en el tiempo. Se aduce que es irrazonable como estímulo económico para el trabajador y desproporcionado, por llegar a eliminar a futuro el pago de las anualidades en un salario compuesto. b) La violación del principio de interdicción de la arbitrariedad, al someter a los trabajadores a un trato desigual en el manejo de sus derechos reconocidos y/o situaciones jurídicas consolidadas. c) La violación al principio de interdicción de la desviación de poder, por el uso abusivo, excesivo e inconstitucional en que incurrió el Poder Ejecutivo, en relación con sus potestades. d) La violación al principio de igualdad, por la drástica disminución que la normativa cuestionada conllevará en el monto de pago de las anualidades respecto de solo algunos trabajadores y, por hacer una distinción en el monto de ese mismo rubro entre profesionales y no profesionales.

Sin embargo, en el sub examine se echa de menos una clara y suficiente fundamentación en relación con esos alegatos. La acción requiere una rigurosidad al momento no solo de exponer los motivos de inconstitucionalidad que se aprecian de una normativa, sino el establecerlos con una debida especificidad y fundamentación, para que, una eventual sentencia por el fondo, sea congruente con los argumentos planteados, lo cual no se cumple en estos supuestos.

Sin esos elementos de juicio que sustenten su argumentación, no es posible emprender el examen de razonabilidad de una norma, por la ausencia de una línea argumentativa coherente fundamentada en prueba. Al respecto, se 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 nro. 1999-005236 de las 14:00 horas de 7 de julio de 1999, reiterada en la sentencia nro. 2016-014392 de las 9:05 horas de 5 de octubre de 2016) En este sentido, la Sala estima que el planteamiento de los accionantes es abstracto y general, pues se limita a mencionar que se da un menoscabo salarial a los trabajadores que consideran desproporcionado e irracional a través de una norma que, subjetivamente se considera que no es razonable; empero no se puntualizan las razones, no presentan los datos o pruebas sólidas o elementos de juicio que permitan hacer un análisis de razonabilidad de la decisión tomada por el Poder Ejecutivo, conforme lo exige la jurisprudencia de esta Sala. Así las cosas, para este Tribunal, es imposible realizar un análisis de razonabilidad ante la ausencia de evidencia idónea que, como se dijo, es un requisito indispensable, salvo que se tratara de una irrazonabilidad evidente y manifiesta, lo cual no es el caso.

Por otro lado, los accionantes estiman que, en la medida en que el otorgamiento de incentivos como las anualidades, dependan de valoraciones subjetivas de quienes los califican, se vulnerará el derecho al salario. No obstante, a juicio de esta Sala, el cuestionamiento sobre la subjetividad en la calificación a la que eventualmente podría ser sometido el servidor, no es más que una opinión abstracta, imprecisa y genérica que no necesariamente involucra la eventual vulneración de derechos fundamentales. Y, en todo caso, las disconformidades que pudieren tener los funcionarios con el resultado del examen efectuado, es un tema de legalidad que no le corresponde valorar a este Tribunal y que, por tanto, deberá ser discutido ante la Administración o en la vía jurisdiccional que corresponda.

Asimismo, respecto a la acusada lesión al principio de interdicción de la arbitrariedad y del principio de interdicción de la desviación de poder, en el memorial de interposición no se hace una adecuada fundamentación de las razones por motivos de constitucionalidad, por las cuales se considera la eventual lesión de esos principios, sino que más bien refieren criterios, que deberán ser verificados en la vía de legalidad.

En relación específicamente con el principio de igualdad y no discriminación, no basta simplemente la invocación de su violación. En este sentido, es oportuno recordar a la parte accionante, que ha sido línea jurisprudencial de este Tribunal que, cuando se alega la vulneración de principio de igualdad o de proporcionalidad, como sucede en este caso, está en el deber de aportar un parámetro de comparación, junto con el análisis correspondiente. De ahí que quien invoque ese tipo de quebranto, está obligado a aportar elementos que permitan efectuar una comparación plena entre los sujetos tratados en forma diferente, que permita cotejar si se produce la alegada desigualdad o no. Ello, en doctrina, se conoce como el “tertium comparationis” (punto de referencia, de comparación), y sobre él, en sentencia nro. 1994-7261 de las 08:30 horas del 9 de diciembre de 1994, reiterada en la 2021-24764 de las 9:20 horas del 3 de noviembre de 2021 y en la 2022-13096, de las 9:30 horas del 8 de junio de 2022, se dijo:

“En lo que respecta al principio de igualdad, como reiteradamente lo ha sostenido esta Sala, el presupuesto fáctico más importante es que exista un trato discriminatorio desprovisto de toda justificación objetiva y razonable; esta es la razón por la que quien invoca la violación de este principio, debe suministrar, a los efectos de que se pueda hacer una confrontación plena, parámetros de comparación y de esta forma, cotejar si se produce o no la desigualdad (véanse entre otras y a manera de ejemplo, las sentencias Nos. 196-91 en el considerando II; 1432-91, en el considerando II y 1732-91)”.

En el sub examine, el accionante de la acción acumulada no aportó, ni desarrolló un parámetro de comparación que permita al Tribunal hacer el análisis correspondiente, solo cuestionó un trato diferenciado al sector de trabajadores en el sector de Enfermería, sin referirse a cuál otro en específico y cómo los artículos de la normativa impugnada lo provocaban. Tampoco lo hizo al cuestionar la diferencia de reconocimiento en el pago de la anualidad al sector profesional y no profesional; y la apreciación que realiza sobre una posibilidad futura de que llegue a desaparecer el pago de las anualidades, es solo subjetiva, sin parámetros objetivos de constitucionalidad.

En consecuencia, la falta de fundamentación de la acción en cuanto a estos extremos, impide siquiera valorar la vulneración de los principios señalados. Tal como ya se indicó, la jurisprudencia de la Sala es contundente en señalar este deber de fundamentar los argumentos de inconstitucionalidad (véase al respecto también la sentencia nro. 2023-31744, de las 9:30 horas del 6 de diciembre de 2023). En el caso bajo estudio, la parte accionante se limita a señalar los principios constitucionales presuntamente afectados con la normativa que pretende cuestionar, sin detallar ni hilvanar argumentación concreta que permita valorar si, en efecto, se presentan los vicios enunciados.

Resulta improcedente, entonces, que esta Sala se pronuncie por el fondo de normas cuestionadas en una acción, cuando el que acciona no fundamenta las razones por las cuales impugna, toda vez, que ello implicaría efectuar un control constitucional en abstracto a manera de ejercicio académico, lo que no es compatible con la finalidad de un proceso de esta naturaleza”. (Lo destacado no corresponde al original).

De modo que ‒por la forma en que fueron planteados este conjunto de argumentos por parte de accionantes y coadyuvantes activos‒ la Sala debe desestimarlos porque no pasan de ser afirmaciones genéricas y abstractas sobre los supuestos efectos de las normas cuestionadas (pérdida del valor adquisitivo). La ausencia de una fundamentación clara y una demostración real de los agravios motiva que esta Sala deba rechazar estos argumentos de supuesta inconstitucionalidad.

Respecto de estos alegatos, se declara sin lugar la acción de inconstitucionalidad.

Sobre el reconocimiento de las anualidades en el mes de junio, la continuidad laboral y la revalorización Los accionantes cuestionaron los términos en que quedó regulado el art. 12 de la LSAP en su versión luego de la reforma operada por la LFFP. Dicha norma, tal y como se expuso supra, decía lo siguiente:

“Art. 12. El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año.

Si el servidor fuera ascendido, comenzará a percibir el mínimo de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos”.

Respecto de esta disposición se plantearon tres agravios: 1) que cambió radicalmente la fecha del reconocimiento de la anualidad, no siendo el momento en que cada servidor cumple el correspondiente plazo anual sino artificialmente en el mes de junio suponiendo un sacrificio para los servidores que teniendo derecho a recibir la anualidad en un mes en concreto, deben esperar hasta el mes de junio siguiente; 2) que se eliminó el inciso d) del art. 12 que permitía considerar el tiempo acumulado en otras entidades del sector público para efectos del pago de las anualidades, obligándolas a iniciar el conteo desde cero si cambian de entidad laboral, generándose discriminación y desincentivos y 3) que el inciso b) del anterior art. 12 de la LSAP establecía que si una persona era ascendida, al pasar al nuevo puesto tendría derecho a que se revaloraran las anualidades percibidas anteriormente, es decir, se desincentiva a las personas para ocupar puestos de mayor responsabilidad al congelar las anualidades anteriores y no permitir la revaloración de las anualidades ya recibidas.

Para resolver estos alegatos corresponde reiterar las premisas básicas señaladas supra, en el sentido de que el reconocimiento de las anualidades obedece a criterios de oportunidad y conveniencia del legislador, que no hay un derecho a la inmutabilidad del ordenamiento jurídico y que el legislador está facultado para regular hacia el futuro los montos y términos en que se puede reconocer este tipo de incentivos salariales, dejando a salvo los derechos adquiridos (art. 34 constitucional) y otros principios de orden constitucional como la razonabilidad y la no discriminación.

En criterio de esta Sala, partiendo de lo anterior, la Sala estima que los dos primeros alegatos son atendibles, pues tal y como lo reconoció la PGR, no existe razón lógica para que el pago de la anualidad se realice en todos los casos en la primera quincena del mes de junio y no existe una justificación para tal distinción odiosa entre servidores que por ejemplo cumplen su anualidad en los meses de mayo y junio y pueden recibir el pago de su anualidad en un plazo razonablemente cercano; y otros servidores que deban esperar hasta el mes de junio siguiente para recibir la anualidad que les correspondería por ejemplo en el mes de enero. Comparte esta Sala con la PGR que se trata de una situación discriminatoria e irrazonable entre servidores públicos en iguales condiciones, es decir que han cumplido el año calendario de servicio y han recibido una evaluación del desempeño “muy buena”, pero se les va a hacer el reconocimiento salarial en períodos disímiles.

Como segundo aspecto, a juicio de esta Sala, el hecho de que se hubiera eliminado el reconocimiento o conteo de las anualidades en otras dependencias del sector público también se trata de una decisión carente de razonabilidad; pues si la motivación general del incentivo de la anualidad es el reconocimiento de la permanencia del servidor público prestando sus servicios de forma eficiente a favor la Administración Pública (ver definición supra), no resulta razonable que dicho conteo se realice individualmente por entidades particularizadas en perjuicio del servidor público que ha prestado sus servicios de forma eficiente en dichos entes. En ese sentido, si el legislador dispuso ‒dentro del ámbito de su discrecionalidad‒ contemplar este reconocimiento salarial, lo debe hacer en condiciones que no genere situaciones discriminatorias o irrazonables, sea, contrarias a la razón misma del reconocimiento o la definición histórica de las “anualidades”. Esta Sala debe insistir en que, si bien es un incentivo disponible para el legislador, su regulación no podría lesionar principios constitucionales como los de razonabilidad y no discriminación, por lo que si la definición y creación misma del incentivo obedece al deseo de incentivar los servicios eficientes y continuos en la Administración Pública por parte de los funcionarios públicos, parece irrazonable que se deje sin efecto el conteo de las anualidades anteriores.

Entonces, respecto de estos agravios corresponde declarar con lugar la acción únicamente por los efectos que pudo haber producido durante la vigencia de la norma cuestionada. Cabe señalar que el propio legislador procedió a dictar la LMEP y a reformar expresamente lo estatuido en el art. 12 de la LSAP, de modo que la norma actualmente dice lo siguiente:

“Artículo 12- El incentivo por anualidad se reconocerá el mes inmediato siguiente al aniversario del ingreso o reingreso de la persona servidora pública que labore bajo el esquema de salario compuesto y de acuerdo con las siguientes normas:

• a)Si el servidor es trasladado a un puesto de igual o inferior categoría a la del puesto que esté ocupando, no habrá interrupción alguna en cuanto al cómputo del tiempo para el aumento de salario.
• b)Si el servidor es ascendido, comenzará a percibir el mínimo de anualidades de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos.
• c)A las personas servidoras públicas, en propiedad o interinos, se les computará, para efectos de reconocimiento del incentivo por anualidad, el tiempo de servicio prestado en otras entidades del sector público.

(Así reformado por el artículo 49 sub inciso a) de la Ley Marco de Empleo Público, N°10159 del 8 de marzo de 2022)”. (Lo destacado no corresponde al original).

Dicha norma –a juicio de esta Sala– atendió lo cuestionado por los accionantes, en el sentido de que la anualidad se reconoce conforme al aniversario de cada servidor en concreto y, además, que a los servidores públicos ‒ya sea nombrados en propiedad o de forma interina‒ se les computará todo el tiempo de servicio prestado en otras entidades del sector público.

Finalmente, en lo relativo al alegato de que la normativa impugnada limita las mejoras salariales en virtud de los ascensos porque se suprimió el inciso b) del art. 12 de la LSAP en su versión original, se cuestiona que la norma guardaba una lógica en cuanto pretendía que el ascenso de puesto afectara positivamente a la persona que optara por una plaza superior, mientras que ahora se desincentiva a las personas para ocupar puestos de mayor responsabilidad al congelar las anualidades anteriores y no optar por una revalorización. Esta Sala considera que la discusión que se plantea es de interpretación e integración normativa y no un asunto de constitucionalidad. Nótese, sobre el particular, que la norma impugnada en su redacción original decía: “Si el servidor fuera ascendido, comenzará a percibir el mínimo de la nueva categoría” de lo cual se rechaza que el servidor público no vaya a recibir una mejora salarial. Es verdad y así lo ha constatado este Tribunal que el punto ha sido objeto de análisis de las diversas instancias competentes en su interpretación y aplicación y, tal y como lo demandan los accionantes se ha llegado a la interpretación de que, en efecto, al existir un ascenso, la persona servidora empieza a recibir el monto correspondiente a las anualidades conforme a las cualidades del nuevo puesto que desempeña. De hecho, el decreto ejecutivo n.°41564-MIDEPLAN-H así lo explica de forma explícita en el art. 14 al disponer que:

“d) De conformidad con el artículo 12 de la Ley N°2166, adicionado mediante artículo 3 de la Ley N°9635, si el servidor fuera ascendido las anualidades acumuladas se le reconocerán con el valor de la anualidad correspondiente a su nuevo puesto, como un monto nominal fijo según lo dispuesto en el presente artículo. Bajo ningún supuesto se revalorizarán las anualidades que devengaba previo al ascenso. Aplicará de igual forma para el caso de descensos”. (Lo destacado no corresponde al original).

También es posible encontrar que mediante la circular n.°DG-CIR-009-2019 de 09 de agosto de 2019 la DGSC explicó lo siguiente:

“Con el objetivo de facilitar la aplicación de dichas reformas y para efectos del pago de las anualidades de los servidores cubiertos por el Régimen Estatutario, se establece que el cálculo de éstas deberá realizarse según el monto de anualidad establecido para el nivel salarial, al cual se vincule la clase del puesto ocupado por la persona servidora. Lo anterior implica que cuando el funcionario sea parte de un movimiento de personal, que tenga como efecto un ascenso o descenso en la clasificación y puesto ocupado, el monto total a reconocer por concepto de anualidades, deberá calcularse considerando el monto de anualidad establecido para el nivel salarial, en el cual se encuentra asignada la nueva clasificación del puesto”.

Adicionalmente, se constata que la PGR a través del dictamen n.°075 del 06 de abril de 2022, realizó las siguientes consideraciones:

“Ahora bien, sobre los alcances del precepto reglamentario de marras, podrían darse dos posibles interpretaciones. La primera, dada por el dictamen C-396-2020, según la cual, partiendo que el concepto “revalorización” alude en el lenguaje común cualquier aumento de valor, en casos de ascensos, ya no es posible revalorizar o aumentar con base en la categoría del cargo al cual se le asciende, los aumentos anuales nominalizados que arrastre el servidor, los cuales permanecerán invariables. La segunda, consiste en que la “revalorización” tiene una acepción técnico jurídica específica, que en el caso de las anualidades alude al cambio o aumento automático que, antes de las reformas instauradas por la Ley Fortalecimiento de las Finanzas Públicas, se daba en ellas producto del aumento al salario base decretado por el Poder Ejecutivo, ya fuera de manera general por costo de vida o por medio de un ajuste técnico de algunos niveles salariales. De modo que la invariabilidad o no revalorización –arts. 50 y 12 de la Ley de Salarios de la Administración Pública- alude al incremento en el valor de las anualidades producto de esos aumentos, no así a los cambios operados en la clasificación o en los puestos por el ascenso del servidor, supuesto en el que, por la correlación con el nivel salarial respectivo que el mecanismo de nominalización involucra, en caso de ascensos el monto de las anualidades que arrastre el servidor debe ajustarse reconociendo el valor de las mismas de acuerdo con el nivel salarial de la nueva clase del puesto que se pasaría a ocupar.

No obstante, en especial consideración de los motivos suficientes y jurídicamente relevantes dados tanto por la DGSC, como por MIDEPLAN, y por los que no se comparte el criterio técnico jurídico contenido en nuestro dictamen, existen argumentos importantes para optar esta vez por la segunda interpretación del precepto reglamentario.

En primer lugar, hemos de reconocer que, con anterioridad a la entrada en vigencia de la Ley de Fortalecimiento de las Finanzas Públicas, No. 9635, las anualidades se revalorizaban de forma automática, tomando en cuenta los salario bases actualizados al sumarse en ellos el costo de vida periódicamente decretado por el Poder Ejecutivo, así como por ajustes técnicos específicos (Entre otros muchos, dictamen C-314-2018 de 14 de diciembre de 2018), y que ello producía un aumento exponencial de los salarios, constituyéndose así en uno de los principales disparadores del gasto público, cuya solución el legislador la buscó concretamente con la nominalización de su valor económico con base a un parámetro fijo e invariable -salario base que corresponda a cada categoría para el mes de julio del año 2018-. No en vano hemos sostenido que “la no revalorización de los incentivos ya reconocidos, alude a la invariabilidad tanto del monto nominal fijo en el que se convierten las anualidades percibidas anteriormente al 4 de diciembre de 2018 –entrada en vigencia de la Ley No. 9635-, como al de las que se adquieran con posterioridad a aquella fecha, que también serán calculadas como un monto nominal fijo, según lo ordena la Ley” esto último, según art. 50 de la Ley de Salarios-.” (Dictamen C-153-2020 de 24 de abril de 2020). Por consiguiente, es razonable afirmar que lo invariable alude a la improcedencia de aquella revalorización de las anualidades que antes se daba por cambio constante en su valor producto de un aumento salarial periódico decretado por el Poder Ejecutivo, y no a otros supuestos que involucren cambios en la clasificación o de puestos, como es el caso de los ascensos. Esta es la interpretación que más se ajusta al objetivo de la Ley.

En segundo término, derivado de lo anterior, al dotar de contenido o significado concreto aquel concepto jurídico indeterminado de “revalorización” que alude actualmente el ordinal 12 de la Ley de Salarios de la Administración Pública, más allá de la acepción lingüística común a la que acudimos en el dictamen C-396-2020, ante el evidente déficit de precisión del precepto normativo, por la autonomía, independencia y en especial, por la autointegración del Derecho Administrativo respecto de otras del derecho (art. 9.1 LGAP), la primera fuente supletoria a la que debe acudir el intérprete jurídico en caso de que existan lagunas o deficiencias en la regulación de determinadas relaciones de naturaleza pública, está constituida por el ordenamiento jurídico administrativo (art. 9.2 Ibídem.), comprensivo de la totalidad de las normas escritas de Derecho Público existentes. Por lo que es razonable recurrir entonces al significado lingüístico-dogmático dado por el derecho nacional en materia de salarios, como aluden los criterios técnicos tanto de la DGSC, como del MIDEPLAN, y que, como referente conceptual directo, le da un contenido muy específico a aquel concepto; entendiendo por aquél la “Modificación del salario de las clases de puestos por concepto de incrementos decretados por el Poder Ejecutivo” (Decreto No. 38916-H de 13 de marzo de 2015y sus reformas. Sin que se limite con él -insistimos- otros supuestos distintos que involucren cambios en la clasificación o de puestos, como es el caso de los ascensos. Interpretación ésta que se orienta en la dirección más racional que se corresponde a la satisfacción del interés público (arts. 10 y 113 de la Ley General de la Administración Pública).

De modo que contrario a lo que se concluyó originariamente, en realidad no es necesaria una interpretación correctiva que armonice las disposiciones normativas contenidas en los artículos 12 de la Ley de Salarios de la Administración Pública y 14 inciso d) del Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Decreto N° 41564-MIDEPLAN-H, como la que se hizo en el acápite II del dictamen C-396-2020. El tenor literal de la norma reglamentaria se basta a sí mismo: “De conformidad con el artículo 12 de la Ley N° 2166, adicionado mediante artículo 3 de la Ley N° 9635, si el servidor fuera ascendido las anualidades acumuladas se le reconocerán con el valor de la anualidad correspondiente a su nuevo puesto, como un monto nominal fijo según lo dispuesto en el presente artículo. Bajo ningún supuesto se revalorizarán las anualidades que devengaba previo al ascenso. Aplicará de igual forma para el caso de descensos” (Así reformado el inciso anterior por el artículo 1° del decreto ejecutivo N° 41807 del 23 de julio del 2019).

Por consiguiente, contrario a lo que se afirmó en el dictamen C-396-2020, debe entenderse que, por la correlación con el nivel salarial respectivo que el mecanismo de nominalización de pluses e incentivos salariales involucra, cuando un servidor sea ascendido o descendido –temporal o permanentemente- en la clasificación o del puesto ocupado, el monto o valor a reconocer por concepto de anualidades acumuladas que arrastre deberán calcularse considerando el monto de anualidad establecido nominalmente para el nivel salarial de su nuevo puesto. Es importante señalar que esta situación de ajuste no debe confundirse con el concepto de revalorización de anualidad que veda la ley y que es alusivo exclusivamente al ajuste por costo de vida o cualquier otro aumento decretado por el Poder Ejecutivo, que antes se hacía y que el legislador quiso evitar (…)

Por consiguiente, ante el cambio de criterio operado en este dictamen, en orden específico de las preguntas formuladas debemos indicar que, en el contexto del objetivo deseado por el legislador al momento de promulgar la Ley Fortalecimiento de las Finanzas Públicas, No. 9635, la “no revalorización” de las anualidades está referida a la improcedencia de modificar el monto nominalizado en que se convierten como consecuencia de incrementos salariales producto de los ajustes por costo de vida u otros técnicos que decrete el Poder Ejecutivo. Lo que permite, en el caso de ascensos o descensos, darle a las anualidades acumuladas anteriormente el valor nominalizado correspondiente al nuevo puesto que ocuparía”. (Lo destacado no corresponde al original).

Conforme con tales antecedentes administrativos, se corrobora que lo planteado en este apartado en concreto hace alusión a una cuestión de legalidad en lo relativo a la debida interpretación de la norma, la cual, en sí misma no genera las limitaciones que plantea el accionante.

Sobre la presunta lesión al principio de razonabilidad porque los porcentajes de las anualidades están establecidos en normas transitorias Los accionantes argumentan la lesión al principio de razonabilidad toda vez que una norma transitoria es la que vino a regular los porcentajes de anualidades, lo que, a su criterio, se debió plasmar en una norma ordinaria. Al respecto, la PGR concluyó que tal reparo es útil para mostrar que el legislador no utilizó una buena técnica legislativa, pero no podría generar la inconstitucionalidad de la norma. Esta Sala coincide con tal punto de vista. Es verdad que el derecho transitorio tiene una vocación destinada a regular aspectos relativos a la aplicación de las normas en el tiempo y justamente el tránsito que debe darse entra una normativa y otra posterior. Al respecto, en la opinión consultiva n.°2021-017098 se dijo lo siguiente:

“Como es bien sabido, el derecho transitorio es una técnica jurídica que busca dar respuesta a los problemas de aplicación de las normas en el tiempo, que se producen a raíz de la derogatoria y la vigencia de otra, en la que se hace necesario adaptar las situaciones prevalecientes a la nueva realidad que crea la ley recién promulgada. En efecto, como bien lo ha sostenido la doctrina, las disposiciones transitorias forman parte del Derecho Intertemporal en cuanto tienen a solucionar conflictos de leyes. Ante los problemas de transitoriedad que la nueva ley causa, el legislador establece un régimen jurídico aplicable a las situaciones jurídicas pendientes. En ese sentido, la función de las llamadas disposiciones transitorias es la de regular, en forma temporal, determinadas situaciones, con el fin de ajustar o acomodar la normativa nueva o la de dar un tratamiento distinto y temporal, de carácter excepcional, a ciertas situaciones. Interesa resaltar, que en la base de la norma transitoria se encuentra esa necesidad de responder a problemas planteados por la entrada en vigencia de la nueva ley; esa es su esencia. Se ha dicho que el contenido de las disposiciones transitorias busca solucionar varias situaciones. En primer lugar, si las nuevas regulaciones se aplican o no a las situaciones jurídicas previas a la ley, sea declarando la aplicación de la nueva ley, la pervivencia de la ley antigua o estableciendo un régimen transitorio distinto al fijado en ambas leyes -la antigua y la nueva-. Otra opción que tiene el legislador, dentro de una gama de alternativas, es regular en forma provisional situaciones jurídicas nuevas cuando con ello se pretenda facilitar la aplicación definitiva de la nueva ley”.

Es evidente que el contenido del XXXI de la LFFP que regula el cálculo y montos para pagar por anualidades como un monto nominal fijo de 1,94% del salario base para clases profesionales, y el 2,54%, para clases no profesionales, sobre el salario base que corresponde para el mes de enero del año 2018 para cada escala salarial, no pareciera ser una norma verdaderamente transitoria, pues no responde a una necesidad de dar respuesta a la aplicación de las normas en el tiempo, ni tiene una vocación temporal, sino que pretende establecer las reglas de cálculo de las anualidades en lo sucesivo. No obstante, lleva razón la PGR en el sentido de que esa incorrección en la técnica legislativa no implica la inconstitucionalidad de la norma, la cual en todo caso fue adoptada por la Asamblea Legislativa mediante los mecanismos legítimos de emisión de las normas jurídicas. Llevan razón los accionantes que lo más idóneo era que esa disposición se plasmara en una norma jurídica de fondo, pero con los alegatos planteados no se percibe que estemos ante un vicio esencial o sustancial que invalide la voluntad legislativa y que amerite la inconstitucionalidad de la norma.

Sobre eventuales antinomias normativas Los representantes de ASDEICE (accionantes en la acción n.°19-022051-004-CO), así como los coadyuvantes de SITUN, se refieren a situaciones concretas y posibles antinomias entre las disposiciones de la LSAP y las normas propias ‒estatutos de personal‒ sobre el pago de anualidades y que incluso, en el caso de la UNA, el pago está disociado de cualquier tipo de evaluación anual.

Sobre el particular, más allá de la posible inconstitucionalidad de tales disposiciones que promueven el reconocimiento de incentivos salariales independientemente del rendimiento y desempeño de los servidores públicos, corresponde señalar que estos cuestionamientos hacen referencia a discusiones de mera legalidad sobre cuáles normas prevalecen para el reconocimiento y pago de determinados pluses salariales.

Al respecto, conviene recordar que esta Sala, al referirse a las modificaciones al Régimen de Pensiones del Magisterio Nacional advirtió que no le corresponde a sí misma examinar casos concretos a efectos de resolver los eventuales problemas de legalidad que se presenten a la hora de aplicar determinada normativa:

“[S]e hace preciso insistir que en una acción de inconstitucionalidad no corresponde llevar a cabo un análisis de legalidad a efecto de examinar si las autoridades de JUPEMA o del Ministerio de Hacienda están realizando una apropiada aplicación del ordenamiento jurídico a la luz de la situación concreta de cada persona jubilada. Al respecto, esta Sala ha reiterado que “la aplicación indebida de la ley o su errónea interpretación en el caso concreto” no es materia propia de conocerse mediante la acción de inconstitucionalidad (sentencia n.°1994-5966). Cada situación particular puede ser examinada conforme a todo el bloque de legalidad en las sedes ordinarias competentes. Así, por ejemplo, en la sentencia n.°2001-02235 este Tribunal advirtió lo siguiente:

“La Sala no encuentra motivos para modificar su anterior criterio, aparte de que, como en la sentencia transcrita también se agrega, establecer si hay una afectación del contenido esencial del derecho, es una cuestión que debe analizarse caso por caso”.

Adicionalmente, en la sentencia n.°2019-024201 se resolvió lo siguiente:

“En reiteradas ocasiones, esta Sala ha señalado que los cuestionamientos sobre la aplicación de normas no pueden ser objeto de un proceso de acción, el cual está diseñado para ejercer un control de constitucionalidad de las normas y no, para examinar la correcta interpretación y/o aplicación del Derecho. En consecuencia, no le corresponde a este Tribunal Constitucional determinar cuál es la norma aplicable en el caso concreto, o si cabe o no la prescripción declarada por JUPEMA, en tanto esto alude a un conflicto de legalidad ordinaria que excede el ámbito de competencia de este Tribunal. Por las mismas razones se rechaza la pretensión tendiente a que este Tribunal ordene el pago de una determinada suma de dinero. A la luz de lo expuesto, la acción resulta inadmisible y debe ser rechazada”.

En razón de lo anterior, cada situación concreta bien puede ser ventilada en las vías competentes de legalidad, sedes en las que se pueden plantear todos los reproches que se refieran a la correcta aplicación e interpretación de las normas legales y reglamentarias vigentes”. (Sentencia n.°2024-006250).

Asimismo, al plantearse cuestionamientos de este tipo, sobre la prevalencia de unas u otras normas jurídicas en lo relativo al pago y reconocimiento de pluses salariales, la Sala dijo lo siguiente:

“Como en efecto explica la Procuraduría General de la República, es claro que la discusión que se presenta en este numeral es de legalidad ordinaria, toda vez que involucra un conflicto de normas aplicables en el tiempo; es decir, de antinomias jurídicas. Está en discusión si han sido derogadas algunas de las disposiciones que dan sustento a los porcentajes regulados convencionalmente, establecidos por ley, con ello se discute si se produce una presunta derogatoria tácita a varias disposiciones de la Ley de Salarios de la Administración Pública, Ley de Compensación Económica por el pago de Prohibición, con la reformas introducidas en la Ley de Fortalecimiento de las Finanzas Públicas. Como es evidente, se tiene que definir si el inciso a), del artículo 1°, de la Ley de Compensación Económica por el pago de Prohibición, sobrevive a las reformas legales, y en este tipo de circunstancias, se requiere de la integración e interpretación de normas infra constitucionales, que no compete a la Sala Constitucional, sino a las autoridades administrativas y judiciales, según corresponda”. “Sentencia n.°2023-010798. Lo resaltado no corresponde al original).

Finalmente, es preciso señalar que los coadyuvantes activos también hacen referencia a una presunta lesión al art. 34 de la Constitución Política por la presunta lesión a los derechos adquiridos. Este agravio se examinará en el acápite siguiente.

Conclusiones

A partir de las consideraciones realizadas, debe declararse parcialmente con lugar la acción únicamente por la irrazonabilidad del reconocimiento por el incentivo de la anualidad en el mes de junio de cada año y por romper la continuidad laboral. Esto según lo regulado en el art. 12 de la LSAP en su versión reformada por la LFFP y durante el plazo en que estuvo vigente. En todo lo demás, se declaran sin lugar los agravios.

El magistrado Rueda Leal emite voto particular y declara con lugar la acción en cuanto a la frase “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año” contenida en el artículo 12 impugnado de la Ley de Salarios de la Administración Pública reformado por la ley nro. 9635 ‘Fortalecimiento de las finanzas públicas’ durante su periodo de vigencia.

El magistrado Lara Gamboa, declara con lugar la acción únicamente en cuanto a la frase “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año” contenida en el artículo 12 impugnado de la Ley de Salarios de la Administración Pública reformado por la ley nro. 9635 ‘Fortalecimiento de las finanzas públicas’ durante su periodo de vigencia.

El magistrado Cruz Castro salva el voto y declara con lugar la acción en lo atinente a las anualidades, particularmente en cuanto al artículo 50 y el Transitorio XXXI.

XIV.- SOBRE LA SUPUESTA Violación AL principio de irretroactividad de la ley e irrespeto a las situaciones jurídicas consolidadas Aclaración previa En lo relativo a este apartado y dado que es un tema transversal en los procesos acumulados, se van a abordar los alegatos de varias acciones identificando en cada caso los respectivos agravios y la respuesta dada por la PGR.

Normas impugnadas Las normas cuestionadas por este motivo son los arts. 50, 54, 56, 57 inciso 1) en cuanto reforma el art. 12 y Transitorios números XXVII y XXXI de la LSAP, reformada por ley n.°9635.

Las normas dicen lo siguiente:

“Art. 50- Sobre el monto del incentivo. A partir de la entrada en vigencia de esta ley, el incentivo por anualidad de los funcionarios públicos cubiertos por este título será un monto nominal fijo para cada escala salarial, monto que permanecerá invariable.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 54- Conversión de incentivos a montos nominales fijos. Cualquier otro incentivo o compensación existente que a la entrada en vigencia de esta ley esté expresado en términos porcentuales, su cálculo a futuro será un monto nominal fijo, resultante de la aplicación del porcentaje al salario base a enero de 2018.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 56- Aplicación de los incentivos, topes y compensaciones. Los incentivos, las compensaciones, los topes o las anualidades remunerados a la fecha de entrada en vigencia de la ley serán aplicados a futuro y no podrán ser aplicados de forma retroactiva en perjuicio del funcionario o sus derechos patrimoniales.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 57. 1) l) Se reforma el artículo 12 de la Ley N.°2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957. El texto es el siguiente:

Artículo 12- El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año.

Si el servidor fuera ascendido, comenzará a percibir el mínimo de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos.

TRANSITORIO XXVII. De la aplicación del artículo 39, Auxilio de Cesantía, se exceptúan aquellos funcionarios cubiertos por convenciones colectivas que otorgan derecho a más de ocho años de cesantía, los cuales podrán seguir disfrutando de ese derecho, mientras se encuentren vigentes las actuales convenciones que así lo contemplen, pero en ningún caso la indemnización podrá ser mayor a los doce años.

En los casos en que se haya otorgado un derecho de cesantía superior a los ocho años por instrumentos jurídicos diferentes a convenciones colectivas, y que se encuentren vigentes, la cantidad de años a indemnizar no podrá superar los doce años, en el caso de aquellas personas que ya hayan adquirido ese derecho; para todos los demás casos, quedará sin efecto cualquier indemnización superior a los ocho años.

TRANSITORIO XXXI. Para establecer el cálculo del monto nominal fijo, según lo regulado en el artículo 50, en el reconocimiento del incentivo por anualidad, inmediato a la entrada en vigencia de esta ley, se aplicará el uno coma noventa y cuatro por ciento (1,94%) del salario base para clases profesionales, y el dos coma cincuenta y cuatro por ciento (2,54%), para clases no profesionales, sobre el salario base que corresponde para el mes de enero del año 2018 para cada escala salarial”.

Agravios de la parte accionante (acción n.°19-002620-007-CO) El accionante afirma que la técnica jurídica que utilizó el legislador en los arts. 50, 54, 56 y 57 inciso l) en relación con el art. 12 de la LSAP reformada, y los Transitorios XXVII y XXXI de la ley n.°9635, resulta inconstitucional al ignorar que, de conformidad con el art. 34 de la Constitución Política, existen situaciones jurídicas consolidadas nacidas de instrumentos tales como convenciones colectivas, reglamentos y estatutos de personal, que debieron ser respetadas.

El art. 50 de la LSAP y el Transitorio XXXI imponen una anualidad por un monto fijo nominal que pasa por encima de lo que se ha venido estableciendo en algunas instituciones a través de convenciones colectivas u otros instrumentos normativos que usualmente otorgan un monto de anualidad superior y distinto mediante un pago porcentual calculado sobre el salario base del empleado, con lo cual, esas normas imponen técnicas de cálculo de las anualidades que chocan directamente con las convenciones colectivas y con las reglamentaciones que existen en el sector público en esta materia. El legislador se excedió en sus potestades y con ello se violan situaciones jurídicas consolidadas al no establecer, como sí lo hizo, con el componente salarial de dedicación exclusiva ‒en el transitorio XXVI de la ley n.°9635‒ o de manera defectuosa en el tema de la cesantía, previsiones para paliar el efecto en las situaciones jurídicas consolidadas.

El art. 54 impugnado que se refiere a la “conversión de incentivos a montos nominales fijos”, implica una intromisión directa y heterónoma en las convenciones colectivas existentes y en las futuras que se lleguen a negociar, lo que lesiona gravemente el principio de irretroactividad de las normas legales, por dos razones: primero, porque el salario correspondiente al mes de enero de 2018 que la ley utiliza como referencia para determinar el monto nominal que debe pagarse por concepto de anualidad ya había sido modificado para cuando se aprobó la ley, por lo que el legislador inobservó el principio de irretroactividad en la elaboración de la norma al utilizar un parámetro delimitador del contenido del artículo que para entonces se encontraba desfasado en el tiempo; la segunda razón es que la disposición de la norma ignora que existen convenciones colectivas y reglamentos o estatutos que ya contienen disposiciones sobre el pago de incentivos o compensaciones en forma porcentual, como la convención colectiva del Banco Nacional, suscrita por su representado en donde se han fijado porcentajes para pagos de incentivos por productividad en el art. 63, denominado desde varias convenciones atrás como incentivo por resultados, por lo que para las personas a quienes se aplica esta convención colectiva, existe un derecho y no una simple expectativa de derecho, a que durante todo el tiempo en que este vigente la convención colectiva, se respete ese derecho subjetivo.

En cuanto al art. 56 impugnado relativo a la “aplicación de los incentivos, topes y compensaciones”, se trata de una norma que tiene un problema de inteligibilidad, que es confusa a pesar de que regula un tema de gran interés como son los derechos adquiridos y las situaciones jurídicas consolidadas. Si el legislador pretendía referirse a una regulación futura, no podía señalar que lo que se aplica a futuro son los incentivos, las compensaciones, topes o anualidades anteriores, e interpreta que talvez lo que el legislador pretendió decir era que las nuevas regulaciones en materia de incentivos, compensaciones, topes o anualidades, rigen hacia futuro y no en forma retroactiva. La norma es contraria al principio de razonabilidad y, por tanto, al debido proceso sustantivo, así como violatoria del art. 34 de la Constitución Política, pues no se respetan los derechos patrimoniales adquiridos.

Sobre el art. 57 inciso l) que reformó el numeral 12 de la LSAP, afirma que tampoco se respetaron las disposiciones contenidas en convenciones colectivas u otros instrumentos legales creadores de derechos subjetivos en temas como cuándo procede el pago de cada anualidad, la forma en que se calcula cuando hay ascensos, el reconocimiento de esos derechos a quienes provienen de otras instituciones del sector público o cuando se reintegran a éste, por lo que no se tiene certeza sobre lo que sucede con las personas que se estaban trasladando de empresa o institución dentro del sector público con anterioridad a la publicación de la ley n.°9635 pero a quienes todavía no se les ha contabilizado los años laborados en otras dependencias del sector público, ni tampoco si debería desconocerse la situación jurídica consolidada a que se les registre el tiempo laborado antes. En este punto, se alega que la ley fue omisa en la solución de conflictos de leyes en el tiempo y esa omisión es visible a lo largo de todas sus disposiciones, salvo en lo relativo a la dedicación exclusiva en donde sí se respetan los contratos de dedicación exclusiva firmados antes de la entrada en vigencia de la ley, y también, de forma menos rigurosa, en materia de cesantía.

En cuanto al Transitorio XXVII que se refiere a la aplicación del auxilio de cesantía, se trata de una norma que contiene dos vicios de inconstitucionalidad: el primero es la violación al derecho de la negociación colectiva y el segundo es el irrespeto al principio de irretroactividad de la ley e inobservancia de las situaciones jurídicas consolidadas. La norma limita el pago por concepto de auxilio de cesantía con topes superiores a los doce años, sin tomar en cuenta que muchas convenciones colectivas vigentes cuando entró a regir la ley n.°9635, establecían reglas con topes superiores, como la suscrita entre su representado y el Banco Nacional que dispuso que se trataba de un derecho real a favor de los empleados de la institución que se paga con un tope de veinte años y que no fue considerado inconstitucional cuando se analizó en una acción que lo cuestionaba. La limitación que introduce este Transitorio alcanza a otros instrumentos jurídicos diferentes a las convenciones colectivas en los que se regula el pago de cesantía en condiciones más beneficiosas que las estipuladas en el art. 29 del Código de Trabajo, en cuyo caso también se impone el límite de doce años. El vicio de inconstitucionalidad del Transitorio reside en la omisión de dimensionar el alcance de sus efectos, de manera tal que quedaran debidamente resguardadas y no se afectaran las situaciones jurídicas consolidadas a favor de los empleados públicos que, al amparo de convenciones colectivas vigentes u otros instrumentos jurídicos, para el momento en que entró en vigencia la reforma legal, tenían ya acumulada una antigüedad laboral que les otorgaba el derecho a devengar una indemnización por concepto de auxilio de cesantía superior a los ocho o doce años.

Agravios de la parte accionante (acción n.°19-004931-0007-CO) El accionante cuestiona el art. 50 adicionado a la ley n.°2166 y cita además lo dispuesto en el art. 1° inciso a) de su reglamento que consagra la definición de qué se entiende por anualidad. La parte accionante alega una lesión a los principios constitucionales de la autonomía municipal y de los entes descentralizados y, con ello, el principio de legalidad. Asimismo, los principios de progresividad de los derechos laborales, irretroactividad de la ley, razonabilidad y proporcionalidad, interdicción de la arbitrariedad, y los principios tributarios de no confiscatoriedad, capacidad económica y progresividad.

Las situaciones jurídicas consolidadas de los funcionarios y funcionarias públicas que ingresaron a laborar antes de la entrada en vigencia de la ley n.°9635, está siendo lesionada por las normas que reformaron el art. 12 de la LSAP y los Transitorios XXVII y XXXI en el tanto establecen nuevas formas de pago, montos fijos de anualidades para todos los funcionarios públicos, aun para los que por normas especiales (convenciones colectivas, reglamentos internos de trabajo, reglamento autónomos de trabajo de servicio, acuerdos de Concejos, etc.) tengan otra modalidad de pago de pluses, incentivos, anualidades, quinquenios. Si bien se dispone que no podrán aplicarse de manera retroactiva en perjuicio de los trabajadores, se ha hecho un análisis inadecuado de lo que se debe entender por derecho adquirido y situaciones jurídicas consolidadas.

Agravios de la parte accionante (acción n.°19-022051-0007-CO) El art. 50 de la LSAP, en conjunción con el Transitorio XXXI precitado, imponen una anualidad por un monto nominal fijo para cada escala salarial, pasando por encima del hecho de que, en las instituciones en que se va a aplicar ‒entre estas el ICE‒ se hayan establecido mediante el estatuto de personal y otros instrumentos, un monto de anualidad superior y distinto al que contiene el Transitorio XXXI mediante un pago porcentual calculado sobre el salario base de cada empleado o empleada. Los montos porcentuales con que se inicia el cálculo de anualidades en el transitorio mencionado –que luego pasan a conformar un monto nominativo‒, la diferencia entre clases profesionales y no profesionales y que la anualidad pase a ser un monto invariable que va a dejar de tener valor económico, son técnicas de cálculo que chocan directamente con los derechos subjetivos de los trabajadores y en especial, en el caso del ICE, que provienen del Estatuto de Personal. Las disposiciones normativas deben interpretarse y aplicarse conforme más favorezca al ser humano o bajo el principio pro homine, por lo que, bajo ese contexto, las normas cuestionadas deben ser interpretadas en claro resguardo y protección de las situaciones jurídicas consolidadas que tienen los empleados del ICE al amparo del Estatuto de Personal.

El art. 54 de la LSAP implica una prohibición absoluta para la negociación colectiva en las Administraciones Públicas, lo que lesiona también el principio de irretroactividad de las normas legales, por dos razones: la primera porque el salario correspondiente al mes de enero de 2018 que se utiliza como referencia para determinar el monto nominal que debe pagarse por concepto de anualidad, ya había sido modificado para cuando se aprobó la ley como consecuencia del reajuste salarial que se aplica semestralmente; la segunda razón es que se ignora que existen convenciones colectivas y reglamentos o estatutos que ya contienen disposiciones sobre el pago de incentivos o compensaciones en forma porcentual, como es el caso del Estatuto de Personal del ICE. Para todo el personal cubierto por el citado estatuto existe un derecho y no una simple expectativa de derecho, a que durante todo el tiempo en que esté vigente tal instrumento, se respeten los derechos subjetivos que nacieron durante su vigencia por lo que existe una violación del art. 34 de la Constitución Política.

El art. 56 de la LSAP contiene preceptos confusos, de modo que la norma solo tendría un sentido lógico y jurídicamente admisible si se interpretara que los nuevos topes, incentivos y compensaciones sólo pueden regir para los nuevos empleados que ingresen a partir de la promulgación de la ley y no para quienes tienen derechos subjetivos o situaciones jurídicas consolidadas previas a partir de otras normativas.

El art. 57 inciso l) tampoco respeta las disposiciones que ya se contienen en otros instrumentos, como es el caso del Estatuto de Personal del ICE en aspectos tan importantes como el momento en que procede el pago de cada anualidad, la forma en que se calcula cuando hay ascensos, o el reconocimiento de esos derechos a quienes provienen de otras instituciones del sector público o se reintegran a éste.

Informe de la PGR (acción n.°19-002620-0007-CO) Los reparos aquí planteados giran en torno al tema de la prevalencia o no de una ley sobrevenida (la LFFP) sobre las convenciones colectivas vigentes y, en tal sentido, recuerda que en el dictamen C-060-2019 la Procuraduría expresó su criterio en el sentido de que no existen razones de constitucionalidad que justifiquen dar prevalencia a los mandatos de una convención colectiva o de algún otro instrumento normativo, sobre la ley. Señala que lo anterior no significa irrespetar los derechos adquiridos o las situaciones jurídicas consolidadas de los destinatarios de las convenciones colectivas porque la aplicación de los mandatos legales que riñan con lo pactado en dichos convenios, rige hacia futuro, lo que implica que los beneficios laborales incorporados al patrimonio de cada persona por la aplicación de las cláusulas convencionales derogadas por la ley, se mantendrán en el patrimonio de cada una de las personas que los percibió. Refiere que el derecho a la cesantía se adquiere hasta que se produzca el cese de la relación de servicio, y siempre que dicho cese obedezca a alguna de las causales que justifican el pago de esa indemnización, de modo que, antes de que ello ocurra, lo que tiene el interesado es una simple expectativa de derecho que no podría prevalecer sobre disposiciones de rango legal como las introducidas a la LSAP por medio de la LFFP.

En razón de lo dicho, la Procuraduría no considera que los arts. 50, 54, 56, 57 inciso l), y los Transitorios XXVII y XXXI de la LSAP, infrinjan el art. 34 constitucional.

Informe de la PGR (acción n.°19-004931-0007-CO).

A juicio de la PGR los alegatos relacionados con la nominalización de las anualidades deben ser desestimados. Lo anterior, según las siguientes consideraciones:

“Tal y como lo indicamos en el informe original de 18 de marzo pasado, dentro de este expediente, en lo que se refiere a la posible invalidez de otorgar un valor nominal a las anualidades de manera permanente e indefinida, sin saber si a futuro se va a mantener la situación económica que justifica ese sacrificio, debemos indicar que, a juicio de ésta Procuraduría, el legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores; esto como parte del denominado “Estatuto de funcionarios públicos” (art. 191 constitucional).

Partiendo de lo anterior, debe entenderse que el monto económico que se otorgue por concepto de anualidades va en función de la intensidad con la que el legislador quiera incentivar la permanencia en el puesto de los funcionarios públicos, y con la posibilidad económica de cancelar las sumas que se derivan de ese incentivo.

Consideramos que el legislador podría, incluso, eliminar el pago de anualidades, e incentivar la eficiencia y la permanencia en el servicio público mediante un mecanismo distinto al que se emplea ahora, pues la obligación de reconocer anualidades no está estipulada en normas de rango constitucional, sino legal, por ser parte del régimen o sistema retributivo propio del denominado “Estatuto” funcionarial, del cual el legislador tiene una autorización para configurarlo y regularlo (arts. 105, 121.1 y 191 constitucionales), según hemos advertido al contestar recientemente las acciones de inconstitucionalidad tramitadas bajo los expedientes Nos. 19-6416-0007-CO y 19-12772-0007-CO.

Alegatos de los coadyuvantes El secretario general de SIBANPO se limitó a apoyar la tesis del accionante.

El presidente de la Asociación Cámara de Industrias de Costa Rica alegó que todas las normas pueden ser modificadas hacia el futuro por otra de igual o superior rango sin que ello implique una violación al principio de irretroactividad de la ley; principio que sólo se viola cuando han surgido derechos adquiridos y situaciones jurídicas consolidadas como consecuencia directa de situaciones jurídicas subjetivas creadas al amparo de la legislación anterior y advierte que no se consideran situaciones jurídicas consolidadas ni derechos adquiridos, los que se derivan de convenciones colectivas, reglamentos o estatutos, porque se trata de normas que regulan situaciones objetivas. Ninguna norma de las que están siendo impugnadas implica una violación al principio de irretroactividad de la ley, pues lo que ha hecho el legislador es modificar, con efectos futuros, situaciones objetivas creadas por la legislación anterior.

Resolución de la Sala Constitucional De previo En primer término, en muchos de los aspectos cuestionados, es preciso estarse a lo ya resuelto sobre las anualidades en el considerando anterior.

De otra parte, la mayoría de los alegatos de la acción n.°19-004931-0007-CO deben desestimarse porque hacen referencia a la autonomía municipal o de los entes descentralizados y ya se dejó establecido y definido que la legitimación de los accionantes, basada en un tema corporativo y de defensa de los derechos de los miembros, no alcanza para cuestionar aspectos atinentes a las autonomías. También se deben rechazar los alegatos relacionados con la presunta lesión a los principios razonabilidad y proporcionalidad, interdicción de la arbitrariedad, y los principios tributarios de no confiscatoriedad, capacidad económica y progresividad, ya que a su juicio, el Estado pretende inutilizar en el tiempo el monto que se paga por concepto de anualidad y vaciarlo de contenido. Al respecto, ya se advirtió supra que dichos alegatos carecen de una adecuada fundamentación porque no se justifica ni se demuestra, de forma apropiada, la supuesta lesión a dichos principios.

Sobre las vicisitudes de la aplicación de las anualidades y las regulaciones relacionadas con el momento de su reconocimiento y la continuidad laboral, ello quedó resuelto en las consideraciones antecedentes.

Montos de anualidades y otros pluses que desconocen lo establecido en otros instrumentos jurídicos Los alegatos relacionados con el hecho de que supuestamente las normas cuestionadas (arts. 50, 54 y Transitorio XXXI) violan el art. 34 de la Constitución Política, la razonabilidad y el debido proceso sustantivo al desconocer las situaciones jurídicas consolidadas o los derechos patrimoniales adquiridos en convenciones colectivas, reglamentos o estatutos de personal deben de rechazarse por las razones que a continuación se explican.

En, primer lugar ‒lo relativo a la presunta infracción al art. 34 de la Constitución Política por la supuesta lesión a los derechos adquiridos‒ corresponde que esta Sala reitere las consideraciones realizadas en la sentencia n.°2024-007057 en que luego de realizar una distinción entre un derecho adquirido y una situación jurídica consolidada ‒citando lo resuelto por esta Sala en el antecedente n.°2019-1601‒concluyó lo siguiente:

“En el sub examine, se debe advertir que el pago futuro de una anualidad no es un efecto automático incorporado al salario de todo funcionario, sino que, tal y como lo reconoce la Procuraduría General de la República, constituye una expectativa de derecho si se cumplen determinadas condiciones, por ejemplo, alcanzar el plazo anual y calificar, además, dentro de los parámetros de evaluación. De no cumplirse tales condiciones, el reconocimiento en cuestión no se efectuaría. En ese sentido, no puede pretenderse establecer como un derecho adquirido la forma en que estas llegarán a pagarse o los supuestos bajo los cuales deberá hacerse, pues no hay un derecho a la inmutabilidad del ordenamiento jurídico, según el precedente supra citado.

Ciertamente la normativa impugnada establece también que, a partir del 4 de diciembre de 2018, se reconocerá el pago de la anualidad a los funcionarios únicamente mediante la evaluación del desempeño y cuando en ésta logren obtener una calificación de "muy bueno" o "excelente", o su equivalente numérico, según la escala definida, ya no solo por el transcurrir del tiempo. Sin embargo, esto no es una innovación del reglamento en estudio, pues la ley nro. 9635, en el artículo 48 así lo contempla, es decir, existe una previsión de rango legal que ya lo establece, y el decreto, según se dirá más adelante, desarrolla dicha previsión legal. Tampoco implica una aplicación retroactiva de la ley, pues se trata de los pagos futuros de las anualidades, no de aquellas cuyos montos que ya han ingresado al peculio del funcionario, cuyo monto se mantiene intacto, independientemente de si el funcionario fue evaluado o no en anteriores oportunidades, ni del valor obtenido en su calificación.

Así, lo ya adquirido y contemplado en el salario que recibió el trabajador previo a la vigencia de la ley nro. 9635, como se explicitó, se mantiene, conservando los funcionarios sus derechos adquiridos y sin afectación alguna al salario que le corresponde”. (Lo destacado no corresponde al original).

Por su importancia para clarificar el punto, también corresponde hacer referencia a la sentencia n.°2005-16394 en que la Sala se refirió a los derechos adquiridos, explicándolo en el siguiente sentido:

“Pues, bien, como adquirido, se debe entender aquel derecho (en cuanto expresión de una relación jurídica concreta que se proyecta sobre un determinado sujeto) que ha ingresado efectivamente en el patrimonio de una persona, de modo tal que no podría eliminarse sin causar un concreto y evidente menoscabo en las condiciones que ya ostentaba con anterioridad. Así, no podría entrar dentro de esta concepción, una mera expectativa a futuro, aún cuando se contara con parámetros objetivos para hacer el cálculo de lo que podría constituir su posible consecuencia efectiva, pues lo cierto es que en este último estadio aún no ha pasado a formar parte de la esfera patrimonial del sujeto, ergo, no puede considerarse entonces "adquirido". El espíritu del artículo 34, impide a la nueva ley incidir sobre los efectos jurídicos ya producidos en determinadas situaciones concretas, derechos subjetivos que ya contaban con una expresión individualizada en el patrimonio de una persona al momento de sobrevenir la nueva legislación. Bajo este razonamiento, ha de admitirse que la proyección futura de una determinada relación jurídica, no puede verse cobijada por esta garantía constitucional, pues tal cosa apareja una suerte de "congelamiento" o petrificación del ordenamiento y de la potestad legislativa y reglamentaria del Estado, que no compagina con el principio derivado del artículo 129 constitucional, cuando señala que "las leyes son obligatorias y surten efectos desde el día que ellas designen". Lo anterior, por cuanto ante toda posible variación en el régimen jurídico atinente a determinada materia, cualquiera podría alegar su "derecho adquirido" a que se mantengan o conserven las condiciones normativas anteriores, lo que en buena lógica resulta claramente inadmisible. Volviendo a lo dicho líneas atrás, la interdicción constitucional rige únicamente para los derechos asumidos, integrados al patrimonio. En cambio, sobre las situaciones pendientes, futuras, sobre lo no consumado aún, sólo es posible poseer una expectativa. Dentro de una relación jurídica que se mantiene en el tiempo, no existe aplicación retroactiva cuando las nuevas condiciones normativas se aplican al desarrollo futuro de la relación, sin incidir sobre los efectos ya consumados en la situación anterior(RSC N.° 05291, 10:42 horas, 2930 de junio, 2000)”. (Lo destacado no corresponde al original).

En el sub lite corresponde reiterar estas consideraciones, las cuales resultan aplicables para el tema de las anualidades, pero también para cualesquiera otros pluses. Es decir, los incentivos salariales que dispone el legislador dentro de su liberalidad están condicionados al cumplimiento de determinados requisitos, por lo que de no estar ya incorporados en el patrimonio son apenas una expectativa de derecho y el legislador válidamente los puede regular hacia el futuro, sin que de los genéricos alegatos se desprenda alguna irregularidad contraria al Derecho de la Constitución. Del texto del art. 56 ‒que acá se cuestiona‒ como de lo dicho en el precedente, se desprende con suma claridad que la regulación es hacia el futuro y que “los incentivos, las compensaciones, los topes o las anualidades remunerados a la fecha de entrada en vigencia de la ley serán aplicados a futuro y no podrán ser aplicados de forma retroactiva en perjuicio del funcionario o sus derechos patrimoniales”. Esto fue enfatizado en el Transitorio XXV de la LFFP al recalcar que el salario total de los servidores que se encuentren activos a la entrada en vigencia de la ley “no podrá ser disminuido y se le respetarán los derechos adquiridos que ostenten”. Es decir, hubo una expresa decisión legislativa de resguardar los derechos patrimoniales de los servidores públicos a efecto de que los montos establecidos por el legislador no los afecten en forma retroactiva, sino que las regulaciones serán para los nuevos reconocimientos que se realicen. Ahora bien, la adecuada aplicación de esta máxima en cada caso concreto corresponde a una valoración particularizada y no a la constitucionalidad de la legislación impugnada, toda vez que, se reitera, el legislador dispuso expresamente que la regulación no puede ser aplicada de forma retroactiva en perjuicio del funcionario o de sus derechos patrimoniales.

En un segundo orden de ideas, es preciso insistir sobre el hecho de que a esta Sala le compete garantizar la supremacía de las normas y principios constitucionales, siendo que en el control de constitucionalidad le corresponde valorar si una norma de carácter general lesiona por contradicción u omisión el Derecho de la Constitución. Sin embargo, a este Tribunal no le compete resolver problemas de aplicación o de interpretación de normas de rango infra constitucional para determinar la prevalencia de unas u otras para la resolución de conflictos de carácter laboral como los que se plantean en estas acciones de inconstitucionalidad, donde lo que se procura es resolver eventuales antinomias entre la ley y convenciones colectivas, reglamentos o estatutos de personal. Se reitera que a la Sala Constitucional no le compete la integración e interpretación de normas infra constitucionales, sino a las autoridades administrativas y judiciales, según corresponda. Los alegatos de la acción n.°19-022051-0007-CO coinciden con lo planteado y más pareciera que pretenden que esta Sala resuelva qué debe prevalecer ‒si lo dispuesto por el legislador en una ley de carácter general y de interés público como la LSAP o las disposiciones especiales que regulan las relaciones laborales de diversas entidades‒ lo cual, como ya se dijo supra, es una discusión de legalidad y no de constitucionalidad.

Adicionalmente, los accionantes alegan una infracción a los principios constitucionales señalados porque el salario correspondiente al mes de enero de 2018 que la ley utiliza como referencia para determinar el monto nominal que debe pagarse por concepto de anualidad, ya había sido modificado para cuando se aprobó la ley como consecuencia del reajuste salarial que se aplica semestralmente, por lo que el legislador inobservó el principio de irretroactividad en la elaboración de la norma. Al respecto, es preciso reiterar que el reconocimiento de las anualidades obedece a criterios de oportunidad y conveniencia del legislador, no hay un derecho a la inmutabilidad del ordenamiento jurídico y que, por tanto, el legislador está facultado para regular hacia el futuro los requisitos, montos y términos en que se puede reconocer este tipo de incentivos salariales, dejando a salvo los derechos adquiridos (art. 34 constitucional) y otros principios de orden constitucional como la razonabilidad y la no discriminación. En ese sentido, el parámetro que haya utilizado el legislador de oportunidad y conveniencia para delimitar el pago de las anualidades futuras, bajo los alegatos planteados por los accionante, no luce irrazonable ni tampoco lesivo del art. 34, dado que, se repite, son regulaciones que rigen para las futuras anualidades a las que aspire el servidor público.

Sobre el Transitorio XXVII que se refiere a la aplicación del auxilio de cesantía Se acusa que la norma limita el pago por concepto de auxilio de cesantía con topes superiores a los doce años, sin tomar en cuenta que muchas convenciones colectivas vigentes cuando entró a regir la ley n.°9635 establecían reglas con topes superiores, como la suscrita entre su representado y el Banco Nacional que dispuso que se trataba de un derecho real a favor de los empleados de la institución que se paga con un tope de veinte años y que no fue considerado inconstitucional cuando se analizó en una acción que lo cuestionaba. El vicio de inconstitucionalidad del Transitorio reside en la omisión de dimensionar el alcance de sus efectos, de manera tal que quedaran debidamente resguardadas y no se afectaran las situaciones jurídicas consolidadas a favor de los empleados públicos que, al amparo de convenciones colectivas vigentes u otros instrumentos jurídicos, para el momento en que entró en vigencia la reforma legal, tenían ya acumulada una antigüedad laboral que les otorgaba el derecho a devengar una indemnización por concepto de auxilio de cesantía superior a los ocho o doce años. Se cuestiona en este apartado lo relativo a la presunta infracción al art. 34 de la Constitución Política.

Es preciso señalar que esta Sala ya ha examinado casos en los que se cuestiona que el Código de Trabajo ha establecido la fijación de un tope o un límite en el tema de la cesantía. En la sentencia n.°1995-2754, esta Sala examinó agravios muy similares a los que se plantean en esta oportunidad, a saber, la posibilidad de que el legislador introduzca límites al pago de la cesantía, así como la presunta lesión al principio de irretroactividad, es decir lo atinente al supuesto quebranto a derechos adquiridos. Desde aquella sentencia la Sala fue enfática en el sentido de que, en términos generales, le corresponde al legislador regular la forma y los parámetros dentro de los cuáles se pagará la indemnización por cesantía y que “no existe un derecho fundamental del ciudadano a recibir el auxilio de cesantía de manera ilimitada”, es decir, es legítimo y posible introducir límites razonables. Además, mientras el monto pecuniario de la cesantía no haya ingresado en el patrimonio del trabajador, no se puede hablar de un supuesto derecho adquirido. La sentencia bajo análisis lo explica de forma muy clara:

“La Constitución Política, en el artículo 63, recoge un principio que de previo estaba establecido en el artículo 29 del Código de Trabajo, cual es, el derecho del trabajador despedido sin justa causa a recibir una indemnización denominada auxilio de cesantía. De tal enunciado constitucional no se deriva, como lo afirma el accionante, que se trate de un derecho absoluto e ilimitado no sujeto a ningún tipo de reglamentación, por el contrario, corresponde al legislador regular la forma y los parámetros dentro de los cuáles se pagará tal indemnización. Es claro entonces, que no existe roce alguno entre el artículo 29 inciso d) del Código de Trabajo y el principio establecido en el artículo 63 constitucional, ambas normas se complementan. Dentro de este mismo orden de ideas, tampoco es de recibo el argumento de que la norma cuestionada viola el contenido del artículo 50 constitucional, en cuanto la cesantía es una forma de repartición de la riqueza y un método de solidaridad social para la protección de la familia costarricense y por ello no se puede limitar. No existe un derecho fundamental del ciudadano a recibir el auxilio de cesantía de manera ilimitada. El Estado optó por una determinada forma de regular tal indemnización, contribuyendo al bienestar de los ciudadanos y desarrollando en lo que corresponde el mandato del artículo 50. Desde esta perspectiva, el asunto de fondo que pretende discutir el accionante no es una infracción constitucional sino un tema de política social y económica del Estado, que debe ser resuelta ante otras instancias y no en esta vía.

III.- En cuanto a la violación del principio de irretroactividad de la ley, el argumento del accionante se resume en que el tope al auxilio de cesantía atenta contra una situación jurídica consolidada por el transcurso del tiempo, protegida por la prescripción adquisitiva, porque cada año que pasa el trabajador adquiere el derecho a la cesantía y se incorpora a su patrimonio. Este argumento no es de recibo. Para que exista un efecto retroactivo de una ley que sea inconstitucional, es necesario que el derecho que se considere lesionado se haya adquirido antes de la promulgación de la ley:

"El artículo 34 de la Constitución Política prohíbe dar carácter retroactivo a la ley cuando ello vaya en perjuicio de derechos adquiridos o situaciones jurídicas consolidadas. Ambos conceptos han sido claramente definidos por la doctrina constitucional y la jurisprudencia nacional. (...) Una situación jurídica puede consolidarse -lo ha dicho antes la Corte Plena- con una sentencia judicial que declare o reconozca un derecho controvertido, y también al amparo de una norma de ley que establezca o garantice determinadas consecuencias a favor del titular de un derecho, consecuencia que una ley posterior no puede desconocer sin incurrir en vicio de inconstitucionalidad por infracción del artículo 34 de la Constitución (sentencia número 1119-90 de las catorce horas del dieciocho de setiembre de mil novecientos noventa.)

En igual sentido se ha dicho:

"El artículo 34 de la Constitución Política prohíbe dar carácter retroactivo a la ley cuando ello vaya en perjuicio, inter alia, "de derechos patrimoniales adquiridos". Ha de distinguirse entre:

• a)Una ley que regule un supuesto de hecho pretérito con desmedro de esos derechos, lo que podríamos llamar retroactividad propiamente dicha y en principio inconstitucional, la que afecta a hechos consumados, y:
• b)La regulación de un supuesto de hecho que viene del pasado pero que se prolonga al momento de la promulgación de la ley -en cuyo caso la validez o invalidez de los efectos indirectos ex tunc ha de examinarse casuísticamente" (sentencia número 4691-94, de las diecisiete horas con treinta y nueve minutos del treinta y uno de agosto de mil novecientos noventa y cuatro) No existe a favor del accionante una sentencia judicial que declare o reconozca un derecho controvertido ni una ley previa que le garantice el recibo del auxilio de cesantía sin sujeción al tope de ocho años, pues la disposición del inciso d) del artículo 29 del Código de Trabajo que fija el tope de cesantía es anterior a que comenzara su relación laboral con JAPDEVA. Por ello y de conformidad con esta norma, el accionante nunca tuvo un derecho adquirido a recibir el auxilio de cesantía sin el tope de los ocho años”.

Luego, la Sala se refirió al auxilio de cesantía respecto de los servidores públicos en la sentencia n.°2005-07180, en donde se explicó su origen en el Código de Trabajo –que es previo a la Constitución Política– donde se garantizó la estabilidad de los servidores públicos, siendo que en dicha sentencia igualmente se enfatizó que no se trata de un derecho ilimitado o absoluto, sino que le corresponde al legislador diseñar la forma en que se regula dicha indemnización:

“Para facilitar el examen de constitucionalidad del artículo 586 inciso b) cuestionado, cabe referirse a ciertos aspectos históricos de la norma impugnada así como a la adopción de la figura de Estado como patrono único en nuestro sistema jurídico. Es mediante los artículos 585 y 586 del Código de Trabajo que se ubican en el Título Octavo, denominado “Del régimen de los servidores del Estado y de sus instituciones”, cuyo capítulo único se titula “Disposiciones especiales para los servidores del Estado y sus Instituciones”, que el legislador reconoce a favor de los servidores públicos, un mínimo de derechos, en concreto: el auxilio de cesantía, el preaviso y el pago de daños y perjuicios (artículos 585 y 586 en relación con el 28, 29 y 31 del Código de Trabajo). Esta normativa es anterior a la Constitución Política de 1949, que vino a garantizar en su artículo 192 la estabilidad los funcionarios públicos que hubiesen ingresado al régimen del servicio civil, garantía constitucional que cubre a todos los funcionarios al servicio del Estado, tanto de la Administración Central, como de los entes descentralizados (Al efecto, ver sentencias de este Tribunal 5778-94 y 5222-94). Al respecto, merece mencionar lo dispuesto en el considerando V de la sentencia 2000-00229 las diez horas treinta y cinco minutos del dieciocho de febrero del año dos mil de la Sala Segunda de la Corte Suprema de Justicia en cuanto expone que la previsión legislativa que se hizo mediante los artículos 585 y 586, se explicaba por:

“V (…) la inexistencia, en aquel momento, de la garantía de la inamovilidad o estabilidad, pues no fue sino hasta en la Constitución Política de 1949 que se incorporó al ordenamiento jurídico patrio (artículo 192) (Sala Segunda de la Corte Suprema de Justicia, Voto n° 299, de las 9:05 horas, del 11 de octubre de 1996). (…)

Es en la misma línea de razonamiento que expone la Sala de Casación Laboral en la sentencia citada, así como de lo expuesto por la Procuraduría General de la República y la SUGEF en sus respectivos informes, que esta Sala en acuerdo con la jurisprudencia común en esta materia, reconoce el derecho de todo trabajador de ser indemnizado a la terminación de su relación con el patrono, no sólo porque se incluyen derechos irrenunciables como lo son el salario, las vacaciones y el aguinaldo, sino porque las leyes laborales en los casos en que no sea invocada una causal para el despido unilateral del patrono, éste debe reconocer al trabajador cierta compensación monetaria (En ese sentido ver sentencia 942-97 de las quince horas treinta y nueve minutos del día doce de febrero de mil novecientos noventa y siete). Ahora bien, cabe destacar lo expuesto por la SUGEF en su informe, en cuanto dice que el reintegro de las sumas pagadas por indemnización, cuando el servidor es contratado nuevamente por el Estado, a excepción de los montos que corresponden al plazo en que sí estuvo cesante, encuentra justificación en la teoría del Estado como único patrono; teoría que debe recordarse surgió para corregir la situación los servidores que se trasladaban a laborar a una entidad o administración pública distinta, sin que se les reconociera el tiempo servido con anterioridad, en detrimento de los beneficios derivados de la antigüedad en el servicio, para el Estado como patrono. La natural evolución del concepto de Estado como patrono único justifica plenamente el reintegro proporcional del dinero pagado por concepto del auxilio de cesantía, si se demuestra que la persona ocupó otro cargo remunerado en la Administración Pública.

VIII.- DEL DERECHO A LA INDEMNIZACIÓN POR AUXILIO DE CESANTIA QUE SURGE DEL ARTÍCULO 63 CONSTITUCIONAL.- En cuanto a la disposición del artículo 63 constitucional que establece el deber de pagar al trabajador una suma por indemnización por rompimiento de la relación laboral sin justa causa y que, según dice en su informe la Procuraduría, no regula las relaciones de servicio público, esta Sala reitera lo dicho en el considerando anterior en el sentido que el artículo 63 constitucional recoge un principio que desde antes estaba establecido en el artículo 29 del Código de Trabajo, cual es el derecho del trabajador despedido sin justa causa, a recibir una indemnización denominada auxilio de cesantía. Como ya se dijo, el artículo 586 del Código de Trabajo cuestionado en su inciso b), incorporó el derecho a la indemnización a favor de los servidores públicos que cesan su relación sin justa causa; supuesto que si bien es difícil de suponer por la prevalencia de la garantía de estabilidad en el servicio para los servidores públicos en que dispone el texto constitucional en su artículo 192, no por ello riñe con el enunciado constitucional que establece el deber de pagar la indemnización por desocupación cuando el despido no fuere justificado. Mas, por el contrario, advierte la Sala que en los casos en que pudiere darse el supuesto de despido sin justa causa, el pago del auxilio de cesantía a favor del servidor se justifica, ajusta y complementa plenamente con las normas contenidas en los artículos 585 y 586 en relación con los artículos 28, 29 y 31 todos del Código de Trabajo, que dan fundamento a la indemnización por desempleo y buscan proteger el derecho de todo trabajador de ser indemnizado a la terminación de su relación con el patrono, independientemente de que sea o no el Estado. Ello, hace énfasis este Tribunal, no sólo porque se incluyen derecho irrenunciables como lo son el salario, las vacaciones y el aguinaldo, sino porque las leyes laborales en los casos en que no sea invocada una causal para el despido unilateral del patrono, éste debe reconocer al trabajador cierta compensación monetaria que le permita su manutención y la de su familia, así como preservar su dignidad (en tal sentido ver sentencia 942-97 de las quince horas treinta y nueve minutos del día doce de febrero de mil novecientos noventa y siete, ya citada), que es lo que le da sentido al auxilio. En consecuencia el artículo 63 de la Constitución debe entenderse como una garantía de todo trabajador a ser indemnizado por rompimiento de la relación sin justa causa.

(…)

Como bien dicen los informantes, el derecho a la indemnización por desocupación elevado a rango constitucional, denominado auxilio de cesantía, no es un derecho ilimitado, sino que corresponde al legislador regular la forma y los parámetros dentro de los cuáles se pagará tal indemnización. Es en ese sentido que este Tribunal mediante la sentencia 2754-95 de las quince horas cuarenta y cinco minutos del treinta de mayo de mil novecientos noventa y cinco, dijo: “No existe un derecho fundamental del ciudadano a recibir el auxilio de cesantía de manera ilimitada. El Estado optó por una determinada forma de regular tal indemnización, contribuyendo al bienestar de los ciudadanos y desarrollando en lo que corresponde el mandato del artículo 50(…)”. (Lo destacado no corresponde al original).

Consideraciones que también fueron retomadas por la Sala en la sentencia n.°2012-008891 donde se justificó que el pago de la cesantía ya no procede solamente por el despido, sino también a los trabajadores que se acojan a la jubilación, pensión de vejez o retiro y a la contingencia del fallecimiento, pero entendiendo, nuevamente, que no es un derecho ilimitado ni absoluto:

“Ahora bien, en la sentencia número 17439-2006 de las 19:36 horas del 29 de noviembre de 2006, el Tribunal Constitucional sostuvo que la cesantía tiene una relación proporcional con la antigüedad del trabajador:

“Si bien reconoce una indemnización superior a los mínimos legales, lo cierto es que no llega a ser irrazonable, si se toma en cuenta que está sujeta a un límite y que es relativamente proporcional a la antigüedad del funcionario en la institución, de modo que cuenta con ese derecho únicamente quien se ha desempeñado durante un largo período de tiempo. El beneficio se constituye así en un estímulo para la permanencia dentro de la institución, evitando la salida de funcionarios y funcionarias de experiencia en el manejo de los temas atinentes a las competencias de la Junta. De ese modo, considera la Sala que la norma impugnada no transgrede las reglas y principios constitucionales invocados por los actores .” (El resaltado no es del original). ” De los textos citados se advierte que el auxilio de cesantía no es un derecho ilimitado ni absoluto. La ley extendió su aplicación a los trabajadores que se acojan a jubilación, pensión de vejez o retiro, y a la contingencia del fallecimiento. Además, la Sala la ha concebido como un mecanismo disuasivo del despido injustificado, pero también ha admitido que sea un estímulo para la permanencia de la persona empleada en una institución”. (Lo destacado no corresponde al original).

En la sentencia n.°2018-008882 esta Sala examinó sus propio antecedentes en lo relativo al rompimiento de los topes de cesantía que estaban fijados en el Código de Trabajo hasta llegar al punto actual de valoración en el sentido de que mediante la negociación colectiva resultaba legítimo ampliar el mínimo dispuesto en el Código de Trabajo para que los servidores regulados por tal normativa que eventualmente puedan realizar negociación colectiva, tengan un tope constitucionalmente legítimo máximo, o un margen de negociación donde el máximo sea de doce años. Al respecto, se realizaron las siguientes consideraciones:

“Al asumir este enfoque, la mayoría de la Sala verifica la existencia de una amplísima brecha entre el pago de auxilio de cesantía aplicable a la enorme mayoría de los servidores públicos, cuyo tope es de 8 años, y el pago que recibirán los trabajadores del Banco Crédito Agrícola y otros trabajadores estatales cubiertos también por convenciones colectivas que, en idénticas circunstancias, podrían recibir un desembolso directo en su favor de hasta 20 meses de salario por el mismo auxilio de cesantía. Se trata de una diferencia de un ciento cincuenta por ciento, (150%) que desde la perspectiva de la mayoría de quienes integramos esta Sala, resulta abismal y por ende, debería contar claros e incontestables argumentos que la justifiquen, pero que más bien carece de ellos y resulta desproporcionada e insostenible en semejante magnitud.

(…)

XXIII.Dicho lo anterior, la mayoría de la Sala debe enfrentar la necesidad de determinar entonces un límite o “techo” para aquellas cláusulas convencionales que pudieran llegar a negociarse respecto del rompimiento de tope en el pago de auxilio de cesantía, y para ello encontramos dos ideas principales que deben orientar la decisión: por una parte está el hecho de que una mera equiparación con el tope de ocho años, establecido en el Código de Trabajo, significaría -en los hechos- una virtual exclusión de esta materia de la posibilidad de negociación colectiva, lo que se convertiría en una limitación injustificada al ejercicio de ese derecho cuya naturaleza fundamental ha sido reconocida por el Tribunal. De otra parte, en sentido opuesto existe la necesidad de tomar en cuenta un sentido de proporcionalidad -que ha llevado a rechazar un tope máximo de 20 años en los considerandos anteriores- y de valorar el entorno económico en que operan -y se espera que operen por los próximos años- las finanzas públicas de las que se nutren directa y exclusivamente, los rompimientos de tope para el pago directo de auxilio de cesantía al trabajador. No puede ser ajeno a este tipo particular de decisiones el hecho público y notorio de que nuestro país atraviesa una seria encrucijada respecto de la calidad y cantidad del gasto público y del aporte económico que los distintos sectores están dispuestos a entregar para la manutención de nuestro Estado social y democrático de derecho. Sería inaceptable que en este entorno, la Sala dejase de tomar en cuenta esa acuciante situación, que este tipo de negociaciones podrían empeorar más si no se realiza un adecuado balance de todos los elementos en juego. Por lo dicho, estima la Sala que la negociación colectiva en este punto concreto del rompimiento de tope de pago para el auxilio de cesantía, no debe exceder un tope de doce (12) años, lo cual permite un respetable margen de negociación a las partes de las convenciones colectivas en el sector público, que -eventualmente- les permitiría elevar hasta un 50 por ciento el piso de 8 años que establece el Código de Trabajo para este tipo concreto de prestación a cargo del patrono público. Se atiende así a las pretensiones legítimas que podrían entrar en juego, al permitirse un margen de negociación que se considera relevante, pero sin que se afecten sensiblemente las finanzas públicas en un momento histórico donde su austero y cuidadoso manejo tiene una destacada prioridad para la propia subsistencia de nuestra institucionalidad.

Como conclusión respecto de este punto, la mayoría de la Sala concuerda en que el pago de auxilio de cesantía acordado en la cláusula 47 párrafo segundo de la Convención de Bancrédito no puede realizarse sin tope alguno y que -por las razones expuestas- dicho tope no puede mantenerse en veinte (20) años como se había venido sosteniendo, sino que el máximo que podría pagarse en este supuesto es un mes de salario por cada año laborado hasta un tope máximo de doce (12) años. De tal manera, cuando proceda la cancelación de tales sumas ello se realizará -en cuanto al monto de auxilio de cesantía a pagar- en similares condiciones y términos recogidos en la Convención o en la legislación aplicable para aquellos supuestos de terminación del contrato por causas no atribuibles a la voluntad del trabajador, pero en el entendido de que las sumas pagadas no podrían exceder el reconocimiento de más de 12 años de servicio”.

Conforme con tales argumentaciones, es preciso concluir que es legítimo para el legislador regular la forma y los límites para el reconocimiento del auxilio de la cesantía, pues ya quedó establecido que no es un derecho ilimitado. En razón de lo anterior, el hecho de que la LSAP introduzca una norma en idéntico sentido al establecido en el Código de Trabajo con un tope en concreto no luce como ilegítimo ni lesivo de los derechos adquiridos de los trabajadores. Como se aprecia, esta Sala tuvo que reconsiderar sus líneas jurisprudenciales en el sentido de que no resulta válido ni legítimo pagar indemnizaciones por cesantía sin un tope o un parámetro razonable, pues ello sería contrario al principio de igualdad y al sano manejo de las finanzas públicas. En este orden de ideas y en el contexto de la aprobación de la LFFP se entiende como razonable la norma cuestionada, la cual no afecta los derechos adquiridos de los trabajadores porque si no se ha cumplido la condición necesaria para aspirar a la indemnización en cuestión, lo que se mantiene es una mera expectativa de derecho y no un derecho adquirido. Para que exista un efecto retroactivo de una ley y que este efecto sea inconstitucional, es necesario que el derecho que se considere lesionado se haya adquirido antes de la promulgación de la ley. En el sub lite se habla de la mera expectativa de adquirir la indemnización sin los topes introducidos por el legislador, con lo cual no se constata una lesión al art. 34 de la Constitución Política. Por lo demás, como se aprecia, lo acordado por el legislador dentro del marco de su discrecionalidad responde y es conteste con las líneas jurisprudenciales de esta Sala, siendo que desde el 2018 se ha venido reiterando que lo máximo a reconocer por indemnización por cesantía en el marco de una negociación colectiva es de 12 años, lo cual fue respetado por el legislador dado que el transitorio XXVII advierte que “de la aplicación del artículo 39, Auxilio de Cesantía, se exceptúan aquellos funcionarios cubiertos por convenciones colectivas que otorgan derecho a más de ocho años de cesantía, los cuales podrán seguir disfrutando de ese derecho, mientras se encuentren vigentes las actuales convenciones que así lo contemplen, pero en ningún caso la indemnización podrá ser mayor a los doce años”. En ese sentido, se aprecia que la norma Transitoria establecida por el legislador procura reconocer lo pactado convencionalmente, introduciendo un límite de orden constitucional derivado de la jurisprudencia de esta Sala. Desde esta perspectiva, no se comparte la visión de los accionantes en cuanto a la supuesta lesión al art. 34 de la Constitución Política.

Conclusión

Corolario de las consideraciones realizadas, se impone declarar sin lugar los alegatos relacionados con la presunta lesión al principio de irretroactividad y al art. 34 de la Constitución Política.

El magistrado Cruz Castro salva parcialmente el voto y declara inconstitucionales los artículos 54, 55 y los transitorios XXVII y XXXI.

XV.- Violación al principio de libre negociación colectiva Aclaración previa En lo relativo a este apartado y dado que es un tema transversal en los procesos acumulados se van a abordar los alegatos de varias acciones identificando en cada caso los respectivos agravios y la respuesta dada por la PGR.

Normas impugnadas En términos generales, el accionante dice que con las normas impugnadas se da un vaciamiento de la negociación colectiva.

Las normas cuestionadas en este apartado son las siguientes:

Art. 39- Auxilio de cesantía. La indemnización por concepto de auxilio de cesantía de todos los funcionarios de las instituciones, contempladas en el artículo 26 de la presente ley, se regulará según lo establecido en la Ley N.°2, Código de Trabajo, de 27 de agosto de 1943, y no podrá superar los ocho años.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 50- Sobre el monto del incentivo. A partir de la entrada en vigencia de esta ley, el incentivo por anualidad de los funcionarios públicos cubiertos por este título será un monto nominal fijo para cada escala salarial, monto que permanecerá invariable.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 54- Conversión de incentivos a montos nominales fijos. Cualquier otro incentivo o compensación existente que a la entrada en vigencia de esta ley esté expresado en términos porcentuales, su cálculo a futuro será un monto nominal fijo, resultante de la aplicación del porcentaje al salario base a enero de 2018.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018) Art. 55- Reserva de ley en la creación de incentivos y compensaciones salariales.

La creación de incentivos o compensaciones, o pluses salariales solo podrá realizarse por medio de ley.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 57.1 l) Se reforma el artículo 12 de la Ley N.°2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957. El texto es el siguiente:

Artículo 12- El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año.

Si el servidor fuera ascendido, comenzará a percibir el mínimo de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos.

TRANSITORIO XXVII. De la aplicación del artículo 39, Auxilio de Cesantía, se exceptúan aquellos funcionarios cubiertos por convenciones colectivas que otorgan derecho a más de ocho años de cesantía, los cuales podrán seguir disfrutando de ese derecho, mientras se encuentren vigentes las actuales convenciones que así lo contemplen, pero en ningún caso la indemnización podrá ser mayor a los doce años.

En los casos en que se haya otorgado un derecho de cesantía superior a los ocho años por instrumentos jurídicos diferentes a convenciones colectivas, y que se encuentren vigentes, la cantidad de años a indemnizar no podrá superar los doce años, en el caso de aquellas personas que ya hayan adquirido ese derecho; para todos los demás casos, quedará sin efecto cualquier indemnización superior a los ocho años.

TRANSITORIO XXXI. Para establecer el cálculo del monto nominal fijo, según lo regulado en el artículo 50, en el reconocimiento del incentivo por anualidad, inmediato a la entrada en vigencia de esta ley, se aplicará el uno coma noventa y cuatro por ciento (1,94%) del salario base para clases profesionales, y el dos coma cincuenta y cuatro por ciento (2,54%), para clases no profesionales, sobre el salario base que corresponde para el mes de enero del año 2018 para cada escala salarial.

TRANSITORIO XXXVI. A partir de la entrada en vigencia de la presente ley, los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento.

En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta ley y demás regulaciones que dicte el Poder Ejecutivo”.

Agravios de la parte accionante (expediente acción n.°19-2620-0007-CO) Se reprocha que la regulación que establece la ley n.°9635 no deja ningún espacio para que estas materias puedan ser reguladas mediante la negociación colectiva y así superar los mínimos que contempla la legislación ordinaria. Lo anterior, a pesar de que se trata de materias laborales esenciales y de que la Reforma Procesal Laboral, aprobada mediante ley n°9343, en su art. 690 inciso i), estableció la posibilidad de que sindicatos y representantes patronales, pudieran negociar cláusulas de contenido salarial.

Los numerales de la LSAP introducidos o reformados por la ley n.°9635 que se impugnan, excluyen de manera absoluta toda negociación de componentes o pluses salariales, así como también prohíben la negociación sobre el derecho al auxilio de cesantía, todo lo cual se observa en el tope insuperable de ocho años a la indemnización del pago del auxilio de la cesantía (art. 39), o con el establecimiento de un único pago de anualidad que tiene una única forma de calcularla a través de una división inelástica entre clases profesionales y clases no profesionales y un monto invariable que queda anclado en el tiempo con base en los salarios que se devengaban en enero de 2018 (arts. 50 y 57 inciso l), o imponiendo una prohibición para establecer incentivos o compensaciones en términos porcentuales (art. 54), o estableciendo una reserva de ley para la creación de todo tipo de incentivos, compensaciones económicas o pluses salariales (art. 55) y, además, obligando a los jerarcas a denunciar las convenciones colectivas a su vencimiento (Transitorio XXXVI). Se ha vaciado de todo contenido económico el derecho a la negociación colectiva de incentivos y de componentes de naturaleza salarial contemplados en los incisos h) e i) del art. 690 del Código de Trabajo, cuyo marco jurídico se desprende del Convenio n.°98 de la OIT y del art. 62 de la Constitución Política. La intención de legislador que promulgó la ley n.º9635 fue la de crear una especie de reserva de ley en materia de sobresueldos y anualidades, suplantando al legislador constitucional en clara violación de los arts. 60 y 62 de la Constitución Política pero también se transgreden los arts. 26 de la CADH y el 8 inciso a) del Protocolo de San Salvador.

Al pronunciarse sobre el expediente legislativo n.°20.580, la Sala Constitucional tuvo claro que no era posible establecer una interdicción total a la creación de sobresueldos por vía de convención colectiva; no obstante lo anterior, las normas aquí́ impugnadas, lo que hacen es establecer ese tipo de interdicción, pese a la advertencia que hiciera la Sala, de modo que la ley n.°9635 se aprobó́ conforme al texto decretado en primer debate que revisó la Sala y esto confirma la inconstitucionalidad que solicita.

Por tal razón, las normas impugnadas resultan violatorias del principio de libre negociación colectiva, lo cual implica la violación del convenio 98 de la OIT, del art. 8 inciso a) del Protocolo de San Salvador, y del art. 62 de la Constitución Política.

El art. 39 de la ley n.º2166 reformada por la ley n.º9635, al imponer un tope de ocho años para el pago de la cesantía, impone limitaciones muy serias que impactan el orden constitucional de la negociación colectiva y señala que hasta la Sala Constitucional, en reiteradas ocasiones aun con criterios restrictivos, ha avalado cláusulas de convenciones colectivas suscritas en el sector público en las que se establecen topes de cesantía superiores a los ocho años por entender que el rompimiento del tope legal es constitucionalmente valido y se ajusta a parámetros de razonabilidad y proporcionalidad.

El vicio de inconstitucionalidad alegado se magnifica con la existencia de los Transitorios XXVII y XXXVI de la ley n.°9635 de los que se desprende que la finalidad del legislador no ha sido otra que establecer una prohibición absoluta para que, vía convención colectiva, se puedan negociar reglas sobre indemnización por concepto de auxilio de cesantía distintas a las establecidas en los arts. 39 de la Ley de Salarios bajo estudio reformado por la ley n.°9635 y 29 del Código de Trabajo, sin tomar en cuenta que en Costa Rica, el pago del auxilio de cesantía con topes superiores a los que establece el Código de Trabajo, se ha aceptado desde hace más de treinta años cuando se aprobó́ la Ley de Asociaciones Solidaristas n.°6970 del 7 de noviembre de 1980, la que establece el pago del auxilio de cesantía a cargo del empleador ‒público o privado‒ sin ningún tipo de tope de años y como derecho real, es decir, su reconocimiento procede bajo cualquier supuesto con independencia de la causa que extinga la relación laboral. A partir de lo dicho, también se crea un trato desigual e injustificado en perjuicio de la organización sindical frente a la organización solidarista toda vez que ésta sí puede hacerlo por ley especial, en tanto el sindicato no, lo que genera una disparidad de condiciones en el tratamiento legal que el ordenamiento jurídico ofrece a una y otra organización.

El Transitorio XXVII supone una clara intromisión e imposición del legislador sobre el contenido a negociar en las convenciones colectivas de trabajo que estaban vigentes para cuando entró a regir la reforma contenida en la ley n.º9635, pues esa norma transitoria limita el pago por concepto de auxilio de cesantía a un máximo de doce años a pesar de que existen normas convencionales que disponían límites superiores.

Esos numerales son inconstitucionales porque desconocen la naturaleza jurídica que la Constitución Política le otorga a las convenciones colectivas, pero también porque violan el derecho a la libre negociación colectiva, al estar suplantando la voluntad negociadora de las partes firmantes de esos instrumentos normativos.

Reitera que el art. 50 de la LSAP junto con el Transitorio XXXI contenido en la ley n.°9635, al imponer una anualidad por un monto nominal fijo, implica un límite irrazonable y desproporcionado a la libre negociación colectiva pero también una prohibición total para negociar el pago de anualidades en las convenciones colectivas de trabajo conforme se venía negociando antes de la entrada en vigencia de la ley n.°9635; el art. 54 de la LSAP, es inconstitucional porque niega toda posibilidad de negociar un monto distinto por incentivos o compensaciones, los que ahora se han transformado en un porcentaje fijo, anclado en el mes de enero de 2018, sin posibilidad alguna de mejora a futuro, en contraposición a lo dispuesto en el art. 690 inciso h) del Código de Trabajo que contempla la posibilidad de que se puedan negociar incentivos salariales; Con la reforma que se hizo en la ley n.º9635 al art. 55 de la LSAP, el legislador pretendió crear una reserva de ley para que cualquier incentivo, compensación o plus salarial tuviera que ser creado por ley; sin embargo, ello es inconstitucional porque el art. 62 de la Constitución Política y el Convenio n.°98 de la OIT, debidamente aprobado por Costa Rica, impiden establecer una limitación de tal naturaleza, pero además porque ese numeral lesiona el principio de libre negociación colectiva; el Transitorio XXXVI es una de las más acusadas intromisiones del Poder Público en el derecho a la negociación colectiva, toda vez que obliga a los jerarcas de las entidades públicas a denunciar las convenciones colectivas a su vencimiento, suprimiendo con ello el contenido del art. 62 de la Constitución Política y de los Convenios 87 y 98 de la OIT, en conjunto con los arts. 26 de la CADH y 8 inciso a) del Protocolo de San Salvador, por lo que considera que es contrario al Derecho de la Constitución; ese retroceso también se observa porque el Transitorio impone la obligación de que, de negociarse nuevas convenciones colectivas, se deberán adaptar a lo dispuesto en la ley n.º9635, lo que significa que se tendrán que insertar condiciones laborales que desmejoren las anteriores, sin respeto de las situaciones jurídicas consolidadas. Además, la norma deja abierta la puerta para que el Poder Ejecutivo pueda establecer cualquier contenido a esas convenciones, todo lo cual además se introduce en una norma de carácter transitorio pero que causa efectos permanentes y definitivos.

Agravios de la parte accionante (acción n.°19-004931-0007-CO) El representante de ANEP alega que el art. 39 impugnado lesiona los principios de negociación colectiva, racionalidad, proporcionalidad, progresividad de los derechos y condición más beneficiosa, así como los arts. 33 y 62 constitucionales.

Esta disposición cierra la posibilidad para el sector público de suscribir convenciones colectivas, que tienen fuerza de ley entre las partes, lo que lesiona el art. 62 constitucional. La norma impugnada no solo lesiona el derecho a la negociación colectiva, sino también los derechos adquiridos, las situaciones jurídicas consolidadas de los funcionarios que para el momento en que la norma entró en vigencia (3 de diciembre de 2018), ya habían adquirido condiciones laborales que no pueden ser afectadas.

Por otra parte, esta disposición deja de lado que existen convenciones colectivas y reglamentos o estatutos que ya contienen disposiciones sobre el pago de incentivos o compensaciones en forma porcentual.

La negociación colectiva es un derecho fundamental contenido en el art. 62 de la Constitución Política, de modo que la posibilidad de negociar mejores condiciones de trabajo entre las partes que suscriben una convención colectiva es un derecho fundamental que debe ser tutelado. Prohibir de manera expresa la posibilidad de negociar un tope de auxilio de cesantía mayor, a través de un acuerdo de partes, limita no solo el derecho de negociación colectiva, sino también la posibilidad de obtener mejores condiciones de trabajo para los funcionarios, lo cual lo vacía de contenido.

El art. 7 de la Constitución Política establece que los tratados y convenios internacionales tienen autoridad superior a las leyes. Por su parte, la libertad sindical es un derecho contenido en el art. 16 de la Convención Americana sobre Derechos Humanos, en el art. 8 del Protocolo a la Convención Americana sobre Derechos Humanos en materia de Derechos Económicos, Sociales y Culturales, Protocolo de San Salvador; también en el art. 23 de la Declaración Universal de Derechos Humanos, y el art. 22 de la Declaración Americana sobre los Derechos y Deberes del hombre y, por tanto, debe ser observado en Costa Rica. El convenio 87 de la OIT, denominado “Convenio sobre la libertad sindical y la protección del derecho de sindicación”, debidamente ratificado por Costa Rica, establece la obligación del Estado costarricense de poner en práctica las disposiciones de dicho convenio. El art. 39 impugnado, lesiona el artículo 4 de ese convenio, que ordena que el Estado debe procurar, fomentar la negociación colectiva y no limitarla o entorpecerla y reconoce que la convención colectiva es el mecanismo por excelencia para que por medio de las organizaciones sociales se mejoren las condiciones de empleo. El hecho de que la situación económica del país sea difícil, no convierten las negociaciones colectivas en inconstitucionales.

Asimismo, el accionante cuestiona el art. 55 por cuanto afirma que es clara la intención del legislador que busca que no exista otra vía para la creación de incentivos que no sea la legislativa. Esto, a juicio de la ANEP, lesiona el derecho de negociación colectiva y viola la autonomía municipal y de los entes descentralizados, cuyas potestades derivan de la Constitución Política y las respectivas leyes. La potestad reglamentaria en materia de administración de que gozan los entes menores se ve socavada por una norma legal que pretende legislador en un campo ajeno. Por esto se lesiona el principio de legalidad.

Agravios de la parte accionante (expediente acción n.°19-022051-0007-CO) La representación de ASDEICE cuestionó que el art. 39 de la LSAP en relación con el Transitorio XXVII son normas que infringen el derecho a la negociación colectiva. Señalan que si bien el numeral exceptúa la aplicación del art. 39 de la ley para aquellos funcionarios públicos cubiertos por convenciones colectivas u otros instrumentos jurídicos en los que se otorgue el derecho al pago por concepto de auxilio de cesantía con topes superiores al que se establece en el art. 29 del Código de Trabajo, tal excepción es relativa en tanto la norma termina siempre limitando el pago del derecho a un tope de doce años, sin tomar en cuenta que en muchos instrumentos normativos existentes antes de que entrara a regir la ley, se establecen reglas para el pago del auxilio de cesantía con topes superiores a los doce años.

Informe de la PGR (acción n.°19-2620-0007-CO) Indica la PGR que la regulación de las convenciones colectivas es materia de ley, tal y como se cumple en este caso. Expone que el empleo público está llamado a regirse por normas estatutarias y, por lo tanto, el legislador sí puede establecer restricciones al ejercicio del derecho a la negociación colectiva en el sector público como las reguladas en el art. 55 de la LSAP y en el Transitorio XXXVI de la LFFP. Imponer ciertas restricciones a la negociación colectiva en el sector público en materia de cesantía, de valoración de anualidades e incentivos, y de creación de nuevos sobresueldos, no vacía de contenido el derecho a la negociación, ni afecta su núcleo esencial. Establecer ciertas restricciones a la negociación colectiva en el sector público es particularmente necesario cuando el país está en una situación de desequilibrio económico que ha sido de dominio público y cuya atención ha requerido sacrificios, no solo de las personas ligadas al Estado por una relación de empleo público, sino de todos los sectores económicos y sociales.

No es posible comparar a los sindicatos con las asociaciones solidaristas, pues se trata de figuras distintas, con características propias, muy diferentes entre ellas y, en ese sentido, recuerda que a las asociaciones solidaristas no se les ha conferido el derecho a la negociación colectiva, ni el derecho de huelga, sin que por ello se encuentren en una situación de desventaja o de discriminación inconstitucional con respecto a los sindicatos.

Sobre el Transitorio que incluye normas permanentes: en lo que se refiere al reparo relativo a la naturaleza permanente y no temporal de lo regulado en el Transitorio XXXVI de la LFFP (relacionado con la obligación de denunciar las convenciones colectivas al finalizar el plazo pactado), puede considerarse como una eventual infracción a una adecuada técnica legislativa, pero no genera la inconstitucionalidad de las normas afectadas, por no tratarse de un vicio grave que justifique anular esas disposiciones.

Informe de la PGR (acción n.°19-004931-0007-CO) La PGR sugiere desestimar la supuesta inconstitucionalidad atribuida al art. 39. Lo anterior, con fundamento en las siguientes consideraciones:

“Al respecto, tal y como lo indicamos en el informe originario de esta acción, de fecha 18 de marzo de 2019, la posición institucional de éste órgano asesor sobre dicho tema fue externada en nuestro dictamen C-060-2019, del 5 de marzo recién pasado. En dicho pronunciamiento se arribó a la conclusión de que las convenciones colectivas están supeditadas a la ley, aun cuando ésta última sea sobrevenida, sobre todo cuando esa ley va dirigida expresamente a derogar (con vigencia hacia el futuro, respetando en consecuencia los derechos adquiridos y las situaciones jurídicas consolidadas) las normas convencionales que tengan un contenido específico. (…)” A continuación, la PGR cita el referido dictamen, del cual se desprende esencialmente lo siguiente:

“Y debemos ser claros y contundentes en señalar que con la modificación legal operada por la Ley No. 9635 no se busca la negación y mucho menos la supresión de la negociación colectiva y de su ejercicio efectivo como facultad negociadora de los sindicatos en nuestro medio, ni se está dejando inoperante o sin contenido –por dispensa o inaplicación administrativa- la convención colectiva suscrita en aquél ámbito institucional, sino la adaptación a futuro de las condiciones de trabajo a las nuevas circunstancias imperantes que, por disposición del legislador, obligan medidas coyunturales de reordenación y racionalización, para la contención y reducción del gasto de personal de las Administraciones Públicas, exigidas por el proceso de consolidación fiscal y sostenibilidad de las cuentas públicas, a fin de frenar el déficit público y alcanzar la gradual recuperación del equilibrio presupuestario. Lo cual hace que dicho precepto legal resulte de por sí compatible con la efectividad de las convenciones colectivas pactadas”. (Lo destacado no corresponde al original).

Luego, agrega la PGR lo siguiente:

“Las normas convencionales pactadas “anteriormente” pueden resultar afectadas en su eficacia por una norma sobrevenida con rango de Ley, que tendría un indubitado carácter prevalente –por sujeción estricta al principio de jerarquía normativa- sobre aquella en materias de derecho necesario y de contenido absoluto así normadas por el legislador. Imponiéndose así la preeminencia de la Ley sobrevenida, y a futuro, respecto del convenio colectivo previamente pactado.

Solución similar se da en el caso de convenciones colectivas renegociadas y homologadas con posterioridad al 4 de diciembre de 2018, pues las mismas deben adaptarse en todos sus extremos a lo establecido en la citada Ley No. 9635 y demás regulaciones que dicte el Poder Ejecutivo; esto conforme al Transitorio XXXVI de la citada Ley”.

En lo relativo al art. 55, sobre la prohibición de generar nuevos incentivos vía convención colectiva, la PGR informó lo siguiente:

“Si bien conocemos que en la resolución No. 2018-019511 de las 21:45 hrs. del 23 de noviembre de 2018, la Sala señaló que el citado artículo 55, en el tanto impone la creación de incentivos y compensaciones sólo a través de una ley formal, no es inconstitucional, siempre y cuando se entienda que no se aplica a los empleados y trabajadores públicos que puedan celebrar convenciones colectivas, conforme a la reforma introducida por la Reforma Procesal Laboral, Ley No. 9343, al artículo 112, inciso 5) de la Ley General de la Administración Pública (LGAP), conforme a la determinación inversa o contrario sensu que de estos hacen los artículos 683 y 689, pues en aquellos ordinales se define más bien quiénes son los que participan de la gestión pública; quedando entonces habilitados todos los demás servidores, salvo los allí enunciados, para concertar convenios colectivos. Esto a fin de no vaciar de contenido el derecho a celebrar convenciones colectivas y la propia acción sindical.

Lo cual nos lleva a reafirmar que, para el resto de los funcionarios públicos que, por participar de la gestión pública, no tienen derecho a celebrar convenios colectivos y a quienes razonablemente se les puede limitar o incluso prohibir la acción sindical (Convenios 87, 98, 151 y 154 de la OIT; Véase OJ-035-2019, de 17 de mayo de 2019), aquella reserva legal es constitucionalmente factible.

Tal y como lo indicamos en el informe original de 18 de marzo pasado, dentro de este expediente, a juicio de ésta Procuraduría, el legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores; esto como parte del denominado “Estatuto de funcionarios públicos” (art. 191 constitucional), que se caracteriza por su determinación, no por contrato o convenios colectivos, sino mediante normas objetivas, leyes o reglamentos, que dependiendo de su naturaleza y de su jerarquía, pueden ser modificados unilateralmente por el órgano competente. De ahí que se afirme con propiedad que el funcionario no tiene con la Administración una relación contractual, sino estatutaria. Idea omnipresente incluso en nuestro marco constitucional originario de la función pública, según el cual: “Un estatuto de servicio civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de la administración” (art. 191).

(…)

Así entendida, aquella norma legal no resulta per se inconstitucional en los términos acusados, en el tanto sea interpretada en su justa dimensión, conforme lo ha dimensionado, en cuanto a sus alcances, la propia Sala en aquel precedente facultativo”. (Lo destacado no corresponde al original).

Informe del Ministerio de Hacienda En lo relativo al tope del auxilio de la cesantía establecido en la legislación, la ministra sugiere desestimar los reproches planteados y coincide con la PGR en el sentido de que se puede regular perfectamente por una ley de la República. El informe dice lo siguiente:

“[E]l constituyente se limitó a establecer el derecho del trabajador a percibir esa indemnización cuando hubiese sido despedido sin justa causa, pero no estableció la forma, ni los lineamientos específicos para el pago de esa indemnización; es decir, no definió la manera de calcular el quantum que se debe otorgar por ese concepto; en dicho contexto el legislador ordinario es el primer llamado a regular las condiciones y limitaciones bajo las cuales se cancela esa indemnización, de acuerdo con la política que sobre el tema se mantenga en un determinado momento socioeconómico, pero debe respetar siempre el marco constitucional establecido en el artículo 63 de nuestra Carta Magna. Es así como el artículo 29 del Código de Trabajo contiene una serie de lineamientos que regulan el otorgamiento de esa indemnización sólo en casos de despidos sin justa causa. Y si bien dicho numeral ha sido objeto de varios cambios especialmente referidos a los porcentajes salariales a recibir por cada año laborado (art. 88 de la Ley de Protección al Trabajador), lo cierto es que mantiene un aparente tope de ocho años como límite indemnizatorio, que ha sido interpretado en nuestro medio como un mínimo legal superable o mejorable en beneficio del trabajador.

No obstante, en el Sector Público si bien se ha admitido que el tope de cesantía puede superarse cuando haya normas específicas y especiales –que pueden ser convenciones colectivas o reglamentos autónomos de servicio- “que inexorablemente deban aplicarse hasta tanto no sean derogadas, modificadas o declaradas ilegales o incluso inconstitucionales” (OJ-116-2005, de 8 de agosto de 2005; OJ-072-2008, de 22 de agosto de 2008; OJ-018-2017, de 15 de febrero de 2017; C168-2012, de 2 de julio de 2012 y C-146-2016, de 24 de junio de 2016), hemos sido claros y contundentes en advertir que su establecimiento por norma reglamentaria o convencional debe respetar inexorablemente la que hasta ahora ha sido norma no escrita (arts. 7º de la LGAP y 13 de la Ley de la Jurisdicción Constitucional) que se deriva de la jurisprudencia constitucional, y según la cual, el pago de cesantía no puede ser ilimitado o bien, debe tener un tope razonable (Dictámenes C168-2012 y C-146-2016 op. cit.)… …Al respecto, se ha hecho hincapié en que tratándose de aquel supuesto en que una de las partes es una institución pública, lo que se negocie en una convención colectiva con respecto al tope de cesantía debe sujetarse al principio de razonabilidad. Esto en el tanto las instituciones públicas tienen el deber de evitar pactar rompimientos del tope de cesantía que impliquen un uso indebido de fondos públicos, que afecten los servicios públicos que está llamada a brindar la institución, o que carezcan de razón objetiva alguna que permita la diferenciación establecida a favor de ese grupo de funcionarios. (…)

De seguido, importa advertir que, tal y como lo ha señalado la jurisprudencia constitucional, es evidente que aquellas disposiciones convencionales que prevén un pago de cesantía sin tope alguno, sea porque no establecen un límite para el número de años a reconocer para el pago de la indemnización, son irrazonables por constituir un uso indebido de fondos públicos. Esto en el tanto dichas indemnizaciones constituirían una carga desproporcionada para el erario público que eventualmente implicaría un detrimento para los servicios públicos que presta la institución. (…)

De la lectura de las consideraciones expuestas por la Procuraduría General de la República se desprende de manera diáfana que a diferencia de lo señalado por el accionante, el derecho a la cesantía se adquiere hasta que se produzca el cese de la relación de servicio. Lo anterior, conlleva que mientras ello no ocurra, lo que el interesado tiene es una expectativa de derecho, que en consecuencia no priva por encima de disposiciones legales como las que fueron adicionadas en la Ley de Salarios, mediante la Ley No 9635 y su reforma. Partiendo de lo anterior, puede afirmarse que lo dispuesto en los artículos 50,54, 56 y 57 no infringe el artículo 34 de la Carta Magna, por no irrespetar derechos adquiridos o situaciones jurídicas consolidadas”.

Con respecto tanto a las limitantes a la libertad sindical y a la posibilidad de desarrollar derechos vía convención colectiva invocada por el accionante, la ministra de Hacienda también sugiere declarar sin lugar las acciones acumuladas y para ello se remite a informes de la PGR y antecedentes de la Sala Constitucional. Al respecto, dicta los siguientes pasajes:

“[N]uestro Ordenamiento Jurídico se limita a reconocer la existencia de las convenciones colectivas en el Sector Público y señala la obligatoriedad de lo acordado en ellas. Pero esto no implica atribuirle rango constitucional o de ley al contenido de ningún convenio, sino que este contenido deberá mantenerse dentro de la legalidad administrativa, pues son las leyes estatales las competentes para fijar la jerarquía de las fuentes jurídicas (art. 6 de la LGAP) y la ley aplicable a este respecto (art. 57 del Código de Trabajo vigente) ha dispuesto que el convenio colectivo esté subordinado a las Leyes.

La jurisprudencia judicial ha sido clara y consistente en reconocer y advertir la supremacía de la Ley sobre la convención colectiva, como algo normal, en el tanto la segunda debe insertarse en el Ordenamiento jurídico general en un orden descendente, por así decirlo; o sea, subordinándose a la primera, que es la Ley de origen estatal y de carácter forzoso (Resolución No. 2004-00335 de las 09:40 hrs. del 7 de mayo de 2004, Sala Segunda); con lo que se quiere decir que las convenciones colectivas de trabajo quedan sujetas y limitadas por las leyes de orden público (Resolución No. 1355- 96 de las 12:18 hrs. del 22 de marzo de 1996, Sala Constitucional). De ahí que la fuerza de ley les está conferida, en el tanto, las convenciones colectivas se hayan acordado conforme a la legislación (Resolución No. 783 de las 15:21 hrs. del 3 de junio de 2010, Sala Segunda). De lo cual se desprende una subordinación de éstas a la potestad legislativa del Estado que produce un precepto normativo de orden público, inderogable por esencia ante la simple iniciativa privada –art. 129 constitucional-, de modo que un convenio colectivo no puede dejar sin efecto normas de carácter imperativo (Resolución No. 2007-000213 de las 11:00 hrs. del 30 de marzo de 2007. Y en sentido similar, entre otras muchas, la Nos. 108 de las 09:40 hrs. del 12 de marzo de 2003, 2015-000399 de las 09:00 hrs. del 14 de abril de 2015, 2016-000011 de las 09:45 hrs. del 8 de enero de 2016 y 2016-000075 de las 09:45 hrs. del 27 de enero de 2016, todas de la Sala Segunda. No. 94-2013-I de las 13:00 hrs. del 28 de agosto de 2013, del Tribunal Contencioso Administrativo, Sección Primera. No. 18485 de las 18 horas 2 minutos del 19 de diciembre de 2007, Sala Constitucional). Y esto es así, porque en el Derecho laboral el pacto sólo puede decidir en aquellos aspectos no regulados por normas de orden público o normas imperativas dictadas por el legislador cuando se considera que hay campos de interés que ameriten imponer la voluntad del Estado en la negociación (arts. 1, 11, 14 a 17 del Código de Trabajo); casos en los que no rige en toda su extensión el principio de autonomía de la voluntad colectiva, porque esas leyes imperativas conducen a establecer, entre patrono y trabajador, ciertos principios o normas que se incorporan a la relación jurídica e imperan sobre la voluntad de las partes (Resolución No. 100 de las 10:40 hrs. del 29 de marzo de 1995, Sala Segunda). Todo lo cual evidencia que la Ley opera en un doble canal: como instrumento que viene a configurar otra fuente de derecho menor: el convenio colectivo estatutario; con obligación de dotarle de un espacio material para que esta pueda ser real, existente y eficaz; y en segundo lugar, la Ley como fuente concurrente con el convenio colectivo, propia fuente de derecho que puede regular directamente la materia que regula el convenio estatutario o incluso reservarse para sí determinadas materias que quedan excluidas, por tanto, de la contratación colectiva; lo que implica que el convenio colectivo ha de adecuarse a lo establecido por la Ley. No es dable entonces alegar la inmutabilidad o inalterabilidad del convenio colectivo frente a la Ley incluso aunque se trate de una norma estatal sobrevenida, puesto que en virtud del principio de jerarquía normativa, es el convenio colectivo el que debe respetar y someterse a la Ley, y no al contrario; máxime cuando está de por medio la indeclinable y permanente tarea del legislador de configurar, con carácter de orden público, el régimen jurídico aplicable a los funcionarios y empleados públicos (art. 191 constitucional), incluido el marco regulador en el que deberá ejercerse el derecho a celebrar convenciones colectivas, en especial en el Sector Público; sea con disposiciones normativas de distinta configuración imperativa, según explicamos; sea a través de normas imperativas, dispositivas o dispositivas que faculten o no el concurso de la autonomía colectiva; legislar al respecto es una competencia, general, permanente y disponible por entero del legislador, quien discrecionalmente puede optar por mantener o no dichas regulaciones. De modo que, aunque los convenios colectivos en el Sector Público tienen fuerza vinculante entre las partes que los han suscrito y constituyen quizás la norma más directa y específica que regula las relaciones jurídico-laborales existentes entre ellas, lo cierto es que desde el punto de vista formal y material, en el sistema de fuentes del Derecho, está siempre supeditada a la Ley; la cual, como indiscutida fuente de derecho de mayor rango jerárquico que aquella otra, tiene capacidad permanente para, entre otras materias, regular las condiciones laborales y, por ende, se incorpora de forma automática al contrato de trabajo, pudiendo incluso tener, a diferencia de la convención colectiva, eficacia general. Por ello, en caso de conflicto, la Ley impone su primacía frente a la convención colectiva. Por todo ello, aun cuando el principio de autonomía colectiva en la regulación de las relaciones de trabajo del sector público se inserta en los derechos de libertad sindical y de negociación colectiva; entendida esta última –con algún grado de estrechez conceptual- como el poder de regulación y ordenación consensuada de las relaciones laborales en su conjunto que se ha reconocido a los representantes de los trabajadores, con eficacia jurídica directa – fuerza de ley, a modo de norma especial - sobre los contratos individuales (arts. 54 y 55 del Código de Trabajo), lo cierto es que esa fuerza vinculante de los convenios no hace a éstos inmunes a lo establecido en la Ley, aunque ésta sea posterior a aquellos y altere su equilibrio interno, pues no es de ningún modo oponible aquel derecho de negociación colectiva y la fuerza vinculante de los convenios a la competencia normativa general del legislador, que es expresión de la voluntad popular en los sistemas democráticos y que no puede permanecer inerme o inactiva ante la realidad social y las transformaciones que la misma impone, con independencia de su incidencia en situaciones jurídicas anteriores y en la producción de tratamientos diferenciados a través del tiempo (arts. 105 y 121 constitucional). Así que el convenio colectivo ha de adecuarse a lo previsto en las Leyes. Y en consecuencia, no hay derecho alguno a que lo establecido en el convenio colectivo permanezca inalterado y sea inmune a lo establecido en una ley posterior hasta el momento en que pierda vigencia; la existencia de convenciones colectivas no puede, de ningún modo, imposibilitar la producción de efectos dispuestos por las leyes y en la fecha prevista por las mismas; lo que equivaldría contradecir el mandato del ordinal 129 constitucional, desarrollado en los arts. 7 y 8 del Código Civil… Lo hasta aquí expuesto ratifica que la prevalencia de la ley en nuestro sistema constitucional está, por tanto, sólida e inequívocamente establecida en el ámbito del empleo público (art. 191 constitucional). Y en consecuencia, no podemos más que afirmar la primacía de rango de las disposiciones normativas contenidas en la Ley No. 9635 sobre las convenciones colectivas y cualesquiera otros productos de la negociación colectiva, así como la sujeción inexorable de éstas a lo dispuesto por aquella con carácter de derecho necesario e imperativo absoluto5. Y debemos ser claros y contundentes en señalar que con la modificación legal operada por la Ley No. 9635 no se busca la negación y mucho menos la supresión de la negociación colectiva y de su ejercicio efectivo como facultad negociadora de los sindicatos en nuestro medio, ni se está dejando inoperante o sin contenido –por dispensa o inaplicación administrativa- la convención colectiva suscrita en aquél ámbito institucional, sino la adaptación a futuro de las condiciones de trabajo a las nuevas circunstancias imperantes que, por disposición del legislador, obligan medidas coyunturales de reordenación y racionalización, para la contención y reducción del gasto de personal de las Administraciones Públicas, exigidas por el proceso de consolidación fiscal y sostenibilidad de las cuentas públicas, a fin de frenar el déficit público y alcanzar la gradual recuperación del equilibrio presupuestario. Lo cual hace que dicho precepto legal resulte de por sí compatible con la efectividad de las convenciones colectivas pactadas.” Posteriormente, la ministra alude a lo resuelto en la opinión consultiva de este proyecto de ley y remite al informe rendido por la PGR en la acción de inconstitucionalidad promovida por el sindicato del Banco Nacional.

Alegatos de los coadyuvantes Coadyuvantes activos El secretario general de SIBANPO, Miguel Ernesto Carranza Díaz se manifestó favor de la tesis del accionante.

El secretario general del SITUN, en relación con el pago del auxilio de cesantía, manifiesta que la reforma contenida en la ley n.°9635 no consideró la última reforma a la Ley de Protección al Trabajador en la que se estipuló el derecho de auxilio de cesantía como un derecho efectivo para los trabajadores sin estar sujeto a un límite de años, según lo dispuso el art. 8 de la ley n.°7983, por lo que, en su criterio, la norma contenida en el art. 3 de la ley n.°9635 que adicionó el art. 39 de la ley n.°2166 y el Transitorio XXVII acá impugnados, sería también contrario al art. 7 de la Constitución Política, ello por cuanto los convenios de la OIT son autoridad superior sobre las leyes ordinarias de Costa Rica en los cuales se ha establecido que la negociación colectiva, las relaciones de trabajo en la administración pública y el derecho a sindicalización, son derechos adquiridos y recuerda que el convenio 98 dispone que deberán adoptarse medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar entre los empleadores y las organizaciones de empleadores y trabajadores, el pleno desarrollo y uso de procedimientos de negociación voluntaria con el objeto de reglamentar por medio de contratos colectivos, las condiciones de empleo. Indica que los alegatos planteados en la acción de inconstitucionalidad en relación con el auxilio de cesantía son plenamente aplicables a los trabajadores de la Universidad Nacional en donde, por vía de convención colectiva, el tope de la cesantía ha sido de quince años y esto se mantiene vigente en la recién prorrogada IV Convención Colectiva de Trabajo UNA-SITUN, con un aumento progresivo y escalonado hasta los veinte años como tope máximo, siendo su aplicación completa a partir del año 2017 El secretario general de UNEBANCO manifestó que el recorte del auxilio de cesantía a un importe máximo de ocho años es incompatible con la evolución que ha tenido el desarrollo de ese derecho en Costa Rica y quebranta el principio de progresividad de los derechos fundamentales, el debido proceso sustantivo, la negociación colectiva y es abiertamente discriminatorio contra los sindicatos. Refiere que las normas cuestionadas en lugar, como corresponde, de desarrollar y fortalecer el auxilio de cesantía, menoscaban ese derecho y en lugar de promover la máxima efectividad de ese derecho, lo que imponen es una regulación regresiva, incompatible con el principio de progresividad. Violan la razonabilidad y proporcionalidad porque la regresión de ocho años carece de todo fundamento y ese tope ex lege no tiene equivalencia o relación de proporcionalidad con el promedio de la carrera o antigüedad laboral de los servidores públicos.

El secretario general de UPINS dice que las convenciones colectivas tienen fuerza de ley que le permite tanto a la institución, como a los sindicatos, tener la seguridad jurídica de que lo ahí pactado va a cumplirse y, por ello, no pueden las normas impugnadas, limitar ni derogar en forma tácita los derechos contenidos en una norma de una convención colectiva sin desvirtuar su naturaleza. Resultan inconstitucionales las normas impugnadas porque también contravienen lo dispuesto en los arts. 188 y 189 de la Constitución, según las cuales, las instituciones autónomas ‒como el caso del INS‒, tienen independencia administrativa y sólo están sujetas a la ley en materia de gobierno, de modo que es inconstitucional que la ley n.º9635 pretenda regular y limitar su independencia administrativa, lo cual atenta contra su autonomía.

El representante de UNDECA refiere que el art. 39 y el Transitorio XXVII impugnados resultan inconstitucionales, en primer lugar, por el tope impuesto al auxilio de cesantía por un máximo de ocho años, lo cual resulta totalmente incompatible con la evolución que ha tenido el desarrollo de ese derecho en Costa Rica y que implica un quebranto al principio de progresividad de los derechos fundamentales, al debido proceso sustantivo, al derecho a la negociación colectiva y por ser discriminatorio contra los sindicatos. Concluye que, en relación con el Transitorio XXXI, el segundo párrafo de éste, viola el principio de negociación colectiva porque impone la obligación de que las convenciones se sometan no sólo a disposiciones de esta ley, sino además, a cualquier otra reglamentación del Poder Ejecutivo.

Coadyuvantes pasivos El presidente de la Asociación Cámara de Industrias de Costa Rica reiteró que las convenciones colectivas solo son aplicables a las empresas públicas y a los servicios económicos del Estado que se rigen por el derecho privado, por lo tanto, la normativa impugnada es aplicable a todos los servidores públicos ya que la suscripción de convenciones colectivas en el ámbito estatal está prohibida, por lo que el legislador puede modificar el monto máximo del pago de auxilio de cesantía de los servidores públicos sin incurrir en una violación de la libertad para celebrar convenciones colectivas.

Los representantes de la UCCAEP exponen que Sala ha sido reiterativa en su jurisprudencia en cuanto a que la relación entre los servidores públicos y el Estado es de carácter estatutario, por lo que no es posible obtener beneficios de convenciones colectivas suscritas en ámbito estatal ya que esa prerrogativa solo está limitada a las empresas públicas y a los servicios económicos del Estado.

Resolución de la Sala Constitucional De previo Tal y como se advirtió previamente, muchos de los alegatos de la acción n.°19-004931-0007-CO planteada por la ANEP deben desestimarse porque hacen referencia a la autonomía municipal o de los entes descentralizados y ya se dejó establecido y definido que la legitimación de los accionantes ‒basada en un tema corporativo y de defensa de los derechos de los miembros de la corporación sindical‒ no alcanza para cuestionar aspectos atinentes a las autonomías institucionales. En idéntico sentido, se debe rechazar el alegato de la supuesta lesión a la potestad reglamentaria de los entes menores y la presunta lesión al principio de legalidad.

En segundo lugar, ya se aclaró previamente que todos los argumentos relacionados con eventuales antinomias o discusiones sobre la prevalencia de determinadas normas como convenciones colectivas o estatutos internos de trabajo, deben desestimarse. Tales reproches hacen referencia a análisis de legalidad ordinaria que incumben a las instancias competentes. No le corresponde a esta Sala en un proceso de control de constitucionalidad examinar las situaciones particulares de prevalencia de supuestos derechos adquiridos a la luz de otro entramado jurídico particular. Se reitera que todo lo relacionado con el análisis de eventuales antinomias o de resolución de casos concretos, se debe plantear y resolver en las instancias ordinarias de legalidad.

Finalmente, muchos de los alegatos planteados por los accionantes y coadyuvantes deben remitirse a lo dicho en el considerando anterior respecto a la temática de cesantía y los supuestos derechos adquiridos a un monto de cesantía superior al límite establecido en la LFFP con base en los antecedentes de esta jurisdicción (máximo de doce años).

Lo dictaminado por este Tribunal en las opiniones consultivas n.°2018-019511 y n.°2021-017098 En la opinión consultiva n.°2018-019511 la Sala se refirió a varias dudas de constitucionalidad planteadas en relación con el art. 55 de la LSAP adicionado en virtud del Título III de la LFFP. En aquella oportunidad los consultantes cuestionaron si la norma en cuestión afectaba el derecho a la negociación colectiva contemplado en el numeral 62 de la Constitución Política y el art. 690 incisos h), j) y m) del Código de Trabajo. Adicionalmente, los consultantes plantearon un supuesto roce con el art. 4 del Convenio n.°98, sobre el Derecho de Sindicación y de Negociación Colectiva de la OIT donde se insta a adoptar medidas adecuadas a las condiciones nacionales para estimular y fomentar el pleno desarrollo y uso de procedimientos de negociación voluntaria, con objeto de reglamentar, por medio de contratos colectivos, las condiciones de empleo.

Del mismo modo, los consultantes plantearon dudas de constitucionalidad en relación con lo dispuesto en el Transitorio XXXVI de la LFPP (en el proyecto aparecía identificado como Transitorio L), que es el numeral que establece la obligación de los jerarcas de las entidades públicas de denunciar las convenciones colectivas cuando estas cumplan su período de vencimiento. Asimismo, dicha norma advierte que en caso de que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esa ley y demás regulaciones que dicte el Poder Ejecutivo. Al respecto, los legisladores advirtieron que tal obligación posiblemente limitaba el derecho a la renegociación o a la prórroga automática en las condiciones estipuladas en el Código de Trabajo.

Al desarrollar el tema, la Sala, en primer lugar, se refirió a los orígenes constitucionales de la figura de la negociación colectiva, para lo cual se realizaron las siguientes consideraciones:

“Las Convenciones Colectivas, efectivamente, tienen sustento en el artículo 62, de la Constitución Política. Los antecedentes de este numeral se encuentran en la incorporación, en julio de 1943, del Capítulo de Garantías Sociales a la Constitución Política de 1871 -vigente para entonces-, cuyo desarrollo legislativo más importante es el Código de Trabajo. Con ello, el Estado costarricense se transforma en un verdadero Estado Social de Derecho.

Luego, en la Asamblea Nacional Constituyente de 1949, en el Acta N° 122, artículo 2, se presentó una moción para que el artículo, 57 de la Constitución Política de 1871, que contenía lo relativo a las convenciones colectivas de trabajo y que fue el texto que sirvió de base a la actual Carta Magna, se leyera de la siguiente manera:

“En relación con el artículo 57 de la Constitución del 71, la fracción Social Demócrata presentó moción para que se lea del modo siguiente:

“Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos y trabajadores legalmente organizados”. [62] Sometida a votación la moción anterior, fue aprobada”.

Luego, en el Acta N° 171, artículo 2, se le hizo la siguiente modificación:

“El Diputado MONGE ALVAREZ presentó moción, que fue aprobada, para agregar al artículo 63 el concepto “o sindicatos de patronos”. Se aprobó el artículo 63 que se leerá:

Artículo 63.- “Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados”.

Este texto de la regulación constitucional originaria, es el que se mantiene hasta la fecha. Con ello, el Constituyente Originario garantiza, no solo que las convenciones colectivas, válidamente concertadas, tengan fuerza de ley, sino que claramente establece el derecho a la libre celebración de este tipo de negociación colectiva –pues concertar tiene el sentido de acuerdo o pacto libre de voluntades-, lo que implica que no es posible imponer obligatoriamente una negociación colectiva, ni imponer su denuncia. Además, esta garantía forma parte de la libertad sindical. Debe tenerse presente, que la negociación colectiva es un proceso de diálogo y acercamiento entre patronos y trabajadores que, eventualmente, puede llevar a un acuerdo sobre determinadas condiciones de trabajo o laborales. De manera tal, que las partes deben encontrarse en total libertad para negociar una convención colectiva, renegociarla o denunciarla.

A este respecto, no debe perderse de vista, que el referido artículo 62, de la Constitución Política, forma parte del Título V, de la Constitución (Derechos y garantías sociales), cuyo artículo 74 indica lo siguiente:

“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”.

El contenido y alcance del derecho a la negociación colectiva debe entenderse, en consecuencia, en armonía con el citado numeral 74, Constitucional, y, además, con los convenios de la Organización Internacional del Trabajo (OIT) N° 87, relativo a la libertad sindical y a la protección del derecho de sindicación (aprobado por Ley N° 2561 de 11 de mayo de 1960), N° 98, relativo a la aplicación de los principios del derecho de sindicación y de negociación colectiva (aprobado por Ley N° 2561 de 11 de mayo de 1960), N° 135, relativo a la protección y facilidades que deben otorgarse a los representantes de los trabajadores en la empresa, (aprobado por Ley N° 5968 de 9 de noviembre de 1976),y el N° 151, relativo a las relaciones de trabajo en la administración pública (aún no ratificado por Costa Rica)”.

Posteriormente, esta Sala, haciendo eco de sus propios antecedentes, delimitó los alcances de la posibilidad de realizar negociación colectiva en el sector público. Al respecto, la Sala dijo lo siguiente:

“Por otra parte, el tema de las convenciones colectivas en el sector público, ha sido recurrente en los pronunciamientos de este Tribunal. En Sentencia N° 2006-17441 de las 19:39 horas del 29 de noviembre de 2006, este Tribunal se pronunció al respecto, en los siguientes términos:

“La posibilidad de negociar colectivamente para los trabajadores que no participan de la gestión pública de la Administración, los empleados de empresas o servicios económicos del Estado, encargados de gestiones sometidas al Derecho común, ha sido reconocida reiteradamente por esta Sala a partir de la sentencia número 03053-94, criterio que reitera o ratifica después en las sentencias 2000-07730 y 2000-04453. Se admite como teoría general del Derecho Colectivo Laboral, que éste se integra, principalmente, por una trilogía de derechos que persiguen hacer realidad y dar solución a la necesidad de los trabajadores de agruparse para compensar la inferioridad real en que se encuentran cuando actúan aislados, frente al patrono y ante la genérica regulación de sus derechos en el Código de Trabajo; se trata del derecho a la sindicación, a la negociación colectiva y a la resolución efectiva de los conflictos colectivos. Existen dos regímenes en materia laboral: uno que se regula por el Código de Trabajo y el otro, por normas de Derecho Público. Esta Sala ha reconocido por ende que la relación entre el Estado y los servidores públicos, como tesis de principio, es una relación de empleo público o estatutaria; en otras palabras, el servidor del régimen de empleo público se encuentra en relación con la Administración, en un estado de sujeción; aquella puede imponer unilateralmente las condiciones de la organización y prestación del servicio para garantizar el bien público. Esta conclusión implica que no se pueda tolerar la negociación colectiva en el sector público, de conformidad con los artículos 191 y 192 constitucionales. Por último, en la sentencia número 1696-92 de esta Sala, se declaró la inconstitucionalidad de los mecanismos del arreglo directo, la conciliación y el arbitraje para los funcionarios que realicen gestión pública pero reconociendo que es válido que los obreros, trabajadores o empleados que no participan de la gestión pública de la Administración pueden celebrar convenciones colectivas de trabajo, de tal forma que entes con un régimen de empleo de naturaleza laboral (no pública), como por ejemplo, las empresas del Estado, sí pueden negociar colectivamente de conformidad con las disposiciones que informan el Derecho Colectivo del Trabajo”.

A partir del reconocimiento de un régimen de empleo público, la jurisprudencia de este Tribunal Constitucional ha sido conteste en cuanto a las condiciones bajo las cuales es posible aplicar el artículo 62 a los trabajadores del Estado y en cuanto al contenido de la negociación”.

Una vez establecido lo anterior, la Sala reiteró que la negociación colectiva es un derecho fundamental que está previsto a favor de las personas trabajadoras con el propósito de mejorar las condiciones laborales y salariales:

“De las citas jurisprudenciales que anteceden, se colige que las convenciones colectivas no solo tienen fuerza de ley, sino un contenido mínimo intangible para el legislador, entre los cuales está el mejoramiento de las condiciones laborales mínimas y, por ende, también salariales. Lo anterior basado en los principios cristianos de justicia social y de solidaridad, que, tal y como se indicó, están contenidos en el artículo 74, de la Constitución Política. (…) el derecho a la negociación colectiva parte de la posibilidad de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores”. (Lo destacado no corresponde al original).

Más adelante, la Sala también señaló que la posibilidad de realizar convenciones colectivas se enmarca dentro de la libertad y la correlativa acción sindical. Sobre el particular, se dijo lo siguiente:

“De allí que, como parte esencial de la libertad sindical -y de su contraparte la acción sindical- está el derecho de los trabajadores a la negociación colectiva, como instrumento para el mejoramiento de sus condiciones socio-económicas, a través de incentivos, compensaciones o pluses salariales. Lo que se enmarca dentro de los cuatro derechos que comprende la libertad sindical: a) libertad para constituir organizaciones sindicales; b) libertad de ingreso a una organización sindical; c) libertad para dejar de pertenecer a una organización sindical; y d) libertad del afiliado para participar democráticamente dentro del sindicato; a lo cual debe añadirse el derecho de toda organización sindical a desenvolverse libremente con respecto al Estado y en relación con la sociedad, considerada como un todo, siempre dentro del marco legal respectivo”.

Posteriormente, la Sala se refirió a los límites de la negociación colectiva. Al respecto, no se puede obviar que, si bien se trata de un derecho fundamental, el propio texto constitucional dispone que estas negociaciones deben concertarse “con arreglo a la ley”. A lo anterior, se debe sumar que esta Sala, a través de su jurisprudencia, ha acotado que las convenciones colectivas deben estar, además, sometidas a los valores y principios que emanan de la propia Constitución. Ahora bien, las limitaciones que se impongan a la posibilidad de realizar convenciones colectivas y a su contenido, también deben ser acotadas y respetar el Derecho de la Constitución, pues tampoco resulta lícito vaciar de contenido el derecho fundamental bajo análisis. Por eso, la Sala realizó el siguiente enunciado:

“[D]icha capacidad de negociación, no puede ser irrestricta, como esta Sala lo ha dicho en varias oportunidades, pero esa restricción no puede implicar un vaciamiento, por vía de ley, del contenido mínimo de ese derecho. Las restricciones legales que se impongan al derecho a la negociación colectiva, deben ser conformes a la Constitución Política y a los Instrumentos Internacionales relativos a la materia”. (Lo destacado no corresponde al original).

Concretamente, en lo relativo a los límites, la Sala hizo un repaso de sus antecedentes para realizar estas conclusiones:

“[L]a Sala ha señalado que deben respetarse las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores.

Además, se deben respetar las limitaciones requeridas para armonizar el gasto público con la disponibilidad presupuestaria en aras del derecho ciudadano al sano manejo de los fondos públicos, derivado del numeral 11, Constitucional (ver Sentencia N° 2017-013443 de las 9:15 horas del 25 de agosto de 2017).

Debe entenderse, además, que la facultad de negociación está sujeta a los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos”. (Lo destacado no corresponde al original).

A tales efectos, la Sala se apoyó en sus líneas jurisprudenciales que hacen estas reflexiones:

“[P]or tratarse de decisiones que acarrean consecuencias financieras a cargo de la Hacienda Pública, es claro que cláusulas como las ahora impugnadas pueden ser objeto de revisión no apenas respecto del cumplimiento de los procedimientos para su creación, sino incluso en relación con su adaptación a las normas y principios constitucionales de fondo. Las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos”. (La Sala citó en aquella oportunidad la sentencia n.°2006-17441, pero es un criterio sostenido en resoluciones posteriores, como por ejemplo, ver las sentencias números 2013-007931, 2019-017398, 2020-012800, 2021-018421, 2022-016287 y 2023-010798, entre otras).

Es decir, las convenciones colectivas deben estar sujetas a algunos límites para que la negociación sea conforme con la Constitución Política, los principios constitucionales y con las normas legales que regulan la materia. No obstante, este Tribunal ha sido enfático en el sentido de que las limitaciones no pueden ser de tal magnitud que hagan nugatorio el derecho fundamental. Por ello, la Sala realizó estas reflexiones:

“[S]e debe insistir, el hecho de que existan esos controles no puede llevar a vaciar el contenido mínimo del derecho a la negociación colectiva, ni a obligar a su denuncia. Y, por ello, resulta contrario a la esencia misma de la negociación colectiva que, incluso en aquellos sectores en donde esta resulte constitucional y legalmente posible, solo a través de una ley formal, emanada del Poder Legislativo, puedan crearse incentivos o compensaciones, o pluses salariales, pues ello, conforme lo dicho, vaciaría de contenido de ese derecho y, por ende, se violaría el principio de libertad sindical, el cual ha sido desarrollado por esta Sala a través de su jurisprudencia”. (Lo destacado no corresponde al original).

Partiendo de todas las anteriores premisas, la Sala concluyó que resulta contrario al Derecho de la Constitución ‒en específico a la libertad sindical y al derecho a la negociación colectiva‒ que el legislador impida que los extremos relacionados con componentes salariales puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal. En cuyo caso, la Sala determinó que el art. 55 no debía percibirse inconstitucional, bajo el entendido de que no aplica para aquellos trabajadores del sector público que sí pueden celebrar convenciones colectivas de trabajo, todo lo cual debe estar sometido a los controles de constitucionalidad y de legalidad correspondientes en atención a los principios de razonabilidad, proporcionalidad y el buen uso y manejo de los fondos públicos. En la parte dispositiva de la opinión consultiva se consignó lo siguiente:

“H) Concerniente al numeral 3 del Título III "Modificación a la Ley de Salarios de la Administración Pública" del proyecto que adiciona el artículo 55 del capítulo VII "Disposiciones Generales", se evacua la consulta en el sentido de que no es inconstitucional, siempre y cuando se entienda que esa disposición no se aplica a los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley; en este último caso, sin perjuicio de los controles de legalidad y de constitucionalidad sobre el resultado de la negociación, en atención a los principios de razonabilidad, proporcionalidad y el buen uso y manejo de los fondos públicos. El magistrado Rueda Leal da razones diferentes respecto de este punto, por cuanto estima que el artículo 62 constitucional, al remitir a la ley, y en aras de garantizar el sano manejo de los fondos públicos, faculta al legislador a regular la creación de incentivos, compensaciones o pluses salariales a través de la ley, siempre que por esta vía no se vacíe de contenido el derecho a la negociación colectiva”. (Lo destacado no corresponde al original).

En lo relativo a la constitucionalidad del Transitorio la Sala estimó que el carácter obligatorio de la denuncia es contrario al principio de la negociación libre y voluntaria. A tales efectos, este Tribunal se apoyó en criterios de la OIT que dicen lo siguiente:

“[L]a Organización Internacional del Trabajo (OIT), en el Informe N° 344, de marzo de 2007, Caso N° 2460, párrafo 990, expresó:

‘990. En cuanto al fallo del tribunal en el caso Atkins, según el cual, la prohibición jurídica de la negociación colectiva es aceptable a tenor de la Constitución de los Estados Unidos porque ésta no contiene disposición alguna — incluido el derecho de libre asociación, consagrado en la Primera Enmienda — que obligue a una parte a concluir un contrato con otra, el Comité al tiempo que recuerda la importancia que concede a la obligación de negociar de buena fe para el mantenimiento de un desarrollo armonioso de las relaciones profesionales, quiere puntualizar que la negociación voluntaria de convenios colectivos y, por tanto la autonomía de los interlocutores sociales en la negociación, constituye un aspecto fundamental de los principios de la libertad sindical. La negociación colectiva, para ser eficaz, debe tener carácter voluntario y no implica el recurso a medidas de coacción que alterarían el carácter voluntario de dicha negociación. Ninguna disposición del artículo 4 del Convenio núm. 98 obliga a un gobierno a imponer coercitivamente un sistema de negociaciones colectivas a una organización determinada, intervención gubernamental que claramente alteraría el carácter de tales negociaciones [véase Recopilación, op. cit., párrafos 925-927 y 934]. Por lo tanto, si bien una disposición jurídica que obligara a una parte a concluir un contrato con otra sería contraria al principio de la negociación libre y voluntaria, disposiciones tales como los párrafos 95-98 de los NCGS, que prohíben a las autoridades públicas y los empleados públicos, incluidos aquellos que no participan en la administración del estado, concluir un acuerdo, incluso si quieren hacerlo, es igualmente contrario a dicho principio’.” (Lo destacado no corresponde al original).

Por lo anterior, la Sala concluyó que “una disposición jurídica que obligara a una parte a concluir un convenio colectivo con otra sería contraria al principio de la negociación libre y voluntaria”. Por lo tanto, la Sala finalizó con la siguiente reflexión:

“De igual forma, en relación con el Transitorio L, del proyecto consultado, debe interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente”.

Las consideraciones realizadas fueron retomadas en la opinión consultiva n.°2021-017098, relativa al análisis de constitucionalidad de la LMEP. En dicha resolución, la Sala hizo un análisis sobre los antecedentes:

“2) Antecedentes Jurisprudenciales sobre el Derecho fundamental a la Negociación Colectiva La trilogía de derechos fundamentales, que se deriva del Derecho Laboral Colectivo, son: el derecho a la sindicación, el derecho a la negociación colectiva y el derecho a la resolución efectiva de los conflictos colectivos (ver sentencia n°2006-03002 de las 10:40 horas del 9 de marzo de 2006). Estos derechos persiguen hacer realidad y dar solución a la necesidad de los trabajadores de agruparse para compensar la inferioridad real en que se encuentran cuando actúan aislados, frente al patrono y ante la genérica regulación de sus derechos en el Código de Trabajo. Propiamente, sobre las convenciones colectivas, el artículo 62 de la Constitución Política contempla su reconocimiento constitucional, su carácter de fuerza de ley y la necesidad de que tales convenciones se ajusten a lo que disponga la ley. En efecto, esta norma constitucional señala que:

“Artículo 62. Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados”.

La ubicación de la norma en el Capítulo de los Derechos y Garantías Sociales de la Constitución Política y su contenido, indican que lo que se busca garantizar es el derecho a la “negociación colectiva laboral". Sobre este particular, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, este Tribunal destacó los tres aspectos que se derivan de esta norma, a saber: a) el reconocimiento de la negociación colectiva como un derecho constitucional; b) que las negociaciones así concertadas tienen carácter de fuerza de ley; y c) que tales convenciones deben ser acordadas conforme lo disponga la ley. Todo lo cual es, por demás, ratificado por la Corte Interamericana de Derechos Humanos, mediante Opinión Consultiva OC-27/21 del 05 de mayo del 2021, cuando indica lo siguiente:

“94. En consideración a lo antes mencionado, y a manera de corolario, la Corte considera pertinente señalar que el derecho a la negociación colectiva, como parte esencial de la libertad sindical, está compuesto de diversos elementos, que incluyen, como mínimo: a) el principio de no discriminación del trabajador o trabajadora en ejercicio de la actividad sindical, pues la garantía de igualdad es un elemento previo para una negociación entre empleadores y empleadoras, y trabajadores y trabajadoras; b) la no injerencia directa o indirecta de los empleadores en los sindicatos de trabajadores y trabajadoras en las etapas de constitución, funcionamiento y administración, pues puede producir desbalances en la negociación que atentan en contra del objetivo de los trabajadores y las trabajadoras de mejorar sus condiciones de vida y de trabajo mediante negociaciones colectivas y por otros medios lícitos; y c) el estímulo progresivo a procesos de negociación voluntaria entre empleadores y empleadoras, y trabajadores y trabajadoras, que permitan mejorar, a través de contratos colectivos, las condiciones del empleo.” Propiamente sobre el derecho a la negociación colectiva en el sector público, primero se puede citar la sentencia n°1696-92 de las 15:30 horas del 23 de agosto de 1992, donde la Sala declaró la inconstitucionalidad de los mecanismos del arreglo directo, la conciliación y el arbitraje para los funcionarios que realicen gestión pública, pero reconoció que es válido que los obreros, trabajadores o empleados que no participan de la gestión pública de la Administración puedan celebrar convenciones colectivas de trabajo, de tal forma que entes con un régimen de empleo de naturaleza laboral (no pública), como por ejemplo, las empresas del Estado, sí pueden negociar colectivamente. Criterio que es reiterado en varias sentencias posteriores (ver n°2000-07730 y n°2000-04453). Luego, en la sentencia n°2020-008396 de las 9:20 horas del 6 de mayo de 2020, este Tribunal resolvió lo siguiente sobre las convenciones colectivas en el sector público, ratificando que se permiten únicamente en el caso de los trabajadores que no desempeñan gestión pública:

“V.- Sobre la negociación colectiva en el sector público.- Conforme se desprende de la jurisprudencia de esta Sala, como tesis de principio, la relación laboral que se establece entre el Estado (en cuenta las Municipalidades) y sus trabajadores se rige por el Derecho Público -y no el Código de Trabajo-, relación que se ha denominado, de empleo público o estatutaria. Ahora bien, se dice que en tesis de principio los trabajadores del Estado están sometidos a un régimen de empleo público porque, se ha hecho una excepción, a saber, los trabajadores que no participan de la gestión pública, por ser trabajadores de empresas estatales. Así se ha establecido que los trabajadores que no participan de la gestión pública, al estar sometidos al derecho común, pueden acudir a los procedimientos de resolución de los conflictos colectivos de carácter económico y social previsto en el Código de Trabajo (resolución N° 94-3053) y al arbitraje bajo ciertas limitaciones (resolución N° 92-1696); y pueden celebrar convenciones colectivas (resolución N° 00-4453), aunque también bajo ciertas limitaciones. Así, la posibilidad de negociar colectivamente para los trabajadores que no participan de la gestión pública de la Administración (los empleados de empresas o servicios económicos del Estado, encargados de gestiones sometidas al Derecho común), ha sido reconocida reiteradamente por esta Sala a partir de la sentencia número 03053-94, criterio que reitera o ratifica después en las sentencias 2000-07730 y 2000-04453. El resto de empleados del Estado, que por lo tanto sí participan de la gestión pública (siendo estos en general, no sólo los jerarcas institucionales y órganos de control legal y financiero como dice el representante del Sindicato, sino todos aquellos trabajadores que ejerzan competencias públicas), ni pueden solucionar sus conflictos colectivos de trabajo por la vía del arbitraje (resolución N° 92-1696), ni tampoco pueden celebrar convenciones colectivas (resolución N° 00-4453), siendo inconstitucional la celebración de convenciones colectivas que se celebren en el sector público cuando se trate de personal regido por una relación estatutaria. Lo cual implica que no se pueda tolerar la negociación colectiva en el sector público, de conformidad con los artículos 191 y 192 constitucionales. En conclusión, las convenciones colectivas no están del todo prohibidas en el sector público, sino que están permitidas únicamente en el caso de los trabajadores que no desempeñan gestión pública, es decir, aquellos cobijados en los artículos 3, 111 y 112 de la Ley General de la Administración Pública. Siendo, la determinación en cada caso concreto de cuáles trabajadores están cobijados en dichas normas, una cuestión ajena a esta jurisdicción constitucional y que corresponde a los operadores del derecho”. (sentencia N°2013-14499) IV.- Sobre la normativa impugnada. (…) debe reiterarse que no existe una prohibición absoluta de celebrar convenciones colectivas en el sector público o que estas resultan per se inconstitucionales, pues, como ya se indicó, existe un grupo de empleados del sector público que pueden válidamente celebrar convenciones colectivas de acuerdo con la Constitución, en concreto, es “constitucionalmente posible la aplicación de la institución de las convenciones colectivas…. en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública” (voto N°2000-004453. El resaltado no corresponde al original). De esta forma, respecto de las convenciones colectivas impugnadas en la presente acción, estas resultan constitucionalmente válidas en cuanto a los referidos núcleos de personal que laboran o prestan sus servicios para las entidades o instituciones en cuestión. Ahora bien, como ya se indicó en el precedente parcialmente transcrito, corresponde:

“(…) a cada Administración Pública definir cuáles son esos funcionarios cubiertos por la convención colectiva o con posibilidad de negociar o pactar este tipo de convenciones colectivas, todo conforme a los criterios de la Administración Pública, o la de los Tribunales de Justicia, según la decisión que corresponda.”(voto N°2015-7221)”.

En lo que respecta al contenido de la negociación colectiva laboral, la Sala se ha referido a las llamadas clausulas normativas (regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono), las cláusulas de configuración (especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen el poder disciplinario del empleador y al ejercicio de su derecho a la organización y la dirección) y las cláusulas obligacionales (crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, instalación de centros de formación), en los siguientes términos:

“Dentro de la especialidad de la materia, las partes solo pueden convenir, válidamente, sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y como tesis de principio se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. En otras palabras, la convención colectiva tiene como objeto regular, por un lado, las condiciones a que deben sujetarse las relaciones individuales de trabajo, o lo que es lo mismo, las llamadas cláusulas normativas, que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono, como lo afirma la mayoría de la doctrina del Derecho laboral y esto conduce a la conclusión de que puede ser materia de una convención colectiva, todo lo que podría serlo en un contrato de trabajo individual; también, dentro de este contenido, pueden ser objeto de negociación colectiva las llamadas cláusulas de configuración, que son las que especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen las que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección. En segundo orden, las cláusulas obligacionales, que son las que crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, la institución de prestaciones patronales con destino a obras sociales dentro de la comunidad laboral, instalación de centros de formación, entre otros. A manera de síntesis, diremos que las convenciones colectivas, por disposición constitucional, tienen como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial.” (ver sentencia n°2007-18485 de las 18:02 horas del 19 de diciembre de 2007).

Sobre este mismo tema, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, la Sala estimó que se puede reconocer un mayor derecho al que reconoce la ley:

“De igual manera, tampoco es dable aducir, que mediante una negociación colectiva se pueda reconocer mayores derechos a las partes, lo cual ciertamente es así, pero debe señalarse que se trata de mayores concesiones sobre derechos válida y legítimamente reconocidos, lo cual, no es el caso de limitar la libre negociación de alguna de las partes involucradas. Dicho de otro modo, una convención colectiva puede reconocer un mayor derecho al que reconoce la ley, pero no puede limitarlo. Y, en todo caso, aquel mayor reconocimiento, de conformidad con lo dicho en el anterior considerando, igualmente deberá sujetarse al Derecho de la Constitución, para lograr así la armonía jurídica de la cual depender un ordenamiento.” (el destacado no es del original).

Por su parte, en la sentencia n°2008-003935 de las 14:48 horas del 12 de marzo de 2008, la Sala señaló que los entes de la Administración Pública pueden otorgar determinados incentivos o beneficios a sus trabajadores, los cuales serán válidos constitucionalmente únicamente cuando estén amparados en razones objetivas que se traduzcan además en una mejor prestación del servicio público. Al respecto, indicó:

“En otras palabras, esta Sala no ha cuestionado que cualquier ente de la Administración Pública pueda reconocer determinados incentivos o beneficios a sus trabajadores, ya que ello puede constituir una medida idónea para remunerar una exigencia especial del puesto de trabajo, que implique determinadas calificaciones profesionales o habilidades a quienes lo desempeñen, o bien para compensar un riesgo particular que caracteriza el desempeño de tales funciones, sea un riesgo material (por ejemplo, labores físicamente peligrosas) o uno de carácter legal (por ejemplo, trabajo susceptible de generar responsabilidad civil).” Ahora, si bien se reconoce el derecho a la negociación colectiva en el sector público, a través del cual pueden otorgarse o reconocerse derechos o beneficios con mayor amplitud a lo legalmente predefinido, también existen límites a dichas negociaciones, en cuanto deben congeniarse con el ejercicio de las competencias legales de los entes públicos, y respetar las limitaciones necesarias para armonizar el gasto público con la disponibilidad presupuestaria y el sano manejo de los fondos públicos. Sobre el particular, la Sala se ha referido a los límites de la negociación colectiva, como los principios constitucionales de razonabilidad, proporcionalidad, economía y eficiencia, y la ley:

“Se ha indicado, además, que sin demérito alguno de que la negociación colectiva sea un derecho reconocido constitucionalmente y por instrumentos internacionales de la Organización Internacional del Trabajo, lo cierto es que su contenido se encuentra también subordinado a las normas y principios constitucionales, en el tanto las decisiones que ahí se tomen, en cantidad de casos implican consecuencias para las finanzas públicas. Dentro de este contexto, su adopción y validez no queda únicamente sujeta a la mera verificación del procedimiento de adopción, sino también a un análisis de fondo, en la media que su contenido debe ajustarse a las normas y principios constitucionales por tratarse de fondo públicos. De este modo, las obligaciones pactadas por las instituciones públicas para con sus empleados, como ocurre en este tipo de negociación, pueden ser objeto del análisis de razonabilidad, economía y eficiencia, con el objeto de evitar que a través de una convención colectiva desproporcionadamente sean limitados o lesionados los derechos de los propios trabajadores, o para impedir que se haga un uso abusivo de fondos públicos” (ver sentencia N°2021-009580 de las 9:15 horas del 12 de mayo de 2021).

De particular interés resulta mencionar la sentencia n°2018-19511, no solo porque hace acopio de jurisprudencia constitucional relevante sobre la materia, sino porque se ratifica que el derecho a la negociación colectiva parte de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores. Señaló la Sala que (…)

Así también, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, se indicó en lo que interesa:

“Bajo este entendimiento, una norma en ese sentido sería ya no sólo contraria al principio de libre negociación, sino claramente también sería antagónica con los principios de razonabilidad y proporcionalidad.

Es en este sentido, que en la misma sentencia 2018-19511, señaló la Sala que:

“[C]ada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” -énfasis añadido- De tal manera, si la norma que ahora se cuestiona señala, como en efecto lo hace, que ambas partes de la Convención Colectiva de Trabajo de la Universidad Nacional se comprometen a no denunciar de forma unilateral dicha Convención, se está imponiendo a ambas partes, no solamente a la Universidad, sino al sindicato también, un deber que contraría la previsión constitucional sobre la negociación colectiva, al impedirle a ambas el libre ejercicio de la negociación a que tienen derecho dentro de un marco de razonabilidad y proporcionalidad, y a la parte accionante, obligándole a no poder validar en conjunto con el sindicato, situaciones relacionadas con el buen uso de los fondos públicos.

En este sentido, debe declararse con lugar la acción, por cuanto la frase aludida del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional, resulta contraria al Derecho de la Constitución, en los términos señalados.

-Conclusión. - En definitiva, siendo que la primera parte del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional resulta contraria al Derecho de la Constitución, lo que corresponde es declarar con lugar esta acción de inconstitucionalidad, anulando por inconstitucional la frase “Las partes se comprometen a no denunciar de forma unilateral esta Convención”.

Derivado del reconocimiento constitucional al derecho a la negociación colectiva en el sector público, así como de los límites constitucionales señalados anteriormente, se verifica la competencia de esta jurisdicción para ejercer control sobre el contenido y alcances de las convenciones colectivas del trabajo. Así, en la sentencia N°2020-024200 de las 12:11 horas del 16 de diciembre de 2020, el Tribunal destacó que no existen zonas de inmunidad o actuaciones públicas que escapen al sometimiento constitucional, incluso tratándose de empresas públicas, en los siguientes términos:

III.- LAS CONVENCIONES COLECTIVAS DE TRABAJO FRENTE AL PARÁMETRO DE CONSTITUCIONALIDAD. Este Tribunal Constitucional ha sentado una sólida jurisprudencia en el sentido de que hay necesidad de someter las convenciones colectivas de trabajo al control de constitucionalidad que ejerce esta Sala. Desde la sentencia n.°2006-17441, se consideró que sea cual sea el rango normativo que se reconozca a este tipo de instrumentos, es claro que se encuentran subordinados a las normas y principios constitucionales. Es por lo anterior que, pese al reconocimiento constitucional del derecho a la negociación colectiva y a su desarrollo en diversos instrumentos internacionales, no existen, en el ordenamiento costarricense, zonas de “inmunidad constitucional”, es decir, actuaciones públicas que escapen al sometimiento al principio de regularidad constitucional. A partir de lo cual la Sala ha sido consistente en que si bien tienen un origen constitucional, las convenciones colectivas particulares sí pueden ser sometidas a la valoración de su conformidad constitucional, incluso, tratándose de empresas públicas. Asimismo, se ha hecho énfasis en que las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos (ver, entre otras, las sentencias 2019-008679, 2019-009222, 2019-016791 y 2019-017398).” Del amplio compendio jurisprudencial aludido, se puede concluir que el derecho a la negociación colectiva es un derecho constitucional reconocido en el artículo 62 de nuestra carta fundamental que tiene como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial. Esta Sala ha reconocido que solo se pueda admitir la negociación colectiva en el sector público para aquellos trabajadores que no realizan gestión pública, los empleados de empresas o servicios económicos del Estado y los encargados de gestiones sometidas al Derecho común. En cuanto al contenido de la negociación colectiva en el sector público, se ha señalado que las partes solo pueden convenir válidamente sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. De esta forma, puede ser objeto de una convención colectiva, todo lo que podría ser referente a un contrato individual de trabajo (sea las que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono), así como las normas que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección, y las normas que crean derechos y obligaciones entre las partes y que tienen que ver primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales. No se trata de reconocer otros derechos distintos a los válida y legítimamente reconocidos, sino de procurar mayores concesiones sobre aquellos derechos válida y legalmente reconocidos, de ahí que una convención colectiva puede reconocer un mayor derecho al que reconoce la ley, pero no puede limitarlo. En este sentido, se ha admitido la posibilidad de reconocer incentivos salariales o sobresueldos, como instrumentos para incentivar la mayor calidad, permanencia, eficiencia en el servicio, lealtad e idoneidad, de ahí que resulte contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal. Así las cosas, la Administración Pública puede otorgar determinados incentivos o beneficios a sus trabajadores, cuando éstos estén amparados en razones objetivas que busquen una mejor prestación del servicio público. Existe “una doctrina constitucional de las convenciones colectivas del sector público (indispensable a falta de ley formal que las regule), que puede resumirse en que todos los derechos beneficios y avances en los mínimos legales (que procedan de una legislación social de mediados del siglos pasado) contemplados en una negociación colectiva de trabajo, deben fundarse en razones objetivas que busquen una mejor prestación del servicio público, a la vez que signifiquen un progreso social conjunto y solidario para los servidores públicos y la Administración, respetuoso eso sí de un manejo adecuado y razonable de los fondos públicos”. Y que las “convenciones colectivas no solo tienen fuerza de ley, sino un contenido mínimo intangible para el legislador, entre los cuales está el mejoramiento de las condiciones laborales mínimas y, por ende, también salariales. Lo anterior basado en los principios cristianos de justicia social y de solidaridad, que, tal y como se indicó, están contenidos en el artículo 74, de la Constitución Política…” (sentencia N°2012-08891 de las 16:02 horas del 27 de junio de 2012). Al estar involucrados entes públicos que administran fondos públicos, su contenido se encuentra también subordinado a las normas y principios constitucionales. De esta forma, la validez de la negociación colectiva en el sector público no queda únicamente sujeta a la mera verificación del procedimiento de adopción, sino también a un análisis de fondo de los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos, lo anterior, con el objeto de evitar que a través de una convención colectiva, desproporcionadamente sean limitados o lesionados los derechos de los propios trabajadores, o para impedir que se haga un uso abusivo de fondos públicos. En la Administración Pública, la autorización para negociar colectivamente no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que se deben respetar las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. De esta forma, las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos. El derecho a la negociación colectiva está sometido al control jurisdiccional de la Sala, pues como se indicó, se encuentra subordinado a las normas y principios constitucionales”. (Lo destacado no corresponde al original).

Partiendo de lo dicho por la Sala, en el sub lite debe reiterarse que el art. 55 (reserva de ley en la creación de incentivos y compensaciones salariales) ‒y, por tanto, todas las disposiciones relacionadas con los pluses cuestionados, a saber arts. 39 (auxilio de cesantía), 50 (incentivo por anualidades), 54 (incentivos trasladados a montos nominales fijos) y Transitorio XXVII (reconocimiento del auxilio de cesantía cubierto y respetado por las convenciones colectivas vigentes)‒ deben entenderse constitucionales, pues el legislador perfectamente puede establecer las regulaciones generales de las relaciones sometidas al régimen de empleo público. Lo anterior, bajo el entendido de que la restricción para negociar determinadas mejoras salariales no se aplica a los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. Este Tribunal fue enfático y advirtió que para aquellas personas que legítimamente pueden participar de una negociación colectiva no se les puede vaciar de contenido su derecho fundamental a negociar determinados beneficios salariales ‒dentro de los márgenes de la Constitución y la ley, así como las posibilidades financieras, la razonabilidad, la proporcionalidad y los principios constitucionales emanados de la jurisprudencia de esta Sala‒. Por su importancia, se reitera lo dicho por este Tribunal en el sentido de que resulta contrario a la esencia misma de la negociación colectiva que, incluso en aquellos sectores en donde esta resulte constitucional y legalmente posible, solo a través de una ley formal emanada del Poder Legislativo, puedan crearse incentivos o compensaciones, o pluses salariales, pues dicha limitación absoluta vaciaría de contenido ese derecho y, por lo tanto, se violaría el principio de libertad sindical, que son derechos fundamentales reconocidos por nuestra Constitución Política.

En un segundo orden de ideas, siguiendo lo establecido en la opinión consultiva, esta Sala debe declarar la inconstitucionalidad de lo dispuesto en el Transitorio XXXVI párrafo 1° de la LFFP, pues dicho numeral deja de lado el carácter libre y voluntario de la negociación colectiva y, muy por el contrario, establece la obligación para todos los jerarcas de las entidades públicas de denunciar las convenciones colectivas, una vez que llegue el plazo de vencimiento. La interpretación que propuso la Sala en la opinión consultiva es incompatible con el texto expreso de la norma adoptada por la Asamblea Legislativa. Por lo que se impone declarar la inconstitucionalidad de la disposición allí contenida en el sentido de someter a los jerarcas a la obligación de denunciar las convenciones colectivas en perjuicio de los derechos fundamentales acá examinados.

Sobre la supuesta lesión al principio de igualdad por distinguirse respecto de las asociaciones solidaristas En lo relativo al derecho a la negociación colectiva, la posibilidad de negociar topes superiores de cesantía y los derechos sindicales, tanto los accionantes como coadyuvantes activos acusan una supuesta lesión al principio de igualdad. Cuestionan un trato desigual e injustificado en perjuicio de los sindicatos toda vez que mediante la Ley de Protección al Trabajador se estableció el pago de la cesantía sin límite de años, mientras que en el caso de los sindicatos no hay tal posibilidad, generando una disparidad de condiciones respecto estas organizaciones y se lesiona el art. 7 de la Constitución Política por el desconocimiento de instrumentos internacionales que reconocen el derecho a la negociación voluntaria.

Al respecto, la PGR explicó que no es posible comparar a los sindicatos con las asociaciones solidaritas, pues se trata de figuras muy distintas con características propias muy diferentes entre ellas y recuerda, por ejemplo, que a las asociaciones solidaristas no se les ha reconocido el derecho a la negociación colectiva o a la huelga, sin que ello suponga una supuesta discriminación.

En criterio de esta Sala, los alegatos apenas planteados y no desarrollados son insuficientes para examinar una supuesta lesión al Derecho de la Constitución, pues no se detalla en las características de ambas organizaciones para distinguir adónde se encuentran las diferencias inconstitucionales, ni tampoco se explica en qué forma se lesiona el art. 7 de la Constitución Política. Sin embargo y dado que lo cuestionado tiene relación con el pago de la cesantía negociado a través de las convenciones colectivas se hace preciso retomar y recordar las consideraciones realizadas por esta Sala en la sentencia n.°2018-008882 en la que esta Sala se replanteó la constitucionalidad de cesantías superiores a los doce años y, además, se dejó puesto de manifiesto las diferencias existentes con otras formas de organización laboral. Al respecto, se realizaron las siguientes argumentaciones:

“XX.- En apariencia, el primero de los argumentos (el vínculo del beneficio con la antigüedad del empleado) parecería ser poco discutible, en el tanto en que las cláusulas convencionales en general y la recogida la Convención colectiva de Bancrédito, establecen un beneficio que reconoce el pago de auxilio de cesantía los trabajadores favorecidos, de la mano con su antigüedad al servicio de la institución y por tanto, directamente proporcional a ella. El problema que la mayoría de la Sala encuentra aquí -y que no parece haber sido abordado específicamente con anterioridad- surge cuando la magnitud del beneficio se contrasta, no solo a lo interno del conjunto de empleados favorecidos por la Convención, como se hizo en las sentencias citadas, sino cuando la magnitud de ese pago de auxilio de cesantía se analiza dentro del universo completo de los servidores públicos en sentido amplio; esta extensión del marco comparativo se justifica en el tanto en que para todos los empleados al servicio de las instituciones estatales, la fuente de financiamiento de ese pago por auxilio de cesantía es una y la misma: los tributos y los precios públicos que pagan todos las personas que habitan la República. Y no obsta que, tanto en este caso como en muchos otros, se trate de empresas estatales actuando en un mercado en competencia y administrando fondos de consumidores, ahorrantes y prestatarios, pues, en el tanto en que tales instituciones son del Estado y cuentan con su respaldo, su salud y prácticas financieras pueden ser -y son de hecho- sumamente relevantes para las finanzas públicas, como lo demuestra con claridad la conocida condición actual de Bancrédito y las estimaciones que se han dado sobre la afectación que su cierre tendrá en presupuesto nacional.

Así pues, debe afirmarse que las disposiciones de naturaleza económica que acuerden los administradores de las instituciones públicas cuando negocian colectivamente con sus trabajadores, no pueden evadir la necesaria coherencia y proporcionalidad en relación con lo que constituye el marco general de beneficios económicos que el Estado (en su concepto amplio) ha venido reconociendo a lo largo del tiempo, en favor de sus trabajadores, ni puede dejarse de tomar en cuenta las posibilidades financieras de las entidades en general y la manera en que estas disposiciones van a incidir en los gastos y obligaciones económicas estatales, dado que tales compromisos determinan y son determinadas a la vez por las distintas variables y situaciones económicas y repercuten directamente en la situación económica general del país.

Al asumir este enfoque, la mayoría de la Sala verifica la existencia de una amplísima brecha entre el pago de auxilio de cesantía aplicable a la enorme mayoría de los servidores públicos, cuyo tope es de 8 años, y el pago que recibirán los trabajadores del Banco Crédito Agrícola y otros trabajadores estatales cubiertos también por convenciones colectivas que, en idénticas circunstancias, podrían recibir un desembolso directo en su favor de hasta 20 meses de salario por el mismo auxilio de cesantía. Se trata de una diferencia de un ciento cincuenta por ciento, (150%) que desde la perspectiva de la mayoría de quienes integramos esta Sala, resulta abismal y por ende, debería contar claros e incontestables argumentos que la justifiquen, pero que más bien carece de ellos y resulta desproporcionada e insostenible en semejante magnitud.

Debe recordarse, por una parte, que esta Sala, en sintonía con el desarrollo de los derechos fundamentales vinculados con el entorno laboral, ha ejercido con gran mesura su labor de control constitucional en esta materia, comprendiendo que la naturaleza fundamental del derecho de negociación colectiva -uno de los pilares fundamentales del derecho al trabajo- tiene como finalidad legítima el mejoramiento de las condiciones laborales de los trabajadores y ello conlleva necesariamente la generación de diferenciaciones y disparidades que de modo alguno son injustas o ilógicas en sí mismas y menos aún pueden tildarse de inconstitucionales, por el mero hecho de beneficiar a un grupo de personas que ha logrado tales reivindicaciones a través del instrumento de la negociación colectiva. Pero lo anterior no puede desactivar completamente la necesidad de que las mejoras a las cuales se compromete el Estado sean proporcionadas y razonables, no solo respecto de la condición en que quedan los demás trabajadores estatales no protegidos por convenciones colectivas, sino respecto la carga que la sociedad debe soportar para cubrir tales sumas. De tal modo, una diferencia del 150 por ciento (es decir, una diferencia a mitad de camino entre un doble y un triple de las sumas normales) entre lo que pueda corresponder a unos servidores públicos por encima de todos los otros por el mismo concepto se ubica mucho más allá de lo puede entenderse como proporcionado y aceptable como reivindicación legítima en la condición de los trabajadores estatales.

Por otra parte, y en relación con este mismo tema de la desproporción en esta particular forma de disposición de sumas del erario estatal, debe apuntarse que otra razón para estimar desproporcionado este tope de 20 años, es que dicho gasto presenta la característica de ser una mera transferencia de fondos desde las arcas públicas directamente al patrimonio del trabajador, sin que tal traslado sea matizado por opciones de mejora económica o ventajas para terceros o para la economía del país como un todo. Esta última alternativa, en la que cual acopian recursos de distintas fuentes, incluida la estatal, para financiar entre otras mejoras económicas, las relacionadas con el pago del auxilio de cesantía, es lo que caracteriza a los denominados fondos de ahorro y jubilaciones, a las asociaciones solidaristas e incluso a las figuras de la ley de protección al trabajador, que -por ello mismo- pueden distinguirse netamente de la figura del simple aumento del tope de pago de auxilio de cesantía que se analiza aquí. Para el Tribunal, esas figuras recogen mecanismos de mejora en la condición de los trabajadores, pero lo hacen a través del empleo de mecanismos de redistribución de riqueza mucho más sofisticados y con una participación más moderada de las arcas públicas. Además, debe apuntarse que muchos de los Fondos de Ahorro y por supuesto todas las Asociaciones Solidaristas y las ventajas de la Ley de Protección al Trabajador, han pasado por el escrutinio y aprobación legislativa, lo cual les otorga -de entrada- una legitimación mucho mayor frente a los compromisos financieros adquiridos por el Estado y que afectan a la colectividad. Por todo lo anterior, ajuste a los principios de proporcionalidad y razonabilidad de los recursos estatales entregados a los trabajadores, al abrigo de estas figuras jurídicas recién mencionadas no puede juzgarse con la misma medida que los simples rompimientos de tope para pagos por auxilio de cesantía, los cuales no pasan de ser meras transferencias, según se explicó y que por lo tanto requieren un escrutinio mucho más estricto, que no se logra superar cuando estamos frente un tope de 20 meses de salario”. (Lo destacado no corresponde al original). Ver en idéntico sentido las sentencias números 2020-11168, 2020-24200, 2019-8679, 2019-9222, 2021-15419, 2023-012086, entre muchas otras.

Conforme con lo anterior, se aprecia que esta Sala expresamente distinguió entre el mero traslado de fondos por concepto de cesantía, de aquellas formas de organización en las que, con los aportes de los trabajadores, se constituyen fondos de capitalización para el mejor rendimiento de los montos recaudados.

Asimismo, ya desde hace varios años este Tribunal ha venido reiterando que asociaciones solidaristas y sindicatos difieren sustancialmente, por lo que resultaría válido que el legislador establezca regulaciones diferenciadas:

“Las asociaciones solidaristas se distinguen claramente de los otros dos tipos de formas de organización social con mención constitucional expresa: los Sindicatos y las Cooperativas. Difieren sustancialmente de los primeros, en el tanto, según lo preceptuado por el artículo 339 del Código de Trabajo, Ley No. 2 de 23 de agosto de 1943, el "(...) Sindicato es toda asociación permanente de trabajadores o de patronos o de personas de profesión u oficio independiente, constituida exclusivamente para el estudio, mejoramiento y protección de sus respectivos intereses económicos y sociales, comunes (...)". Las prerrogativas sindicales son especiales, garantizadas por convenios internacionales (Nos. 87 y 98 de la Organización Internacional del Trabajo) e insustituibles en materia de negociación colectiva (…)

Pese a que se trata de diferentes formas de organización con fines de superación social, verdaderamente, cada una tiene su propia naturaleza traducida en forma de integrarse y campos de acción separados, lo que necesariamente provocó que el legislador dictara una regulación independiente para cada una de ellas, así como prohibiciones de interferencia, expresadas en el artículo 8 de la Ley de Asociaciones Solidaristas, No. 6970 de 7 de noviembre de 1984. En una sociedad verdaderamente democrática, estas tres formas de organización social, deben existir a plenitud”. (Opinión consultiva n.°2010-009927). Ver igualmente la sentencia n.°2023-014796.

A la luz de las anteriores consideraciones, no se aprecia que, de los argumentos meramente genéricos y enunciativos realizados por los accionantes y coadyuvantes activos, se constate una lesión a los principios invocados a la igualdad o al art. 7 de la Constitución Política. Respecto de esto último ni siquiera se explica en qué forma se estaría lesionando. En cuyo caso, corresponde desestimar estos reproches.

Sobre la constitucionalidad del Transitorio XXXVI párrafo segundo Como se ha señalado, en términos generales, las partes accionantes cuestionaron las limitaciones irrazonables a la negociación colectiva y la posibilidad de concertar mejoras salariales a través de dicho instrumento. Adicionalmente, se aprecia que accionantes y coadyuvantes impugnaron lo regulado en el Transitorio XXXVI párrafo segundo de la LFFP. Se acusa que se lesiona el derecho a la negociación colectiva porque a través de una norma transitoria ‒pero con una vocación de efectos permanentes y definitivos‒ se establece que en el caso de que se decida renegociar una convención colectiva esta deberá adaptarse en todos sus extremos a lo establecido en la ley y “demás regulaciones que dicte el Poder Ejecutivo”. Se debate que “se deja abierta la puerta” para que el Poder Ejecutivo pueda establecer cualquier contenido a esas regulaciones. Entonces. se acusa que las convenciones colectivas ya no solo deben someterse a las disposiciones legales, sino a cualquier otra reglamentación del Poder Ejecutivo.

Como ya recién acabamos de mencionar, en la opinión consultiva evacuada mediante resolución n.°2018-19511, la Sala se refirió ampliamente al derecho a la negociación colectiva –que no es irrestricto–, a las convenciones colectivas en el sector público y, de forma específica, a los límites y el control del contenido de las convenciones colectivas. De importancia para la resolución de este extremo corresponde enfatizar en lo siguiente:

“2.4.- Sobre los límites y el control del contenido de las convenciones colectivas: Claro está, que dicha capacidad de negociación, no puede ser irrestricta, como esta Sala lo ha dicho en varias oportunidades, pero esa restricción no puede implicar un vaciamiento, por vía de ley, del contenido mínimo de ese derecho. Las restricciones legales que se impongan al derecho a la negociación colectiva, deben ser conformes a la Constitución Política y a los Instrumentos Internacionales relativos a la materia.

En este sentido, es que ha de entenderse lo resuelto por esta Sala en Sentencia N° 2000-004453 de las 14:56 horas del 24 de mayo de 2000, en la que se señaló:

“Sexta: No obstante lo ya expresado, es importante aclarar que aún en el sector público en el que resulta constitucionalmente posible la aplicación de la institución de las convenciones colectivas, valga decir, en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública, en los términos del inciso 2 del artículo 112 de la Ley General de la Administración Pública, la Sala repite y confirma su jurisprudencia en el sentido de que la autorización para negociar no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que por esa vía, no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes, ni modificar o derogar leyes que otorgan o regulan competencias de los entes públicos, atribuidas en razón de la jerarquía normativa o de las especiales condiciones de la Administración Pública con relación a sus trabajadores, conclusión que se infiere del artículo 112 inciso 3) de la Ley General de la Administración Pública y del considerando XI de la sentencia No. 1696-92 de esta Sala”. (Ver en igual sentido las sentencias números 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 y 2006-17436). (…)

Así, con respecto a las convenciones del sector público, la Sala ha señalado que deben respetarse las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. Además, se deben respetar las limitaciones requeridas para armonizar el gasto público con la disponibilidad presupuestaria en aras del derecho ciudadano al sano manejo de los fondos públicos, derivado del numeral 11, Constitucional (ver Sentencia N° 2017-013443 de las 9:15 horas del 25 de agosto de 2017).

Debe entenderse, además, que la facultad de negociación está sujeta a los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos”. (Lo destacado no corresponde al original).

Haciendo eco de dichas consideraciones esta Sala examinó la legitimidad de la Comisión de Políticas para la Negociación de Convenciones Colectivas en el Sector Público. Esto a través de la sentencia n.°2021-005668 en que se concluyó que la normativa impugnada no resulta inconstitucional siempre y cuando se interprete que los lineamientos emitidos por dicha Comisión ‒artículo 3 incisos b) y c) del Reglamento para el funcionamiento de la Comisión de Políticas para la Negociación de Convenciones Colectivas en el Sector Público, n.°41553-MTSS, del 30 de noviembre de 2018‒ no tienen carácter vinculante. De importancia para el sub lite, interesa rescatar que este Tribunal fue enfático en que “siendo el ente patronal una autoridad pública y tratándose de la disposición de fondos públicos, estas negociaciones deben ser acotadas y sustentadas en principios constitucionales (razonabilidad, proporcionalidad, continuidad de los servicios públicos), así como en disposiciones de rango legal y reglamentario que hagan coincidir lo pactado por las partes con el principio de legalidad”. De hecho, si se examina con detalle el Código de Trabajo se puede concluir con facilidad que dentro de los parámetros de regularidad no solo se encuentran las leyes, sino también las disposiciones del Poder Ejecutivo que legítimamente sean emitidos. Dice el art. 690 del Código de Trabajo, lo siguiente:

“Artículo 690.- Con las limitaciones a que se hará referencia, pueden ser objeto de solución en la forma dicha, las siguientes materias:

• a)Los derechos y las garantías sindicales tanto para los dirigentes de las organizaciones como para los mismos sindicatos en cuanto personas jurídicas de duración indefinida. Estos derechos y garantías comprenden los de reunión, facilidades para el uso de locales, permisos para dirigentes con goce de salario y sin él, facilidades para la divulgación de actividades, lo mismo que cualquier otra contenida en la Recomendación Número 143 de la Organización Internacional del Trabajo o en las recomendaciones puntuales del Comité de Libertad Sindical de esta última organización. Es entendido que la aplicación de las garantías aquí mencionadas no deberá alterar en forma grave o imprudente el funcionamiento eficiente ni la continuidad de los servicios esenciales de cada institución o dependencia.
• b)Todo lo relacionado con la aplicación, interpretación y reglamentación de las normas de derecho colectivo vigentes.
• c)El régimen disciplinario, siempre y cuando no se haga renuncia expresa o tácita ni delegación de las facultades legales o reglamentarias otorgadas en esta materia a los jerarcas de las instituciones o dependencias.
• d)La regulación y fiscalización de los regímenes de ingreso, promoción y carrera profesional, sin perjuicio de lo que establezcan las normas legales y reglamentarias que existan en cada institución o dependencia, las cuales serán de acatamiento obligatorio.
• e)La elaboración interna de manuales descriptivos de puestos y la aplicación de procedimientos internos para la asignación, reasignación, recalificación y reestructuración de puestos, dentro de los límites que establezcan las directrices generales del Poder Ejecutivo, las normas del Estatuto de Servicio Civil y su reglamento u otras normas estatutarias. Es entendido que cualquier decisión adoptada en este campo, que no contravenga expresamente lo dispuesto por las directrices generales del Poder Ejecutivo, no podrá ser en ningún caso objetada por las autoridades externas de control ni por la Autoridad Presupuestaria.
• f)Las medidas de seguridad e higiene y de salud ocupacional, así como medidas precautorias en caso de desastres naturales. Las organizaciones sindicales y los jerarcas de cada institución o dependencia podrán crear organismos bipartitos y paritarios para efectos de determinar las necesidades de estas últimas y de sus trabajadores y trabajadoras en el campo de la seguridad y la salud ocupacional.
• g)Los procedimientos y las políticas de asignación de becas y estímulos laborales.
• h)El establecimiento de incentivos salariales a la productividad, siempre y cuando se acuerden en el marco de las políticas que las juntas directivas de cada entidad o el mismo Poder Ejecutivo hayan diseñado de previo en cuanto a sus objetivos generales y límites de gasto público.
• i)Lo relacionado con los salarios y la asignación, cálculo y pago de todo tipo de pluses salariales, tales como dedicación exclusiva, disponibilidad, desplazamiento, zonaje, peligrosidad y cualquier otra reivindicación económica, siempre y cuando no se vaya en contra de ninguna disposición legal o reglamentaria de carácter prohibitivo o en contra de la consistencia de las estructuras salariales, y supeditado a lo establecido en el artículo 695.
• j)La creación y el funcionamiento de órganos bipartitos y paritarios, siempre y cuando no se deleguen en ninguno de ellos competencias o atribuciones de derecho público, correspondientes a los jerarcas de cada institución, definidas por ley o reglamento.
• k)El derecho de las personas trabajadoras y de sus organizaciones a contar con una información oportuna y veraz de los proyectos o decisiones de los órganos colegiados y gerencias de cada institución o dependencia, cuando los afecten directamente o puedan representar un interés público.
• l)El derecho de las organizaciones de los trabajadores y trabajadoras y de sus dirigentes, de ser atendidos y respondidas sus solicitudes, en el menor tiempo posible, por parte de los jerarcas de cada institución o dependencia, con la única excepción de solicitudes que fueran abiertamente impertinentes o innecesarias.
• m)Otras materias, beneficios o incentivos suplementarios de negociación colectiva laboral que, con arreglo a la ley, no excedan la competencia de los órganos administrativos.

(Así adicionado por el artículo 2° de la ley N° 9343 del 25 de enero de 2016, "Reforma Procesal Laboral".)” (Lo destacado no corresponde al original).

De forma más contundente, el art. 692 del Código de Trabajo, respecto de las negociaciones en el sector público, dispone lo siguiente:

“Artículo 692.- Asimismo, queda absolutamente prohibido dispensar o excepcionar leyes o reglamentos vigentes, debidamente promulgados, por medio de los mecanismos de solución.

Es entendido que cuando se trate de erogaciones que afecten el presupuesto nacional o el de una institución o empresa en particular, las decisiones que se emitan por las jerarquías y los órganos arbitrales deben sujetarse no solo a las restricciones que resultan de esta normativa, sino también a las normas constitucionales en materia de aprobación de presupuestos públicos, las que en caso de haber sido irrespetadas implicarán la nulidad absoluta de lo dispuesto”. (Lo destacado no corresponde al original).

Adicionalmente, el art. 695 ordena lo siguiente:

“Artículo 695.- Las convenciones y los acuerdos que se adopten en una negociación colectiva de cualquier tipo, con servidores en régimen de empleo público, quedarán sujetos, para su validez y eficacia, a la aprobación del órgano jerárquico de la institución o empresa con competencia para obligarla, previa constatación de los límites y requisitos de validez.

El respectivo acto debe emitirse dentro del mes siguiente al acuerdo.

La no aprobación del acuerdo por la Administración no constituye una infracción sancionable por la vía represiva.

Tratándose de normas que por su naturaleza o su afectación del principio de legalidad presupuestario requieran aprobación legislativa o reglamentaria, su eficacia quedará condicionada a la inclusión en la ley de presupuesto o en los reglamentos respectivos, lo mismo que a la aprobación por parte de la Contraloría General de la República, cuando afecte los presupuestos de las instituciones, cuyos presupuestos ordinarios y extraordinarios o modificaciones presupuestarias requieran aprobación de esta última entidad. En todo caso, los acuerdos logrados por medio de la Comisión Negociadora de Salarios del Sector Público serán vinculantes para las partes y al efecto las administraciones emitirán los actos administrativos necesarios para hacerlos efectivos en todo el sector público centralizado y descentralizado”.

De este modo, se aprecia que al autorizar la negociación colectiva en el empleo público se incluyeron limitaciones razonables en atención a disposiciones de orden legal y reglamentario, toda vez que se reitera que la autorización para negociar no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que por esa vía no pueden dispensarse o excepcionarse leyes generales, reglamentos o directrices gubernamentales vigentes. Esto responde, naturalmente, al principio de legalidad que prima en toda la Administración Pública (art. 11 de la Constitución Política), en concordancia con el mandato de que será un estatuto de servicio civil el que regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de la administración (art. 192 de la Constitución Política) y con los principios de cobertura y equilibrio presupuestario derivados de lo dispuesto en el art. 176 de nuestra Constitución, según el cual:

“Artículo 176- La gestión pública se conducirá de forma sostenible, transparente y responsable, la cual se basará en un marco de presupuestación plurianual, en procura de la continuidad de los servicios que presta.

El presupuesto ordinario de la República comprende todos los ingresos probables y todos los gastos autorizados de la Administración Pública, durante todo el año económico. En ningún caso, el monto de los gastos presupuestos podrá exceder el de los ingresos probables.

La Administración Pública, en sentido amplio, observará las reglas anteriores para dictar sus presupuestos.

El presupuesto de la República se emitirá para el término de un año, del primero de enero al treinta y uno de diciembre”. (Lo destacado no corresponde al original).

A partir de las consideraciones realizadas, debe repasarse que en el ámbito de la función pública el propio legislador dejó un espacio para permitir la negociación colectiva y, en ese marco, aspirar a mejoras salariales, pues lo contrario sería vaciar de contenido un derecho fundamental consagrado en la Constitución Política. No obstante, la posibilidad de negociación debe verse matizada en el sector público, pues la capacidad de negociación tiene un alcance limitado, ya que no se puede comparar con la capacidad de negociación de un patrono particular y, además, la negociación debe darse dentro de los márgenes constitucionales mencionados. Dentro de los márgenes citados está justamente el principio de legalidad, lo que se deriva incluso del propio art. 62 de la Constitución Política. En ese marco de legalidad se pueden incluir disposiciones de rango reglamentario, tal y como lo prevé incluso el Código de Trabajo. De este modo, la norma impugnada no resulta inconstitucional por sí misma. Es decir, la previsión de que al momento de renegociar las convenciones colectivas su contenido se adapte a las disposiciones del Poder Ejecutivo no es inconstitucional porque es una norma reflejo de lo regulado en el Código de Trabajo y del principio de legalidad.

Ahora bien, esta determinación genérica de la Sala no obsta para que posteriormente se puedan someter a examen de constitucionalidad las disposiciones que dicte el Poder Ejecutivo con el propósito de regular esta materia. Nótese que acá lo que se está cuestionando es la norma que dispone la sujeción de las renegociaciones a la ley o a la normativa que dicte el Poder Ejecutivo. Sin embargo, no se ha cuestionado o enumerado alguna disposición en concreto que permita un examen particularizado a efecto de determinar una presunta lesión al derecho fundamental a la negociación colectiva, en cuyo caso se debe desestimar el agravio planteado.

Conclusiones

Con base en las consideraciones realizadas, se debe concluir que los reproches planteados contra las normas cuestionadas ‒a saber, los arts. 39, 50, 54, 55 de la LSAP y Transitorios XXVII y XXXI de la LFFP en el sentido que se lesiona el derecho fundamental a la negociación colectiva y no se deja espacio para que las materias relacionadas con pluses salariales puedan ser eventualmente mejorados mediante dicha negociación‒ deben ser desestimados bajo el entendido que se interpreten en los términos explicados. En la opinión consultiva referente a esta normativa ya se dejó establecido que los servidores públicos están sometidos a una relación estatutaria que regula la mayoría de temas relacionados con aspectos salariales y, en tales supuestos, el legislador cuenta con la legitimación suficiente para que dentro de los márgenes de razonabilidad y proporcionalidad, pueda regular lo correspondiente a los incentivos salariales y establecer reglas para su reconocimiento y pago. Sin embargo, hay un espacio donde ciertos trabajadores de la Administración Pública pueden ejercer válidamente la acción sindical a través de la negociación colectiva y, en tales supuestos, la restricción establecida en el art. 55 de la LSAP no sería aplicable, pues lo contrario sería equivalente a admitir un vaciamiento del derecho fundamental consagrado en el art. 62 de la Constitución Política. En consecuencia, el art. 55 ‒y, por tanto, todas las disposiciones relacionadas con los pluses cuestionados, a saber, los arts. 39, 50, 54 de la LSAP y Transitorios XXVII y XXXI de la LFFP‒ deben reputarse constitucionales bajo el entendido de que la restricción para negociar no se aplica a los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. Todo lo anterior, sin perjuicio de los controles de legalidad y de constitucionalidad sobre el resultado de la negociación, en atención a los principios constitucionales de razonabilidad, proporcionalidad y el buen uso y manejo de los fondos públicos.

Finalmente, se declara la inconstitucionalidad de lo dispuesto en el Transitorio XXXVI párrafo 1° de la LFFP, pues dicho numeral deja de lado el carácter libre y voluntario de la negociación colectiva y, muy por el contrario, establece la obligación para todos los jerarcas de las entidades públicas de denunciar las convenciones colectivas, una vez que llegue el plazo de vencimiento. Respecto del párrafo segundo de dicha norma transitoria, se impone declarar sin lugar la acción.

El magistrado Cruz Castro salva parcialmente el voto y declara inconstitucionales los artículos 54, 55 y los transitorios XXVII y XXXI.

El magistrado Cruz Castro consigna razones adicionales, respecto del Transitorio XXXI.

Agravios de la acción n.°19-004931-0007-CO En la resolución que dio curso a la acción de inconstitucionalidad y la acumuló a este proceso se tuvo por establecido que las normas objeto de impugnación y que resultan admisibles a tales efectos, son los arts. 28, párrafos 2 y 4, 30, 31 inc.1), 32, 33, 35, 36, 39, 40, 46, 47, 48, 52, 53, 54, 55, 57 incisos f), g), h), i), m), n), o) y p), adicionados a la ley n.°2166, el Título IV de la LFFP n.°9635 de 5 diciembre de 2018, arts. 23, 24, 25 y los arts. 1, inciso a), 3, 4, 7, 9, 14, 15, 16, 17, 21 y 22 del decreto ejecutivo n.°41564-MIDEPLAN-H, estos últimos por conexidad.

AGRAVIOS QUE PRIMA FACIE DEBEN SER DESESTIMADOS XVI.- Art. 3 del decreto ejecutivo n.°41564-MIDEPLAN-H, Reglamento del Título III de la LFFP, Ley N°9635 referente al Empleo Público El accionante cuestionó el art. 26 adicionado a la LSAP y el art. 3 del reglamento n.°41564-MIDEPLAN-H por lesionar el principio de autonomía municipal y los arts. 11, 169, 170 y 188 de la Constitución Política. Todos los alegatos giran en torno a la presunta lesión a la autonomía de las corporaciones autónomas de fijar sus propias políticas salariales.

Al respecto, se debe de indicar que estos alegatos relacionados con la autonomía municipal y la posibilidad de los entes autónomos de fijar sus propias políticas salariales fueron desestimados en la sentencia interlocutoria n.°2019-010635 de 12 de junio de 2019. En consecuencia, lo atinente al art. 26 fue desestimado por esta Sala:

“II.- SOBRE LA INADMISIBILIDAD PARCIAL DE LA ACCIÓN. A partir de lo expuesto, la acción no es admisible en relación con la violación al principio de autonomía y, por tanto, se rechaza de plano en cuanto al artículo 26 de la Ley No. 2166 y los artículos 5 y 11 de la Ley No. 9635. Adicionalmente, se rechaza de plano la presunta violación de este principio en relación con los artículos 28, párrafos 2 y 4, 40, 46, 47, 48, 50, 52, 53, 54 y 55 de la Ley No. 2166, 17, 23, 24 y 25 de la Ley No. 9635 y 1 inc) 1°, 6, 15, 16, 17, 21, 22 del Decreto Ejecutivo No. 41564-MIDEPLAN-H. Por último, se rechaza de plano la violación a los artículos 169, 170, 188 y 189 de la Constitución Política de los artículos 26 y 55 de la Ley No. 2166 y artículos 5, 11 y 17 de la Ley No. 9635”.

Queda, sin embargo, el supuesto cuestionamiento al art. 3 del reglamento del Título III de la LFFP, ley n.°9635 referente al Empleo Público, decreto n.°41564-MIDEPLAN-H. Dicha disposición se incluyó en la resolución interlocutoria n.°2019-010635 como norma admisible objeto de la acción a pesar de que el art. 26 de la ley n.º2166 fue rechazado de plano y que lo relativo a la autonomía municipal, así como la autonomía de los entes descentralizados también fue rechazado de plano en esa resolución. Asimismo, se observa que se incluyó como norma cuestionada para estudio en la resolución de ampliación de curso.

No obstante, este Tribunal bajo una mejor ponderación, debe desestimar este extremo de la acción. En primer término, la inclusión en el libelo de interposición se hizo de la mano con el art. 26, agravio que ya fue rechazado por esta Sala dado que el actor carece de legitimación para arrogarse la representatividad de las instituciones autónomas. La norma reglamentaria cuestionada por el actor justamente se refiere al ámbito de aplicación de la norma y no se hizo ningún alegato adicional concreto o específico respecto de este numeral, sino que viene intitulado sobre la presunta infracción a la referida autonomía, lo que, como se advirtió, corresponde ser desestimado.

En consecuencia, por falta de fundamentación específica y por haberse rechazado la legitimación del accionante en relación con una presunta infracción al principio de autonomía, se impone igualmente desestimar la inconstitucionalidad enunciada ‒más no desarrollada‒ del art. 3 del reglamento del Título III de la LFFP, ley n.°9635 referente al Empleo Público, decreto n.°41564-MIDEPLAN-H.

XVII.- Arts. 4, 9 y 14 del decreto ejecutivo n.°41564-MIDEPLAN-H, Reglamento del Título III de la LFFP, Ley N°9635 referente al Empleo Público Por un error material de la resolución interlocutoria n.º2019-010635 se incluyeron los arts. 4, 9 y 14 del reglamento como normas admisibles para estudio en el “objeto de la acción” (ver considerando IV).

No obstante, de la atenta revisión del memorial en que el accionante contestó la prevención realizada por la Presidencia de esta Sala, no se incluyeron tales numerales como impugnados, ni tampoco se realizaron argumentaciones concretas en torno a su inconstitucionalidad. En virtud de lo anterior, dichas disposiciones no fueron incluidas en la resolución de ampliación de curso de la acción de inconstitucionalidad.

Por lo tanto, al no estar expresamente impugnadas por el accionante y no existir un alegato concreto y fundamentado en su contra, la Sala debe desestimar la acción en contra de los arts. 4, 9 y 14 del decreto ejecutivo n.°41564-MIDEPLAN-H, Reglamento del Título III de la LFFP.

XVIII.- SOBRE LAS REGLAS DE RESPONSABILIDAD FISCAL. TÍTULO IV DE LA LFFP. RESPONSABILIDAD FISCAL DE LA REPÚBLICA Normas impugnadas El accionante cuestiona los arts. 15, 23, 24 y 25 del Título IV sobre Responsabilidad Fiscal de la LFFP, n.°9635. A juicio del accionante se lesionan los arts. 7, 11 y 50 constitucionales y el principio de progresividad de derechos fundamentales al darle potestades al Poder Ejecutivo de variar destinos específicos en clara desviación de poder que afectaría metas institucionales y desatendería derechos fundamentales. Las normas cuestionadas son las siguientes:

“Art. 15- Destinos específicos. Si la deuda del Gobierno central supera el cincuenta por ciento (50%) del PIB nominal, el Ministerio de Hacienda podrá presupuestar y girar los destinos específicos legales considerando la disponibilidad de ingresos corrientes, los niveles de ejecución presupuestaria y de superávit libre de las entidades beneficiarias.

Art. 23- Criterios para la asignación presupuestaria. La Dirección General de Presupuesto Nacional realizará la asignación presupuestaria de las transferencias atendiendo los siguientes criterios:

• a)Las prioridades del Gobierno, según el Plan Nacional de Desarrollo.
• b)Los compromisos establecidos en la programación plurianual.
• c)El fin social de la institución beneficiada en la prestación de servicios públicos de beneficio colectivo como juntas de educación, asociaciones de desarrollo y asociaciones administradoras de los sistemas de acueductos y alcantarillados comunal.
• d)El cumplimiento de los objetivos y las metas institucionales.
• e)La ejecución presupuestaria de los tres periodos anteriores al año de formulación del presupuesto.
• f)Los recursos acumulados de vigencias anteriores en la caja única del Estado.
• g)La disponibilidad de recursos financieros.
• h)Las variaciones en el índice de precios al consumidor.
• i)El efectivo cumplimiento de los derechos que se pretenden financiar y el principio de progresividad de los derechos humanos.
• j)Otros criterios que utilice la Dirección General de Presupuesto Nacional en el ejercicio de las competencias constitucionales.

Art. 24- Asignación presupuestaria. La Dirección General de Presupuesto Nacional realizará la asignación presupuestaria de las transferencias utilizando los criterios del artículo anterior. Dicha asignación no podrá ser inferior al presupuesto vigente, en el momento de aprobación de esta ley; incluyendo los destinos específicos establecidos para las sedes regionales de las universidades públicas derogados en esta ley.

(Así reformado por el artículo único de la ley N° 9732 del 19 de noviembre de 2019) Art. 25- Gestión administrativa de los destinos específicos. En el caso de los destinos específicos que no estén expresamente dispuestos en la Constitución Política, o su financiamiento no provenga de una renta especial creada para financiar el servicio social de forma exclusiva, el Ministerio de Hacienda determinará el monto a presupuestar, según el estado de las finanzas públicas para el periodo presupuestario respectivo y los criterios contemplados en el artículo 23 de esta ley”.

La versión original del art. 24, disponía lo siguiente:

“Art. 24- Asignación presupuestaria. La Dirección General de Presupuesto Nacional realizará la asignación presupuestaria de las transferencias utilizando los criterios del artículo anterior. Dicha asignación no podrá ser inferior al presupuesto vigente, en el momento de aprobación de esta ley”.

Alegatos de la parte accionante El actor refiere que el art. 15 lesiona los arts. 7, 11, 50 y 74 de la Constitución Política y el principio de progresividad de los derechos fundamentales.

Concretamente, sobre el art. 15, el actor dice que la Sala Constitucional ha reconocido la obligatoriedad que tiene el Estado de respetar los montos de los destinos específicos establecidos por norma legal, máxime cuando los mismos tienen como objetivo el financiamiento de programas de bien social, atención a poblaciones vulnerables o el cumplimiento de derechos fundamentales en general. Darle potestad al Poder Ejecutivo de variar esos montos o destinos es una clara desviación de poder y una seria violación a derechos fundamentales que el Estado debe garantizar. La omisión del Ministerio de Hacienda de girar fondos especiales de manera tan abierta, sin que la norma haga ninguna salvedad, es irracional y vulnera el Derecho de la Constitución. No es posible que, por la crisis fiscal, el Estado deje de atender sus obligaciones.

En relación con los arts. 23, 24 y 25 de la ley n.°9635 dice el accionante que estos violan el principio de progresividad de los derechos humanos, según el cual “a medida que mejora el nivel de desarrollo de un Estado, mejora el nivel de compromiso para garantizar los derechos”.

El art. 23, fuente de inconstitucionalidad invocada para las tres normas, contiene una lista de criterios para la asignación presupuestaria del Estado costarricense. La asignación presupuestaria coloca a la protección de derechos y a la progresividad de los mismos en la novena posición, por detrás, incluso, de la disponibilidad de recursos financieros, el cumplimiento de metas institucionales y las prioridades del gobierno de turno. El orden de las prioridades estatales plasmado en esta ley, le permitirá a cualquier institución de derecho público invocar la falta de presupuesto con el fin de no financiar los derechos humanos que el Estado está obligado a proteger, o bien al Estado establecer los presupuestos desatendiendo o minimizando el cumplimiento de los derechos humanos.

Los arts. 24 y 25 están íntimamente relacionados con el 23, en el entendido de que la Dirección Nacional de Presupuesto deberá usar aquellos criterios para presupuestar las transferencias a las instituciones del Estado. Informe de la PGR Para la PGR los alegatos planteados por el accionante son del todo infundados. En un primer lugar, la PGR se refiere a la legitimidad de la regla fiscal ‒figura que, como tal, no está cuestionada en esta acción de inconstitucionalidad‒, para hacer un análisis sobre la legitimidad de que el Estado se adapte a ciertas reglas de orden fiscal que se derivan de las propias normas constitucionales. Dice la PGR lo siguiente:

“Reiterando las consideraciones que hemos hecho en diversos informes antes esa Sala (expedientes Nos. 19-0011540-0007-CO y 19-013318-0007-CO), el establecimiento de reglas fiscales por los Estados occidentales se ha convertido en un vehículo popular para imponer una cierta disciplina fiscal, frente a los problemas de déficit fiscal y aumento de deuda pública, sobre todo a partir de la crisis económica que asoló a las economías más desarrolladas del planeta aproximadamente una década atrás y de la que todavía se siguen percibiendo sus secuelas. En el caso de los Estados miembros de la Unión Europea – siguiendo el ejemplo estadounidense – el camino empleado ha sido elevar esas reglas al máximo rango jurídico, incorporando por la vía de la reforma constitucional, una serie de mecanismos de limitación del poder fiscal y presupuestario que van más allá de la estabilidad presupuestaria per se, al punto que algunos autores lo han denominado como la “constitucionalización de la crisis económica”. De esta forma se legitima la intervención del Gobierno Federal o Administración central – como garante de la estabilidad económica general del mismo Estado – imponiendo límites presupuestarios a las distintas organizaciones territoriales infranacionales dotadas de autonomía política y financiera y, por ende, con libertad para elaborar sus propios presupuestos (caso de los Estados federados, Comunidades Autónomas y Gobiernos locales), en la medida que la política presupuestaria se concibe como un instrumento de la política económica general, cuya ordenación está atribuida al Estado.

La necesidad de mantener cierto equilibrio entre ingresos y gastos públicos, en que se resume el principio de estabilidad presupuestaria, encuentra respuesta en nuestro medio en el primer párrafo del artículo 176 de la Constitución Política. (…)

De la disposición anterior, la jurisprudencia de esa Sala ha extraído el fundamento del principio constitucional del equilibrio financiero o presupuestario, así reafirmado recientemente en el conocido voto n.°2018-19511, de las 21:45 horas del 23 de noviembre del 2018, y que el legislador definió en el artículo 5, letra c), de la Ley de la Administración Financiera de la República y Presupuestos Públicos, en los siguientes términos:

“c) Principio de equilibrio presupuestario. El presupuesto deberá reflejar el equilibrio entre los ingresos, los egresos y las fuentes de financiamiento.

Estamos, pues, ante un mandato constitucional que, como tal, vincula a todos los poderes públicos y que por tanto, en su sentido principal, queda fuera de la disponibilidad o de la competencia del Estado y demás entes públicos, con independencia de su grado de autonomía” Posterior a dicha referencia genérica a la regla fiscal, la PGR explica que la LFFP conlleva un cambio de paradigma en orden a la regulación de los destinos específicos y el establecimiento de un piso en orden a la presupuestación de los recursos públicos. La PGR cita su propia jurisprudencia administrativa para indicar lo siguiente:

“El presupuesto de la República se ha visto afectado por la creación de destinos específicos por leyes ordinarias, que dificultan la programación y asignación de los recursos presupuestarios según las necesidades públicas, las prioridades del desarrollo económico y social, la disponibilidad de recursos con que se cuente y, por ende, se dificulta al Ejecutivo el poder asignar los recursos y decidir sobre su ejecución.

La Ley de Fortalecimiento de las Finanzas Públicas produce una modificación sustancial a la relación entre ley ordinaria-ley presupuestaria desde dos puntos de vista: En primer lugar, derogando determinados destinos específicos creados por ley. En segundo lugar, porque autoriza que la Ley de Presupuesto incida sobre las obligaciones de gasto previstas por ley ordinaria, a efecto de que sean ajustadas conforme las condiciones fiscales del país, para alcanzar el objetivo del equilibrio presupuestario.

Así, el Poder Ejecutivo al elaborar el proyecto de presupuesto y la Asamblea Legislativa al aprobarlo pueden ajustar las asignaciones de recursos a que resulta obligado en virtud de leyes que crean destinos específicos, según las condiciones fiscales. De la sujeción estricta a los porcentajes y sumas establecidas por el legislador se pasa a una posibilidad de valoración de los recursos financieros con que se cuenta para dar el contenido a la obligación de gasto que establece la ley, así como otros imperativos de política pública, para en su caso, presupuestar una cantidad menor a la que correspondería en aplicación de esa ley creadora de la obligación.

Enfatizamos, diversas disposiciones de la Ley determinan que, bajo ciertas condiciones, la Ley de Presupuesto no contemplará o bien, aprobada esta, el Ministerio de Hacienda no girará, las transferencias presupuestarias o los destinos específicos originados en leyes ordinarias que estuvieren vigentes. Lo que implica que la asignación presupuestaria no estará determinada por la ley ordinaria creadora del destino; en otras palabras, que la entidad beneficiaria del destino no verá asegurados los recursos dispuestos por la ley ordinaria.

Esa posibilidad se considera, incluso, como una disposición de Responsabilidad Fiscal. En efecto, el Capítulo III de la Ley establece las disposiciones de Responsabilidad Fiscal, disponiendo entre ellas:

“ARTÍCULO 15- Destinos específicos. Si la deuda del Gobierno central supera el cincuenta por ciento (50%) del PIB nominal, el Ministerio de Hacienda podrá presupuestar y girar los destinos específicos legales considerando la disponibilidad de ingresos corrientes, los niveles de ejecución presupuestaria y de superávit libre de las entidades beneficiarias”.

En ese supuesto, la presupuestación de los destinos específicos dependería de la disponibilidad de los ingresos, los niveles de ejecución presupuestaria y en su caso, la existencia de superávit libre.” (Dictamen C-099-2019, de 5 de abril de 2019. En sentido similar el dictamen C-292-2019, de 8 de octubre de 2019)”.

La PGR explicó que un dictamen anterior ‒ OJ-064-2019, de 12 de junio de 2019‒ se refirió a lo dispuesto en el art. 15 impugnado:

“Aun cuando la parte consultante desarrolle la eventual aplicación del artículo 15 del título IV “Responsabilidad Fiscal de la República” como argumento de la inconstitucionalidad del inciso c) del numeral 31, prima facie no se observa alguna contradicción de ese ordinal con nuestra Carta Fundamental. Sobre este punto, las diputadas y los diputados argumentan que el artículo 15 permite al Ministerio de Hacienda presupuestar (en el proceso de formulación del presupuesto) montos inferiores a los indicados en destinos específicos legales (como el destino específico legal del numeral 24 del propio proyecto) y, aunque ya estuvieren presupuestados, girar (en el proceso de ejecución) montos inferiores a los indicados en la Ley de Presupuesto; no obstante, ese artículo constituye una manifestación del principio constitucional de Equilibrio Presupuestario, por lo que, a priori, no se evidencia alguna incompatibilidad en su redacción”.

Posteriormente, la PGR cita ampliamente el dictamen C-099-2019, para realizar las siguientes conclusiones:

“De ahí que contrario a lo que se acusa, la Ley de Fortalecimiento de las Finanzas Públicas, N. 9635 de 3 de diciembre de 2018, como una manifestación legítima del principio constitucional de Equilibrio Presupuestario, permite al Ministerio de Hacienda presupuestar la asignación de recursos dispuesta por las leyes que crean destinos específicos a partir de la valoración de las condiciones fiscales y otros imperativos de política pública. Por ende, le permite ajustar esa asignación a los recursos financieros con que se cuente.

Y en el ejercicio de esas nuevas facultades, el Poder Ejecutivo tiene como límites los destinos específicos creados por la Constitución, así como los creados por ley para financiar un servicio social en forma exclusiva. Por el contrario, no constituyen un límite los destinos referidos a tributos destinados a financiar en forma general los gastos públicos, como pueden ser los destinos a cargo de impuestos como la renta o ahora el impuesto al valor agregado.

En todo caso, conforme lo ordena el artículo 24 de la Ley de Fortalecimiento de las Finanzas Públicas, el Ministerio de Hacienda y el Poder Ejecutivo están obligados a asignar una suma no menor a la asignada en el presupuesto de 2019. Por lo que esa asignación del presupuesto vigente se constituye en la cantidad mínima que debe ser concedida. De modo que el Ministerio de Hacienda puede asignar una mayor cantidad de recursos que lo presupuestado en 2019, pero nunca mermar lo asignado en el presupuesto ahora vigente, a fin de garantizar la no afectación de servicios prestacionales asociados”.

Resolución de la Sala Constitucional En resumen, los alegatos del accionante en relación con los arts. 15, 23, 24 y 25 del título IV sobre Responsabilidad Fiscal de la LFFP, n.°9635 versan sobre que el orden de prioridades estatales plasmados en la ley “permitirá a cualquier institución de derecho público invocar la falta de presupuesto con el fin de no financiar los derechos humanos que el Estado está obligado a proteger”.

A juicio de esta Sala, la legitimación invocada por el accionante ‒como representante del Sindicato de la Asociación Nacional de Empleados Públicos y Privados‒ es la representación del conglomerado de funcionarios públicos adscritos al referido sindicato. No obstante, su legitimación no puede abarcar la pretendida tutela de todos los derechos fundamentales de los habitantes de nuestro país por una presunta lesión al principio de progresividad en lo relativo a la asignación presupuestaria. La legitimación gremial invocada no puede convertirse en una acción popular mediante la que se cuestione cualquier otra norma que pueda indirectamente afectar a la colectividad nacional, por ejemplo, el derecho a la educación, como lo invoca el actor en el libelo de interposición de esta acción de inconstitucionalidad. De hecho, si se mira y examina con detalle la sentencia n.°2019-010635 que dio curso a este proceso, la Sala expresamente advirtió lo siguiente:

“En el caso en estudio, manifiesta el actor que la legitimación de su representada para interponer esta acción deriva de la defensa de intereses difusos, pues defiende los intereses de los funcionarios públicos y sus familias, que constituye un grupo más o menos determinado. También dice defender una colectividad mayor, formada por los contribuyentes, los administrados del régimen municipal, los gobiernos locales y los funcionarios públicos que laboran en diversas instituciones pública que son acreedores de cierto nivel de autonomía. La Sala no comparte el criterio del accionante en relación con su legitimación por defensa de intereses difusos. La actora es una asociación legalmente constituida, entre cuyos objetivos están, entre otros, “b. Velar por los derechos e intereses de todos los afiliados; “c. Estudiar, propugnar y defender, mejor condiciones laborales, de los trabajadores afiliados al sindicato” (artículos 2 y 3). Es claro que se está en presencia de intereses corporativos, también derivados de los intereses colectivos, que son los que la Asociación accionante pretende defender. Hay una clara relación entre el cuestionamiento de las normas y los intereses de sus afiliados, que la legitima para interponer la acción. Sin embargo, esa relación no alcanza para tutelar los derechos de las familias de sus afiliados o de una colectividad aún mayor, formada por los contribuyentes, los administrados del régimen municipal, los gobiernos locales y los funcionarios públicos que laboran en diversas instituciones pública que son acreedores de cierto nivel de autonomía. Aceptar que la Asociación está legitimada para defender los intereses de ese grupo, más amplio, general y diverso, supondría aceptar la existencia de una especie de acción popular, la cual es reserva de ley en nuestro ordenamiento jurídico, de manera que debe estar expresamente dispuesta por esta, lo que no es el caso”. (Lo destacado no corresponde al original).

De modo que estos agravios deben desestimarse en razón de que al actor no le asiste legitimación.

El magistrado Cruz Castro salva el voto y admite la legitimación XIX.- RESPONSABILIDAD FISCAL. DESTINOS DE LOS SUPERAVITS LIBRES Norma impugnada El accionante cuestiona el art. 17 del título IV sobre Responsabilidad Fiscal de la LFFP, n.°9635, que dice lo siguiente:

“Art. 17- Destino de los superávit libres generados por la aplicación de la regla. En caso de que las entidades públicas que tengan pasivos generen un superávit libre al final del ejercicio presupuestario, este se destinará a amortizar su propia deuda. Tratándose del superávit libre generado por entidades que reciben transferencias del presupuesto nacional como consecuencia de la aplicación de la regla fiscal, tal superávit deberá reintegrarse al presupuesto nacional en el año siguiente a aquel en que se generó dicho superávit, para ser utilizado en la amortización de deuda o en inversión pública.” Agravio de la parte accionante Según el accionante, esta norma es violatoria de la independencia de las instituciones autónomas del cumplimientos de sus fines; no es válido que se les ordene que deben sufragar la deuda del Gobierno Central con recursos que le son propios y que están destinados a cumplir fines específicos.

Informe de la PGR En lo que se refiere al 17 de la LFFP, no estiman que la norma pueda considerarse inconstitucional por los vicios acusados, máxime cuando reiteran, como en otros informes (19-0011540-0007-CO), su interpretación conforme, en el sentido de que sólo podrá ser aplicado a superávits libres, no así a recursos con destinos específicos determinados por la Constitución, que sólo podrían dar lugar a superávit específico no libre o atados en el lenguaje de la Constitución, indisponibles para el legislador ordinario o presupuestario.

Resolución de la Sala Constitucional Por un error material, esta disposición fue incluida en la ampliación de curso de la acción de inconstitucionalidad. Sin embargo, dado que el agravio gira en torno a la presunta lesión a la autonomía de las instituciones autónomas, este se debe desestimar en virtud de que, como se ha venido reiterando, el accionante carece de legitimación para asumir la representatividad de las municipalidades o cualquier otra institución autónoma (ver sentencia de esta Sala n.°2019-010635). En dicha resolución se advirtió que el accionante actúa en su condición de representante de una organización de trabajadores, motivo por el cual, no se encuentra legitimado para actuar en defensa de la autonomía municipal ni de ningún otro ente autónomo. En virtud de lo expuesto, este extremo de la acción debe ser desestimado, en virtud de que el accionante carece de legitimación.

El magistrado Cruz Castro salva el voto y admite la legitimación.

ANÁLISIS DE LAS NORMAS RELATIVAS A EMPLEO PÚBLICO QUE SE CONOCEN POR EL FONDO XX.- SOBRE LOS CONTRATOS DE DEDICACIÓN EXCLUSIVA Normas impugnadas Se cuestiona el art. 28 párrafos 2° y 4° de la LSAP, así como el art. 6° del reglamento n.°41564-MIDEPLAN-H. Las normas aludidas dicen lo siguiente:

“Art. 28- Contrato de dedicación exclusiva. El pago adicional por dedicación exclusiva se otorgará, exclusivamente, mediante contrato entre la Administración concedente y el funcionario que acepte las condiciones para recibir la indemnización económica, conforme a la presente ley.

El plazo de este contrato no podrá ser menor de un año, ni mayor de cinco.

Una vez suscrito el contrato, el pago por dedicación exclusiva no constituirá un beneficio permanente ni un derecho adquirido; por lo que al finalizar la vigencia de este, la Administración no tendrá la obligación de renovarlo.

El no suscribir contrato por dedicación exclusiva no exime al funcionario del deber de abstenerse de participar en actividades que comprometan su imparcialidad, posibiliten un conflicto de interés o favorezcan el interés privado en detrimento del interés público.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018)”. (Lo destacado es lo concretamente impugnado por los accionantes).

Y el reglamento dice lo siguiente:

“Art. 6.- Plazos del contrato de dedicación exclusiva. El plazo máximo del contrato de dedicación exclusiva no podrá ser menor de un año, ni mayor de cinco.

Una vez finalizado el plazo respectivo, el contrato podrá ser renovado cuando la Administración, una vez revisadas y analizadas las condiciones existentes, acredite mediante resolución administrativa razonada y debidamente justificada, la necesidad institucional para proceder con la prórroga, según lo señalado en el artículo 29 de la Ley N° 2166, adicionado mediante artículo 3 de la Ley N° 9635. Las prórrogas no podrán ser menores de un año ni mayores de cinco.

En aquellos casos en que legalmente sea procedente realizar una contratación de personal por plazos determinados, sustituciones, reemplazos o alguna otra figura que no sea tiempo indeterminado, los contratos de dedicación exclusiva se suscribirán por el mismo plazo del nombramiento”.

Agravios de la parte accionante La parte accionante señala que las normas cuestionadas lesionan los principios de autonomía, seguridad jurídica, razonabilidad y proporcionalidad, progresividad de derechos y autonomía de la voluntad, así como el contenido del art. 28 constitucional. La norma impugnada resulta inconstitucional en la medida en que impone a las instituciones públicas en general y principalmente a las autónomas y descentralizadas, una obligación de suscribir contratos de dedicación por un tiempo determinado en esta ley, violando la autonomía de las instituciones de decidir en qué términos según sus intereses y condiciones particulares, por cuanto tiempo (duración del contrato) podrán firmar este tipo de contratos con sus colaboradores. El establecer en este artículo la obligación de firmar contratos de dedicación exclusiva en el rango temporal señalado (de uno a cinco años como máximo) imposibilita, además, que por medio de normas específicas como negociaciones colectivas o reglamentos internos de trabajo, se puedan establecer disposiciones sobre el particular, más beneficiosas para el trabajador o más acordes a las necesidades institucionales, lo que lesiona los principios de progresividad de los derechos laborales, y el principio protector del derecho laboral.

El párrafo 4° de la norma tiene vicios de inconstitucionalidad en la medida en que viola el principio de seguridad jurídica, al establecerse de manera ambigua, la prohibición expresa para los funcionarios que, sin tener un contrato de dedicación exclusiva ni recibir contraprestación económica por ello, deben abstenerse de participar en actividades que comprometan su imparcialidad o favorezcan el interés privado sobre el público. Considera que esta prohibición es completamente confusa, ambigua y, por lo tanto, viola los principios de racionalidad en el tanto no existe certeza de qué debe entenderse por interés público, sus alcances y efectos.

Informe de la PGR La PGR realizó un informe, en términos generales, en el que se refirió al régimen de la dedicación exclusiva y, además, las características de los servidores públicos, juntamente con las potestades de la Administración de establecer reglas para evitar los conflictos de intereses. En general, dice la PGR que el régimen de dedicación exclusiva es de creación legal y no constitucional y, por lo tanto, los vicios resultan inatendibles. En lo conducente, se informó lo siguiente:

“Mediante el régimen de dedicación exclusiva la Administración pretende, por razones de interés público, contar con un personal dedicado exclusiva y permanentemente a la función estatal que lo convierta en una fuerza de trabajo idónea y más eficiente, al contratar con el funcionario de nivel profesional sus servicios exclusivos, a cambio de un plus salarial. En este régimen el servidor valora si le conviene o no acogerse a él, pudiendo convenir con la Administración, si para esta es también de su interés, el pago del plus salarial o continuar ejerciendo liberalmente su profesión.” (Resolución Nº 2011-000174 de las 09:35 hrs. del 23 de febrero de 2011, Sala Segunda).

Entonces, conceptual y jurídicamente la denominada “dedicación exclusiva” es en nuestro medio convencional; esto es, producto del acuerdo formal entre la entidad patronal (Administración Pública) y el servidor público profesional, en el sentido de que éste último se dedicará de forma exclusiva al ejercicio de las funciones del cargo público para el que ocupa, renunciando al ejercicio privado de su profesión, y por el cual el primero le retribuirá económicamente, a modo de plus –no como componente salarial permanente- un porcentaje adicional específico calculado sobre el salario base de aquel puesto específico.

Y cabe advertir que a nivel judicial se ha reconocido que la suscripción o no de aquel contrato de dedicación exclusiva por parte de las Administraciones Públicas involucra una innegable potestad facultativa; es decir, una liberalidad en el sentido de que la base o no de su otorgamiento resulta abiertamente discrecional (Véase las sentencias Nºs 019-2015-VI de las 08:30 hrs. del 6 de febrero de 2015 y 2432-2009 de las las 09:45 hrs. del 3 de noviembre de 2009, ambas del Tribunal Contencioso Administrativo, Sección Sexta).

Ahora bien, aquel convenio inter partes se materializa en un contrato que, conforme a las reglas establecidas –antes de la reforma legal introducida por la Ley de Fortalecimiento de las Finanzas Públicas, dicho régimen estaba regulado disposiciones infralegales emitidas por la Dirección General de Servicio Civil, en el caso de servidores adscritos al régimen de méritos de la Administración Central del Estado (ministerios y órganos adscritos)-, debía ser “refrendado” por los Departamentos de Recursos Humanos de cada institución (art. 145 LGAP) y una vez refrendado surtirá efectos durante el plazo convenido; el cuál, una vez fenecido a acaecido torna en ineficaz dicho convenio, sin que pueda afirmarse que exista un derecho a favor del servidor, con una correlativa obligación de la Administración, de suscribir un nuevo contrato o de prorrogar el anterior, porque como se afirmó la suscripción o no de aquel convenio involucra potestades discrecionales de la Administración.

No existe entonces una obligatoriedad de otorgar ese tipo de plus salarial (Resolución Nº 2016-001113 de las 10:25 hrs. del 19 de octubre de 2016, Sala Segunda) o bien, de mantenerlo cuando ha fenecido el plazo originario. De modo que no existe un derecho subjetivo a la prórroga de ese contrato ni al mantenimiento perenne de las condiciones salariales derivadas de aquel plus. Y por tanto, no puede afirmarse tampoco que exista una situación consolidada para la extensión de ese vínculo contractual, como infundadamente se pretende, y menos que ello pueda entenderse derivado del Derecho de la Constitución.

En el contexto explicado, muchos de los vicios acusados carecerían de relevancia constitucional, pues en realidad el régimen de la dedicación exclusiva es materia de regulación legal.

Indiscutiblemente, la regulación del régimen de “dedicación exclusiva” instaurado con la Ley de Fortalecimiento de las Finanzas Públicas y en específico su Título III, referido a la Modificación de la Ley No. 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957 y sus reformas, y demás disposiciones Transitorias aplicables, conforma parte del regimen retributivo propio del denominado “Estatuto” funcionarial, sobre el cual existe una expresa autorización constitucional para que el legislador, en ejercicio de su potestad inagotable, configure y regule las condiciones de empleo que deben imperar en todo el Sector Público (arts. 105, 121. 1 y 192 de la Carta Política); especialmente referido a su estrato profesional.

Con dicha regulación legal, no se busca instaurar, a modo de homogeneidad artificial, un estatuto unitario en términos formales; es decir, un único instrumento normativo-, sino que con ella se establecieron una serie de postulados y normas en materia retributiva que, en líneas generales y con una clara pretensión de generalidad, tienden a la unificación, simplificación y coherencia transversal de los diferentes subsistemas de empleo preexistentes en el Sector Público, que incluye tanto la Administración Central, como la descentralizada, con independencia del grado de autonomía de cada institución, o del tipo de servicios que se prestan al Estado.

Y conforme a reglas hermenéuticas debida y razonadamente aplicadas, recientemente la Procuraduría General, en ejercicio de su función consultiva vinculante, determinó que dado su ámbito de aplicación general y su innegable vocación de uniformidad y homogeneidad, como una opción constitucionalmente válida de regular las condiciones retributivas del empleo en todo el sector público (art. 192 constitucional), las disposiciones sobre empleo públicos contempladas en la Ley de Salarios de la Administración Pública relacionadas, entre otros temas, con la forma en que deben calcularse los salarios y sus componentes en el Sector Público, y por qué no en materia de dedicación exclusiva, privan sobre cualquier otra disposición de rango legal o inferior preexistentes a nivel sectorial; esto a modo de derogación tácita –total o parcial- por incompatibilidad normativa de sus contenidos (Dictamen C-281-2019, de 1 de octubre de 2019); reconociéndose incluso su prevalencia sobrevenida con respecto a convenciones colectivas preexistentes, sobre todo cuando aquella ley va dirigida expresamente a derogar (con vigencia hacia el futuro, respetando en consecuencia los derechos adquiridos y las situaciones jurídicas consolidadas) las normas convencionales que tengan un contenido específico incompatible con ella (Dictamen C-060-2019, del 5 de marzo recién pasado).

Y partiendo del concepto de «Estatuto de funcionarios públicos» y su alcance, conviene recordar que lo que tradicionalmente ha caracterizado el régimen jurídico de la función pública en general, es que las condiciones de empleo no se establecen en un contrato o por convenio colectivo, sino que se determinan minuciosamente por normas objetivas, leyes o reglamentos, que dependiendo de su naturaleza y de su jerarquía, pueden ser modificados unilateralmente por el órgano competente. De ahí que se afirme con propiedad que el funcionario no tiene con la Administración una relación contractual, sino estatutaria. Idea omnipresente incluso en nuestro marco constitucional originario de la función pública, según el cual: “Un estatuto de servicio civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de la administración” (art. 191). Por lo que los subprincipios derivados del principio protector del derecho laboral que invoca el accionante, no resultan aplicables en la dimensión que erróneamente se argumenta.

Y lo que incorrectamente califica el accionante como una discriminación por supuesta imposición de dedicación exclusiva sin retribución, es en realidad un incomprendido régimen de incompatibilidad funcional, que como parte del contenido ético esencial de la relación de empleo público, busca potenciar los principios de imparcialidad e independencia que deben regentar el ejercicio de la función pública.

De lo anterior se desprende que el principio de imparcialidad, conjuntamente con el de independencia en la gestión pública, constituye el pilar en el que se asienta toda la legislación sobre incompatibilidades. En efecto, para obviar o bien evitar los conflictos de intereses y salvaguardar el interés público, el legislador ha elaborado un conjunto de reglas éticas que deben ser observadas por todos los funcionarios en el ejercicio de la función pública.

Así, dentro del difuso régimen de incompatibilidades de la función pública costarricense, encontramos el deber de imparcialidad que tiene directa conexión –según la doctrina - con la finalidad institucional de las Administraciones Públicas de prestar servicio a los intereses generales con objetividad; lo que implica, en primer término, la neutralidad o independencia política o bien eficacia indiferente de la actuación administrativa, como también se le denomina, según la cual todo servidor público está obligado a ejercer sus funciones observando la más estricta neutralidad ideológica, sin acepción de personas o grupos; es decir, sin favoritismos ni discriminaciones (Entre otras muchas, remito a las resoluciones Nºs 932-95 de las 15:33 horas del 18 de julio de 1995, 2883-96 de 17:00 horas de 13 de junio de 1996 y 11524-2000 de 21 de diciembre del 2000, 1749 -2001 de las 14:33 horas del 7 de marzo del 2001, de la Sala Constitucional).

Pero aquella imparcialidad no se agota en el deber de neutralidad política aludido, sino que además se manifiesta en las relaciones del funcionario, en el desempeño del cargo, con la sociedad; lo cual supone que, como derivación del principio de igualdad jurídica y no discriminación de los administrados (artículos 4, 8, y 10 de la Ley General de la Administración Pública y 33 constitucional), todo servidor público debe abstenerse de toda actuación que suponga favorecer ilegítima o ilegalmente a sí mismo o a terceras personas, organizaciones sociales o grupos privados.

Es por ello que, al decir de la propia Sala, con fundamento en una exigencia moral y ética de parte de la sociedad en relación con la prestación concreta del servicio público y bajo la égida de los principios constitucionales de legalidad, responsabilidad, transparencia, igualdad de trato para todos los administrados y de la exigencia de idoneidad y eficiencia en el empleo público (Al respecto, véase la resolución Nº 2883-96 de las 17:00 hrs. del 13 de junio de 1996), al funcionario no se le permite colocarse en situaciones o circunstancias que puedan comprometer la imparcialidad o independencia funcionarial o bien porque puedan impedir o menoscabar el estricto cumplimiento de sus deberes e incluso perjudicar los intereses generales - casos de conflicto u oposición de intereses directos e inmediatos -. Todo en aras de asegurar que la Administración tome sus decisiones únicamente conforme al ordenamiento jurídico y con la finalidad de interés general que lo motiva; esto es: “(...) la consecución de una justicia objetiva, imparcial, independiente y cristalina, propia de regímenes democráticos y de derecho” (Resolución Nº 7531-97 de las 15:45 horas del 12 de noviembre de 1997, Sala Constitucional)”. (Lo destacado no corresponde al original).

Informe del Ministerio de Hacienda La ministra solicita que se declaren sin lugar estos extremos de la acción de inconstitucionalidad, pues, según su criterio, el tema salarial y de empleo público es dinámico, sin que los ajustes realizados lesionen los principios de progresividad y no regresividad:

“En este sentido, las manifestaciones del accionante devienen infundadas, pues como se ha acreditado desde su mismo otorgamiento la dedicación exclusiva no es un derecho del servidor, sino que ésta se confiere cuando ante determinadas funciones, la Administración valora que requiere que el funcionario no labore de forma privada. Justamente, en relación con el párrafo final del artículo 4 del Reglamento del Título III y sus reformas, la Procuraduría General de la República manifestó recientemente: “…No ocurre lo mismo con lo establecido en el último párrafo del artículo 4 del Reglamento al Título III de la Ley de Fortalecimiento de las Finanzas Públicas, según el cual, es necesario “acreditar una necesidad institucional para suscribir el contrato de dedicación exclusiva”, así como “verificar el cumplimiento pleno de los requisitos legales y académicos aplicables”, pues esos requerimientos se deducen, por sí mismos, de la figura de la dedicación exclusiva, y son razonables y acordes con los fines de la ley…” (Ver Dictamen C-166-2019 del 13 de junio del 2019) Llama la atención que se invoque una violación constitucional, por el hecho de que dentro de las normas cuestionadas, una de ellas disponga que los contratos de Dedicación Exclusiva, estén sujetos a un plazo y que se excluya la posibilidad de que se presenten prórrogas automáticas o tácitas según lo señala el accionante. Sobre el particular, como cualquier contrato, por razones de seguridad y certeza jurídica, el contrato de Dedicación Exclusiva, debe tener claramente establecida su vigencia, así como los procedimientos o trámites que se requieren para extender la misma; de ahí que el promulgar una normativa que contemple estos extremos, lejos de violentar los principios de seguridad jurídica, razonabilidad y proporcionalidad, por el contrario los cumple, además no implica regresión alguna que fundamente la afirmación de que se está retrocediendo en el reconocimiento de un derecho laboral ya establecido. V-En este mismo orden de ideas, el accionante señala que el Principio de Progresividad implica que el progreso gradual solo se produce cuando se da un aumento, aseveración que no es tan real, pues por ejemplo cuando un derecho laboral se encuentra regulado de manera difusa y se emiten normas que se si bien no implican un incremento ya sea económico o en el alcance del derecho, pero que si logran uniformar y concentrar el marco normativo, se está coadyuvando en ese progreso”.

Seguidamente, se rechaza una lesión al principio de seguridad jurídica, pues las normas establecen las pautas en que operaría la prórroga de los contratos de dedicación exclusiva, así como el reconocimiento de dichos contratos en sus diversas variantes.

Niega una lesión al principio de igualdad, pues, como lo explicó la PGR, los parámetros generales contenidos en el Título III de la ley n.°9635 y su reforma aplican a la totalidad de las relaciones de empleo del sector público, toda vez que el legislador está facultado para regular de manera general las condiciones de empleo en todo el sector público.

Resolución de la Sala Constitucional En primer término, corresponde advertir que no cabe alegar en este proceso de control de constitucionalidad el tema de la autonomía de las instituciones. En la resolución de rechazo parcial de la acción de inconstitucionalidad n.°19-004931-0007-CO, la Sala resolvió que “no tiene legitimación para defender la autonomía de una institución, quien no tiene la representación judicial y extrajudicial de la misma. En este supuesto, debe quedar en claro que no se está pretendiendo la defensa de ningún derecho fundamental del accionante, sino, se repite, únicamente la defensa de la autonomía institucional de una entidad para la que laboran algunos de sus asociados” (sentencia n.°2019-010635). Por lo tanto, corresponde reiterar que en el sub lite el accionante actúa en su condición de representante sindical, por lo que no encuentra legitimado para accionar en defensa de la autonomía de entes municipales, o cualquier otro ente autónomo. Entonces, se desestiman los agravios relacionados con la supuesta imposición ilegítima hacia los entes autónomos de suscribir contratos por el plazo definido en la ley, así como la duración del contrato, aspectos que ‒a juicio del accionante‒ podrían regularse en otro tipo de disposiciones más acordes con las necesidades institucionales (art. 28 párrafo 2° de la LSAP y art. 6 del reglamento).

En lo relativo a la perspectiva del servidor público, el accionante acusa que se lesionan los principios de progresividad de los derechos laborales y el protector. Sin embargo, a juicio de esta Sala ese mero enunciado sin un adecuado análisis de las normas y el impacto que estas puedan tener en los derechos laborales de los trabajadores, impiden realizar un apropiado análisis de constitucionalidad. Deben desestimarse tales enunciados por una indebida e insuficiente fundamentación por parte del accionante.

En un segundo orden de ideas ‒en lo relativo a la perspectiva del servidor público‒, el accionante no explica en qué medida la norma lesiona el principio de seguridad jurídica. Solamente, apunta una supuesta confusión o ambigüedad en el sentido de que el servidor, pese a no recibir una contraprestación económica, debe abstenerse de participar en actividades que comprometan su imparcialidad o favorezcan el interés privado por sobre el interés público (art. 28 párrafo 4° de la LSAP). Al respecto, corresponde aclarar el concepto y alcance de la figura del contrato de dedicación exclusiva. Esta Sala, en reiterada jurisprudencia, ha examinado que lo correspondiente a la figura de la dedicación exclusiva se trata mayoritariamente de aspectos de legalidad ordinaria porque su origen tiene una vocación contractual entre las partes. Desde el año 1995 esta Sala se ha referido a esta figura contractual en los siguientes términos:

“IV.- EL REGIMEN DE DEDICACION EXCLUSIVA: Previo a verter el juicio de constitucionalidad de la norma aquí cuestionada, se requiere describir de forma general el régimen de dedicación exclusiva y señalar las modificaciones que ha tenido. En ese sentido, se tiene que la dedicación exclusiva se define como el régimen de beneficios recíprocos pactado entre el Estado y sus servidores de nivel profesional y que tiene como fin que el servidor pueda optar por no ejercer su profesión fuera del puesto que desempeña, a cambio de una retribución patrimonial adicional al salario. Por su parte, la Administración obtiene la completa dedicación del servidor a la función pública. (…)

De la simple lectura de la norma impugnada se desprende que su finalidad es definir lo que debe entenderse por dedicación exclusiva, o sea la obligación que adquiere el profesional que se compromete mediante un contrato a laborar exclusivamente para una institución pública. La norma establece un ámbito general de aplicación: todo profesional que acuerde dedicarse exclusivamente a laborar para el Estado. Esa vocación de generalidad de la norma no resulta lesiva del principio de igualdad según como se ha expuesto, porque las profesiones que ostente un determinado funcionario no constituyen un elemento relevante para ser considerado a los efectos de que se le confiera un tratamiento distinto, esto debido a que la norma regula una situación general, sea, la posibilidad de que un funcionario voluntariamente se obligue a laborar exclusivamente para el Estado. En cuanto al derecho de igualdad salarial considera la Sala que no resulta aplicable al caso, toda vez que la norma impugnada no genera una diferencia de trato en materia salarial y, por el contrario, independientemente de las condiciones personales del funcionario, establece un porcentaje general determinado como pago por concepto de dedicación exclusiva. Falta analizar ahora en este aparte si la aplicación de la norma genera el alegado trato discriminatorio. Estima la Sala que la disposición impugnada al definir un ámbito de aplicación general -todo profesional que suscriba un contrato de dedicación exclusiva con el Estado-, y al posibilitar que voluntariamente el funcionario se coloque en el presupuesto de hecho de esa disposición, excluye la posibilidad de que se produzca una exclusión arbitraria o una inclusión indebida. En este punto conviene señalar que es el funcionario en asocio con la Administración el que decide obligarse a no ejercer las profesiones que ostente fuera de la institución para la que labora, de lo que resulta que no es la norma la que establece, en rigor, esa prohibición. En relación con la reserva de ley en materia de imposición de obligaciones y la limitación del derecho al trabajo, es pertinente apuntar que las normas jurídicas independientemente de la jerarquía que les corresponda, son susceptibles de imponer obligaciones a los particulares. Por lo que el argumento esgrimido por el promovente en ese sentido carecería de todo sustento. Lo que sí requiere de reserva de ley es la limitación a los derechos fundamentales, por lo que procede corregir la perspectiva del actor y analizar el punto como un supuesto problema de limitación del derecho al trabajo por vía de una norma de jerarquía inferior a la ley. En ese sentido, es pertinente puntualizar lo señalado por la Procuraduría General de la República en relación con la naturaleza contractual de la obligación de no ejercer las profesiones que se ostenten cuando se ha firmado un contrato de dedicación exclusiva con el Estado. Del contrato, que se entiende como un acuerdo voluntario entre partes, resulta la limitación al ejercicio de las profesiones fuera de la institución para la que se labora. De aquí se infiere que no es la norma la que genera la obligación descrita, sino que ésta resulta de la suscripción del contrato entre el funcionario y la institución. En consecuencia, no procede alegar la inconstitucionalidad de la norma impugnada por el motivo expuesto. (…)

Desde esa óptica se tiene que mediante el régimen de dedicación exclusiva la Administración pretende por razones de interés público contar con un personal dedicado exclusiva y permanentemente a la función estatal que lo convierta en una fuerza de trabajo idónea y más eficiente, contratar con el funcionario de nivel profesional sus servicios exclusivos, a cambio de un plus salarial. Así, el sistema le permite al servidor calcular si el beneficio del ejercicio privado de su profesión es mayor o menor que la compensación salarial que el Estado le entrega a cambio de la prestación exclusiva de sus servicios. En consecuencia, el servidor evalúa la situación y decide voluntariamente concertar con la Administración (si a su vez ésta conviene en ello) el pago del plus salarial o continuar ejerciendo liberalmente su profesión. Este sistema no resulta irracional, y difiere del régimen de prohibición que por impedimento legal limita al funcionario para ejercer en forma liberal la profesión. En ese último caso, el servidor no se encuentra facultado para decidir acerca de la compensación económica, porque ésta integra el salario y es inherente a la relación de servicio. La razonabilidad del régimen de dedicación exclusiva, en la forma en que lo define la norma impugnada, resulta entonces de su naturaleza contractual o convencional, que confiere al funcionario la posibilidad de solicitarla o renunciarla según su conveniencia. En consideración a lo expuesto, y a que no se observa violación alguna a derechos fundamentales por parte de la norma cuestionada, se declara sin lugar la acción”. (Sentencia n.°2312-1995. Lo subrayado no corresponde al original).

Al hacer eco de dicha resolución, esta Sala ha dicho lo siguiente:

“[S]e trata de un convenio de naturaleza facultativa, cuyos alcances y cumplimiento constituye un asunto de mera legalidad. En efecto, el pago de la dedicación exclusiva que reclama el amparado, implica la concesión de un beneficio que puede ser pactado o no por las partes, pudiendo subsistir la relación de servicio con o sin ella, por ser un elemento ajeno a las prestaciones esenciales que conforman la contratación laboral (ver en este sentido, sentencia número 2725-97 de las diez horas cuarenta y ocho minutos del dieciséis de mayo de mil novecientos noventa y siete)”. (Sentencia n.°2002-04003. Lo subrayado no corresponde al original).

Y más recientemente, resolvió que:

“Por su parte, en este sentido, la Sala también ha establecido que la determinación de la procedencia o no del pago de este rubro salarial es un asunto de mera legalidad que debe ser ventilado en la jurisdicción ordinaria:

"III.- (…) Sin embargo, la determinación de cuándo procede o no este rubro es un asunto de mera legalidad que debe ser ventilado ante los tribunales comunes." (Sentencia No. 03502-94, de las quince horas dieciocho minutos del doce de julio de mil novecientos noventa y cuatro).

En este sentido ver también las sentencias No. 95-0893, de las diecisiete horas del quince de febrero; No. 95-04160, de las diez horas tres minutos del veintiocho de julio, ambas de mil novecientos noventa y cinco; y No. 96-01536, de las diez horas cincuenta y un minutos del veintinueve de marzo de mil novecientos noventa y seis.)”.

Cabe agregar que en la sentencia N° 2019-018480 de las 09:30 horas del 24 de setiembre de 2019, la Sala declaró lo siguiente:

"(...)los diferendos en torno al pago de pluses salariales no inciden en el contenido esencial del derecho al salario, desde la perspectiva constitucional (artículo 57 de la Constitución Política), por lo que son conflictos que deben dilucidarse en sede de legalidad. Por ello, en sentencia N° 2011014174 de las 09:58 horas del 21 de octubre de 2011, la Sala dispuso:

“(...) Este Tribunal ha dicho en reiteradas ocasiones que los reclamos e inconformidades en torno a pluses salariales –como lo es la doble jornada laboral y la dedicación exclusiva- es un asunto cuyo conocimiento corresponde a la vía de legalidad, pues con ello no se afecta el contenido esencial del derecho al salario desde la perspectiva constitucional”.

De esta manera, si los recurrentes consideran arbitrario e improcedente que la autoridad recurrida haya dispuesto no pagarles el monto correspondiente a la dedicación exclusiva del presente año, ello es un asunto que podrán plantear y discutir, si a bien lo tienen, en la vía de legalidad correspondiente a través de los medios de impugnación que les otorga el ordenamiento jurídico, dado que por su naturaleza contractual, resulta ser un problema de legalidad ordinaria y no de constitucionalidad. (Véase en similar sentido sentencias Nº 2022-8002 de las 09:50 horas del cinco de abril de 2022 y No. 2022-4883 de las 09:15 horas del veinticinco de febrero de 2022)”. (Sentencia n.°2023-002002. Lo subrayado no corresponde al original).

Asimismo, de especial importancia para este apartado y los siguientes, conviene citar la sentencia n.°2004-07764 en la que se realizaron las siguientes consideraciones:

“III.- Sobre el fondo. De acuerdo con el criterio reiteradamente expuesto por esta Sala (véanse por todas, las sentencias número 1995-02312 de las 16:15 horas del 9 de mayo de 1995, 1995-04160 de las 10:03 horas del 28 de julio de 1995, 1996-04494 de las 11:18 horas del 30 de agosto de 1996 y 2000-00444 de las 16:51 horas del 12 de enero de 2000) la dedicación exclusiva constituye un régimen de beneficios recíprocos para los servidores públicos y la Administración, mediante el cual la Administración decide, por motivos de interés público, contratar de forma exclusiva los servicios de uno o varios de sus profesionales e intenta acordar con ellos el pago de una retribución económica por los beneficios que dejarán de percibir al no poder ejercer privadamente su profesión. De ahí que resulte claro que la dedicación exclusiva tiene una naturaleza consensual o convencional, porque surge del acuerdo entre partes. Esto implica por lo pronto que tanto la obligación del servidor de no ejercer su profesión fuera de la institución para la que labora, como la de la Administración de pagar la retribución económica, surgen del acuerdo entre ambas partes. Por lo que el servidor es libre de escoger si se acoge o no a este beneficio y presta sus servicios de manera exclusiva a la Administración, como ésta, en ejercicio de su potestad discrecional, de elegir si pacta o no con el servidor el otorgamiento de ese plus salarial. De lo anterior se desprende también que la dedicación exclusiva sea materia disponible para ambas partes, pues en ejercicio de su potestad discrecional la Administración cuenta con un margen mayor de decisión en este caso, así como el servidor tiene la posibilidad de valorar si la retribución compensa el beneficio que le produce el ejercicio privado de su profesión y decidir si acepta o no su reconocimiento. Como consecuencia de la naturaleza convencional o contractual de la dedicación exclusiva resulta también su condición de elemento no inherente o consustancial a la relación de empleo público, situación que refuerza la idea de que bajo esas condiciones la Administración no se encuentra legalmente obligada a contratar o a acordar con todos los servidores profesionales la dedicación exclusiva. Se tratará simplemente de una decisión que tomará en el marco de la existencia o no de una verdadera necesidad pública de contar con la totalidad o parte del personal profesional dedicado exclusiva y permanentemente a la función estatal. Se entiende que al no tratarse de una prestación esencial de la relación de empleo público, si no se logra un acuerdo entre las partes en punto al reconocimiento de la dedicación exclusiva, no se afecta en lo absoluto dicha relación.

IV.- En la especie, la accionante acusa exclusivamente una lesión del derecho de igualdad porque se le ha negado el reconocimiento de la dedicación exclusiva a pesar de estar en igualdad de condiciones con otros servidores compañeros suyos que reciben dicho beneficio. De las razones expuestas en el considerando anterior se deduce claramente que tratándose de la dedicación exclusiva, dada su condición de elemento no sustancial de la relación de empleo público y, en consecuencia, materia disponible para las partes contractuales (la Administración y el servidor), no se puede estar ante un problema que involucre el derecho de igualdad, sobre todo, porque la Administración tiene en este caso la posibilidad, en ejercicio de su potestad discrecional, de pactar o no con los servidores profesionales el reconocimiento de ese beneficio salarial. De ahí que la Administración no esté obligada legalmente, en todo tiempo, lugar y circunstancia, a acordar el pago de la dedicación exclusiva con todos o algunos profesionales de una determinada institución, porque esa compensación económica no forma parte de lo que podría denominarse el núcleo esencial de la relación de empleo público (conjunto de prestaciones esenciales, en principio, no disponibles). Bajo esas condiciones, no cabe alegar infracción del derecho de igualdad, porque la Administración podría en ejercicio de su potestad discrecional negar el reconocimiento de la dedicación exclusiva a unos servidores y reconocerlo a otros por razones de interés público, conveniencia y oportunidad institucional. Por otra parte, si la accionante lo que pretende con este amparo es que la Sala revise las condiciones bajo las cuales se le denegó el reconocimiento de la dedicación exclusiva, debe entender que por tratarse de un asunto de legalidad ordinaria, este Tribunal no emite pronunciamiento alguno al respecto por no ser de su competencia. Lo anterior, desde luego, sin perjuicio de las posibilidades de que goza la recurrente de acudir a las vías de impugnación administrativas y judiciales correspondientes en defensa de sus derechos e intereses. En atención a las razones expuestas se impone declarar sin lugar el recurso”. (Lo destacado no corresponde al original).

En el Informe Integrado (Jurídico) n.°AL-DEST-IJU-110-2018 del Departamento de Estudios, Referencias y Servicios Técnicos, del 21 de marzo de 2018, relativo al proyecto de ley tramitado en el expediente n.°20.580, sobre el proyecto de ley de LFFP, se realizó el siguiente análisis en relación con los contratos de dedicación exclusiva:

“Por su parte, la dedicación exclusiva tiene una base contractual, mediante un contrato suscrito entre el funcionario público con la Administración, en el cual el primero se compromete a dedicar sus servicios profesionales en exclusiva a la institución, y la segunda le otorga una compensación por esa exclusividad.

Sobre la dedicación exclusiva, la Procuraduría General de la República en el Dictamen C-294-2014, señaló:

‘Por su parte, el régimen de dedicación exclusiva es un régimen de naturaleza contractual, que surge por el acuerdo de voluntades entre la administración y el funcionario, a efectos de lograr una mayor eficiencia en el servicio público. “Tal instituto (se refiere a la dedicación exclusiva), es dable en la Administración Pública mediante un contrato suscrito entre ésta y el funcionario, que por virtud de la profesión que ostenta, se requiere su exclusividad en el cargo que ocupa, y por consiguiente se necesita que no ejerza la profesión o profesiones u oficio, en ninguna otra institución pública o privada. Lo anterior, a cambio de percibir un plus salarial de manera constante. Con ello, también se trata de incentivar al servidor (que no recibe ningún emolumento similar a la dedicación exclusiva, como puede ser la prohibición al ejercicio de la profesión que establece la Ley No. 5867 de cita supra) a fin de que no solo realice sus funciones con mayor eficiencia, sino la garantía de su permanencia en la prestación de sus servicios. En ese sentido, la Sala Constitucional se ha pronunciado reiteradamente. A manera de ejemplo, en la resolución Nº 2312-95 de las 10:15 horas del 9 de mayo de 1995 dijo: "...mediante el régimen de dedicación exclusiva la Administración pretende por razones de interés público contar con un personal dedicado exclusiva y permanentemente a la función estatal que lo convierta en una fuerza de trabajo idónea y más eficiente, contratar con el funcionario de nivel profesional sus servicios exclusivos, a cambio de un plus salarial. Así, el sistema le permite al servidor calcular si el beneficio del ejercicio privado de su profesión es mayor o menor que la compensación salarial que el Estado le entrega a cambio de la prestación exclusiva de sus servicios. En consecuencia, el servidor evalúa la situación y decide voluntariamente concertar con la Administración (si a su vez ésta conviene en ello) el pago del plus salarial o continuar ejerciendo liberalmente su profesión (…)’.

La Procuraduría estableció en el dictamen mencionado, las características del contrato de dedicación exclusiva, señalando que es: público, sinalagmático y conmutativo. Sobre el particular comenta lo siguiente:

‘Se concluye entonces que el contrato cuyo análisis nos ocupa, presenta tres características fundamentales: //Es público. En tanto el sujeto patronal que autoriza y suscribe el vínculo, lo es, precisamente la Administración teniendo como contraparte un funcionario de igual naturaleza, único posible de rubricar un contrato que otorgue tal beneficio. Deviene en sinalagmático, ya que, impone obligaciones a ambas partes, en este caso al profesional de no ejercer su carrera a favor de terceros y a la Administración de retribuirle con un plus salarial. Siendo además que la obligación a cargo de una parte correlativamente se convierte en un derecho para la otra. Es decir que el Patrono tiene derecho a exigir del funcionario que no funja como profesional al servicio de otros y éste último tiene el derecho de requerir del primero que le pague el monto acordado. Es conmutativo, porque la prestación a favor de cada estipulante a cambio de lo que da, consiste en una ventaja cierta. Para el servidor un aumento patrimonial de índole salarial y para el Estado la exclusividad del funcionario. “(Dictamen C-206-2009 del 23 de julio del 2009)’ Asimismo, un aspecto importante que señaló la Procuraduría en su Dictamen Nº C-294-2014 -antes citado- es que actualmente la dedicación exclusiva no solo aplica a profesionales liberales, sino que también aplica a cualquier profesional. Lo anterior, por cuanto el Decreto 23669 del 18 de octubre de 1994, Normas de Aplicación de la Dedicación Exclusiva por las instituciones Empresas Públicas cubiertas por el ámbito de la Autoridad Presupuestaria, no establece que el objeto contractual deba ser únicamente el ejercicio de las profesiones liberales, sino que se refiere en términos genéricos el ejercicio de la profesión.

Por su parte, la Dirección General de Servicio Civil, según resolución DG-254-2009 de las trece horas del doce de agosto del dos mil nueve regula la dedicación exclusiva para los efectos de los funcionarios sujetos al Servicio Civil, de la siguiente manera:

“Articulo 1.- Se entiende por “Dedicación Exclusiva” el ejercicio profesional del funcionario únicamente para el órgano público que contrata sus servicios, lo cual demanda del mismo ostentar una carrera universitaria con el correspondiente grado académico y que se encuentre debidamente acreditada”.

“Articulo 2.- La Dedicación Exclusiva bajo el Régimen de Servicio Civil, por su carácter contractual, requiere que sea pactada por un plazo determinado y obliga al servidor al ejercicio profesional únicamente a favor del órgano público con el cual labora y donde este lo destaque. No podrá́ el servidor ejercer de manera particular, en forma remunerada o ad honorem, la profesión que ostenta y que constituye requisito para desempeñar el puesto que ocupe, ni otra actividad relacionada con ésta, con las excepciones que se indicarán. El régimen de dedicación Exclusiva permite una retribución económica a favor del servidor, convenida y en acuerdo con la Administración, por lo que ésta deberá́ procurar que se cuente con la disponibilidad presupuestaria que le da sustento, por el plazo expresamente previsto dentro del contrato o prorroga respectiva”.

(…)

En la dedicación exclusiva no existe una prohibición para el ejercicio liberal, sino que lo que existe es un acuerdo para la exclusividad para el ejercicio de la profesión con respecto a un órgano o ente.

Igualmente, se recomienda elaborar la definición de “dedicación exclusiva” de acuerdo a su naturaleza, objeto y características, para lo cual deberá considerarse que no implica necesariamente la prohibición legal del ejercicio de la profesión, sino que se trata de una decisión de dedicarse exclusivamente a su puesto, decisión que procede de un acuerdo entre partes, sea del patrono y trabajador y no de la ley, donde el trabajador decide solicitar que se le pague esa compensación salarial por la exclusividad y el patrono decide, dentro de su discrecionalidad, si el cargo ocupado requiere esa dedicación exclusiva. Deberá incluir esta definición algunos otros aspectos, tal como el plazo del contrato de la dedicación exclusiva, si procederá su pago únicamente para las profesiones liberales o para todas las profesiones, así como la forma de terminación ya que es renunciable y no constituye un derecho adquirido.

(…)” En la LSAP podemos encontrar la definición de lo que se entiende por dedicación exclusiva, en los siguientes términos:

“art. 27. 1. Dedicación exclusiva: régimen de naturaleza contractual que surge por iniciativa de la Administración cuando se identifica la necesidad de que quien ostente un cargo público se desempeñe en ese puesto de manera exclusiva, lo cual implica que no ejerza su profesión liberal ni profesiones relacionadas con dicho cargo en ninguna otra institución pública o privada, por un periodo de tiempo definido. Es de carácter potestativo y únicamente podrá ser otorgada a los funcionarios del sector público que firmen el respectivo contrato. Su compensación económica se otorga dependiendo del grado académico y las características del puesto”.

A su vez, el reglamento define que es un plus salarial de naturaleza contractual que surge por iniciativa de la Administración cuando se identifica la necesidad de que quien ostente un cargo público se desempeñe en ese puesto de manera exclusiva, lo cual implica que no ejerza su profesión liberal ni profesiones relacionadas con dicho cargo en ninguna otra institución pública o privada, por un periodo de tiempo definido. Es de carácter potestativo y únicamente podrá ser otorgada a los funcionarios del sector público que firmen el respectivo contrato. Su compensación económica se otorga dependiendo del grado académico y las características del puesto (art. 1° inciso d)).

De otra parte, conviene hacer referencia a los postulados generales que deben caracterizar al servidor público de toda la Administración Pública, centralizada o descentralizada. Al respecto, hay que tener presente que la relación laboral de empleo público está sujeta a ciertas especificidades y principios, como los de mérito y capacidad en el acceso, y también a determinadas normas de derecho público, como el régimen de incompatibilidades, que garanticen objetividad e imparcialidad en la prestación del servicio público. En ese sentido, no hay que olvidar que el mandato constitucional es que el servidor público sea nombrado con base en la idoneidad comprobada en aras de aspirar siempre a la eficiencia en la Administración Pública (arts. 191 y 192 de la Constitución Política). Además, el art. 11 de nuestra Constitución establece lo siguiente:

“Art. 11.-Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella. Deben prestar juramento de observar y cumplir esta Constitución y las leyes. La acción para exigirles la responsabilidad penal por sus actos es pública. La Administración Pública en sentido amplio, estará sometida a un procedimiento de evaluación de resultados y rendición de cuentas, con la consecuente responsabilidad personal para los funcionarios en el cumplimiento de sus deberes. La ley señalará los medios para que este control de resultados y rendición de cuentas opere como un sistema que cubra todas las instituciones públicas.

(Así reformado por el artículo único de la ley N° 8003 del 8 de junio del 2000)”. (Lo destacado no es del original).

Lo que es reiterado en el art. 194 de la Constitución en lo relativo al juramento constitucional que deben prestar los funcionarios públicos.

Adicionalmente, la Convención de Naciones Unidas contra la Corrupción, ley n.°8557 del 29 de noviembre del 2006, parte de la preocupación internacional de “la gravedad de los problemas y las amenazas que plantea la corrupción para la estabilidad y seguridad de las sociedades al socavar las instituciones y los valores de la democracia, la ética y la justicia y al comprometer el desarrollo sostenible y el imperio de la ley” y hace un llamado a que los Estados tomen medidas preventivas en aras de asegurar la debida gestión del interés público. Por ello el art. 5 dice lo siguiente:

“Cada Estado Parte, de conformidad con los principios fundamentales de su ordenamiento jurídico, formulará y aplicará o mantendrá en vigor políticas coordinadas y eficaces contra la corrupción que promuevan la participación de la sociedad y reflejen los principios del imperio de la ley, la debida gestión de los asuntos públicos y los bienes públicos, la integridad, la transparencia y la obligación de rendir cuentas”. (Lo destacado no es del original).

Asimismo, dicha Convención, en el art. 7 párrafo 4° hace un llamado a que cada Estado Parte, de conformidad con los principios fundamentales de su derecho interno, procure adoptar sistemas destinados a promover la transparencia y a prevenir conflictos de intereses, o a mantener y fortalecer dichos sistemas. La Convención Interamericana contra la Corrupción, ley n.°7670 del 17 de abril de 1997, en su artículo 3, por su parte, establece lo siguiente:

“Medidas preventivas A los fines expuestos en el Artículo II de esta Convención, los Estados Partes convienen en considerar la aplicabilidad de medidas, dentro de sus propios sistemas institucionales, destinadas a crear, mantener y fortalecer:

1.- Normas de conducta para el correcto, honorable y adecuado cumplimiento de las funciones públicas. Estas normas deberán estar orientadas a prevenir conflictos de intereses y asegurar la preservación y el uso adecuado de los recursos asignados a los funcionarios públicos en el desempeño de sus funciones”. (Lo destacado no es del original).

A lo que corresponde sumar lo establecido expresamente en los arts. 113 y 114 de la LGAP que disponen expresamente lo siguiente:

“Art. 113.- 1. El servidor público deberá desempeñar sus funciones de modo que satisfagan primordialmente el interés público, el cual será considerado como la expresión de los intereses individuales coincidentes de los administrados.

2. El interés público prevalecerá sobre el interés de la Administración Pública cuando pueda estar en conflicto.

3. En la apreciación del interés público se tendrá en cuenta, en primer lugar, los valores de seguridad jurídica y justicia para la comunidad y el individuo, a los que no puede en ningún caso anteponerse la mera conveniencia.

Art. 114.- 1. El servidor público será un servidor de los administrados, en general, y en particular de cada individuo o administrado que con él se relacione en virtud de la función que desempeña; cada administrado deberá ser considerado en el caso individual como representante de la colectividad de que el funcionario depende y por cuyos intereses debe velar.

2. Sin perjuicio de lo que otras leyes establezcan para el servidor, considérase, en especial, irregular desempeño de su función todo acto, hecho u omisión que por su culpa o negligencia ocasione trabas u obstáculos injustificados o arbitrarios a los administrados”. (Lo destacado no es del original).

De otra parte, la Ley contra de la Corrupción y el Enriquecimiento Ilícito en la función pública, ley n.°8422 de 6 de octubre de 2004, establece el deber de probidad y reitera que el servidor público está obligado a orientar su labor a satisfacer el interés general:

“Art. 3º-Deber de probidad. El funcionario público estará obligado a orientar su gestión a la satisfacción del interés público. Este deber se manifestará, fundamentalmente, al identificar y atender las necesidades colectivas prioritarias, de manera planificada, regular, eficiente, continua y en condiciones de igualdad para los habitantes de la República; asimismo, al demostrar rectitud y buena fe en el ejercicio de las potestades que le confiere la ley; asegurarse de que las decisiones que adopte en cumplimiento de sus atribuciones se ajustan a la imparcialidad y a los objetivos propios de la institución en la que se desempeña y, finalmente, al administrar los recursos públicos con apego a los principios de legalidad, eficacia, economía y eficiencia, rindiendo cuentas satisfactoriamente”. (Lo destacado no es del original).

Finalmente, la Ley General de Control Interno, ley n.°8292 del 04 de setiembre de 2002, establece “los criterios mínimos que deberán observar la Contraloría General de la República y los entes u órganos sujetos a su fiscalización, en el establecimiento, funcionamiento, mantenimiento, perfeccionamiento y evaluación de sus sistemas de control interno”. Entre ellas, “mantener y demostrar integridad y valores éticos en el ejercicio de sus deberes y obligaciones” (art. 13 inciso a)).

En consecuencia, el hecho de ser servidor público implica una serie de responsabilidades y compromisos con la función y el interés público. De modo que no resulta inconstitucional la norma cuestionada –art. 28 de LSAP‒ toda vez que prácticamente es intrínseco a la función pública, la prohibición de participar en actividades que puedan comprometer la imparcialidad, posibiliten un conflicto de interés o favorezcan el interés privado en detrimento del interés público. La norma es acorde con los postulados mencionados en el sentido de que si bien es potestativo para la Administración suscribir contratos de dedicación exclusiva por tratarse de un acuerdo para la exclusividad en el ejercicio de la profesión con respecto a un órgano o ente, ello no demerita el principio y el deber de probidad en la función pública, así como las bases constitucionales del deber de objetividad e imparcialidad de los funcionarios públicos. Por la propia naturaleza de la función pública, el servidor no puede colocarse en una situación donde haya conflicto o colisión entre los intereses públicos y sus intereses privados. Al respecto, esta Sala ‒al examinar en general el régimen de incompatibilidades de los servidores públicos‒ ha afirmado lo siguiente:

“Indudablemente, este asunto contiene un hondo contenido de los valores democráticos que informan al Estado costarricense -artículo 1° de la Constitución Política-, en tanto imponen la necesidad de la imparcialidad en el funcionamiento del Estado, como derivado del principio de legalidad, objetividad y respeto de los derechos fundamentales de los ciudadanos (…)

[D]e acuerdo con el artículo 192 de la Constitución Política, la idoneidad comprobada que se exige para el nombramiento de funcionarios públicos conduce a la prohibición de favoritismos indebidos que perjudiquen o pongan en riesgo el correcto ejercicio de la función pública.”. (Sentencia n.°2013-011454).

Además, desde la sentencia n.°1995- 3932 se viene afirmando que:

“Debe señalarse que el artículo 11 de la Constitución Política establece el principio de legalidad, así como también sienta las bases constitucionales del deber de objetividad e imparcialidad de los funcionarios públicos, al señalar que éstos están sometidos a la Constitución y a las leyes; aquí nace el fundamento de las incompatibilidades, el funcionario público no puede estar en una situación donde haya colisión entre interés público e interés privado”.

En dicha sentencia inclusive se examinó una presunta lesión al principio de igualdad, que se argumentó lesionado porque de conformidad con el art. 5 del Código de Familia a algunos servidores del Patronato Nacional de la Infancia les está prohibido, bajo pena de perder sus respectivos cargos, patrocinar, directa o indirectamente, en el ejercicio de su profesión, en instancias judiciales o administrativas, en sus respectivas jurisdicciones, asuntos de familia en que haya interés de menores. En esa oportunidad se cuestionó que tales servidores tienen dicha obligación, pese a no tener necesariamente un contrato de dedicación exclusiva. Al respecto, esta Sala resolvió lo siguiente:

“En el caso bajo examen, el accionante aduce la violación del derecho de igualdad y del principio de dignidad humana, argumentando que ello se produce cuando el PANI exige las mismas obligaciones y responsabilidades profesionales y laborales, tanto a los funcionarios acogidos al régimen de dedicación exclusiva -quienes reciben el pago de esa compensación económica- así como a los funcionarios no acogidos a dicho régimen. Estima la Sala que aquí no existe tal discriminación, en virtud de que el contrato de trabajo conlleva una serie de deberes y responsabilidades, que independientemente de haberse acogido o no el funcionario al régimen de dedicación exclusiva, deben cumplir los servidores de dicha institución, por ser deberes intrínsecos al cargo. Por otra parte, no es lógico ni razonable pensar que la dignidad humana se menoscaba cuando a un servidor se le exige el cumplimiento de los deberes del cargo que voluntariamente desempeña, siempre y cuando las condiciones laborales respeten la dignidad del trabajador. La dignidad humana es el debido respeto a todo ser humano, por su condición de tal; que impide que por diversas circunstancias, se le ocasione un menoscabo en el ejercicio de sus derechos fundamentales. A contrario sensu, si no se amenaza o quebranta un derecho fundamental, por ende, no se menoscaba la dignidad humana”. (Lo destacado no corresponde al original).

En consecuencia, de ninguna forma se aprecia que la norma impugnada (art. 28 párrafo 4°) sea lesiva del principio de seguridad jurídica. Es una disposición de carácter general que reúne y resume las disposiciones atinentes a la función pública acá enunciadas. A juicio de este Tribunal, es imposible enumerar en una ley todas las posibles conductas que justamente puedan comprometer la imparcialidad del servidor público y generen un conflicto de interés que tienda a favorecer uno privado, por sobre el interés público. Pero la norma sí reúne principios generales en el sentido de que independientemente de la suscripción de un contrato, todos los servidores públicos se deben al principio de legalidad, lo que impone respetar los deberes de objetividad e imparcialidad y, en contraposición, evitar actividades o conductas que comprometan la imparcialidad, posibiliten un conflicto de interés o favorezcan el interés privado en detrimento del interés público. En consecuencia, no hay, a criterio de esta Sala, lesión al principio de seguridad jurídica. En todo caso, serán en casos concretos y puntuales donde se podrá valorar de forma particularizada el adecuado y razonable ejercicio de la acción disciplinaria por eventualmente lesionarse estos principios atinentes a la función pública.

El magistrado Cruz Castro consigna nota en lo relativo al contrato de dedicación exclusiva (art. 28 de la Ley de Salarios de la Administración Pública).

XXI.- SOBRE LA PRÓRROGA DE LOS CONTRATOS DE DEDICACIÓN EXCLUSIVA Normas impugnadas El accionante cuestiona el art. 30 de la LSAP, adicionado por la LFFP, que dice lo siguiente:

“Art. 30- Prórroga del contrato.

Sesenta días naturales antes de su vencimiento, el funcionario deberá solicitar la prórroga a la jefatura inmediata para que la Administración revise la solicitud, a fin de determinar la necesidad institucional de la extensión, mediante resolución debidamente razonada establecida en el artículo 29 anterior, prórroga que no podrá ser menor de un año, ni mayor de cinco.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018)”.

Así como el art. 7 del reglamento del Título III de la LFFP, ley n.°9635 referente al Empleo Público, n.°41564-MIDEPLAN-H, que señala:

“Art. 7.- Prórroga de contratos de dedicación exclusiva. No cabrá pago alguno por concepto de dedicación exclusiva en aquellos casos en que los contratos suscritos, sea o no con anterioridad a la entrada en vigencia de la Ley N° 9635, no sean prorrogados por la Administración”.

Agravios de la parte accionante Dice el accionante que las disposiciones bajo análisis lesionan los principios de seguridad jurídica, razonabilidad, principio protector y no regresividad de los derechos laborales, así como el art. 34 constitucional. Ambas normas contienen vicios de inconstitucionalidad en la medida en que suponen un retroceso de derechos y garantías para la parte más vulnerable de la relación laboral, que es el trabajador. El hecho de que por medio de estas disposiciones normativas se le genere una situación de incerteza jurídica a los funcionarios a quienes no se les haya prorrogado sus contratos, inclusive aquellos contratos que fueron suscritos antes de la entrada en vigencia de la ley 9635 y al prohibir la prórroga tácita se crea una situación de desventaja y de incerteza, violatoria del principio protector. Aduce una posible lesión al principio de irretroactividad ‒en virtud de lo dispuesto en el reglamento‒ porque se desconocen los contratos suscritos con anterioridad a la ley. Refiere, finalmente, una lesión al principio de autonomía para que las partes puedan pactar sus condiciones salariales.

Informe de la PGR Como se puso de manifiesto anteriormente, la PGR sugiere desestimar los agravios relacionados con el tema del pago de los contratos por dedicación exclusiva porque los vicios acusados carecen de relevancia constitucional, por ser materia de regulación legal.

Resolución de la Sala Constitucional A juicio de esta Sala las normas impugnadas no resultan inconstitucionales. Ya quedó estipulado que la regulación de este tipo de contratos es de orden legal, por lo que los aspectos atinentes al trámite de renovación o el plazo de los contratos no es un tema de relevancia constitucional, sino que entra dentro de los aspectos de oportunidad y conveniencia que el legislador puede definir. Quizás podría tener razón el accionante en cuanto a que resulta una carga para el trabajador el hecho de tener que gestionar, por sí mismo, la renovación de su contrato, pero ello entra dentro del margen de discrecionalidad que tiene el legislador en la regulación de este tipo de contratos y no se vislumbra que tal requisito o la condición de que la Administración fundamente la necesidad de prorrogar el contrato ‒que por lo demás debe estar sujeto a un plazo‒ sea contrario a los derechos fundamentales de los servidores públicos. Por lo demás, no se vislumbra una lesión al art. 34 de la Constitución Política toda vez que, al tratarse de beneficios contractuales, estos deberían estar vinculados a un plazo de vigencia, siendo que del contenido de las normas no se aprecia, de forma alguna, que los contratos que estuvieran vigentes fueran a ser desconocidos. Las normas lo que disponen es la obligación de gestionar la prórroga del contrato y que, ante una eventual decisión de no prorrogarlo por voluntad de cualesquiera de las partes (patrono o trabajador), no existe la obligación de realizar pago alguno, lo cual es razonable en atención a las características mismas de la figura ‒examinadas supra‒, sea una contraprestación en atención a un compromiso contractual que, tratándose de fondos públicos, debe estar razonablemente fundamentado ‒régimen de naturaleza contractual que surge por iniciativa de la Administración cuando se identifica la necesidad de que quien ostente un cargo público se desempeñe en ese puesto de manera exclusiva‒. En esa medida, resulta razonable que los contratos deban estar sujetos a plazo y que, en cada caso, se valore la prórroga y el plazo de duración del contrato en atención a las cualidades del servidor, el puesto que desempeña y las necesidades institucionales; siendo que, lo contrario, prórrogas tácitas sin una adecuada valoración, sí podría implicar un descontrol impropio de la función pública, el principio de legalidad y el adecuado manejo de los fondos públicos. Recuérdese que se trata de un tema contractual en donde el servidor y el patrono deciden por un lado restringir sus actividades profesionales y dedicarse por completo al servicio público y, por otro lado, compensar esa restricción. De no existir un contrato, el servidor si bien es cierto debe someterse a normas generales de probidad y prevalencia del interés público sobre el interés privado, bien podría realizar actividades profesionales en jornadas que no supongan una superposición horaria. Todo ello debe ser valorado y ponderado por la Administración y por el propio servidor público.

El resto de los argumentos del accionante carecen de una adecuada fundamentación porque no se explica en qué forma las normas en cuestión causan incerteza, o de qué manera prohíben pactar las relaciones laborales. Tales reproches, al carecer de una adecuada fundamentación, deben desestimarse.

XXII.- SOBRE LOS SERVIDORES A LOS QUE SE LES PUEDE RECONOCER LA DEDICACIÓN EXCLUSIVA O LA PROHIBICIÓN Normas impugnadas El recurrente dice cuestionar el art. 31 inciso 1°) de la LSAP, adicionado por la LFFP, que regula los requisitos para los servidores que aspiren a suscribir los contratos de dedicación exclusiva o de prohibición. En lo conducente, la norma impugnada regula lo siguiente:

“Art. 31- Requisitos de los funcionarios. Los funcionarios que suscriban un contrato de dedicación exclusiva y aquellos señalados en la ley como posibles beneficiarios del pago adicional por prohibición deberán cumplir con los siguientes requisitos:

1. Estar nombrado o designado mediante acto formal de nombramiento en propiedad, de forma interina, suplencia o puesto de confianza”.

Agravios de la parte accionante Se cuestiona que la norma no incluye dentro de los puestos que podrían estar sujetos al pago del sobresueldo de dedicación exclusiva y prohibición, todas las modalidades posibles de contratación dentro de la Administración Pública. La disposición, en la medida en que establece un numerus clausus de las personas que puedan estar sujetas al pago de la dedicación exclusiva y de prohibición dentro de la Administración Pública, genera una clara desigualdad y una situación de inseguridad jurídica, en relación con otros funcionarios, cuyas categorías no están contempladas.

Informe de la PGR Como se ha venido señalando, la PGR sugiere desestimar los agravios relacionados con el tema del pago de los contratos por dedicación exclusiva porque los vicios acusados carecen de relevancia constitucional, por ser materia de regulación legal.

Informe del Ministerio de Hacienda En relación con el art. 31, la ministra dice no comprender los reproches de la parte accionante toda vez que dicho numeral lo que hace es enumerar los requisitos o condiciones para optar al beneficio salarial en mención:

“Con respecto al artículo 31 en sus aseveraciones el accionante señala que esta norma vulnera derechos, toda vez que no incluye todas las modalidades de contratación, provocando en su criterio desigualdad e inseguridad para quienes no están en esas categorías, criterio del que se difiere, dado que esta disposición lo que contiene son los requisitos que deben cumplir los funcionarios para suscribir el contrato de Dedicación Exclusiva o para ser posibles beneficiarios de la prohibición. De la lectura de los requisitos dispuestos en el artículo 31 no se entienden las consideraciones del accionante, puesto que por ejemplo en el inciso 1) se hace referencia a quienes están nombrados en propiedad, interinos, en suplencia o puestos de confianza; de manera tal que se desconoce cuál modalidad de la relación de servicio estaría quedando excluida. Por otro lado, para poder ejercer de manera particular, se requiere cumplir con los requisitos académicos inherentes a la profesión y de existir un Colegio Profesional, el estar incorporado al mismo; de manera tal que no se estima que la enunciación de estos requisitos riña con el artículo 33 Constitucional”.

Resolución de la Sala Constitucional En criterio de la Sala el agravio se debe rechazar porque, como ya quedó establecido, los requisitos y condiciones para la suscripción de los contratos de dedicación exclusiva o de prohibición son aspectos de legalidad ordinaria y no de constitucionalidad. A tales efectos, justamente la LGAP define en sus arts. 111, 112 y 113 cuáles son los servidores públicos que prestan sus servicios en nombre de la Administración Pública, lo que resulta coincidente con la investidura a la que hace referencia el numeral impugnado: “estar nombrado o designado mediante acto formal de nombramiento en propiedad, de forma interina, suplencia o puesto de confianza”.

El accionante cuestiona que la norma impugnada omite otro tipo de contratos especiales que pueda llegar a suscribir la Administración, como lo sería ‒según su dicho‒ contratos por servicios especiales o servicios ocasionales. De lo anterior se debe colegir entonces que justamente se trata de contratos especiales que válidamente puede concertar la Administración Pública para tareas especiales y en cuyo contrato se deberán pactar las condiciones específicas de la obra o labor encomendada y la correspondiente retribución, no siendo de ningún modo ilegítimo que estos servicios ‒como tienen una modalidad contractual diversa‒ estén excluidos de las retribuciones salariales fijas que justamente establece la LSAP para los servidores que prestan servicios a la Administración o a nombre y por cuenta de ésta como parte de su organización en virtud de un acto válido y eficaz de investidura.

De otra parte, cabe insistir que, cuando se alega la vulneración de principio de igualdad y de supuesta inseguridad jurídica entre servidores, como sucede en este caso, la parte accionante está en el deber de aportar un parámetro de comparación, junto con el análisis correspondiente. De ahí que quien invoque ese tipo de quebrantos, está obligado a aportar elementos que permitan efectuar una comparación plena entre los sujetos tratados en forma diferente, que permita cotejar si se produce la alegada desigualdad o no. En el sub examine, el accionante de la acción acumulada no aportó, ni desarrolló un parámetro de comparación que permita al Tribunal hacer el análisis correspondiente, solo cuestionó un trato diferenciado respecto de otros funcionarios u otros tipos o modalidades de contratación, sin referirse a cuál otro en específico y cómo los artículos de la normativa impugnada provocan una supuesta lesión. Es verdad que supra la Sala explicó que esta materia es disponible por el legislador pero que al regularla debe hacerlo en términos razonables. No obstante, en este apartado, el accionante no enumera ni justifica medianamente qué otros servidores públicos se están viendo lesionados o amenazados con esta disposición. Consecuentemente, corresponde desestimar los alegatos.

XXIII.- SOBRE LAS OBLIGACIONES IMPUESTAS A LOS SERVIDORES PÚBLICOS EN VIRTUD DEL CONTRATO DE DEDICACIÓN EXCLUSIVA Y LA PROHIBICIÓN Normas impugnadas Se cuestionan los arts. 32 y 33 de la LSAP, adicionados por la LFFP, que regulan lo siguiente:

“Art. 32- Obligaciones de los funcionarios. El funcionario sujeto al contrato por dedicación exclusiva que ostente más de una profesión no podrá ejercer, de manera particular o ad honorem, la profesión o las profesiones que tengan relación con el cargo que desempeña y que constituyen un requisito para desempeñar el puesto que ocupa, ni otra actividad relacionada con el compromiso contractual de exclusividad en la función.

La suscripción del contrato se hará en razón de la profesión requerida en el cargo. Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N° 9635 del 3 de diciembre de 2018) Art. 33- Extensión de la limitación. En caso de que el funcionario ostente más de una profesión y haya firmado un contrato de dedicación exclusiva con la Administración, puede ejercer la profesión o las profesiones que no hayan sido cubiertas por el contrato suscrito, siempre y cuando las que se encuentren relacionadas con el cargo que el servidor ostenta no contravengan el horario de la institución, ni los intereses del Estado. Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N° 9635 del 3 de diciembre de 2018)”.

Agravios de la parte accionante El accionante alega una presunta lesión a los principios de seguridad jurídica, igualdad, razonabilidad y proporcionalidad e interdicción de la arbitrariedad y el art. 33 constitucional. Establecer limitaciones como las señaladas en los arts. 32 y 33 crea una clara situación de desigualdad entre los funcionarios que tienen un contrato de dedicación exclusiva o prohibición y, por lo tanto, se les paga el rubro correspondiente, frente a los funcionarios que no tienen este incentivo salarial y, aun así, el Estado les prohíbe el ejercicio de su profesión, según las normas citadas, lo cual es a todas luces inconstitucional.

Informe de la PGR La PGR advirtió que el principio de imparcialidad, juntamente con el de independencia en la gestión pública, constituyen el pilar en el que se asienta toda la legislación sobre incompatibilidades. En efecto, para obviar o bien evitar los conflictos de intereses y salvaguardar el interés público, el legislador ha elaborado un conjunto de reglas éticas que deben ser observadas por todos los funcionarios en el ejercicio de la función pública. Además, insiste que la función pública está regentada por un conjunto de valores, principios y normas de un alto contenido ético y moral, con el propósito de garantizar la imparcialidad y la objetividad (véanse, entre otros, los votos números 1749-2001 y 5549-99 del Tribunal Constitucional, los cuales, aunque referidos a las incompatibilidades, tienen un alcance general), la independencia y evitar incluso el nepotismo en el ejercicio de la función pública, como típica manifestación de conflicto de intereses. Y desde esta perspectiva, se busca “dotar de independencia a los servidores públicos, a fin de situarlos en una posición de imparcialidad para evitar el conflicto de intereses y la concurrencia desleal” (sentencia n.°1995-3932). En esta materia, evidentemente, el interés público prevalece sobre el interés particular, por lo que los agravios del accionante resultan inatendibles.

Informe del Ministerio de Hacienda Sobre los arts. 32 y 33 se rechazan los agravios apelando a la definición misma de los pluses en cuestión:

“Las limitaciones contenidas en las normas supra citadas tienen su razón de ser en evitar que los funcionarios puedan comprometer su imparcialidad e inclusive ejercer sus otras profesiones durante el tiempo en que se encuentran en la jornada de trabajo. Recuérdese a este respecto, el concepto de superposición horaria, misma que se ha mantenido a lo largo del tiempo y al que se estima se ajustan las normas antes citadas”.

En relación con una supuesta lesión al principio de seguridad jurídica por someter a los servidores a principios de imparcialidad, rechaza el alegato. Sobre dicho punto en concreto se informa lo siguiente:

“No entiende este Despacho, la afirmación del accionante, en cuanto a que al establecerse de manera ambigua, la prohibición expresa para los funcionarios que sin tener un contrato de dedicación exclusiva ni recibir contraprestación económica por ello, deben abstenerse de participar en actividades que comprometan su imparcialidad o favorezcan el interés privado sobre el público se transgrede el principio de seguridad jurídica. Al respecto, dicha disposición no es ambigua y por el contrario, se ajusta a otros cuerpos del ordenamiento jurídico que se refieren a esa imparcialidad, misma que inclusive tiene su fundamento en el propio artículo 11 de la Constitución Política”.

La ministra reitera la voluntad de uniformidad en el sistema y el resguardo de los derechos adquiridos:

“Finalmente, es necesario indicar que, para salvaguardar los derechos adquiridos, y por haberlo dispuesto así el Transitorio XXV de la Ley de Fortalecimiento de las Finanzas Públicas, el salario total de los servidores que se encontraban activos al 4 de diciembre del 2018, fecha en que entró en vigencia esa ley, no puede ser disminuido…” Los argumentos desarrollados por la Procuraduría General de la República en su Dictamen de repetida cita, a diferencia de lo manifestado por el accionante devienen claramente fundamentados, demostrando que la normativa dispuesta en la Ley No 9635 y su reforma, lejos de conllevar actuaciones arbitrarias, discriminatorias, desproporcionadas e irracionales, se encaminan al establecimiento de un marco de regulación uniforme, por vía legal, de todas las relaciones de empleo en el sector público”.

Resolución de la Sala Constitucional En primer término, el cuestionamiento es general y abarca tanto a los servidores que tienen un contrato por dedicación exclusiva, como a los servidores cubiertos por la prohibición. Sin embargo, las normas cuestionadas aluden directamente a que los servidores que sean posibles beneficiarios de compensación económica por prohibición no podrán ejercer de forma privada la profesión que ostenten. Los extractos cuestionados dicen “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 p. 2 in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine). Entonces, corresponde examinar los reproches únicamente desde la perspectiva de la “prohibición”.

Para examinar estos alegatos, se hace preciso, nuevamente, hacer referencia a aspectos conceptuales y la razón y constitucionalidad del régimen de prohibición. De conformidad con la LSAP, la prohibición está definida en los siguientes términos:

“restricción impuesta legalmente a quienes ocupen determinados cargos públicos, con la finalidad de asegurar una dedicación absoluta de tales servidores a las labores y las responsabilidades públicas que les han sido encomendadas. Todo funcionario público que reciba el pago por prohibición tendrá imposibilidad de desempeñar su profesión o profesiones en cualquier otro puesto, en el sector público o privado, estén o no relacionadas con su cargo, sean retribuidas mediante sueldo, salario, dietas, honorarios o cualquier otra forma, en dinero o en especie, o incluso ad honorem.

Los funcionarios bajo régimen de prohibición obtendrán una compensación económica por la limitación al ejercicio liberal de su profesión o profesiones en los términos señalados en la presente ley”. (Lo destacado no corresponde al original).

Definición que es replicada en el reglamento, al disponer lo siguiente:

“Prohibición: restricción impuesta legalmente a quienes ocupen determinados cargos públicos, con la finalidad de asegurar una dedicación absoluta de tales servidores a las labores y las responsabilidades públicas que les han sido encomendadas. Todo funcionario público que reciba el pago por prohibición tendrá imposibilidad de desempeñar su profesión o profesiones en cualquier otro puesto, en el sector público o privado, estén o no relacionadas con su cargo, sean retribuidas mediante sueldo, salario, dietas, honorarios o cualquier otra forma, en dinero o en especie, o incluso ad honorem”.

Esta Sala se ha ocupado de examinar la constitucionalidad y los orígenes de la figura de la prohibición. En la sentencia n.°3369-1996 se realizó el siguiente análisis:

“III).- El artículo primero de la Ley número 5867, aquí cuestionado, establece el pago de una compensación económica para el personal de la Administración Tributaria que se encuentra sujeto, en razón de sus cargos, a la prohibición contenida en el artículo 113 -118 según la numeración actual- del Código de Normas y Procedimientos Tributarios, y extiende dicha compensación a una serie de funcionarios, entre ellos, a los "técnicos" y "técnicos profesionales" de la Oficina de Presupuesto Nacional, la Tesorería Nacional, la Oficina Técnica Mecanizada del Ministerio de Hacienda, la Dirección General de Industrias del Ministerio de Industria, Energía y Minas y los de la Dirección General Forestal del Ministerio de Agricultura.- La prohibición a que se refiere el artículo 118 del cuerpo legal mencionado, está plasmada de la siguiente manera: (…)

Lo anterior significa que los funcionarios o empleados sujetos a esa prohibición, están imposibilitados en forma absoluta no sólo para el ejercicio de otros cargos públicos, sino también para desempeñar, en la empresa privada, actividades relativas a los puestos que ocupan en el Estado, salvo claro está, en las excepciones que la propia norma establece, fundadas bien en la naturaleza de la actividad -docencia- o cuando se trata de la defensa de intereses personales o de sus parientes cercanos.- Dicha limitación se impone, tal y como lo reconocen todos los involucrados en este proceso, cuando el ejercicio liberal de la profesión o actividad sea incompatible con el cargo público que se desempeña, es decir, cuando pueda generar perjuicios graves a los intereses de la Administración Pública, de forma que el impedimento lleva consigo, un pago adicional para el funcionario por concepto de compensación, a fin de evitar no sólo la fuga de personal, sino también un ejercicio desleal de la función.- Resulta claro, a partir de lo dicho, que sólo aquellas actividades cuyo ejercicio privado resulte incompatible con la función que el servidor desempeña, están sujetas a la prohibición en análisis y por tanto, son objeto de la compensación que establece el artículo primero de la Ley número 5867, cuya validez constitucional está en entredicho.- La inexistencia de dicha incompatibilidad, por el contrario, faculta al servidor público para ejercer privadamente su profesión u oficio, sujeto a las responsabilidades del caso si por ello incurriere en alguna falta laboral; y por ello, tampoco la Administración está obligada a otorgar ninguna compensación económica, como la pretendida en autos. (…)

Debe advertirse, en primer término, que para esta Sala el pago de la compensación aludida no constituye, bajo ninguna circunstancia, un beneficio incausado o un privilegio para un determinado grupo de servidores; antes bien, es el justo reconocimiento para quienes, en razón de la función que desempeñan, y para la protección del más alto interés público, no tienen posibilidad de ejercer su profesión u oficio más allá de la dependencia administrativa en la que laboran, por lo que debe descartarse desde ahora, la existencia de una supuesta discriminación, con base en el alegato de que dicho pago es una forma de trato privilegiada para unos cuantos servidores públicos. Se trata de una limitación al ejercicio privado de la profesión u oficio, por cuyo establecimiento el Estado dispuso hacer un reconocimiento económico sobre el salario base de sus empleados. Pareciera que en el fondo, y con tal de obtener un aumento porcentual de los salarios, se desea obligar al Estado a prohibir el ejercicio de toda labor particular a los servidores públicos, a pesar de que no exista incompatibilidad alguna con la función pública ejercida, situación que sí constituiría un pago incausado y por ende ilegítimo, dado que si el servidor es libre de ejercer fuera de las horas de oficina su profesión o actividad, no existe ninguna razón lógica, jurídica, y mucho menos de orden constitucional, para aducir que el no pago de la "prohibición profesional" en dichos supuestos constituye una discriminación irrazonable. En todo caso, queda claro que tampoco se trata de situaciones idénticas que ameriten un trato igualitario en los términos en que se pretende: en primer lugar, existen por un lado, servidores públicos sujetos a una prohibición legal para el ejercicio privado de una determinada profesión o actividad, y por el otro, servidores no sujetos a ella; además, no existe ciertamente una identidad de funciones, a pesar de que se trate de una misma clase de puesto ("técnicos" y "técnicos profesionales")”. (Lo destacado no corresponde al original).

Posteriormente, en la sentencia n.°2008-00591 se justificó el carácter indemnizatorio de la prohibición en virtud de la imposibilidad de realizar el ejercicio liberal de la profesión. Al respecto, se resolvió lo siguiente:

“De manera que, como se indicó, es palmariamente incorrecta la aseveración del gestionante en cuanto a que se trata de alguna clase de prebenda o privilegio de la jerarquía superior del sector público. Antes bien, el acto que declara afecto al régimen de incompatibilidad -entiéndase prohibición en este caso- un determinado cargo público, constituye un típico acto de gravamen y no -como se suele creer- un beneficio. En efecto, no estamos en presencia de actos declarativos de derechos, sino más bien de una determinación que reduce, priva o extingue el derecho o facultad que, de otro modo, tendrían los funcionarios públicos en cuestión para el ejercicio liberal de sus respectivas profesiones. De esta suerte, la retribución prevista por el artículo 15 de la ley 8422 es, en realidad, estrictamente de carácter indemnizatorio, justamente porque esa limitación que se impone al ejercicio liberal de la profesión conlleva la posibilidad de generar un perjuicio, cual es el costo de oportunidad que implica para el servidor afectado el no poder ejercer en forma privada su profesión”. (Lo destacado no corresponde al original).

Más recientemente, la Sala reiteró dichas consideraciones en el sentido de que la prohibición “se trata de una limitación al ejercicio privado de la profesión u oficio, por cuyo establecimiento el Estado dispuso hacer un reconocimiento económico sobre el salario base de sus empleados” y se pronunció sobre la constitucionalidad del art. 15 de la Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, ley n.°8422, en que se resolvió lo siguiente:

“En cuyo caso, el reproche del accionante exige aclarar, preliminarmente, que el pago de la retribución económica prevista en el artículo 15 de la Ley No. 8422 no constituye, como parece entender el accionante, un mero pago adicional o accesorio al salario para garantizar “la estabilidad económica” del funcionario público, sino que constituye una compensación económica como consecuencia específica de la imposición de una prohibición para el ejercicio de una profesión liberal. Asimismo, este Tribunal ha señalado que este tipo de prohibiciones o de incompatibilidades, en el sentido de impedir o limitar a determinados funcionarios públicos el ejercicio privado de su profesión o la realización de actividades privadas relacionadas con el cargo que se desempeñan, tiene por objeto garantizar el deber de objetividad e imparcialidad en el ejercicio de la función pública, sea, evitar que el servidor público pueda estar en una situación donde haya conflicto o colisión entre intereses públicos y privados y, en tal hipótesis, pueda actuar para su propio beneficio en el ejercicio de sus competencias públicas. Por lo demás, si no existe norma que establezca la respectiva prohibición o incompatibilidad, entonces, el funcionario público tiene la libertad para ejercer privadamente su profesión u oficio una vez que ha concluido su jornada de trabajo. A lo que se añade que esta Sala ha resuelto que no puede estimarse que exista una suerte de obligación general del Estado de prohibir el ejercicio de toda labor o actividad particular a sus servidores públicos, con el subsiguiente reconocimiento de una compensación económica”. (Lo destacado no corresponde al original. Sentencia n.°2018-008127).

Dicha concepción, es decir, que se trata de una retribución económica indemnizatoria por la restricción a una libertad personal, también ha sido reconocida en la jurisprudencia de la Sala Segunda de la Corte Suprema de Justicia donde se ha venido reiterando lo siguiente:

“II.-Debe hacerse la distinción entre las compensaciones económicas conocidas como prohibición y dedicación exclusiva. La primera, se formuló como una manera de retribuirle al trabajador la imposibilidad que le dicta la ley, de ejercer su profesión, fuera del puesto desempeñado, por eso opera automáticamente y no está dentro de las facultades del empleado o funcionario solicitarla, ni el patrono tiene discrecionalidad para pagarla. La sola aceptación del puesto en propiedad, implica su pago. Se comenzó a conceder por primera vez en el Sector Público mediante la Ley No. 5867 del 15 de diciembre de 1975, donde se contemplan beneficios salariales adicionales o sobresueldos a los funcionarios de la Administración Tributaria, que se encuentran sujetos por razón de sus empleos, a la prohibición contenida en el artículo 113 del Código de Normas y Procedimientos Tributarios”. (Lo destacado no corresponde al original. Ver sentencias números 171-1989, 58-1991, 2019-000293 y 2023-000749, entre muchas otras).

Finalmente, cabe resaltar que incluso la PGR en el dictamen n.°421 del 7 de diciembre de 2005 también justificó que se trata de un régimen que impone limitaciones al ejercicio de una libertad. De dicho dictamen se desprenden las siguientes consideraciones:

“En todo caso, no puede perderse de vista que el régimen de los derechos fundamentales se caracteriza por el principio de reserva de ley en su regulación, así como por el principio "pro libertatis" que informa su interpretación, determinando este último que toda norma jurídica debe ser interpretada en forma que favorezca la libertad. Bajo esa premisa básica, debe entenderse que la prohibición para el ejercicio de profesiones liberales constituye un régimen que impone limitaciones al ejercicio de una libertad, de ahí que su interpretación necesariamente deba ser de corte restrictivo, y por consiguiente, no puede pretenderse extender su aplicación a supuestos no contemplados en la norma.

Es por ello que, refiriéndonos puntualmente a la prohibición para el ejercicio liberal de la profesión, hemos señalado que:

‘debemos ser claros y contestes en advertir, que de ninguna manera podría pretenderse ampliar por analogía, la esfera de acción de disposiciones gravosas o restrictivas que impongan la prohibición comentada, pues indudablemente nos encontramos frente a lo que la doctrina conoce como "materia odiosa", pues restringe las facultades naturales o la libertad de las personas (BRENES CÓRDOBA, Alberto. "Tratado de las personas", Editorial Costa Rica, San José, 1974, pág. 44); ámbito que se encuentra reservado a la ley –en sentido formal y material- o norma superior a ésta.

Admitir lo contrario, nos llevaría a cometer una flagrante actuación arbitraria, que conculcaría no sólo la legalidad administrativa, sino el Derecho mismo de la Constitución. Y por ello, la propia Sala Constitucional ha determinado que si la Ley no ha establecido una prohibición de ejercicio privado de la profesión o de realización de actividades privadas relacionadas con el cargo que se desempeña, o no existe incompatibilidad, el funcionario es libre de decidir ejercer tal profesión o de realizar tales actividades (Véanse al respecto, las resoluciones Nºs 2312-95 de las 16:15 horas del 9 de mayo de 1995 y 3369-96 de las 10:27 horas del 5 de julio de 1996); es decir, ante la ausencia de una norma referida a una específica profesión, o a falta de incompatibilidad, debe entenderse que el profesional es libre para laborar privadamente.” (opinión jurídica N° OJ-200-2003 del 21 de octubre del 2003) Por lo anterior, resultaría abiertamente improcedente que se pretenda someter al régimen de prohibición a la generalidad de las jefaturas de dirección que existen en la institución, cuando se trata de un régimen que limita el ejercicio de una libertad fundamental y por ende deben observarse de modo estricto los límites establecidos por la ley que lo regula, según ha quedado explicado.

Asimismo, es importante llamar la atención sobre el hecho de que la indemnización prevista por el artículo 15 de la Ley N° 8422, es estrictamente de carácter indemnizatorio, justamente porque esa limitación que se impone al ejercicio liberal de la profesión conlleva la posibilidad de generar un perjuicio, cual es el costo de oportunidad que implica no ejercer en forma privada la profesión”. (Lo destacado no corresponde al original).

A la luz de tales explicaciones, en el caso concreto corresponde declarar la inconstitucionalidad de las disposiciones impugnadas. Debe insistirse que el legislador está legitimado para regular los aspectos atinentes a la función pública, pero siempre dentro de los márgenes del Derecho de la Constitución (valores, principios y normas). En el caso concreto, se aprecia que de una parte se regula y contempla la figura de la prohibición como una restricción a una libertad a efecto de que determinados servidores desempeñen su profesión con una “dedicación absoluta” siendo intrínseca a dicha restricción la “compensación económica por la limitación al ejercicio liberal de su profesión o profesiones” (ver la definición legislativa de la figura de la prohibición). Pero, de otra parte, se pretende incluir idéntica restricción, pero “independiente de que cumplan o no con los requisitos para hacerse acreedores a la compensación”. Cuando menos la norma es inteligible, pues su redacción no es clara. Pero lleva razón el accionante en el sentido de que impone idéntica restricción de estar sometidos al régimen de prohibición, estableciendo limitaciones al ejercicio profesional y, de otra parte, parece obviar la compensación correspondiente a tales restricciones.

Los términos de las normas cuestionadas carecen de razonabilidad y proporcionalidad porque, se repite, provoca una situación de desigualdad, entre servidores con idénticas restricciones, pero en algunos casos sí acceden a la compensación y en otros casos no. Por tanto, lo que corresponde es declarar la inconstitucionalidad de los siguientes párrafos: “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 p. 2 in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine).

Conviene concluir este apartado explicando que acá no hay contradicción entre estas consideraciones y las realizadas supra, en relación con el régimen general de incompatibilidades, sobre imparcialidad, evasión de los conflictos de intereses y probidad. Tales cualidades son intrínsecas a todos los servidores públicos. Acá lo que se cuestiona no es el respeto de tales principios, los cuales siempre deben prevalecer en el servicio público; sino la prohibición de ejercer la profesión en otros ámbitos donde no haya conflictos de intereses o superposición horaria. Si el legislador ha tomado la determinación de indemnizar la restricción a una libertad profesional, debe realizarlo en condiciones equivalentes para todos los servidores públicos y no solamente imponer la restricción sin la consecuente retribución, pues ello implica una normativa irrazonable y lesiva de los derechos de los servidores que tienen la restricción, pero no la compensación.

En consecuencia, este extremo de la acción debe ser declarado con lugar.

El magistrado Rueda Leal emite voto particular y declara con lugar la acción en relación con los párrafos: “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 párrafo 2° in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine), ambos de la Ley de Salarios de la Administración Pública, adicionados por el artículo 3° del título III de la ley de "Fortalecimiento de las finanzas públicas", nro. 9635 de 3 de diciembre de 2018.

XXIV.- SOBRE LOS NUEVOS PORCENTAJES DE DEDICACIÓN EXCLUSIVA Y DE PROHIBICIÓN.

Normas impugnadas Las normas cuestionadas son las siguientes:

Art. 35- Porcentajes de compensación por dedicación exclusiva.

Se establecen las siguientes compensaciones económicas sobre el salario base del puesto que desempeñan los funcionarios profesionales que suscriban contratos de dedicación exclusiva con la Administración:

1. Un veinticinco por ciento (25%) para los servidores con el nivel de licenciatura u otro grado académico superior.

2. Un diez por ciento (10%) para los profesionales con el nivel de bachiller universitario.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018) Art. 36- Prohibición y porcentajes de compensación.

Los funcionarios públicos a los que por vía legal se les ha impuesto la restricción para el ejercicio liberal de su profesión, denominada prohibición, y que cumplan con los requisitos establecidos en el artículo 31 de la presente ley, recibirán una compensación económica calculada sobre el salario base del puesto que desempeñan, de conformidad con las siguientes reglas:

1. Un treinta por ciento (30%) para los servidores en el nivel de licenciatura u otro grado académico superior.

2. Un quince por ciento (15%) para los profesionales en el nivel de bachiller universitario.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018) Agravios de la parte accionante El accionante acusa que las normas violan los principios progresividad de los derechos, igualdad, eficiencia y eficacia, razonabilidad, proporcionalidad y los art. 7, 33, 50, 56, 57 constitucionales. Se cuestiona que los nuevos porcentajes de reconocimiento de sobresueldos de dedicación exclusiva y prohibición, en condiciones menos beneficiosas, lesionan el principio de progresividad de los derechos, señalado anteriormente. La regulación aprobada desmejora las condiciones laborales dentro del sector público, justificado en la mala situación fiscal del país, la cual no puede ser permanente. Sin embargo, las reformas aprobadas no prevén que la situación de los trabajadores cambie, si la situación económica del país se reestablece, por lo que aquello se transforma en una sanción permanente.

Las nuevas reglas de compensación para los funcionarios públicos lesionan los principios de progresividad de los derechos y de eficiencia y eficacia en la Administración Pública. Esto va a generar, a corto plazo, una fuga de profesionales con experiencia, al no haber condiciones salariales atractivas que los mantenga dentro del sistema. El rebajo practicado a los sobresueldos de dedicación exclusiva y prohibición es irracional y carece de un estudio técnico que pueda respaldar ese menoscabo en las condiciones laborales, sin que exista certeza de que sea el causante del problema fiscal del país, cuando se ha señalado que las causas del déficit fiscal se derivan de problemas más complejos como lo son la evasión y elución fiscal. En un futuro próximo, habrá funcionarios realizando funciones iguales o similares, pero percibiendo un ingreso totalmente diferente. El conjunto de normas acusadas en este apartado deja claro que la finalidad de la ley de “estandarizar y unificar” los regímenes de empleo público es falsa, y que el Estado está creando diferencias groseras e injustificadas entre funcionarios de la misma categoría, promoviendo la violación del principio constitucional de igualdad.

Detalla el accionante que el rebajo a más de la mitad de los sobresueldos de dedicación exclusiva y de prohibición a prácticamente a la mitad de los rubros que se había venido pagando es irracional, siendo que no se tiene un estudio técnico que pueda respaldar ese menoscabo en las condiciones laborales, no se puede tener plena certeza de que desmejorando las condiciones salariales de los funcionarios públicos se resuelva el problema fiscal del país.

El rebajo de porcentajes, tanto en los contratos de dedicación exclusiva como de prohibición, genera una clara desigualdad de condiciones entre los mismos funcionarios, tanto los que fueron contratados por la Administración antes de la entrada en vigencia de la ley 9635, con respecto a las nuevas contrataciones. Es decir, funcionarios que estarían haciendo las mismas funciones en iguales condiciones, se les limita el ejercicio de su profesión, pero con condiciones salariales completamente diferentes. Esto, a juicio del accionante, lesiona el principio de igualdad consagrado en el art. 33 de la Constitución Política al generar una odiosa discriminación.

Advierte una situación de desigualdad en la ley y en las derogatorias contenidas en el art. 57 incisos g), i), l), m), n), o), y p) y el art. 58 inciso a), específicamente sobre el tema de los porcentajes de reconocimiento por prohibición, siendo que se crea una seria desigualdad al haberse derogado las normas que regulaban la compensación de pago de prohibición en todo el sector público, excepto el art. 1° inciso a) de la Ley de compensación de pago por prohibición (ley 5867), que es aplicable únicamente a los funcionarios del Régimen de Hacienda y unos cuantos más, incrementando las desigualdades en el sector público de manera desproporcionalmente e injustificado porque es el único sector que mantiene el pago de prohibición en un 65 % del salario, frente a todos los demás servidores a los que se les baja el rubro correspondiente.

Informe de la PGR En relación con los nuevos montos de compensación, la PGR informó lo siguiente:

“En lo relacionado con ese argumento, tal y como lo indicamos en el informe rendido en la acción de inconstitucionalidad tramitada bajo el expediente No. 19-6416-0007-CO, el pertenecer al régimen de dedicación exclusiva no constituye un derecho fundamental, como parece entenderlo el accionante. La dedicación exclusiva se basa en un acuerdo o convenio entre el patrono público y el servidor, de manera tal que, si a éste último le parece que la compensación económica que se le otorgará por apartarse del ejercicio liberal de su profesión es muy baja, está en posibilidad de no suscribir el contrato respectivo.

En todo caso, la Ley de Fortalecimiento de las Finanzas Públicas respetó los derechos adquiridos y las situaciones jurídicas consolidadas de los funcionarios que ya tenían suscrito y vigente un contrato de dedicación exclusiva. Esa previsión se produjo en dos vertientes: asegurando que el salario total de los servidores activos al 4 de diciembre no sería disminuido (Transitorio XXV de la ley n.° 9635); y estableciendo que quienes tuviesen contratos de dedicación exclusiva vigentes mantendrían los porcentajes que otorgaba la normativa anterior (Transitorios XXVI y XXVIII de la ley n.° 9635). (…)

Posteriormente, por medio del decreto n.° 41564 citado, el Poder Ejecutivo emitió el “Reglamento del Título III de la Ley Fortalecimiento de las Finanzas Públicas, Ley N° 9635 referente al Empleo Público”. Los artículos 4 y 5 de ese reglamento también preservaron los derechos adquiridos y las situaciones jurídicas consolidadas de los funcionarios activos a la fecha en que entró en vigencia la ley n.°9635 (…)

Partiendo de lo expuesto, no considera esta Procuraduría que los cambios introducidos por la ley n.°9635 en materia de dedicación exclusiva violen el Derecho de la Constitución, sobre todo si se toma en cuenta que dichos cambios no afectaron a los funcionarios que habían ingresado al régimen antes de la entrada en vigencia de esa ley.

Si el Sindicato accionante estima que los porcentajes de compensación económica por dedicación exclusiva aplicables a los funcionarios que ingresaron al servicio público después de la vigencia de la ley n.° 9635 violan el principio de razonabilidad debieron demostrarlo, pues como ha indicado esa Sala, no basta con alegar la irrazonabilidad de una norma, sino que es necesario demostrarla. El cumplimiento de tal requisito, según reiterados fallos de esa Sala, es indispensable para realizar el examen de validez de la disposición impugnada (…)

En este caso, los accionantes no aportan prueba técnica o argumentos sólidos que permitan tener por cierto que los porcentajes de compensación económica por dedicación exclusiva dispuestos en el artículo 35 de la Ley de Salarios de la Administración Pública, sean irrazonables.

Por otra parte, no considera este Órgano Asesor que la nueva regulación sobre dedicación exclusiva torne ruinoso el salario de los profesionales que ingresen a laborar al sector público con posterioridad al 4 de diciembre del 2018, pues se trata, como ya indicamos, de una compensación accesoria al salario, que se basa en una figura que es contractual y, por tanto, renunciable por parte del trabajador. Es decir, si el trabajador considera que la compensación económica no es suficiente para suplir los ingresos que podría percibir por el ejercicio privado de su profesión, está en posibilidad de declinar la firma del contrato de dedicación exclusiva y procurarse, en el ejercicio privado, los recursos económicos respectivos.

Desde esa perspectiva, no es posible respaldar la afirmación del Sindicato accionante en el sentido de que el monto de la compensación económica por dedicación exclusiva constituya un derecho humano, ni que su disminución (para las personas contratadas con posterioridad a la entrada en vigencia de la ley n.° 9635) afecte el principio de progresividad, pues las personas que ya estaban adscritas al régimen de dedicación exclusiva con anterioridad a la entrada en vigencia de la ley n.° 9635 mantienen los porcentajes previstos anteriormente, y las que ingresaron después de esa fecha, tienen derecho a decidir si se acogen o no al régimen, aumentando en todo caso su salario total. Si deciden no acogerse, podría en todo caso ejercer de forma privada su profesión y devengar la retribución económica adicional por ello, la cual complementaría sus ingresos totales.

De modo que no es cierto que con la Ley n.° 9635 se produjeron rebajos excesivos, desproporcionados e irrazonables en el salario de los profesionales, pues como ya indicamos, dicha ley tomó la previsión de no afectar el salario total de los funcionarios activos al 4 de diciembre del 2019; para los cuales se mantuvieron los porcentajes por dedicación exclusiva siempre que a esa fecha tuviesen contratos de dedicación exclusiva vigentes.

Y en todo caso, debemos resaltar que la regulación legal del régimen funcionarial, es una atribución expresa del legislador (art. 191 constitucional), en relación con el cual la Asamblea Legislativa ejerce discrecionalmente su potestad legislativa, por demás inagotable (arts. 105 y 121.1 constitucionales).

No son de recibo los vicios de inconstitucionalidad acusados”.

Informe del Ministerio de Hacienda La ministra, al referirse a los porcentajes en cuestión, dice que los mismos pueden ser revisados y ajustados, tal y como ocurrió con la promulgación de la ley n.°9635 y con ello no se viola el marco constitucional. Afirma que las variantes dispuestas en el Título III de la LFFP en lo relativo a los porcentajes de la Dedicación Exclusiva, en criterio de esta Cartera no riñen con las disposiciones contenidas en la Constitución Política. Valoración aplicable también para las variantes en los porcentajes para el reconocimiento económico de la prohibición.

Resolución de la Sala Constitucional Lo atinente a estos extremos debe rechazarse. El accionante afirma que estas disposiciones se adoptaron a la luz de una situación fiscal concreta, pero se traduce en una especie de “sanción permanente”. Se aduce de forma genérica que se lesionan los principios de razonabilidad, proporcionalidad, progresividad, eficiencia y eficacia en la Administración Pública y alude a supuestas lesiones hipotéticas: fuga de profesionales y la afectación del funcionamiento de la Administración Pública. Se invoca que el rebajo es irrazonable, sin que se tenga certeza de que el tema salarial sea el causante de los problemas fiscales y supuestas diferencias entre funcionarios de la misma categoría. Esta Sala considera que los alegatos del recurrente carecen de una adecuada fundamentación y demostración de los agravios que enuncia.

En primer lugar, no se observa que se trate de una especie de sanción, sino una definición vía legal de los montos que a continuación se pueden reconocer a los nuevos servidores públicos. Lo anterior, en atención a la grave situación fiscal de nuestro país. Ya se realizó un amplio considerando en el que se detalló la motivación de la propuesta legislativa que no solo contempla aspectos salariales, pero sí era un elemento urgente de atender. La Sala enfatizó anteriormente que el cumplimiento del principio de equilibrio financiero o presupuestario es una justificación objetiva y razonable para regular los aspectos salariales y que “frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable” (opinión consultiva n.°2018-18505).

Es verdad que los aspectos salariales de los servidores públicos no deben quedar congelados indefinidamente o provocar salarios insuficientes para garantizar las condiciones de dignidad y bienestar de los servidores públicos (ver considerando VII). Sin embargo, los alegatos del accionante se basan en meras premisas y enunciados carentes de una adecuada fundamentación. Al respecto, se debe reiterar y remitir al accionante a la resolución de esta Sala n.°2024-007057, en el sentido de que estos enunciados genéricos sin una adecuada fundamentación y sin prueba de sus afirmaciones, corresponden ser rechazados. Por su identidad, conviene reiterar:

“En este sentido, la Sala estima que el planteamiento de los accionantes es abstracto y general, pues se limita a mencionar que se da un menoscabo salarial a los trabajadores que consideran desproporcionado e irracional a través de una norma que, subjetivamente se considera que no es razonable; empero no se puntualizan las razones, no presentan los datos o pruebas sólidas o elementos de juicio que permitan hacer un análisis de razonabilidad de la decisión tomada por el Poder Ejecutivo, conforme lo exige la jurisprudencia de esta Sala.

(…)

Asimismo, respecto a la acusada lesión al principio de interdicción de la arbitrariedad y del principio de interdicción de la desviación de poder, en el memorial de interposición no se hace una adecuada fundamentación de las razones por motivos de constitucionalidad, por las cuales se considera la eventual lesión de esos principios, sino que más bien refieren criterios, que deberán ser verificados en la vía de legalidad.

En relación específicamente con el principio de igualdad y no discriminación, no basta simplemente la invocación de su violación. En este sentido, es oportuno recordar a la parte accionante, que ha sido línea jurisprudencial de este Tribunal que, cuando se alega la vulneración de principio de igualdad o de proporcionalidad, como sucede en este caso, está en el deber de aportar un parámetro de comparación, junto con el análisis correspondiente. De ahí que quien invoque ese tipo de quebranto, está obligado a aportar elementos que permitan efectuar una comparación plena entre los sujetos tratados en forma diferente, que permita cotejar si se produce la alegada desigualdad o no.

(…)

En consecuencia, la falta de fundamentación de la acción en cuanto a estos extremos, impide siquiera valorar la vulneración de los principios señalados. Tal como ya se indicó, la jurisprudencia de la Sala es contundente en señalar este deber de fundamentar los argumentos de inconstitucionalidad (véase al respecto también la sentencia nro. 2023-31744, de las 9:30 horas del 6 de diciembre de 2023). En el caso bajo estudio, la parte accionante se limita a señalar los principios constitucionales presuntamente afectados con la normativa que pretende cuestionar, sin detallar ni hilvanar argumentación concreta que permita valorar si, en efecto, se presentan los vicios enunciados.

Resulta improcedente, entonces, que esta Sala se pronuncie por el fondo de normas cuestionadas en una acción, cuando el que acciona no fundamenta las razones por las cuales impugna, toda vez, que ello implicaría efectuar un control constitucional en abstracto a manera de ejercicio académico, lo que no es compatible con la finalidad de un proceso de esta naturaleza”. (Lo destacado no corresponde al original).

Dichas consideraciones caben ser replicadas en el caso concreto, dado que la fundamentación realizada por el accionante es insuficiente para realizar un examen de razonabilidad de las disposiciones (supuesta irrazonabilidad de los nuevos montos, fuga de profesionales y eventual afectación del funcionamiento de la Administración Pública), así como la alegada lesión al principio de igualdad. Se insiste, a tales efectos, que no presentan los datos o pruebas sólidas o elementos de juicio que permitan contrastar y hacer un análisis de razonabilidad de la decisión tomada por la Asamblea Legislativa, sin que quepa que sea esta Sala la que supla las omisiones apuntadas.

El magistrado Cruz Castro salva el voto y declara inconstitucionales los artículos 35 y 36 de la Ley de Salarios de la Administración Pública.

XXV.- SOBRE LA PROHIBICIÓN DE INCENTIVOS ADICIONALES Normas impugnadas Las normas que se cuestionan son el art. 40 de la LSAP, normativa adicionada por la LFFP y además el art. 16 del Reglamento del Título III de la LFFP, ley n.°9635 referente al Empleo Público, n.°41564-MIDEPLAN-H, que dicen lo siguiente:

“Art. 40- Incentivos adicionales improcedentes.

No procede la creación, el incremento, ni el pago de remuneración por concepto de “discrecionalidad y confidencialidad”, ni el pago o reconocimiento por concepto de bienios, quinquenios o ninguna otra remuneración por acumulación de años de servicio distintos de las anualidades, en ninguna de las instituciones contempladas en el artículo 26 de esta ley.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).

Art. 16.- Incentivos adicionales improcedentes.

El pago de los beneficios de confidencialidad y discrecionalidad, bienios, quinquenios u otra acumulación de años de servicio distintos a las anualidades, no podrá ser otorgado en ningún caso a los servidores que sean nombrados por primera vez en una de las instituciones que reconozcan dichos incentivos, a partir de la entrada en vigencia de la Ley N°9635”.

Agravios de la parte accionante La norma, a juicio del accionante, constituye una injerencia del Estado que resulta inconstitucional, por afectar las posibilidades de autogobierno que posee el régimen Municipal. Se trata de una norma de carácter prohibitivo, que elimina a los gobiernos locales la posibilidad de determinar sus propias necesidades y posibilidades en materia salarial y establecer incentivos para que el personal de trabajo se mantenga en sus labores. Afirma que es violatorio del principio de progresividad de los derechos laborales, pues provoca regresión en algunas instituciones que ya pagan el incentivo del quinquenio, sea por la vía legal (art. 90 inciso c) de la Ley General de Policía, art. 27 de la Ley de Personal de la Asamblea Legislativa) o reglamentaria (arts. 99 y 100 del Reglamento Autónomo del Instituto Costarricense de Turismo) o por la vía de la negociación colectiva (Junta de Protección Social de San José).

Informe de la PGR La PGR sugiere desestimar los alegatos planteados. A tales efectos, realiza las siguientes reflexiones:

“Del análisis de la ley n.°9635 y de su Reglamento (emitido mediante el decreto n.°41564 de 11 de febrero del 2019) no se desprende que la intención del legislador en uso de las amplias potestades configurativas del Estatuto de la función pública que le otorga la Constitución (arts. 105, 121.1 y 191), haya sido la de derogar las disposiciones, de distinto rango, que regían la remuneración de los servidores públicos (salvo en los casos expresamente previstos en la propia ley) sino la de adecuar esa normativa a un marco general y trasversal aplicable a cada uno de los componentes salariales existentes, en lo que resulte normativamente incompatible con ella.

Lo anterior queda de manifiesto, por ejemplo, con lo dispuesto en el artículo 54 de la Ley de Salarios de la Administración Pública, según el cual, "Cualquier otro incentivo o compensación existente que a la entrada en vigencia de esta ley esté expresado en términos porcentuales, su cálculo a futuro será un monto nominal fijo...". Esa norma no deroga los incentivos o compensaciones existentes antes de la Ley de Fortalecimiento de las Finanzas Públicas, sino que establece la forma en que han de calcularse a futuro, ya no porcentualmente, sino mediante un monto nominal fijo.

El hecho de que el artículo 40 de la Ley de Salarios de la Administración Pública, en relación con el 16 del reglamento al Título III de la ley n.° 9635, haya decidido dejar sin efecto algunos sobresueldos específicos como el de confidencialidad y discrecionalidad, bienios, quinquenios y cualquier otro relacionado con acumulación de años de servicio distintos a la anualidad, respalda la afirmación de que los sobresueldos existentes antes de la entrada en vigencia de esa ley, y que no sean los mencionados en el artículo 40 aludido, se mantienen vigentes y son aplicables al personal de las instituciones a las que se refiere el artículo 26 de la Ley de Salarios de la Administración Pública, incluido el personal que se nombre en el futuro, pero nominalizados.

Por otra parte, en lo que concierne a la reserva de ley para la creación de nuevos sobresueldos, tal reserva aplica a partir de la entrada en vigencia de la ley n.°9635 y hacia futuro. Así se desprende del texto expreso del artículo 55 de la Ley de Salarios de la Administración Pública, según el cual, "La creación de incentivos o compensaciones, o pluses salariales solo podrá realizarse por medio de ley." (El subrayado es nuestro).

Si bien conocemos que en la resolución No. 2018-019511 de las 21:45 hrs. del 23 de noviembre de 2018, la Sala señaló que el citado artículo 55, en el tanto impone la creación de incentivos y compensaciones sólo a través de una ley formal, no es inconstitucional, siempre y cuando se entienda que no se aplica a los empleados y trabajadores públicos que puedan celebrar convenciones colectivas, conforme a la reforma introducida por la Reforma Procesal Laboral, Ley No. 9343, al artículo 112, inciso 5) de la Ley General de la Administración Pública (LGAP), conforme a la determinación inversa o contrario sensu que de estos hacen los artículos 683 y 689, pues en aquellos ordinales se define más bien quiénes son los que participan de la gestión pública; quedando entonces habilitados todos los demás servidores, salvo los allí enunciados, para concertar convenios colectivos. Esto a fin de no vaciar de contenido el derecho a celebrar convenciones colectivas y la propia acción sindical”.

Resolución de la Sala Constitucional En relación con la supuesta lesión a la autonomía municipal, deberá la parte accionante estarse a lo ya resuelto por esta Sala en la sentencia n.°2019-010635 que admitió parcialmente esta acción y desestimó los alegatos planteados sobre una presunta lesión al principio de autonomía:

“II.- SOBRE LA INADMISIBILIDAD PARCIAL DE LA ACCIÓN. A partir de lo expuesto, la acción no es admisible en relación con la violación al principio de autonomía y, por tanto, se rechaza de plano en cuanto al artículo 26 de la Ley No. 2166 y los artículos 5 y 11 de la Ley No. 9635. Adicionalmente, se rechaza de plano la presunta violación de este principio en relación con los artículos 28, párrafos 2 y 4, 40, 46, 47, 48, 50, 52, 53, 54 y 55 de la Ley No. 2166, 17, 23, 24 y 25 de la Ley No. 9635 y 1 inc) 1°, 6, 15, 16, 17, 21, 22 del Decreto Ejecutivo No. 41564-MIDEPLAN-H. Por último, se rechaza de plano la violación a los artículos 169, 170, 188 y 189 de la Constitución Política de los artículos 26 y 55 de la Ley No. 2166 y artículos 5, 11 y 17 de la Ley No. 9635”. (Lo destacado no corresponde al original).

En cuyo caso solamente subsiste el alegato sobre posibles lesiones a los principios constitucionales de progresividad y no regresividad porque se provoca una “regresión” en aquellos casos en que, por vía legal, reglamentaria o por convenciones colectivas ya se reconocen estos pluses. Bajo ese panorama, se aprecia que en realidad no estamos frente a un conflicto de constitucionalidad debidamente sustentado, sino a una disputa de legalidad ordinaria sobre la prevalencia de las normas generales o especiales en aquellos casos donde se pagan diferentes rubros o incentivos salariales. Este análisis de eventuales antinomias en diferentes casos concretos corresponde ser realizado, examinado y resuelto en las instancias de legalidad competentes. Al respecto, por ejemplo, en la sentencia n.°2024-009406 se resolvió lo siguiente:

“En cuyo caso, aunque se alegue una supuesta infracción a una norma constitucional, lo cierto es que el conflicto de fondo planteado por la accionante constituye un diferendo de legalidad ordinaria, atinente a la correcta interpretación y aplicación de lo dispuesto en los artículos 333, 339 y 340, inciso 2), del Código de Trabajo y su eventual confrontación con lo dispuesto en las cláusulas 8 incisos c) e i), 10, 13 inciso b), 15 y 17 de los Estatutos del Sindicato de Trabajadores de la Salud de Instituciones Públicas y Privadas (SITHOSAJUDI-SINTRASALUD). Conflicto que, prima facie, no procede dilucidarse mediante una acción de inconstitucionalidad. Así, por ejemplo, en el voto No. 2018-000521 de las 9:15 horas del 17 de enero de 2018, esta Sala resolvió:

“Lo que plantea el accionante, por el contrario, es una discusión sobre la adecuada interpretación y aplicación de diversas normas infraconstitucionales y sobre una eventual colisión entre dicha normativa. Esto hace referencia a un conflicto de legalidad ordinaria que no procede ser dilucidado por esta Sala. Este Tribunal ha señalado, primeramente, que “la aplicación indebida de la ley o su errónea interpretación en el caso concreto” no es materia propia de conocerse mediante la acción de inconstitucionalidad (sentencia No. 5966-94 de las 15:54 hrs. del 11 de octubre de 1994). A lo que se añade que tampoco le compete resolver sobre eventuales antinomias entre normas de rango legal.” Por su parte, en el voto nro. 2021-020701 de las 10:15 horas del 16 de setiembre de 2021, este Sala también indicó:

“(...) el argumento sobre una colisión de leyes o normativa infraconstitucional, así como la errónea interpretación e indebida aplicación normativa, es un conflicto de legalidad que deberá analizarse en la vía ordinaria y no como argumento de constitucionalidad en esta sede. El proceso de acción está destinado para ejercer un control de constitucionalidad de las normas y no para controlar la correcta aplicación del derecho.”

Por lo que, en definitiva, no compete a esta Sala dilucidar si lo previsto en las citadas cláusulas estatutarias se adecua plenamente o no a las disposiciones del Código de Trabajo. Tales extremos deberán resolverse en las vías comunes”. (Lo destacado no corresponde al original).

En cuyo caso, la discusión que nos presenta el accionante sobre si prevalece la normativa de la LSAP o disposiciones especiales como la Ley General de Policía, la Ley de Personal de la Asamblea Legislativa, reglamentaria o de convenciones colectivas, es de legalidad y no de constitucionalidad.

Lo relativo a la supuesta lesión a los principios de eficiencia y eficacia, seguridad jurídica, derecho a la negociación colectiva y el principio protector, debe rechazarse. Al respecto, se realizó el enunciado, pero no se fundamentó de qué forma se ven lesionados tales derechos y principios constitucionales. Ya se advirtió supra que no le corresponde a este Tribunal suplir las omisiones en la argumentación que es exigida a quien afirma la inconstitucionalidad de una norma.

XXVI.- SOBRE LA RECTORIA DE MIDEPLAN Normas impugnadas Las normas cuestionadas son el art. 46 de la LSAP, normativa adicionada por la LFFP, y además el art. 22 del Reglamento del Título III de la LFFP, ley n.°9635 referente al Empleo Público, n.°41564-MIDEPLAN-H, que disponen lo siguiente:

Art. 46- Rectoría de Empleo Público.

Toda la materia de empleo del sector público estará bajo la rectoría del ministro o la ministra de Planificación Nacional y Política Económica, quien deberá establecer, dirigir y coordinar las políticas generales, la coordinación, la asesoría y el apoyo a todas las instituciones públicas, y definir los lineamientos y las normativas administrativas que tienda a la unificación, simplificación y coherencia del empleo en el sector público, velando que instituciones del sector público respondan adecuadamente a los objetivos, las metas y las acciones definidas.

Además, deberá evaluar el sistema de empleo público y todos sus componentes en términos de eficiencia, eficacia, economía y calidad, y proponer y promover los ajustes necesarios para el mejor desempeño de los funcionarios y las instituciones públicas.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018) Art. 22.- Aplicación disposiciones Ley N°9635.

Corresponderá al Ministerio de Planificación Nacional y Política Económica, asesorar y dar apoyo a todas las instituciones públicas que se encuentren bajo el ámbito de lo dispuesto en el Título III de la Ley N 9635, respecto a la aplicación de dicho cuerpo normativo y de lo señalado en el presente reglamento.

Asimismo, en lo relacionado con la evaluación del desempeño de los servidores públicos, dicho Ministerio en su rol de rectoría suministrará los instrumentos metodológicos correspondientes para articular con las diferentes instituciones su efectiva implementación.

Corresponde mencionar que la recién citada norma, con dicha redacción, tuvo una vigencia de apenas unos meses, pues posteriormente fue reformada por el art. 1° del decreto ejecutivo n.°41729 del 20 de mayo del 2019. La norma actualmente dice lo siguiente:

“Artículo 22.- Aplicación disposiciones Ley N°9635 y competencias institucionales. Corresponderá al Ministerio de Planificación Nacional y Política Económica en coordinación con la Dirección General del Servicio Civil y el Ministerio de Trabajo y Seguridad Social, según su ámbito de competencia y experiencia técnica, asesorar y dar apoyo a todas las instituciones públicas que se encuentran bajo el ámbito de lo dispuesto en el Título III de la Ley N°9635, con respecto a la aplicación de lo señalado en el presente reglamento.

Para ello, cada institución deberá remitir su consulta acompañada del criterio legal de su Unidad de Asesoría Jurídica y del criterio técnico de su Oficina de Recursos Humanos, cuando este último resulte necesario, a efectos de evacuar la misma. No se atenderán consultas que no se acompañen del criterio jurídico correspondiente.

La Dirección General del Servicio Civil, continuará emitiendo las resoluciones técnicas en materia de valoración de puestos, de acuerdo con lo que disponen los artículos 13º y 48º del Estatuto de Servicio Civil, así como 1º, 4º y 11º de la Ley de Salarios de la Administración Pública, siendo el único órgano dentro del Poder Ejecutivo con facultades para valorar los puestos dentro del Régimen de Servicio Civil así como las demás resoluciones que le corresponda emitir según su ámbito de competencia.

El Ministerio de Hacienda, de conformidad con el artículo 28, inciso a) de la Ley de la Administración Financiera de la República y Presupuestos Públicos Nº 8131, es el ente Rector del Sistema de la Administración Financiera, por lo que le compete dirigir, coordinar y supervisar todo lo relacionado con los ajustes requeridos y el adecuado funcionamiento de los Sistemas Informáticos de Pagos INTEGRA 1 e INTEGRA 2 en virtud de la entrada en vigencia del Título III de la Ley N°9635.

El Ministerio de Trabajo, en orden con lo establecido en la Ley Orgánica del Ministerio de Trabajo y Seguridad Nº1860, atenderá todo lo relacionado con materia sindical, convenciones colectivas y pensiones.

Asimismo, en lo relacionado con la evaluación del desempeño de los servidores públicos, el Ministerio de Planificación Nacional y Política Económica, en su rol de rectoría, suministrará los instrumentos metodológicos correspondientes para articular con las diferentes instituciones su efectiva implementación”.

Agravios de la parte accionante El accionante cuestiona que a MIDEPLAN se le otorgan potestades de “definir los lineamientos, y las normativas administrativas que tiendan a la unificación, simplificación y coherencia del empleo en el sector público, velando que instituciones del sector público respondan adecuadamente a los objetivos, las metas y las acciones definidas”. Esto constituye una intromisión clarísima en las potestades de administración, políticas y de organización de los entes descentralizados, en violación directa de los tres grados de autonomía que la Constitución y las leyes de creación han otorgado a cada una de esas administraciones, despojándolas de su potestad de autoadministración. Cada uno de los entes descentralizados, es una persona jurídica distinta, con un fin legal específico y que atiende necesidades concretas establecidas por ley. Para ello se les asigna un presupuesto, que en muchos casos es propio pues proviene de impuestos creados a su favor o de un giro comercial. Por otra parte, el Ministerio de Planificación es ajeno a la realidad de cada institución y la comunidad o interés público que atiende, pese a lo cual se le otorga potestad para decidir en múltiples aspectos del régimen de empleo público. También se produce una violación al principio de seguridad jurídica, pues la dualidad en la regulación (régimen descentralizado y potestades regulatorias del Poder Ejecutivo), causa un estado de inseguridad para los entes y sus trabajadores.

Informe de la PGR La PGR sugiere declarar sin lugar este extremo del recurso, con base en las siguientes consideraciones:

“Muy al contrario de lo acusa infundadamente el accionante, con la Ley de Fortalecimiento de las Finanzas Públicas y en específico su Título III, referido a la Modificación de la Ley No. 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957 y sus reformas, y demás disposiciones Transitorias aplicables, no se buscaba instaurar, a modo de homogeneidad artificial, un estatuto de empleo público unitario en términos formales; es decir, un único instrumento normativo-, sino que con ella se establecieron una serie de postulados y normas en materia retributiva que, en líneas generales y con una clara pretensión de generalidad, tienden a la unificación, simplificación y coherencia transversal de los diferentes subsistemas de empleo preexistentes en el Sector Público, que incluye tanto la Administración Central, como la descentralizada, con independencia del grado de autonomía de cada institución, o del tipo de servicios que se prestan al Estado.

Y según versan los propios numerales 46 de la Ley 9635 y 22 de su Reglamento acusados, la rectoría que la Ley otorga a MIDEPLAN es para emitir políticas generales y asesorar a las instituciones públicas para lograr la unificación, simplificación y coherencia en materia de empleo público. Lo anterior a partir de políticas de eficiencia y eficacia administrativas, siguiendo criterios de planificación y medición de resultados de la gestión pública; esto conforme al ordinal 140 inciso 8) constitucional.

No fue la intención del legislador derogar las atribuciones otorgadas a otras dependencias públicas en sus respectivas leyes de creación; lo cual es una opción jurídicamente viable y que nada afecta el Derecho de la Constitución en los términos acusados”.

Resolución de la Sala Constitucional La mayoría de los agravios planteados fueron desestimados ab initio por esta Sala, pues todo lo relativo a la defensa de la autonomía institucional fue rechazado de plano debido a la falta de legitimación del accionante (sentencia interlocutoria n.°2019-010635).

Cabe recordar, además, que mediante resolución de esta Sala Constitucional n.°2024-7057 del 14 de marzo de 2024, se resolvió declarar sin lugar las acciones de inconstitucionalidad acumuladas ‒en donde se incluyó el art. 22 del reglamento‒, en el entendido de que las normas del decreto cuestionado se deben aplicar únicamente a los funcionarios de las instituciones que no están excluidas de la aplicación de la LFFP en la materia salarial de conformidad con lo dispuesto por la opinión consultiva n.°2018-19511, de las 21:45 horas del 23 de noviembre de 2018.

En virtud de lo anterior, solamente resta el argumento de una presunta violación al principio de seguridad jurídica en perjuicio de los trabajadores, pues por un lado se consagra la autonomía de los entes descentralizados y, por otro, le otorga potestades al MIDEPLAN para que tome decisiones y vía decreto emita lineamientos, invirtiendo la jerarquía de las normas en caso de acatamiento a dichas políticas, o bien de responsabilidad en caso de no acatamiento. En síntesis, cuestiona la rectoría del MIDEPLAN por la inseguridad jurídica que podría acarrear a los trabajadores. En criterio de este Tribunal el argumento del accionante hace relación con eventuales conflictos normativos de aplicación de disposiciones de rango infra constitucional que nada dice de la constitucionalidad en sí misma de los numerales cuestionados y de una lesión cierta al Derecho de la Constitución o a los derechos fundamentales de los servidores públicos. Los eventuales conflictos normativos corresponderían ser valorados y solventados en primera instancia por las autoridades legales competentes, pero en el sub lite, los argumentos aportados no alcanzan para valorar y determinar una confrontación directa de las normas con la Constitución Política y, mucho menos, una lesión a los derechos fundamentales de los funcionarios públicos. Es apenas un enunciado sobre una eventual situación de inseguridad sobre lo que debe prevalecer en cada caso concreto; respecto de lo cual, los operadores jurídicos naturalmente deberán echar mano de las herramientas que ofrece el ordenamiento jurídico y particularmente la Ley General de la Administración Pública para solventar cualesquiera conflictos normativos. Sin embargo, se repite, tal conducta propia de la aplicación de cualquier normativa, no implica su inconstitucionalidad. Nuevamente el accionante omite aportar argumentos sólidos y suficientes para recriminar la norma en cuestión, sin que corresponda que esta Sala supla las deficiencias argumentativas. En consecuencia, se deben desestimar los reproches realizados.

XXVII.- SOBRE LA MEDICIÓN DE LA EVALUACIÓN DEL DESEMPEÑO Normas impugnadas Se impugna el art. 47 de la LSAP, normativa adicionada por la LFFP, que ordena lo siguiente:

“Art. 47- Fundamento metodológico de la evaluación del desempeño.

La evaluación del desempeño de los funcionarios se fundamentará en indicadores cuantitativos de cumplimiento de metas individuales de productos y servicios prestados, vinculados a los procesos y los proyectos que realice la dependencia a la que pertenece, y la del cuerpo gerencial en todos sus niveles para el cumplimiento de las metas y los objetivos institucionales.

Será responsabilidad de cada superior definir los procesos y los proyectos de la dependencia, así como los productos y los servicios prestados, de conformidad con la normativa vigente y los planes estratégicos gubernamentales institucionales.

Los lineamientos generales aplicables para todo sector público los definirá el Ministerio de Planificación Nacional y Política Económica (Mideplán), con el objetivo de homogenizar y estandarizar, con las salvedades respectivas, los métodos de evaluación y los sistemas de información respectivos.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018)”.

Agravios de la parte accionante Además de la supuesta lesión a la autonomía de los entes descentralizados, el accionante considera que existe también violación al principio de igualdad y al principio de interdicción de la arbitrariedad, en tanto la Administración puede desaplicar sus propios métodos de evaluación cuando así lo desee, sin criterios objetivos establecidos en la ley. La violación al principio de igualdad deriva ‒según el accionante‒ del párrafo 1° de la norma que establece “indicadores cuantitativos de cumplimiento de metas individuales de productos y servicios prestados”. Se alega que los servicios prestados por la Administración Pública no se equiparan nunca al tipo de servicios prestados en el sector privado, como para establecer métodos de evaluación de carácter cuantitativos. Considera que MIDEPLAN desconoce las realidades de las diferentes instituciones y los diversos trabajadores del sector público como para definir lineamientos estandarizados y cuantitativos de metas y de evaluación de resultados. Se cuestiona, por ejemplo, ¿cómo cuantificar el trabajo de un policía o de un maestro?.

Informe de la PGR En el tanto lo que se acusa por el accionante pareciera estar referido a un aspecto de simple y estricto interés de la legalidad ordinaria, en el que no se acusan presuntas infracciones de normas y principios constitucionales, en los términos del art. 73 incisos a) y b) de la LJC, sino que refiere a un claro aspecto de interpretación y aplicación normativa del alcance del ordinal 47 de la LSAP reformada por la citada ley n.°9635, lo así impugnado no puede ser objeto de una acción de inconstitucionalidad como se pretende, pues dicho proceso está destinado para ejercer un control de constitucionalidad de las normas y no para controlar la correcta aplicación del Derecho; aspecto este último de mera legalidad ordinaria que correspondería conocer y resolver a la jurisdicción ordinaria competente, que en este caso podría ser la Contencioso Administrativa.

Resolución de la Sala Constitucional Cabe insistir nuevamente que los agravios relacionados con la lesión a la autonomía municipal y de los entes descentralizados fueron rechazados preliminarmente.

Posteriormente el accionante alude a una supuesta lesión a los principios de igualdad y de interdicción de la arbitrariedad porque “la Administración puede desaplicar sus propios métodos de evaluación cuando así lo desee”. No obstante, de una atenta lectura de la norma no se logra apreciar en qué se basa el accionante para realizar estas afirmaciones. En efecto, de la argumentación realizada por el accionante no es posible derivar una lesión al Derecho de la Constitución, sino meras suposiciones sobre la dificultad práctica en lo relativo a la evaluación del desempeño y, concretamente, la medición de objetivos o resultados para las diversas gamas de servidores de la Administración Pública. Al respecto, en criterio de la Sala, las recriminaciones de los accionantes no pasan de ser meras dificultades prácticas u operativas sobre qué deben entenderse por metas individuales de productos o servicios prestados; pero que, en los términos enunciados por el accionante, no reflejan un problema de relevancia constitucional, sino meras suposiciones de la supuesta dificultad en diseñar metas individuales de productos o servicios prestados para los servidores públicos que estén necesariamente vinculados a los procesos y los proyectos que realice la dependencia a la que pertenece cada servidor. En ese sentido, esta Sala coincide con la opinión brindada por la PGR en cuanto a que este proceso no está diseñado para controlar la correcta aplicación de las normas infra constitucionales sino para valorar la confrontación de las disposiciones con el Derecho de la Constitución, siendo que de los argumentos planteados no se desprende o corrobora tal enfrentamiento evidente.

Debe recordarse que por imposición de la Constitución Política, la Administración Pública y sus servidores públicos están sometidos a un procedimiento de evaluación de resultados y rendición de cuentas con la consecuente responsabilidad personal para todos los servidores públicos en el cumplimiento de sus deberes. Dice también la Constitución que corresponde a la ley señalar los medios para que el control de resultados y la rendición de cuentas opere como un sistema que cubra a todas las instituciones públicas (art. 11 de la Constitución Política). Justamente, esta normativa impugnada pretende establecer los lineamientos generales para cumplir con el mandato constitucional de someter a los servidores públicos a un proceso continuo de evaluación de resultados que demuestre eficiencia, sin que se aprecie que de tales disposiciones generales se lesionen los derechos fundamentales de los funcionarios públicos.

Este pronunciamiento se refiere, claro está, a la disposición general que acá se impugna, lo que no obsta para que, eventualmente, las metodologías concretas de evaluación del desempeño que se emitan, puedan ser cuestionadas por presunta lesión a los principios de razonabilidad o de igualdad de los trabajadores potencialmente afectados.

XXVIII.- SOBRE LOS CRITERIOS DE LA EVALUACIÓN DEL DESEMPEÑO Normas impugnadas El accionante cuestiona la norma que establece los criterios generales de la evaluación del desempeño. La norma originalmente impugnada decía lo siguiente:

Art. 48- Criterios para la evaluación del desempeño. Cada jefatura de la Administración Pública, al inicio del año, deberá asignar y distribuir a todos los funcionarios entre los procesos, proyectos, productos y servicios de la dependencia, estableciendo plazos de entrega y tiempo estimado para su elaboración. Será responsabilidad de cada superior jerárquico dar seguimiento a este plan de trabajo anual; su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

Para el seguimiento regular y frecuente de las actividades del plan de trabajo, cada administración deberá establecer un sistema informático al efecto, alimentado por cada funcionario con las actividades diarias vinculadas a dichos procesos, proyectos y productos, y el cumplimiento de plazos y tiempos. Será responsabilidad de cada funcionario, incluido todo el nivel gerencial, la actualización y el mantenimiento al día de la información necesaria para la evaluación de su desempeño, de conformidad con los procesos, proyectos, productos y servicios asignados particularmente, sus plazos de entrega y tiempos estimados para su elaboración, en dicho sistema informático que la Administración pondrá a su disposición. Su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

El incentivo por anualidad se concederá únicamente mediante la evaluación del desempeño para aquellos servidores que hayan cumplido con una calificación mínima de “muy bueno” o su equivalente numérico, según la escala definida. El ochenta por ciento (80%) de la calificación anual, se realizará sobre el cumplimiento de las metas anuales definidas para cada funcionario, de conformidad con lo dispuesto en el presente capítulo, y un veinte por ciento (20%) será responsabilidad de la jefatura o superior.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N° 9635 del 3 de diciembre de 2018) Conviene señalar que dicha norma fue reformada por la LMEP, de manera que su redacción actual es la siguiente:

“Art. 48- Criterios para la evaluación del desempeño. Cada jefatura de la Administración Pública, al inicio del año, deberá asignar y distribuir a todos los funcionarios entre los procesos, proyectos, productos y servicios de la dependencia, estableciendo plazos de entrega y tiempo estimado para su elaboración. Será responsabilidad de cada superior jerárquico dar seguimiento a este plan de trabajo anual; su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

Para el seguimiento regular y frecuente de las actividades del plan de trabajo, cada administración deberá establecer un sistema informático al efecto, alimentado por cada funcionario con las actividades diarias vinculadas a dichos procesos, proyectos y productos, y el cumplimiento de plazos y tiempos. Será responsabilidad de cada funcionario, incluido todo el nivel directivo, la actualización y el mantenimiento al día de la información necesaria para la evaluación de su desempeño, de conformidad con los procesos, proyectos, productos y servicios asignados particularmente, sus plazos de entrega y tiempos estimados para su elaboración, en dicho sistema informático que la administración pondrá a su disposición. Su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

El incentivo por anualidad se concederá únicamente mediante la evaluación del desempeño para aquellas personas servidoras públicas que laboren bajo el esquema de salario compuesto, que hayan cumplido con una calificación mínima de "muy bueno" o su equivale numérico, según la escala definida, de conformidad con las siguientes reglas:

• a)Un ochenta por ciento (80%) de la calificación anual se realizará sobre el cumplimiento de las metas anuales definidas para cada funcionario, de conformidad con lo dispuesto en el presente capítulo.
• b)Un veinte por ciento (20%) será responsabilidad de la jefatura o superior, que se evaluará según el buen rendimiento acorde con las competencias necesarias para el desempeño del puesto.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018) (Así reformado por el artículo 49 sub inciso a) de la Ley Marco de Empleo Público, N° 10159 del 8 de marzo de 2022) Agravios de la parte accionante El accionante manifiesta que, al igual que con los arts. 46, 47 y 48, este numeral constituye una intromisión de la Administración Central en las competencias administrativas de los entes descentralizados. La norma, vista a la luz de los artículos referidos, contiene disposiciones arbitrarias. Crea una nueva obligación para los funcionarios públicos, de cualquier nivel, en cuanto a llevar la actualización y mantenimiento al día de la información para su evaluación de desempeño, en un sistema informático, so pena de imputarle la comisión de una falta grave. Se trata de una nueva obligación que se traduce en más trabajo y menos tiempo para atender las obligaciones cotidianas y tampoco aclara a cuáles trabajadores se refiere.

Por otra parte, establece que un 80% de la evaluación será medición de metas y un 20% “responsabilidad de la jefatura”. Así, se otorga un quinto del porcentaje total de la evaluación del trabajador a las consideraciones subjetivas de cada jefatura, entendiendo que ese 20% es la diferencia entre la obtención o no de la anualidad de los funcionarios, otorgando poder a las jefaturas de dejar a sus subalternos, sin ningún criterio objetivo visible, sin los aumentos por tiempo servido por tantos períodos como ellos quieran.

Informe de la PGR La PGR sugiere desestimar los agravios de la parte accionante. Al respecto, realiza las siguientes observaciones:

“Un rasgo que caracteriza el régimen jurídico particular de la función pública (derechos, deberes y responsabilidades), a diferencia de las relaciones particulares regidas por el Derecho común, es que las condiciones de empleo se establecen no por contrato o convenio colectivo, sino que se determinan por normas objetivas, sean leyes o reglamentos que pueden modificarse unilateralmente. De ahí que se afirme con propiedad que la relación es estatutaria, a modo de un régimen específico de empleo público o de ordenación del personal, fundado y regido por principios de Derecho Público, cuya configuración, extensión y contenido puede ser variable, conforme al modelo burocrático que legislativamente se escoja, según la concepción de Estado vigente en su momento. Por ello las reformas de la función pública siempre están conectadas con una estrategia preconcebida (política pública) de modernización de la Administración que requiera introducir reformas necesarias en la organización y régimen de funcionamiento, así como cambiar hábitos y valores tradicionales de sus agentes.

En todo caso, ha de considerarse que de las breves pero significativas referencias al régimen jurídico de la función pública que hace nuestra Constitución Política (arts. 191 y 192) derivan una serie de consecuencias jurídicas, a modo de principios consustanciales. Entre ellos es que el personal al servicio de la Administración debe regularse por un estatuto con el propósito de garantizar la eficiencia, lo cual implica: una autorización legislativa y una reserva de ley en la materia; que su reclutamiento y selección se hará bajo criterios de igualdad, mérito y capacidad comprobada; y que su desempeño en el ejercicio de sus funciones se funda en la garantía de estabilidad e imparcialidad con sometimiento pleno a la Ley y al Derecho. Postulados todos que han de ser tomados en cuenta por cualquier modelo de burocrático que quiera desarrollarse.

En ese contexto, asociado directamente al incentivo de anualidad está la evaluación de desempeño. Sistema en el que ha operado un cambio de paradigma pues se supera aquel criterio subjetivo de mera valoración del rendimiento individual del servidor en su trabajo en general, y se trasciende metodológicamente a criterios objetivos sobre la base de indicadores cuantitativos de cumplimiento de metas individuales de productos y servicios prestados, vinculados directamente a procesos y proyectos que realice la dependencia a la que pertenece el servidor (arts. del 45 al 50 de la Ley de Salarios de la Administración Pública, introducidos por la Ley No. 9635). Y su vinculación con el pago de la anualidad es evidente, toda vez que su pago depende del resultado de la evaluación del desempeño.

Dada esa especial y novedosa conformación operada en la evaluación de desempeño, resultan infundados los vicios de inconstitucionalidad acusados, pues el legislador en ejercicio de su amplia potestad inagotable de configurar el Estatuto de los funcionarios públicos (arts. 102, 121.1 y 191 constitucionales), pretendió establecer con claridad postulados y normas que en líneas generales tiendan a la unificación, simplificación y coherencia de los diferentes subsistemas existentes de la gestión de los recursos humanos en el Sector Público.

E incluso, la determinación de faltas administrativas acusadas por el accionante como inconstitucionales, cumple plenamente con los postulados matizados del principio de tipicidad en materia disciplinaria que la propia Sala ha establecido en su jurisprudencia (Entre otras, la resolución No. 2002-10359 de las 14:48 hrs. del 30 de octubre de 2002). Y en todo caso, será en la vía ordinaria competente, no en esta sede constitucional, donde pueda analizarse la legitimidad o no de la aplicación concreta de la norma impugnada”.

Resolución de la Sala Constitucional En primer lugar, en lo relativo a la supuesta lesión a las autonomías es preciso reiterar que el accionante carece de legitimación para cuestionar dicha supuesta afectación. Por lo demás, este tema fue abordado en términos generales en la sentencia n.°2024-007057 donde se reiteraron las consideraciones de la opinión consultiva n.°2018-19511 y se destacó que tratándose del pago de las anualidades (materia salarial) y de la evaluación del desempeño, lo aplicable a los Poderes ‒Judicial y Legislativo‒, Tribunal Supremo de Elecciones y entes públicos descentralizados ‒municipalidades, universidades estatales y la C.C.S.S.‒ son sus propias leyes especiales. Asimismo, en dicha sentencia se examinaron agravios muy similares a los planteados en esta acción de inconstitucionalidad en el sentido de que los accionantes denuncian una supuesta medición subjetiva por parte de las jefaturas. Sobre el particular esta Sala resolvió lo siguiente:

“Por otro lado, los accionantes estiman que, en la medida en que el otorgamiento de incentivos como las anualidades, dependan de valoraciones subjetivas de quienes los califican, se vulnerará el derecho al salario. No obstante, a juicio de esta Sala, el cuestionamiento sobre la subjetividad en la calificación a la que eventualmente podría ser sometido el servidor, no es más que una opinión abstracta, imprecisa y genérica que no necesariamente involucra la eventual vulneración de derechos fundamentales. Y, en todo caso, las disconformidades que pudieren tener los funcionarios con el resultado del examen efectuado, es un tema de legalidad que no le corresponde valorar a este Tribunal y que, por tanto, deberá ser discutido ante la Administración o en la vía jurisdiccional que corresponda.

Asimismo, respecto a la acusada lesión al principio de interdicción de la arbitrariedad y del principio de interdicción de la desviación de poder, en el memorial de interposición no se hace una adecuada fundamentación de las razones por motivos de constitucionalidad, por las cuales se considera la eventual lesión de esos principios, sino que más bien refieren criterios, que deberán ser verificados en la vía de legalidad”. (Sentencia n.°2024-007057. Lo destacado no corresponde al original).

Tales consideraciones deben ser reiteradas en el sub lite, pues el accionante justamente alude a una supuesta subjetividad de las jefaturas en lo relativo a la evaluación del desempeño de los subalternos lo que incidiría en la obtención de la anualidad. En primer lugar, lo relativo a que la eventual obtención de anualidades esté vinculada al desempeño del servidor público es consistente con las líneas jurisprudenciales de esta Sala. Veamos, a modo de ejemplo, lo resuelto por esta Sala a partir de la sentencia n.°2020-001807 en la que se consideró lo siguiente:

“En cuanto a ese aumento adicional establecido para el caso de trabajadores no profesionales, ciertamente no se establece una calificación mínima para ser beneficiario del aumento. Lo cual hace que, aunque la calificación haya sido 0, siempre se obtendría un aumento de un 3%. Así entonces, el inciso a) resulta evidentemente inconstitucional. El sustento para el aumento, que se supone lo es por el buen resultado de la evaluación de desempeño, quedaría en un contrasentido. Aunque el representante del Sindicato certifique que solo 6 funcionarios estuvieron en tal situación, ello no obsta para que en el futuro puedan resultar más, y el impacto a las finanzas públicas sea mayor. De todo lo cual se concluye que la norma es desproporcionada, contraria a los principios constitucionales que propician la idoneidad y la buena gestión de servicios y fondos públicos. Tal como lo indica la Procuraduría en su informe, esa situación atenta contra los principios de razonabilidad y proporcionalidad, al premiar calificaciones insuficientes en el servicio público, lo que violenta los principios constitucionales de idoneidad comprobada (numeral 192 de la Constitución Política) y de continua evaluación de resultados (ordinal 11 de la Constitución Política), en el tanto el pago del reconocimiento no debe ser automático”. (Lo destacado no corresponde al original).

En segundo lugar, los procesos de evaluación de resultados y las mediciones y puntajes asignados ‒como cualquier acto administrativo precedido de un procedimiento de sustanciación‒ debe estar debidamente motivado (título sexto, capítulo tercero de la LGAP) y, por lo demás, ante la disconformidad en los resultados se pueden oponer los recursos ordinarios que el ordenamiento jurídico provee. Por tanto, las suposiciones del accionante hacen referencia a eventuales discusiones sobre la correcta o incorrecta aplicación de la norma, todo lo cual se puede controlar en las sedes ordinarias de legalidad.

Tampoco se observa alguna ilegitimidad o lesión al Derecho de la Constitución por el hecho de que la norma legal establezca la responsabilidad de los servidores públicos de consignar y respaldar la información necesaria que demuestre el cumplimiento de sus metas de evaluación del desempeño, siendo que ante la ausencia de tales respaldos se pueda aplicar el régimen disciplinario. Tales responsabilidades de los servidores públicos ‒en general demostrar los resultados eficientes en la realización de las labores asignadas‒ derivan directamente del Derecho de la Constitución que imponen justamente a toda la Administración Pública a someterse a un procedimiento de evaluación de resultados y rendición de cuentas con la consecuente responsabilidad personal para todos los servidores en el cumplimiento de sus deberes. Nuestra Constitución ordena justamente que corresponde que la ley señale los medios para que este control de resultados y rendición de cuentas cubra a todas las instituciones públicas. Entonces, lejos de crearse una nueva obligación irrazonable, el hecho de someterse al procedimiento de evaluación de resultados y rendir cuentas del cumplimiento de las metas asignadas ‒respaldar, consignar, demostrar el cumplimiento de las metas asignadas‒ es conteste con la obligación constitucional impuesta y derivada del art. 11, pero también es una manifestación del principio de transparencia y de la idoneidad comprobada que debe caracterizar la contratación y el desempeño de los servidores públicos (art. 192). Además, tal y como lo advierte la PGR la determinación de faltas administrativas acusadas por el accionante como inconstitucionales, cumple plenamente con los postulados matizados del principio de tipicidad en materia disciplinaria.

Finalmente, se repite, todo lo relativo a su aplicación individualizada, a saber los resultados obtenidos y la eventual instrucción del régimen disciplinario, son aspectos que se deben valorar y examinar en las vías ordinarias de legalidad, pero en lo relativo al contenido de la norma y los argumentos planteados no se aprecia ninguna lesión al Derecho de la Constitución.

XXIX.- SOBRE LA EXCLUSIÓN DE BENEFICIOS PARA JERARCAS Y OTROS SERVIDORES Norma impugnada Se impugna el art. 51 de la LSAP, normativa adicionada por la LFFP, que ordena lo siguiente:

“Art. 51- Exclusión de beneficios. Las prohibiciones y las exclusiones establecidas en los artículos 691 y 694 de la Ley N.°2, Código de Trabajo, de 27 de agosto de 1943, serán aplicables a los jerarcas y los funcionarios que negocien reglamentos, contratos, estatutos o actos que otorguen ventajas de cualquier naturaleza.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N 9635 del 3 de diciembre de 2018)”.

Agravios de la parte accionante El accionante cuestiona la norma por una presunta violación a los principios constitucionales razonabilidad y proporcionalidad y a los derechos a la negociación colectiva, libertad sindical e inderogabilidad singular de los reglamentos. Manifiesta que el propósito de la norma es desincentivar la negociación colectiva, prohibiendo que los funcionarios públicos que negocien convenciones colectivas, se beneficien de la misma. Esto ‒a juicio del accionante‒ constituye una violación del art. 4 del Convenio 98 de la OIT.

Informe de la PGR La PGR sugiere desestimar el agravio. Para lo anterior se refiere a las limitaciones a los que se ven sometidos los servidores en lo relativo a la posibilidad de suscribir convenciones colectivas en el sector público.

Dice la PGR, lo siguiente:

“En el contexto explicado, es obvio que el accionante desconoce que muy lejano a lo que infundadamente acusa, el artículo 51 de la Ley de Salarios de la Administración Pública, reformada por la Ley de Fortalecimiento de las Finanzas Públicas, n.° 9635, establece válidamente, a modo de contenido necesario del Estatuto funcional (art. 191 Constitucional), un tipo específico de incompatibilidad por el que se trata de evitar un eventual conflicto de intereses, por el que justificada y razonablemente se excluye a funcionarios que, en razón de su posición superior jerárquica, por la naturaleza misma de sus funciones o por su participación en las negociaciones como representantes patronales, tienen capacidad de configurar y expresar la voluntad de la Administración frente a los demás empleados, pudiendo verse directamente beneficiados de esas negociaciones; cuestión hartamente inconveniente. (Cfr. Sala Constitucional, sentencia Nº 2531-94 de 15:42 horas de 31 de mayo de 1994). Incompatibilidad funcional que hay que relacionarla con el artículo 48 de la Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública -Nº 8422 de 6 de octubre de 2004-, no sólo reconoce y establece expresamente la incompatibilidad analizada, sino que también la tipifica como una conducta delictual (Dictamen C-159-2007 op. cit.)”. (Lo destacado no corresponde al original).

Resolución de la Sala Constitucional En cuanto a estos agravios, esta Sala se remite a sus propios antecedentes en el sentido de que si bien es cierto se ha aceptado una ventana para que ciertos servidores públicos puedan negociar aspectos atinentes a los contratos de trabajo mediante la negociación colectiva, ese derecho no cubre a todos los servidores públicos. Ya se advirtió supra que:

“En conclusión, las convenciones colectivas no están del todo prohibidas en el sector público, sino que están permitidas únicamente en el caso de los trabajadores que no desempeñan gestión pública, es decir, aquellos cobijados en los artículos 3, 111 y 112 de la Ley General de la Administración Pública. Siendo, la determinación en cada caso concreto de cuáles trabajadores están cobijados en dichas normas, una cuestión ajena a esta jurisdicción constitucional y que corresponde a los operadores del derecho”.

En ese sentido, corresponde recordar también que el derecho a la negociación colectiva es un derecho fundamental que se ejerce de conformidad con la ley y, en esa medida, el legislador ha optado por delimitar cuáles servidores públicos están excluidos de la negociación colectiva. Recuérdese que la Sala ha afirmado que sí existe el derecho a la negociación colectiva respecto de ciertas categorías de servidores públicos, pero también ha explicado que no le corresponde a sí misma determinar a cuáles trabajadores sí y a cuáles no les serían aplicables dichas convenciones colectivas, cuestión que deberá a determinarse en el ámbito de la legalidad (ver, por ejemplo, la sentencia n.°2013-014499).

En ese legítimo ejercicio de delimitar los servidores que válidamente pueden beneficiarse de la negociación colectiva, el legislador dictó la Reforma Procesal Laboral que vino a regular las condiciones de legitimidad de las convenciones colectivas en el sector público. De este modo, los numerales a los que alude la norma impugnada dicen lo siguiente:

“Art. 691.- Se excluyen en forma automática de las ventajas de cualquier naturaleza que puedan derivarse de convenciones colectivas, acuerdos conciliatorios, arbitrajes y cualquier convenio de solución de un conflicto de carácter económico y social, ya sea por inclusión o referencia expresa o indirecta, los servidores públicos indicados en los artículos 683 y 689.

Queda también expresamente prohibido hacer ajustes técnicos en aplicación de cualquier instrumento colectivo, en beneficio directo o indirecto de los servidores indicados”.

Art. 694.- No podrá formar parte de las delegaciones que intervengan en representación de la empleadora ninguna persona que pueda recibir real o potencialmente algún beneficio de la convención colectiva que se firme. Igualmente, existirá impedimento si el resultado pudiera beneficiar a su cónyuge, compañero, compañera o conviviente o a sus parientes, según lo indicado en el párrafo segundo del artículo 48 de la Ley N.° 8422, Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, de 6 de octubre de 2004.

(Así adicionado por el artículo 2° de la ley N° 9343 del 25 de enero de 2016, "Reforma Procesal Laboral".)” (Lo destacado no corresponde al original).

En los arts. 683 y 689 se realiza la delimitación correspondiente, lo cual también se refleja en la reforma a la LGAP según la cual:

“Tienen derecho a negociar convenciones colectivas de trabajo, conforme a lo dispuesto en el artículo 62 de la Constitución Política, tanto en las empresas públicas y servicios económicos del Estado como en el resto de la Administración Pública, todas las personas servidoras públicas que no participen de la gestión pública administrativa, conforme a la determinación que de estos hacen los artículos 683 y 689 de la Ley 2, Código de Trabaje, de 27 de agosto de 1943”. (Art. 112 inciso 5)).

Se aprecia, de este modo, que el legislador optó por enunciar los funcionarios gobernantes y demás servidores públicos que participan de la “gestión pública”, y que, por lo tanto, están excluidos de sindicalizarse y de celebrar convenciones colectivas en el Sector Público (ver sobre el particular el dictamen de la PGR n.°018 del 22 de enero de 2020).

Dichas restricciones, contrario a lo que afirma el accionante, no procuran desincentivar la negociación colectiva, sino que estas negociaciones las lleven a cabo las personas que ‒por su situación jerárquica‒ no se vean beneficiadas a sí mismas y evitar un conflicto de intereses. Este tipo de normas han sido examinadas por la Sala y, por ejemplo, se ha dicho que no lesionan el principio de igualdad. En la sentencia n.°2531-1994 quedó establecido lo siguiente:

“Así, de conformidad con el contenido del principio de igualdad señalado por la jurisprudencia de esta Sala, es admisible que se establezca un trato desigual entre los que son desiguales, no así, entre los que son iguales, razón por la que se puede concluir que es posible que se hagan restricciones o exclusiones de entre los posibles beneficiarios de una convención colectiva de trabajo en razón de la especial ubicación jerárquica institucional de los empleados, tal es el caso de los trabajadores o empleados de confianza o de los que ocupan cargos de alto nivel, de dirección y de muy elevada responsabilidad. Esta medida se justifica en virtud del conflicto de intereses que pueda suscitarse, ya que estos empleados, que participan en las negociaciones como representantes patronales, o cumplen con una función con estrechos vínculos con éstos -de conformidad con el artículo 4 del Reglamento Interior de Trabajo del Banco citado, que establece en lo que interesa: "Las personas que ejerzan cargos de Dirección, Jefatura o de Administración, son representantes patronales ..."-, pueden verse beneficiados de estas negociaciones que dependen de ellos directa o indirectamente, motivo por el que no es conveniente que sean cubiertos por convenciones colectivas de trabajo. Como se observa, esta exclusión es objetiva y suficientemente razonable, por lo que no lesiona el principio de igualdad consagrado en el artículo 33 Constitucional, tal como lo alega el accionante, siendo lo procedente rechazar la acción por el fondo en este extremo, de conformidad con el párrafo segundo del artículo 9 de la Ley de la Jurisdicción Constitucional”. (Lo destacado no corresponde al original).

Adicionalmente, en la sentencia n.°2000-10358 se realizaron las siguientes consideraciones:

“[E]n lo que respecta propiamente a las clases gerenciales de instituciones autónomas y empresas públicas como RECOPE, la Sala ha entendido en casos precedentes que la ubicación de un funcionario público en el nivel gerencial ciertamente ha servido como elemento idóneo para justificar una regla de trato diferenciado en materia de Convenciones Colectivas –como bien lo recuerda la Procuraduría–:

"Es innecesario recordar con amplitud aquí que la convención colectiva es el resultado de una negociación bilateral que ha tenido lugar entre la entidad pública (para el caso, JAPDEVA) y sus funcionarios. Evidentemente, los intereses de estos últimos en obtener determinadas condiciones de empleo no necesariamente son coincidentes con los institucionales, y hasta en algunos casos pueden ser contrapuestos, habida cuenta de que la entidad pública, que inscribe sus políticas o sus decisiones en materia de personal en el marco más amplio de las políticas o de las decisiones de gobierno, es titular de intereses públicos, es la empleadora, frente a la cual sus funcionarios o empleados oponen sus propios intereses, que por ser suyos son realmente intereses privados. La estructura de la negociación -en un extremo, la jerarquía que expresa la voluntad y los intereses del empleador (la concreta Administración Pública), y en el otro, el sindicato, que sostiene los de los empleados- explica y justifica la exclusión de algunos funcionarios de la aplicación de los beneficios de la negociación. Se trata de aquellos cuya posición y funciones son tales que resultan incompatibles con la posibilidad de tenerles también como beneficiarios del derecho de negociación colectiva, sin riesgo del interés de la Administración, del interés público: puesto que en ellos radica realmente la capacidad de configurar y expresar la voluntad de la Administración frente a los demás empleados, valga decir, puesto que ellos son quienes detentan directamente o influyen de modo determinante en las decisiones que la Administración tome en la negociación con sus empleados, la exclusión se impone al sentido común como objetiva, razonable, y, por ende, no discriminatoria.' De lo anterior se deduce que en el caso del promovente no se lesionó el principio de igualdad, ya que la distinción con relación a los demás trabajadores de su Departamento tiene una justificación objetiva y razonable, por lo que, sobre este punto, debe declararse sin lugar el recurso." (Resolución Nº4325-96 de las nueve horas veintiún minutos del veintitrés de agosto de mil novecientos noventa y seis)”. (Lo destacado no corresponde al original).

En consecuencia, si bien es cierto, como se ha desarrollado, existe el derecho fundamental a entablar negociaciones colectivas y se han de otorgar las facilidades para tales efectos ‒con el adecuado resguardo de los fondos públicos y los principios constitucionales de razonabilidad, proporcionalidad y buen uso de los fondos públicos ‒ también es legítimo establecer determinadas pautas de negociación, entre ellas la cobertura subjetiva. En tal sentido, aunque formalmente no ha sido incorporado a nuestro ordenamiento jurídico se puede acudir al “Convenio sobre las relaciones de trabajo en la administración pública, 1978 (núm. 151)” como un mero criterio hermenéutico o de ilustración. Dicho convenio insta a los Estados a adoptar “medidas adecuadas a las condiciones nacionales para estimular y fomentar el pleno desarrollo y utilización de procedimientos de negociación entre las autoridades públicas competentes y las organizaciones de empleados públicos acerca de las condiciones de empleo, o de cualesquiera otros métodos que permitan a los representantes de los empleados públicos participar en la determinación de dichas condiciones” (art 7°). Pero de previo hace la advertencia y el reconocimiento de que “la legislación nacional deberá determinar hasta qué punto las garantías previstas en el presente Convenio se aplican a los empleados de alto nivel que, por sus funciones, se considera normalmente que poseen poder decisorio o desempeñan cargos directivos o a los empleados cuyas obligaciones son de naturaleza altamente confidencial” (art. 1° inciso 2°). Lo cual ilustra y corrobora que el legislador podría de forma legítima valorar y enumerar los cargos que, por su alto nivel gerencial, pueden verse excluidos de los beneficios de la negociación colectiva, sin que esto por sí mismo sea ilegítimo o inconstitucional. Recuérdese también lo que al efecto dispone el art. 48 de la Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, el cual tipifica como delito la conducta de un funcionario público que suscriba actos o acuerdos que le beneficien en forma directa, lo que ilustra claramente la incompatibilidad que acá se examina. La norma en cuestión contempla el siguiente ilícito:

“Art. 48.-Legislación o administración en provecho propio.

Será sancionado con prisión de uno a ocho años, el funcionario público que sancione, promulgue, autorice, suscriba o participe con su voto favorable, en las leyes, decretos, acuerdos, actos y contratos administrativos que otorguen, en forma directa, beneficios para sí mismo, para su cónyuge, compañero, compañera o conviviente, sus parientes incluso hasta el tercer grado de consanguinidad o afinidad o para las empresas en las que el funcionario público, su cónyuge, compañero, compañera o conviviente, sus parientes incluso hasta el tercer grado de consanguinidad o afinidad posean participación accionaria, ya sea directamente o por intermedio de otras personas jurídicas en cuyo capital social participen o sean apoderados o miembros de algún órgano social.

Igual pena se aplicará a quien favorezca a su cónyuge, su compañero, compañera o conviviente o a sus parientes, incluso hasta el tercer grado de consanguinidad o afinidad, o se favorezca a sí mismo, con beneficios patrimoniales contenidos en convenciones colectivas, en cuya negociación haya participado como representante de la parte patronal”. (Lo resaltado no corresponde al original).

De modo que el numeral cuestionado en el sub lite no es más que una réplica de otras normas vigentes en el ordenamiento jurídico y del deber general de probidad que establecen prohibiciones a determinados jerarcas para regular o convenir aspectos en beneficio propio, sin que de los alegatos planteados se deduzca una lesión a los principios y derechos constitucionales invocados.

XXX.- SOBRE LA MODALIDAD DE PAGO PARA LOS SERVIDORES PÚBLICOS Normas impugnadas Se cuestionan el art. 52 de la LSAP, adicionado por la LFFP, n.°9635 y el 21 del reglamento n.°41564-MIDEPLAN. La norma legal impugnada establecía, en su redacción original, lo siguiente:

“Art. 52- Modalidad de pago para los servidores públicos. Las instituciones contempladas en el artículo 26 de la presente ley ajustarán la periodicidad de pago de los salarios de sus funcionarios con la modalidad de pago mensual con adelanto quincenal.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018).” Posteriormente, la norma fue reformada con el propósito de agregar el caso específico de pago en la Caja Costarricense de Seguro Social (CCSS). En consecuencia, la norma vigente dice lo siguiente:

Art. 52- Modalidad de pago para los servidores públicos.

Las instituciones contempladas en el artículo 26 de la presente ley ajustarán la periodicidad de pago de los salarios de sus funcionarios con la modalidad de pago mensual con adelanto quincenal.

Se exceptúa de lo dispuesto en el párrafo anterior a la Caja Costarricense de Seguro Social (CCSS), que mantendrá la periodicidad del pago de los salarios de sus funcionarios bajo la modalidad bisemanal.

(Así reformado por el artículo único de la Ley para mantener la periodicidad el pago de los salarios de las personas trabajadoras de la Caja Costarricense de Seguro Social de manera bisemanal, N°10102 del 8 de diciembre del 2021) Mientras que la norma reglamentaria dispone lo siguiente:

Art. 21.- Modalidad de pago para los servidores públicos. Los pagos deberán ajustarse a la modalidad de pago mensual con adelanto quincenal, según lo dispuesto en el artículo 52 de la Ley N° 2166, adicionados mediante artículo 3 de la Ley N° 9635.

Las instituciones deberán realizar las gestiones correspondientes para adecuar los sistemas tecnológicos de pago a dicha disposición, en el plazo señalado en el transitorio XXIX de la Ley N°9635. La Administración será la responsable de asegurar el pleno cumplimiento del cambio de modalidad de pago y los reconocimientos salariales que correspondan, de manera que no se produzca una disminución o aumento en el salario de los servidores”. (Lo destacado no corresponde al original).

La norma transitoria que se dictó para hacer operativa esta modificación no fue impugnada por la parte accionante. Sin embargo, es necesario transcribirla para poder realizar un análisis apropiado de la cuestión. El Transitorio XXIX dice lo siguiente:

“TRANSITORIO XXIX. Las instituciones que cancelen los salarios de sus servidores con una modalidad distinta de la contemplada en el artículo 52 deberán hacer los ajustes correspondientes dentro de los tres meses posteriores a la vigencia de esta ley. Se harán los cálculos y los ajustes necesarios para que el cambio en la periodicidad del pago no produzca una disminución o aumento en el salario de los servidores”. (Lo destacado no corresponde al original).

Agravios de la parte accionante El accionante manifiesta que las normas referidas lesionan la autonomía municipal y de los entes descentralizados y los principios de legalidad, razonabilidad, proporcionalidad, progresividad de los derechos laborales, así como el derecho constitucional de negociación colectiva. Señala que la norma lesiona la autonomía administrativa de los entes descentralizados en tanto se les ordena cómo regular su sistema remunerativo. Si bien la ley prevé que no se varíe el salario, ordena a las instituciones como administrar los salarios, con lo que cometen un ius variandi abusivo. Existen trabajadores que tienen planificadas sus obligaciones de acuerdo con la periodicidad bisemanal, pues así han recibido el salario durante años. El solo cambio de la modalidad de pago puede suponer un perjuicio para estos funcionarios. El que el Estado, por medio del legislador, les ordene a estas instituciones adecuarse al presente artículo y su transitorio, lesiona de forma directa el Derecho de la Constitución y el convencional, al desconocer estos derechos de rango superior al legal, causando un retroceso en los derechos laborales y, por lo tanto, lesionando por igual el principio de progresividad de los mismos. La norma no es razonable ni proporcionada, pues de acuerdo con el Transitorio XXIX no debe haber disminución o aumento; en ese sentido, no hay razón algún para afectar la autonomía de los entes. Al no existir un fin palpable, la norma carece de toda razón y proporción.

Informe de la PGR La PGR sugiere a esta Sala desestimar los agravios planteados. Para tales efectos, se realizan las siguientes reflexiones:

“No podemos perder de vista la vocación y carácter de generalidad y uniformidad con que se emitió la Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 de 3 de diciembre de 2018, con una clara finalidad de someter a criterios uniformes todo lo concerniente a la política salarial de la Administración Pública (arts. 105, 121.1, 140 inciso 7) y 191 constitucionales); Ahora bien, en lo que respecta a la periodicidad o frecuencia de pago salarial, como una de las medidas de reordenación para la contención y reducción del gasto de personal de las Administraciones Públicas, la reforma introducida a la Ley de Salarios de la Administración Pública por la Ley de Fortalecimiento de las Finanzas Públicas, No. 9635 de 3 de diciembre de 2018 (arts. 26.2 y 52 y Transitorios XXV párrafo primero y XXIX) y su Reglamento –Decreto Ejecutivo No. 41564-MIDEPLAN-H- (arts. 2, 3 y 21), establece que en las instituciones públicas contempladas en el artículo 26 –incluidas las Municipalidades- ajustarán la periodicidad de pago de los salarios de sus funcionarios con la modalidad de pago mensual con adelanto quincenal (art. 52); es decir, el salario pactado por unidad de tiempo mensual se cancelará en una periodicidad o frecuencia quincenal. Para lo cual, según se establece en su Transitorio XXIX, deberán hacer los ajustes correspondientes dentro de los tres meses posteriores a la vigencia de esa Ley -la citada Ley No. 9635 fue publicada y entró a regir el 4 de diciembre de 2018-; lo cual incluye la adecuación de los sistemas tecnológicos de pago disponibles (art. 21 del Decreto Ejecutivo No. 41564-MIDEPLAN-H), así como la realización los cálculos y ajustes necesarios a fin de asegurar que el cambio de modalidad de pago legalmente prescrito no produzca una disminución o aumento en el salario de los servidores (Transitorio XXIX y art. 21 op. cit. in fine).

Sería entonces, conforme a tales normas legales, de claro carácter de derecho necesario, imperativo y de contenido absoluto, que todas las instituciones públicas cubiertas por aquella normativa legal, tendrían que normar la modalidad o periodicidad de pago salarial de sus servidores, y no otra.

Según fuimos categóricos en los dictámenes C-060-2019, de 05 de marzo de 2019, y C-281-2019, de 1 de octubre de 2019, y lo refirmamos ahora, la citada Ley estatal, aunque sobrevenida, prevalecería sobre lo dispuesto en cualquier otra disposición de rango legal o inferior preexistentes a nivel sectorial, como convenciones colectivas anteriormente suscritas; esto a modo de derogación tácita –total o parcial- por incompatibilidad normativa de sus contenidos.

De modo que los vicios a acusados no son atendibles”.

Resolución de la Sala Constitucional En primer término, como todos los acápites anteriores, el tema de la autonomía municipal y de otros entes autónomos debe rechazarse por falta de legitimación del accionante.

En un segundo orden de ideas, corresponde advertir que lo impugnado es una norma de carácter general tendiente a organizar a la Administración Pública en lo relativo a empleo público y concretamente ajustar la periodicidad de pago de los salarios de los servidores públicos con la modalidad de pago mensual con adelanto quincenal. Es decir, tiene un propósito de estandarizar la periodicidad de pagos en la función pública. Lo anterior, haciendo la expresa salvedad de que en ningún caso ‒ante un eventual cambio‒ se produzca una disminución en el salario de los servidores públicos. A juicio de esta Sala, esta medida tiende a evitar disposiciones con periodicidades diferentes con el consecuente impacto en los presupuestos públicos, lo que en algunos supuestos se ha considerado irrazonable y lesivo de la correcta disposición de los fondos públicos. Por ejemplo, en la sentencia n.°2019-016791 ya citada previamente, esta Sala examinó la regularidad de la Convención Colectiva de la Municipalidad de Limón en que se había pactado lo siguiente: “La Municipalidad pagará cada dos semanas a sus trabajadores el equivalente a lo que corresponde a quince (15) días de salario total”. Al respecto, la Sala consideró legítima la posibilidad de establecer una modalidad de pago diferenciada toda vez que la convención colectiva era previa a la LFFP, pero este Tribunal declaró la inconstitucionalidad de la creación ficticia de un día laboral adicional con el correspondiente pago. En dicha oportunidad, se resolvió lo siguiente:

“- La exigencia en la legalidad del pago salarial.

La Municipalidad del Cantón de Limón y el Sindicato de Trabajadores Municipales de la Provincia de Limón (SINTRAMUPL), acordaron pagarle a los funcionarios de esa corporación con un sistema bisemanal (salario cada dos semanas), con lo que, obtienen al año más que un pago de las cincuenta y dos semanas, y no cuarenta y ocho semanas, como ocurre con la modalidad de pago por quincena o mensual. Precisamente, por medio de la norma impugnada, la Convención Colectiva agrega un día más al mencionado pago bisemanal. La Procuraduría General de la República argumenta que esta Sala ha aceptado beneficios sociales por encima de los mínimos establecidos, pero en el caso echan de menos parámetros objetivos que busquen una mejor prestación del servicio público, así como los principios de razonabilidad y proporcionalidad, y criterios técnicos. Asimismo, señala que carece de idoneidad y necesidad, pues ya existe una remuneración por los días laborados como contraprestación por el trabajo efectivo. Asimismo, trajo a colación varios oficios que son importantes citar, como el Oficio DJ-0782-2011 del 20 de julio del 201 1, de la Contraloría General de la República, sobre reajustes salariales que:

"En ese sentido, no podrá obviarse que este tipo de modificaciones debe tener una adecuada motivación: en los casos de política salarial. Singularmente, será necesario no sólo contar con el fundamento jurídico de la decisión, sino además con justificación técnica adecuada que acredite el contenido de la conducta administrativa. Para el supuesto que se analiza, dicho fundamento estará determinado-esencialmente- por el estudio técnico que demuestre un aumento sustancial en el costo de la vida y/o la necesidad de efectuar un incremento mayor, lo cual justificaría que el incremento salarial es requerido y no antojadizo.

[...] se debe considerar el texto del artículo 16 de la Ley General de la Administración Pública /...]. Es evidente entonces que para efectuar un incremento salarial, ya sea dentro de la programación presupuestaria, o bien, por reajuste salarial, se deberá contar con los estudios necesarios que, desde el punto de vista técnico o científico, demuestren su necesidad y adecuación al fin (lícito) de esa conducta administrativa.

La Sala considera que el artículo 24, de la Convención Colectiva impugnada, conlleva varios problemas que afectan su legitimidad constitucional: primero, en cuanto rige para un sistema de empleo público en una corporación municipal donde rige el principio de legalidad; y, segundo, porque crea una ficción jurídica que es contraria a la razonabilidad y proporcionalidad. Lo primero que debe decirse, es que si bien las municipalidades pueden concertar Convenciones Colectivas, no se pierde con ello la relación de empleo público que se rige por el derecho público o estatutario, donde no aplican las liberalidades que los patronos privados pueden observar a favor de sus trabajadores propias del derecho laboral común. En tal sentido, se debe rescatar, que existe una responsabilidad de las autoridades superiores, de las corporaciones municipales, de mantener la vigencia del principio de la legalidad presupuestaria y financiera. En este sentido, las Convenciones Colectivas son instrumentos que se deben negociar, periódicamente, y no siempre lo pactado puede o debe mantenerse en el tiempo, pues estas tienen que evolucionar de una época a otra, con los beneficios sociales al ritmo de las mejorías o contracciones de la economía del país. En este sentido, puede decirse, que la norma impugnada es una cláusula antigua que entró a regir a partir de 1994, y que no podría responder a las necesidades actuales. Por ello, es pertinente su análisis.

La Procuraduría General de la República, en su informe, cita de igual manera, el Oficio N° 003418 del 27 de marzo de 1989, que dice:

“El beneficio que obtiene el servidor público con un sistema de pago semanal o bisemanal radica en que le van a ser reconocidas las cincuenta y dos semanas del año y no solo cuarenta y ocho como ocurre cuando la forma de pago es mensual o quincenal. En el fondo, este sistema de pago (semanal o bisemanal), implica, al momento de implementarse, un crecimiento salarial para el funcionario (anual o mensual, ello es distinto) de un 8.33%, habida cuenta que se están remunerando cuatro semanas más. Se parte del hecho que en el Sector Público que se utiliza un sistema salarial de base mensual que devenga el servidor, el cual se ve aumentado en un 8.33% Si bien, estima esta Sala que la Convención Colectiva del Cantón de Limón, podría acordar un mejor salario anual con el pago bisemanal, como parte de los beneficios socio-económicos pactados, lo cierto, es que es improcedente que a cada pago bisemanal se le adicione un día para incorporar jornales inexistentes en el calendario anual. Si de las cincuenta y dos semanas del año se le divide entre las dos semanas de pago de salario, se obtienen veintiséis tantos de giro de salario bisemanal, por el que recibe el empleado municipal un día adicional por cada catorce días de pago por su trabajo. Como se observa, la norma no se queda en una simple ecuación matemática, sino que obliga a sumar gratuitamente un día más, toda vez que: “La Municipalidad pagará cada dos semanas a sus trabajadores el equivalente a lo que corresponde a quince (15) días de salario total". Ello significa que si a los veintiséis pagos bisemanales, se agregan veintiséis días adicionales a los trescientos sesenta y cinco días del año, se obtiene un pago real y efectivo de trescientos noventa y un días, que la corporación municipal cancela al año a sus empleados. Recuérdese, que si se dividen los trescientos sesenta y cinco días del año entre cincuenta y dos semanas del año, se obtienen los siete días de la semana. Otro modo de verlo, es que reciben aproximadamente catorce meses de salario: los doce anuales, el aguinaldo y los veintiséis días restantes.

La forma en que está regulado el pago del salario en el párrafo primero, del artículo 24, de la Convención Colectiva impugnado, se traduce en una transferencia de fondos públicos, sin una justificación o razón objetiva, que se traduzca en una mejor prestación del servicio en contraprestación de los trabajadores a favor de la municipalidad y de los munícipes del cantón. En este sentido, estos fondos no se ajustan a los principios de moralidad, legalidad, eficiencia, austeridad y razonabilidad en el gasto público, en los que, impone no utilizar los fondos públicos como fondos privados, y la discrecionalidad del gasto no es libre. Por esta razón, la Sala debe concluir que la disposición, conforme se dirá más abajo, resulta inconstitucional. No observa la Sala, que el mecanismo ideado en la Convención Colectiva procure una defensa justa de los salarios poco decorosos que devengan los funcionarios municipales, como lo alega el Sindicato de Trabajadores Municipales de Limón; por el contrario, ello no es un argumento de recibo, toda vez que debe demostrarse, al menos con información que acredite caso, de liberalidades de las Administraciones Públicas, en su sentencia N°2012-003267 de las 16:01 horas del 7 de marzo de 2012. que estableció:

"Este principio de legalidad se manifiesta en el manejo, la administración, el destino y custodia de los recursos públicos, por lo que el legislador, mediante la Ley No. 8131 de 18 de septiembre de 2001. Ley de Administración Financiera y Presupuestos Públicos, señala, en el artículo 5. los diferentes principios, entre ellos el principio de gestión financiera. La norma la define de la siguiente manera:

‘Para los efectos del artículo anterior, deberán atenderse los siguientes principios presupuestarios:

...

Principio de gestión financiera. La administración de los recursos financieros del sector público se orientará a los intereses generales de la sociedad, atendiendo los principios de economía, eficacia y eficiencia, con sometimiento pleno a la ley.

• c)[...]

En este sentido, el legislador insertó en el ordenamiento jurídico y desarrolló, dentro de la Administración Pública, el principio de legalidad financiera totalmente consecuente con el artículo 140 inciso 7) de la Constitución Política, eliminando un uso no autorizado de los recursos públicos con la mera discrecionalidad de la Administración Pública mediante un Reglamento Autónomo o acto de Derecho público no autorizado expresamente por ley. Precisamente el legislador despejó toda duda de los alcances del principio al señalar radicalmente el sometimiento pleno en la ley.

De igual forma, mediante el artículo 107, al referirse al principio de legalidad, señala que:

“Los actos y contratos administrativos dictados en materia de administración financiera, deberán conformarse sustancialmente con el ordenamiento jurídico, según la escala jerárquica de sus fuentes. Se presume la legalidad de los actos y las operaciones de órganos y entes públicos sujetos a la presente ley, pero se admitirá prueba en contrario.” En consecuencia, se deberá conformar sustancialmente con el ordenamiento jurídico, de manera que no existe una discrecionalidad total de la Administración Pública para crear fuentes de gastos, sino, por el contrario, debe mediar una autorización legal. Es igualmente importante señalar que las obligaciones económicas de la Hacienda Pública se pueden originar en la Ley, de igual manera, pueden originarse en las resoluciones jurisdiccionales (artículos 122 y 153 de la Constitución Política), y en los contratos y actos administrativos cuando media alguna forma de obligaciones basadas en determinadas manifestaciones de la voluntad del Estado. Sin embargo, es importante aclarar que esas manifestaciones no pueden ser entendidas desde un punto de vista civil o laboral privado, no solo por lo que se indicó supra, sino, por el contrario, dado que se refiere a formas contractuales cuyo origen precisamente se encuentra en la ley o que la ley señala los mecanismos para generar estas obligaciones económicas".

En el caso que nos ocupa, la disposición impugnada no podría justificarse en la protección a los trabajadores contra infracciones a los derechos humanos, esto por cuanto no se puede afirmar que los trabajadores reciben un salario ruinoso de la corporación, y con violación al salario mínimo de los trabajadores. Si bien, podría producirse una mejora mediante la negociación colectiva, la voluntad estatal debe estar válidamente expresada y conformada con el ordenamiento jurídico, que en el caso, no lo está.

- Sobre la infracción al principio de razonabilidad y proporcionalidad. El sindicato alega que no está demostrada la violación a la razonabilidad y proporcionalidad; sin embargo, la Sala considera que la parte accionante aportó suficientes elementos de juicio en el que es posible sustentar el cuestionamiento de la norma impugnada, cuando reclama la falta de justificación por un pago extra, así como el rompimiento de la razonabilidad y proporcionalidad, dado que esa parte del salario genera un uso indebido e injustificado de recursos públicos. Como se apuntó en el aparte anterior, la disposición riñe abiertamente con el ordenamiento jurídico, en su legalidad y legitimidad, porque, como se verá, crea un beneficio cuya razonabilidad es muy tenue, es un privilegio que carece de un fundamento jurídico válido, y se produce una transferencia de fondos públicos llana y simple de veintiséis días no laborados, ni por ser el fruto del trabajo recibido por la corporación municipal. Hay una ausencia total en la contraprestación, que todo patrono debe al trabajador por la labor prestada.

(…)

[E]n el ámbito público, las disposiciones que se acuerden estarían sujetas a su validez legal (analizado supra) y constitucional. Superado lo anterior, debe hacerse el examen de la razonabilidad ponderativa, como se ha citado en la anterior sentencia; así cuando hay un determinado antecedente, se exige una determinada prestación, siempre que la misma sea equivalente o proporcionada. En el caso, tratándose de una relación trabajo o estatutaria se tiene que a una determinada prestación laboral por parte del trabajador, se recibe la correspondiente remuneración como contraprestación. Pero, aquí radica el meollo del problema de la razonabilidad o test de la disposición impugnada, que es su ausencia de equivalencia y proporcionalidad. ¿Porqué? Si a un determinado antecedente, como sería el trabajo efectivo y continuo de dos semanas o catorce días se recibe el pago de quince días, es evidente que debe concluirse que hay un presunto derecho que se construye a base de una consideración ficticia o artificial, que sería contrario a la legalidad del pago salarial analizado, a las reglas unívocas de la ciencia o de la técnica, o a los principios elementales de la justicia, lógica o conveniencia (artículo 16.1, de la Ley General de la Administración Pública), pues las semanas pagadas anualmente son mucho más respecto del año, que para los salarios semanales, bisemanales, mensuales o quincenales (artículo 165, del Código de Trabajo). Y aun así, aceptando que producto de una negociación colectiva sea posible el mejoramiento de las condiciones económicas, superando el pago de las cuarenta y ocho semanas que corresponde a un pago quincenal o mensual, como ocurre para muchos trabajadores públicos, y se logra pactar un pago de cincuenta y dos semanas, que efectivamente existen en el calendario, ello no sería conmensurable a la creación de una ficción sin sustento técnico o científico, legal, o que fuera creado para solventar un interés superior del ordenamiento jurídico. Esta realidad se constata matemáticamente, sin mayor esfuerzo. Así, la prestación (pago de la remuneración por quince días) que se recibe por el antecedente (jornada de trabajo de catorce días) que se discute, resulta en un mecanismo salarial que es ficticio, sobre el cual se crea una prestación u obligación de pago de un día adicional que compromete los recursos públicos, se crea una fuente de gasto sin un presupuesto legal bien definido, y difícilmente sin la justificación técnica para demostrar que es parte el medio apropiado para la solución de salarios ruinosos. En este sentido, existe una obligación del aparato estatal de asegurar que si se materializa una negociación colectiva en un Convención Colectiva, que como se ha venido razonando, no debe infringir abiertamente el ordenamiento jurídico, toda vez que los fines no justifican los medios”. (Lo destacado no corresponde al original).

Del anterior precedente se desprende que, si bien eventualmente era legítimo establecer una periodicidad de pago distinta, estas modalidades deben estar debidamente justificadas y no crear días adicionales de pago de manera ficticia. Todo lo anterior, en perjuicio de las finanzas públicas.

A la luz de tales consideraciones, resulta legítimo que ‒a fin de evitar medidas como estas donde se suman días de manera ficticia en detrimento de las finanzas públicas‒ el legislador establezca reglas generales de reconocimiento en la periodicidad de pago para la Administración Pública. Al respecto, cabe recordar ‒según se analizó supra‒ que la reforma a la LSAP tenía como propósito orientador aspirar a que las remuneraciones de la función pública se rigieran por un esquema de eficiencia y calidad en el gasto público ‒es decir, medidas de uniformidad‒. La estandarización en el cronograma de pagos perfectamente puede considerarse una medida para que la Administración sea más eficiente en lo relativo al pago de las planillas.

Ahora bien, detallando en los aspectos cuestionados por el accionante, en criterio de esta Sala la mera afirmación de que se trata de un ius variandi abusivo porque las personas trabajadoras podrían tener un perjuicio con el cambio de modalidad, no pasa de ser una mera apreciación subjetiva y carente de motivación o prueba objetiva que acredite de forma fehaciente una lesión o regresión en los derechos fundamentales de los servidores públicos. En la medida en que no puede existir ningún perjuicio pecuniario de los trabajadores según lo dejó establecido expresamente el legislador, no se entienden las afirmaciones del accionante en el sentido de que se trata un retroceso en los derechos laborales o que se lesiona el principio de progresividad. Asimismo, carecen de una adecuada y suficiente motivación los alegatos en relación con la supuesta lesión a los principios de razonabilidad o proporcionalidad. No le corresponde a este Tribunal suplir las deficiencias argumentativas y tratar de suplir o entender el eventual perjuicio por la aducida irrazonabilidad de la norma.

Finalmente, como ya se ha advertido, no le corresponde a la Sala, mediante una acción de inconstitucionalidad, evaluar situaciones concretas de trabajadores o de la prevalencia entre esta norma y las convenciones colectivas vigentes, pues ello hace referencia a discusiones de legalidad ordinaria.

En consecuencia, corresponde desestimar los reproches planteados.

XXXI.- SOBRE EL INCENTIVO POR CARRERA PROFESIONAL Aclaración previa En lo relativo a este apartado y dado que es un tema transversal en las acciones de inconstitucionalidad que fueron acumuladas se van a abordar los alegatos identificando en cada caso los respectivos agravios y la respuesta dada por la PGR, MIDEPLAN, DGSC y Ministerio de Hacienda.

Normas impugnadas Se cuestiona el art. 53 de LSAP, adicionado por la LFFP n.°9635 y el art. 15 del reglamento n.°41564-MIDEPLAN:

“Art. 53- Incentivo por carrera profesional. El incentivo por carrera profesional no será reconocido para aquellos títulos o grados académicos que sean requisito para el puesto.

Las actividades de capacitación se reconocerán a los servidores públicos siempre y cuando estas no hayan sido sufragadas por las instituciones públicas.

Los nuevos puntos de carrera profesional solo serán reconocidos salarialmente por un plazo máximo de cinco años.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N° 9635 del 3 de diciembre de 2018) Art. 15.- Carrera profesional. El incentivo por carrera profesional será otorgado en las siguientes condiciones:

• a)Será reconocido por aquellos títulos o grados académicos que no sean requisitos para el puesto.
• b)Procederá el reconocimiento de carrera profesional cuando las actividades de capacitación sean sufragadas por el servidor interesado, sean en horario laboral o fuera de éste, siempre y cuando sean atinentes al cargo que desempeña. En aquellas actividades de capacitación que no sean sufragadas por instituciones públicas, de manera motivada podrá otorgarse permiso con goce de salario para recibir la capacitación.
• c)Los nuevos puntos de carrera profesional serán reconocidos salarialmente por el plazo de 5 años.

d)Podrán reconocerse los puntos de carrera profesional, según los parámetros previos a la entrada en vigencia a la Ley N°9635, única y exclusivamente en los casos de aquellas solicitudes presentadas ante las Oficinas de Gestión Institucional de Recursos Humanos de previo a la publicación de dicha ley y que no hayan sido tramitadas por la Administración”.

Además, de forma refleja se hace alusión a los arts. 1 y 4 de la resolución DG-139-2019 de las 15:00 hrs. del 24 de julio de 2019 de la DGSC que dicen lo siguiente:

“Artículo 1. Modificar los artículos 1, 2, 4, 5, 6, 9 y 18 de la Resolución DG-064-2008 del 28 de febrero de 2008, para que respectivamente se lean de la siguiente manera:

(…)

“Artículo 9: Cada punto que se considere en cualquier factor de Carrera Profesional, tendrá una vigencia única e independiente, y retribución salarial, por un plazo de cinco (5) años a partir de la fecha en la cual rige el respectivo reconocimiento. Las Oficinas de Gestión Institucional de Recursos Humanos deberán establecer los controles correspondientes, a fin de que al cumplirse dicho plazo, se proceda a caducar los puntajes respectivos y cesar los pagos inherentes.

Dichas Oficinas también deberán establecer los mecanismos de control necesarios, para que los títulos académicos y certificados de capacitación de nivel profesional, presentados por cada servidor, sean reconocidos exclusivamente en una ocasión y además no se transgreda el límite de cinco años de vigencia”.

“Artículo 4. Modificar los artículos 1, 2, 3, 7, 8, 9, 10, 18, 20 y 21 de la Resolución DG-333-2005 del 30 de noviembre de 2005, para que respectivamente se lean de la siguiente manera:

(…)

“Artículo 10.- Cada punto que se considere en cualquier factor de Carrera Profesional Docente, tendrá una vigencia única e independiente, y retribución salarial, por un plazo de cinco (5) años a partir de la fecha en la cual rige el respectivo reconocimiento. La Oficina de Gestión Institucional de Recursos Humanos del Ministerio de Educación Pública, deberá establecer los controles correspondientes, a fin de que al cumplirse dicho plazo, se proceda a caducar los puntajes respectivos y cesar los pagos inherentes.

Dicha oficina también deberá establecer los mecanismos de control necesarios, para que los títulos académicos y certificados de capacitación de nivel profesional, presentados por cada servidor, sean reconocidos exclusivamente en una ocasión y además no se transgreda el límite de cinco años de vigencia”.

Agravios de la parte accionante (acción n.°19-004931-0007-CO) El actor destaca que la norma impugnada supone un retroceso en relación con el propósito de contratar los funcionarios idóneos, al disponer que solo se reconocerán puntos de carrera profesional cuando ellos cubran las capacitaciones que reciban. Esto constituye un desincentivo serio para los profesionales del Estado por mejorar sus condiciones académicas y de capacitación. Adicionalmente, la norma provoca la aparición de dos tipos de funcionarios: unos que pueden invertir en su capacitación y otros que dependen de que la Administración invierta en eso. Ambos realizarían las mismas funciones, pero el supuesto de la capacitación provocaría que perciban ingresos diferentes, lo que lesiona el principio de igualdad. El incentivo por capacitación podría estar dispuesto en una convención colectiva, en cuyo caso, la norma también lesionaría el derecho de negociación colectiva. Finalmente, la redacción de la norma provoca inseguridad jurídica, pues es ambigua y no permite determinar con certeza cuál fue el espíritu del legislador: si reconocer hasta cinco años de capacitación o pagar solamente durante cinco años.

Agravios de la parte accionante (acción n.°19-023575-0007-CO) La Presidenta de la APSE cuestionó también lo dispuesto en el art. 53 párrafo 3°, el art 15 del decreto y por derivación se refiere al contenido de la resolución de la DGSC que se limita a reiterar lo dispuesto en la ley, sea que “Los nuevos puntos de carrera profesional solo serán reconocidos salarialmente por un plazo máximo de cinco años”. Sobre este punto, esta Sala aclara que, dado que lo dispuesto en dicha resolución es una mera reiteración de lo señalado en la ley, esta Sala se limitará a valorar el contenido dispuesto en la norma de rango legal, siendo que lo que por lo demás su contenido se repite en el reglamento y en la resolución que da cumplimiento a lo ordenado por el legislador.

Los alegatos en cuanto a esta disposición redundan en una presunta infracción a los arts. 34, 45 y 74 de la Constitución Política por introducir una limitación temporal del reconocimiento de los puntos por carrera profesional, ya que de manera confiscatoria se sanciona a los profesionales que se les reconozcan puntos de carrera profesional, dado que al cabo de los cinco años se deja de cancelar el incentivo lesionando los derechos subjetivos y la irrenunciabilidad del derecho.

La norma impugnada infringe el derecho fundamental al salario (consagrado en el art. 57 constitucional y ordinales 23 de la Declaración Universal de Derechos Humanos, 7 del Pacto Internacional de Derechos Económicos, Sociales y Culturales y 7 del Protocolo de San Salvador), en tanto se enerva el derecho subjetivo del funcionario a seguir devengando la remuneración por carrera profesional, una vez cumplidos los referidos cinco años después de su respectivo reconocimiento, ello a pesar de que se le otorgó porque cumplió los requisitos establecidos en el ordenamiento jurídico y, por tanto, constituye un derecho adquirido. La normativa impugnada infringe el art. 34 constitucional toda vez que elimina ‒de forma arbitraria‒ el correspondiente reconocimiento y produce un cese de la remuneración sin que exista una razón legítima que justifique la interdicción de ese derecho. La normativa impugnada sustrae del patrimonio del trabajador, a la vuelta de cinco años, un beneficio económico, de carácter salarial, que se le reconoció porque cumplió los requisitos establecidos; supresión que implica una manifiesta vulneración de un derecho adquirido. Tal normativa desincentiva el desarrollo profesional de los funcionarios públicos, en detrimento de la eficiencia en la prestación del servicio público y en menoscabo de los derechos consolidados de los funcionarios profesionales que les corresponde la prestación del servicio. La normativa impugnada infringe, además, el principio de intangibilidad del patrimonio de la persona trabajadora y, en consecuencia, deviene en una disposición confiscatoria o expropiatoria, en quebranto de los numerales 34, 40 y 45 de la Constitución Política. La normativa impugnada viola el principio de intangibilidad del patrimonio, pues cuando se da la disminución injustificada del salario del trabajador, se produce un menoscabo en su patrimonio sin que se otorgue alguna indemnización por tal afectación. No se justifica que si el correspondiente incentivo económico se reconoció porque el servidor profesional cumplió los requisitos que establece la normativa y se mantiene su cumplimiento, la ley venga a suprimir ese reconocimiento por el transcurso de cinco años. Se infringe el art. 74 constitucional que declara el carácter irrenunciable que tienen los derechos y beneficios contenidos en el Capítulo Único del Título V de la Constitución Política y cualquier otro que se derive del principio cristiano de justicia social. Tal principio vincula al legislador ordinario, que no puede disponer a su arbitrio de un derecho fundamental, restringiendo su contenido esencial, limitando su alcance o extinguiendo un derecho subjetivo. La privación de la remuneración del incentivo económico por carrera profesional implica una regulación abusiva, que hace nugatorio un derecho fundamental, cuyo tratamiento es incompatible con el art. 74 constitucional.

En resumen, su inconformidad se basa en que estas normas jurídicas establecen que el reconocimiento, y subsecuente pago, de los nuevos puntos de la denominada carrera profesional en el régimen de empleo público, luego de la reforma introducida por el Título III de la LFFP n.°9635, tendrán una vigencia única e independiente por un plazo de cinco años; lo que a juicio de la accionante resulta contrario al derecho fundamental al salario, viola los principios de irretroactividad en perjuicio, intangibilidad patrimonial y no confiscación, así como el de irrenunciabilidad de los derechos sociales.

Informe de la PGR En primer término, la PGR propone un acercamiento doctrinal al concepto del incentivo de carrera profesional y seguidamente solicita que se desestimen los reproches. Lo anterior, según las siguientes reflexiones:

“Como es obvio, el reconocimiento de la carrera profesional tiene por objetivo último asegurar que la Administración cuente con el personal altamente capacitado que necesita para un adecuado desempeño de la función pública. Pero el logro efectivo de este y otros objetivos de la carrera profesional depende de su regulación normativa; es decir, del esquema de carrera que se disponga y regule normativamente (C-099-2008 de 03 de abril de 2008; C-184-2013 de 5 de setiembre de 2013 y C-315-2018, de 14 de diciembre de 2018).

Es importante reafirmar entonces que el régimen de los derechos de los funcionarios públicos no es un régimen estático, sino variable por esencia, sobre todo en lo referido a los derechos de contenido económico, cuya cuantía puede incluso modificarse dentro de los límites de la Constitución (art. 34 constitucional), ya que el servidor no tiene un derecho adquirido frente al legislador, e incluso frente a la misma potestad normativa de la Administración empleadora, a que se mantenga una determinada regulación de sus derechos, cuando la experiencia demuestra que ha de someterse, conforme a la Ley, a un proceso más o menos continuo de ajustes y reformas por razones de interés general (Resolución No. 10340 de las 12:47 hrs del 11 de junio del 2010, Sala Constitucional).

Y el cambio legal operado con la Ley No. 9635 sobre la materia, que es de aplicación general en el Sector Público, no busca en crear una diferenciación odiosa ni una desmejora salarial como infundadamente se acusa, sino que se basa razonablemente en consideraciones y limitaciones presupuestarias-financieras imperantes en las que se justifica válidamente la necesidad real de lograr un equilibrio en las finanzas públicas; necesidad que va más allá de superar una crisis económica pasajera o coyuntural, pues constituye un objetivo económico que es deseable que se mantenga en el tiempo. Sin que por ello se aprecie en realidad ninguna vulneración del derecho a la igualdad en la Ley, como infundadamente se acusa.

Recuérdese que el Estado tiene la obligación de propiciar la eficiencia en la prestación de los servicios públicos, para lo cual es fundamental fomentar la eficiencia del empleo público. De hecho, parte de la garantía de eficiencia consiste en asegurar que existan recursos económicos suficientes para hacer frente a los egresos que genera la planilla del Estado, lo cual solo se logra mediante reconocimientos salariales razonables, ajustados a la situación económica del país, y a la disponibilidad de recursos”. (Lo destacado no corresponde al original).

Segundo informe de la PGR En el informe solicitado a la PGR ‒en relación con los agravios del expediente n.°19-023575-0007-CO‒ se explicó que no hay ninguna lesión al art. 34 de la Constitución Política porque la reforma deja a salvo los derechos adquiridos de los servidores públicos que gozaban de ese incentivo.

Luego, en lo relativo al plazo de reconocimiento de los nuevos puntos de carrera profesional, se alega que no es cierto que la nueva regulación sobre la carrera profesional, que introduce una vigencia de cinco años ‒para los puntos adquiridos y retribuidos por ese concepto con posterioridad al 4 de diciembre del 2018‒ resulte contraria al principio de no confiscación, pues se trata de una compensación económica cuantitativamente ínfima, accesoria, complementaria y opcional al salario total, que en términos de la propia Sala no afecta el núcleo esencial del salario mínimo constitucionalmente protegido ‒art. 57 constitucional‒.Por lo que no puede afirmarse que resulte ser confiscatoria en los términos acusados, máxime cuando la accionante no fundamenta ni desarrolla alguna argumentación técnica, precisa y sólidamente sustentada al respecto.

Tampoco se advierte alguna vulneración al principio de irrenunciabilidad de derechos sociales ‒art. 74 constitucional‒, pues como no hay un derecho a la inmutabilidad del ordenamiento, la materia de los complementos salariales para quienes estén todavía bajo el esquema de salario compuesto es materia tangible y disponible por el legislador, por no ser parte del régimen constitucional laboral Informe de Mideplan Se informa que de la aplicación del art. 56 en concordancia con lo establecido en el Transitorio XXV del Título III de la ley n.°9635, el Estado (como patrono único, mientras subsista la continuidad laboral) queda compelido a salvaguardar montos salariales como manifestación del principio de indemnidad salarial, los derechos adquiridos y las situaciones jurídicas consolidadas de las personas servidoras públicas cubiertas por el ámbito de aplicación de la ley, de manera que los montos que ya habían ingresado a la esfera patrimonial de las personas servidoras públicas al momento de aprobación de dicha ley, no pueden ser reducidos o realizar una aplicación retroactiva de manera indebida. Sin embargo, los derechos adquiridos y las situaciones jurídicas consolidadas sobre los montos reconocidos por concepto de carrera profesional antes de la entrada en vigencia de la LFFP, no pueden ser equiparados con las expectativas de derecho que las personas servidoras públicas puedan tener sobre el reconocimiento de nuevos puntos, ni tampoco aspirar a un reconocimiento que exceda el tope máximo fijado por la ley, pues indiscutiblemente se incurriría en una flagrante violación al principio de legalidad.

Informe de la DGSC Dicha dirección rechaza los argumentos de inconstitucionalidad.

Afirma que los sobresueldos que dependan de alguna condición para ser otorgados ‒tal y como sucede en el caso que nos ocupa‒ no constituyen un derecho adquirido, pues este no puede considerarse como parte del salario propiamente dicho, toda vez que su otorgamiento depende de las condiciones objetivas por las cuales fue reconocido. En lo relativo al incentivo por carrera profesional se tiene que, de conformidad con la reforma legal introducida con la ley n.°9635, el citado plus desde su otorgamiento es ampliamente sabido que será reconocido y remunerado de forma temporal.

Al referirse al otorgamiento de incentivos salariales, tales como el reconocimiento de puntos por concepto de carrera profesional no estamos en presencia de un acto administrativo generador de derechos adquiridos como erróneamente plantea la accionante; por el contrario, se trata de un beneficio otorgado y condicionado no solo al cumplimiento de determinados supuestos y requisitos, sino también que su disfrute queda legalmente condicionado a un periodo previamente establecido, de modo que su supresión no puede considerarse como un ius variandi abusivo de la Administración, al cumplirse la condición temporal ‒cinco años‒ del disfrute del citado plus salarial.

Hace referencia a los antecedentes de la aprobación de la reforma para concluir que el legislador no solo podía, sino que tuvo que introducir cambios en la normativa legal vigente en materia de remuneraciones de las personas servidoras, sin que ello implique la violación del principio de irretroactividad e intangibilidad patrimonial, ya que lo que constitucionalmente se prohíbe es suprimir un beneficio legalmente otorgado, no así la posibilidad de la Administración de regular situaciones a futuro, como sucede en este caso al regular el legislador nuevas condiciones, requisitos y plazos para el otorgamiento del incentivo salarial por concepto de carrera profesional. En este apartado debe considerarse que los señores diputados al promulgar la ley 9635, respetaron los citados principios, lo cual puede ser constatado de la lectura del numeral 56 el y Transitorio XXV de ese cuerpo legal.

Congruente con esta postura jurídica y el cambio legal introducido en nuestro medio, esa Dirección General emitió la resolución n.°DG-139-2019 del 24 de julio del 2019, que modificó las resoluciones números DG-064-2008 del 28 de febrero del 2008 y DG-333-2005 del 30 de noviembre de 2005, esto con el propósito de ajustar estas regulaciones a los preceptos establecidos en la ley 9635 y su reglamento.

Las actuaciones realizadas por esa Dirección General no solo resultaron oportunas y diligentes, sino que también se ajustaron a las normas vigentes, y fueron desarrolladas en apego al principio de legalidad.

La cesación del reconocimiento de puntos por carrera profesional del incentivo, al no tratarse de un derecho adquirido sino de un plus salarial otorgado por la Administración por un plazo determinado, de ninguna manera transgrede el principio de irrenunciabilidad de los derechos laborales de las personas servidoras públicas.

Informe del Ministerio de Hacienda En aplicación del principio de indemnidad salarial, los servidores que se les haya reconocido los puntos de carrera profesional antes del 4 de diciembre de 2018 conservarán ‒sin limitación temporal y mientras se mantenga la relación laboral‒ la cantidad de puntos acumulados y reconocidos antes de aquella fecha, y con base en los cuales perciben la respectiva compensación económica; pero los puntos obtenidos posterior a la entrada en vigencia de ley 9635 y demás aspectos regulados en materia de carrera profesional estarán sometidos a las modificaciones normativas introducidas por la citada ley. No se produce la violación al salario señalada, pues los derechos de contenido económico, pueden modificarse dentro de los límites de la Constitución (art. 34 constitucional).

El sentido de la ley 9635 no es buscar una diferenciación ni desmejora salarial, sino que la misma se planteó a efectos de obedecer a limitaciones de índole presupuestarias y financieras, con el claro objetivo de buscar mantener un balance en las finanzas públicas y que este objetivo económico se mantenga en el tiempo y no solo resulte aplicable a una crisis fiscal. En ese sentido, es obligación del Estado garantizar el principio de eficiencia asegurando los recursos necesarios para hacer frente a las obligaciones patronales frente a los funcionarios públicos y los egresos por concepto de pago de planillas que este debe realizar, ajustados a la realidad que atraviesa las finanzas del país. El pago de pluses salariales o incentivos debe guardar relación con el equilibrio de las finanzas públicas. Dicha reforma introducida con la ley n.°9536 pretende propiciar este equilibrio sin que ello signifique que haya violado normas y/o principios constitucionales. Es importante señalar que, para salvaguardar los salarios, y por haberlo dispuesto así el Transitorio XXV de la LFFP, el salario total de los servidores que se encontraban activos al 4 de diciembre del 2018 ‒fecha en que entró en vigencia esa ley‒ no puede ser disminuido.

Finalmente, se refiere al estado de las finanzas públicas, para concluir que es claro que el Estado se encuentra en la obligación de garantizar el principio de eficiencia asegurando los recursos necesarios para hacer frente a las obligaciones, ajustados a la realidad que atraviesa las finanzas del país, por lo que el pago de pluses salariales o incentivos debe guardar relación con el equilibrio de las finanzas públicas.

Resolución de la Sala Constitucional Generalidades sobre los puntos de carrera profesional Históricamente se ha reconocido que la denominada “carrera profesional” responde a un incentivo económico aplicable a los funcionarios de nivel profesional al servicio de la Administración Pública, mediante el cual se les reconoce pecuniariamente la superación académica y la capacitación. Con esta retribución se ha pretendido también coadyuvar en el reclutamiento y retención de los profesionales mejor calificados en cada área de actividad, para un adecuado desempeño de la función pública, así como incrementar la productividad de los profesionales.

La definición de “carrera profesional” es posible encontrarla actualmente en el Reglamento del Título III de la LFFP, decreto ejecutivo n.°41564 de 11 de febrero de 2019:

“Artículo 1.- Definiciones. Para efectos del presente reglamento, se entenderá por:

(…)

• b)Carrera profesional: incentivo salarial reconocido para aquellos títulos o grados académicos que no sean requisito para el puesto, así como para aquellas actividades de capacitación que no hayan sido sufragadas por instituciones públicas”.

También en las “Normas para la aplicación de la carrera profesional para las entidades públicas cubiertas por el ámbito de la Autoridad Presupuestaria”, n.°42945-H, en el cual se le define de la siguiente manera:

“Artículo 1º-Denomínese Carrera Profesional al régimen que reconoce mediante un incentivo económico complementario y opcional, el mérito del funcionario profesional, que presta sus servicios en las entidades públicas cubiertas por el ámbito de la Autoridad Presupuestaria, alcanzado a través de su optimo desempeño e involucramiento permanente en actividades de al menos uno de los siguientes ámbitos:

1.1 Formación académica a nivel de grados y posgrados universitarios, adicional a los requisitos del puesto.

1.2 Formación en actividades de capacitación de carácter profesional”.

La Sala Segunda de la Corte ha definido este plus salarial en los siguientes términos:

“III.- SOBRE EL INCENTIVO DE RECONOCIMIENTO POR CARRERA PROFESIONAL: Desde sus orígenes, el reconocimiento por carrera profesional se concibió como un incentivo económico cuyo objetivo fundamental es, estimular la superación académica y laboral de los profesionales al servicio de la Administración Pública; y coadyuvar en el reclutamiento y retención de los profesionales mejor calificados en cada área de actividad, todo ello con miras a un mejor y más adecuado cumplimiento de los fines de la función pública, dentro de los cuales está a no dudarlo, la eficiencia en el servicio (artículo 4 de la Ley General de la Administración Pública). Como todo beneficio salarial que compromete las finanzas públicas, su reconocimiento y concesión no puede ser nunca un acto arbitrario ni indiscriminado. Por el contrario, sujeta como está la Administración Pública al principio de legalidad presupuestaria, debe también en este caso, garantizar el cumplimiento de los requisitos legalmente establecidos sin que por otra parte, pueda dejar de reconocer, cuando corresponda, el derecho del funcionario/a”. (Sentencia n.°2007-000721. Lo destacado no corresponde al original).

Tratándose de un beneficio salarial o un incentivo, corresponde reiterar lo mencionado supra respecto de otro tipo de incentivos ‒como el reconocimiento de las anualidades‒ en el sentido de que nadie tiene derecho a la inmutabilidad del ordenamiento, es decir, a que las reglas nunca cambien. Por lo anterior, si bien es verdad que el reconocimiento de la carrera profesional tiene por objetivo último asegurar que la Administración cuente con el personal altamente capacitado que necesita para un adecuado desempeño de la función pública, también lo es que para el logro efectivo de este y otros objetivos de la carrera profesional su reconocimiento y condiciones de pago dependen de lo que se disponga y regule por parte del legislador.

En el sub lite ha quedado ampliamente establecido que nuestro país estaba pasando por una situación fiscal que implicó el compromiso y sacrificio de todos los costarricenses en muchas materias. Entre ellas, las limitaciones presupuestarias para el reconocimiento de pluses e incentivos salariales, con el propósito de lograr un equilibrio en las finanzas públicas. Al respecto, se coincide con la PGR en el sentido de que es obligación del Estado garantizar el principio de eficiencia asegurando los recursos necesarios para hacer frente a las obligaciones patronales frente a los funcionarios públicos y los egresos por concepto de pago de planillas que este debe realizar, ajustados a la realidad que atraviesa las finanzas del país. Por lo tanto, el legislador puede realizar cambios en las condiciones bajo las cuales se prestan servicios al Estado. Es decir, tiene la competencia para dictar los lineamientos generales de regulación de las remuneraciones y, en ese sentido, conviene dejar establecido que no existe un derecho fundamental a que se mantenga un mecanismo regulatorio en concreto. Lo anterior, siempre que se respeten los derechos adquiridos y las situaciones jurídicas consolidadas de las personas que mantenían una relación de servicio antes de la realización de esos cambios y, además, se respeten principios constitucionales como razonabilidad y no discriminación.

Sobre un supuesto desincentivo y retroceso en lo relativo a la idoneidad comprobada Tales argumentos no están suficientemente desarrollados por la parte accionante tal y como le correspondería y, por lo tanto, lo procedente es desestimarlos. Todo el personal de la Administración Pública debe ser contratado con fundamento en la idoneidad comprobada, tanto personal como profesionalmente hablando y, en ese sentido, se debe tener por descontado que los servidores deben cumplir las cualidades para el puesto en el que se les designa. Por lo tanto, no se encuentra relación lógica en la afirmación del accionante en el sentido de que la norma supone un retroceso en lo relativo a la contratación de funcionarios idóneos, cuando esa es la premisa básica de toda contratación en la Administración Pública.

Sobre la razonabilidad en el reconocimiento del incentivo a los servidores que pagaron por su capacitación El hecho de que se reconozcan los incentivos a aquellas personas que de su propio peculio pagan la capacitación correspondiente resulta razonable. Si el servidor invirtió tiempo y dinero propio en la capacitación, resulta razonable que la Administración le pague a esta persona el incentivo correspondiente. De forma inversa, en tesis de principio y con los argumentos aportados por la parte accionante, luce razonable que, si fue la propia institución pública la que invirtió en la capacitación del servidor y este no debió pagar por sus estudios, en contraposición no reciba un monto pecuniario adicional por el incentivo bajo análisis. En el contexto de aprobación de la normativa bajo análisis, luce razonable que reciba un estipendio aquel que pagó por sus propios estudios, pero no aquél al que le pagaron los estudios correspondientes con fondos públicos.

Sobre la supuesta lesión al principio de igualdad De otra parte, la construcción que realiza el accionante sobre una presunta lesión al principio de igualdad es artificial. Alude que habrá dos tipos de servidores públicos: unos que pueden invertir en su educación y otros que no, lo que al cabo provocaría ingresos diferentes. Al respecto, el accionante erra en su apreciación porque construye una hipótesis falsa. En realidad, cualquiera servidor público podría invertir tiempo y recursos en actividades de capacitación, pero solo aquellos que realmente procuran los medios para su mejoramiento profesional y personal recibirán el incentivo correspondiente. Desigual sería que un servidor que recibió la capacitación a cargo de fondos públicos reciba, adicionalmente, un estipendio como incentivo, a diferencia de aquel servidor que se esforzó por pagar sus propias capacitaciones.

En consecuencia, se rechazan los agravios en los términos que fueron expuestos por parte del accionante.

Sobre la negociación colectiva El accionante se limita a referir que el incentivo por capacitación podría estar en una negociación colectiva y por ello la norma lesionaría ese derecho. En cuanto a este aspecto, corresponde remitir a las partes a lo resuelto previamente. Las restricciones sobre las negociaciones colectivas no son absolutas y, en los casos de los servidores públicos que puedan pactarlas, es perfectamente posible que se puedan negociar este tipo de mejoras salariales que respondan a las necesidades de capacitación del respectivo centro de trabajo. Sin embargo, ello no obsta que, como criterio general, el legislador establezca las condiciones para el reconocimiento de este tipo de incentivos salariales. En consecuencia, se deben desestimar los agravios planteados.

Sobre la correcta interpretación de la normativa El actor aduce una supuesta amenaza al principio de seguridad jurídica porque la norma no es clara en su redacción. Dicho argumento, así solamente enunciado, no es suficiente para decretar la inconstitucionalidad de la norma. Ya se ha insistido sobradamente que, al cuestionarse el contenido de una disposición por supuestamente lesionar el Derecho de la Constitución, la parte debe plantear argumentos sólidos y debidamente fundamentados. Acá no se desarrolla apropiadamente el argumento, siendo que, por lo demás, los aspectos relacionados con la correcta interpretación y aplicación de las normas jurídicas ordinarias corresponde a los operadores de las vías correspondientes y no a este Tribunal Constitucional.

Sobre la supuesta lesión a los derechos adquiridos e irrenunciabilidad de los derechos En la acción n.°19-023575-0007-CO la parte insiste sobre una presunta lesión a los derechos adquiridos, enunciando la violación de los arts. 34, 45 y 74 de la Constitución Política.

Sobre estos extremos, conviene distinguir los puntos por carrera profesional obtenidos de previo a la aprobación de la LFFP y aquellos que serán y han sido reconocidos con posterioridad.

Respecto de los primeros, es decir, los funcionarios a los que se les han reconocidos puntos por carrera profesional de previo a la aprobación de la LFFP, se impone recordar lo establecidos en el art. 56 de la LSAP y el Transitorio XXV de la LFFP en lo relativo a Empleo Público. Dichas normas disponen, en lo conducente, lo siguiente:

Art. 56- Aplicación de los incentivos, topes y compensaciones. Los incentivos, las compensaciones, los topes o las anualidades remunerados a la fecha de entrada en vigencia de la ley serán aplicados a futuro y no podrán ser aplicados de forma retroactiva en perjuicio del funcionario o sus derechos patrimoniales.

TRANSITORIO XXV. El salario total de los servidores que se encuentren activos en las instituciones contempladas en el artículo 26 a la entrada en vigencia de esta ley no podrá ser disminuido y se les respetarán los derechos adquiridos que ostenten. (…)”. (Lo destacado no corresponde al original).

Tal y como se puede apreciar, las nuevas disposiciones sobre el reconocimiento de incentivos salariales ‒como los puntos de carrera profesional‒ resguardan y dejan a salvo los derechos patrimoniales adquiridos por parte de los servidores públicos que gozaban del incentivo en las condiciones pactadas originalmente. De ningún modo se puede afectar el monto salarial ya consolidado por parte de los servidores públicos. En ese orden de ideas, no hay una afectación al salario o a los derechos adquiridos, ni mucho menos una renuncia a aspectos salariales. Llevan razón las autoridades informantes en el sentido de que el Estado queda compelido a salvaguardar montos salariales como manifestación del principio de indemnidad salarial, los derechos adquiridos y las situaciones jurídicas consolidadas de las personas servidoras públicas cubiertas por el ámbito de aplicación de la ley, de manera que los montos que ya habían ingresado a la esfera patrimonial de las personas servidoras públicas al momento de aprobación de dicha ley, no pueden ser reducidos o realizar una aplicación retroactiva de manera indebida.

Ahora bien, como ya se advirtió, la situación de los servidores con tales incentivos ya incorporados en su salario, difiere de la situación de aquellas expectativas de derecho de aquellos servidores que pretenden el reconocimiento de nuevos puntos de carrera profesional en virtud de capacitaciones posteriores. En tales supuestos, los servidores públicos inevitablemente deben ajustarse a las nuevas condiciones definidas por el legislador en virtud de la situación de las finanzas públicas. No se trata, como lo afirma la parte accionante, de una sanción, sino que el futuro incentivo está supeditado al cumplimiento de las disposiciones aplicables para su reconocimiento y pago ‒es, se repite, una mera expectativa‒ y, en tal caso, su autorización y pago se realizará conforme a las nuevas condiciones legales impuestas, siendo que el servidor público sabrá de antemano que el reconocimiento y pago del incentivo se realizará por un plazo en concreto y no de por vida. Llevan razón las autoridades informantes en el sentido de que con la reforma legal introducida con la ley n.°9635, el citado plus desde su otorgamiento es ampliamente sabido que será reconocido y remunerado de forma temporal. En consecuencia, corresponde en este punto reiterar lo dicho respecto del reconocimiento futuro de las anualidades y aludir a las consideraciones realizadas en la sentencia n.°2024-007057:

“En el sub examine, se debe advertir que el pago futuro de una anualidad no es un efecto automático incorporado al salario de todo funcionario, sino que, tal y como lo reconoce la Procuraduría General de la República, constituye una expectativa de derecho si se cumplen determinadas condiciones, por ejemplo, alcanzar el plazo anual y calificar, además, dentro de los parámetros de evaluación. De no cumplirse tales condiciones, el reconocimiento en cuestión no se efectuaría. En ese sentido, no puede pretenderse establecer como un derecho adquirido la forma en que estas llegarán a pagarse o los supuestos bajo los cuales deberá hacerse, pues no hay un derecho a la inmutabilidad del ordenamiento jurídico, según el precedente supra citado.

(…)

Tampoco implica una aplicación retroactiva de la ley, pues se trata de los pagos futuros de las anualidades, no de aquellas cuyos montos que ya han ingresado al peculio del funcionario, cuyo monto se mantiene intacto (…)

Así, lo ya adquirido y contemplado en el salario que recibió el trabajador previo a la vigencia de la ley nro. 9635, como se explicitó, se mantiene, conservando los funcionarios sus derechos adquiridos y sin afectación alguna al salario que le corresponde”. (Lo destacado no corresponde al original).

En cuyo caso, corresponde insistir que no hay un derecho a la inmutabilidad del ordenamiento y no puede aducirse que hay un derecho adquirido a determinada regulación sobre el reconocimiento de incentivos salariales. La situación fiscal impulsó al legislador a establecer el reconocimiento de este plus salarial por un plazo acotado y el servidor público de antemano tiene conocimiento que el nuevo incentivo no es permanente, sino que su pago será por un plazo determinado, lo que a juicio de esta Sala no viola el derecho al salario o los arts. 34 y 74 de la Constitución Política, así como tampoco los principios de intangibilidad del patrimonio o de no confiscación. El servidor público no está renunciando a sus derechos, ni el legislador está lesionando un derecho adquirido, porque este ha dispuesto dentro del marco de discrecionalidad legislativa que los nuevos incentivos por carrera profesional solamente podrán reconocerse por un plazo único y determinado, con el conocimiento previo y la aceptación del respectivo servidor.

La Sala no desconoce la importancia de esos pluses y por supuesto aboga por la capacitación y la retención del mejor capital humano que la Administración tenga disponible. Todo ello redunda en el fomento del bienestar general a través de la prestación de un servicio público eficaz y eficiente. Sin embargo, nuevamente, desde la perspectiva que se plantea esta acción, no se observa ninguna infracción al Derecho de la Constitución porque los pluses que hubieran ingresado al patrimonio de las personas servidoras públicas previo a la reforma se mantienen absolutamente incólumes según las propias disposiciones legales vigentes. Mientras que, la expectativa de nuevos pluses, es decir, a futuro o en lo sucesivo, podrán reconocerse cuando se cumplan las condiciones legales y reglamentarias establecidas para tales supuestos; sin embargo, dicho reconocimiento será solamente por cinco años, con el previo conocimiento y aceptación del servidor que gestiona el plus salarial.

No hay como tal un derecho subjetivo del funcionario a continuar devengando la remuneración por carrera profesional, una vez cumplidos los cinco años posteriores a su respectivo reconocimiento. Tampoco hay una lesión al núcleo duro del salario, pues este no es objeto de variación, sino el plus reconocido y pagadero por un espacio temporal.

Es verdad que el Estado como patrono debe fomentar políticas para incentivar la formación continua de sus servidores en aras de que el personal se siga capacitando y, en definitiva, que en toda la Administración Pública se aspire a tener y retener a los mejores funcionarios en beneficio del interés general y los servicios que han de prestarse a todos los usuarios y administrados. En tal sentido es deseable que el Estado promueva salarios dignos y competitivos para retener el personal. Pero con los elementos aportados hasta el momento en este proceso, no se aprecia como tal una lesión a los derechos invocados. Por lo tanto, se desestima este extremo de la acción sin perjuicio que el debate se reabra o se replantee en otros términos si se logra determinar que las disposiciones provocan un empobrecimiento de los salarios de los profesionales o se constata que esta medida aspiracional a la retención de los servidores públicos más idóneos se está viendo lesionada por la fuga de personal capacitado.

Finalmente, y si eventualmente hubiera una aplicación ilegítima de la norma, ello correspondería ser examinado en cada caso concreto en las vías ordinarias de legalidad, pero los reproches planteados no acreditan una lesión al Derecho de la Constitución.

Conclusiones

Corolario de las consideraciones realizadas a la luz de los planteamientos realizados por los accionantes, no se acredita la lesión a los derechos y principios constitucionales invocados.

El magistrado Cruz Castro salva el voto y declara inconstitucional el art. 53 de LSAP, adicionado por la LFFP n.°9635, el art. 15 del reglamento n.°41564-MIDEPLAN, así como la resolución n.°DG-139-2019 de la DGSC.

XXXII.- CONVERSIÓN DE INCENTIVOS A MONTOS NOMINALES FIJOS Normas impugnadas Se cuestiona el art. 54 de la LSAP adicionado por la LFFP n.°9635 y el art. 17 del reglamento n.°41564-MIDEPLAN.

La versión original del art. 54 disponía textualmente lo siguiente:

“Art. 54- Conversión de incentivos a montos nominales fijos. Cualquier otro incentivo o compensación existente que a la entrada en vigencia de esta ley esté expresado en términos porcentuales, su cálculo a futuro será un monto nominal fijo, resultante de la aplicación del porcentaje al salario base a enero de 2018.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N° 9635 del 3 de diciembre de 2018)”.

Dicho numeral fue posteriormente reformado por el artículo único de la Ley para prevenir la reducción de los salarios de los educadores costarricenses, n.°10137 del 17 de febrero del 2022. La normativa actual dispone lo siguiente:

“Artículo 54- Conversión de incentivos a montos nominales fijos. Cualquier otro incentivo o compensación existente, que a la entrada en vigencia de esta ley esté expresado en términos porcentuales, su cálculo a futuro será un monto nominal, resultante de la aplicación del porcentaje al salario base a julio de 2018.

En el caso específico del componente salarial denominado "Incentivo para el Desarrollo de la Docencia", que percibe el personal docente del título segundo del Estatuto del Servicio Civil, se debe calcular como un monto nominal fijo, resultante de la aplicación del ocho coma treinta y tres por ciento (8,33%) al salario total, entendido este como la suma del salario base más sus respectivos componentes salariales, que la persona servidora devenga en el momento que se ejecuta el trabajo, con referencia a la escala salarial vigente a julio de 2018.

En todo momento, el incentivo para el desarrollo de la docencia se calculará proporcionalmente según sea el número de lecciones, la jornada y otros componentes salariales que la persona servidora pública ostente.

TRANSITORIO- Los montos percibidos por el personal del Ministerio de Educación Pública correspondientes al Incentivo para el Desarrollo de la Docencia, que se calcularon porcentualmente desde la entrada en vigencia de la Ley 9635, Ley de Fortalecimiento de las Finanzas Públicas, de 4 de diciembre de 2018 y hasta el 17 de febrero de 2022, se considerarán como un rubro bien pagado por la Administración y percibido de buena fe por el personal del título ll del Estatuto del Servicio Civil (docente, administrativo y técnico docente del Ministerio de Educación Pública), que queda liberado de la obligación de reintegrarlas. De conformidad con lo anterior, se exime al Ministerio de Educación Pública de la obligación de reclamar su pago.

Asimismo, las sumas percibidas por el personal del Ministerio de Educación Pública, por concepto de Incentivo para el Desarrollo de la Docencia, desde el 17 de febrero de 2022 y hasta su efectiva nominalización en los sistemas de pago correspondientes, se considerarán como bien pagadas, por lo cual no generan sumas giradas de más y por lo tanto se exime al Ministerio de Educación Pública de la obligación de reclamar su pago.

(Así adicionado el transitorio anterior por el artículo único de la ley N°10423 del 20 de noviembre de 2023) (Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018) (Así reformado por el artículo único de Ley para prevenir la reducción de los salarios de los educadores costarricenses, N° 10137 del 17 de febrero del 2022)”.

Igualmente, la versión original del decreto decía lo siguiente:

Art. 17.- Conversión de incentivos a montos nominales fijos. De conformidad con lo señalado en el artículo 54 de la Ley N°2166, adicionados mediante artículo 3 de la Ley N°9635, cualquier otro incentivo o compensación existente que a la entrada en vigencia de la Ley N°9635 se encuentre expresado en términos porcentuales, deberá calcularse mediante un monto nominal fijo, resultante de la aplicación del porcentaje al salario base a enero de 2018.

Dicha disposición fue reformada, de manera que la versión vigente ordena lo siguiente:

“Artículo 17.- Conversión de incentivos a montos nominales fijos. Los montos por incentivos o compensaciones ya recibidas de previo a la entrada en vigencia de la Ley N° 9635, se conservan y mantienen en el tiempo como montos nominales fijos, producto de la forma en que se revalorizaban antes del 4 de diciembre de 2018, esto de conformidad con lo establecido en los artículos 54 y 56 de la Ley N°2166, adicionado mediante artículo 3 de la Ley N°9635, y el Transitorio XXV de la Ley N°9635.

En orden con lo establecido en el artículo 54 de la Ley N° 2166, adicionado mediante artículo 3 de la Ley N° 9635 y los transitorios XXV y XXXI del título tercero de la Ley N° 9635 y en concordancia con la Resolución de la Dirección General del Servicio Civil DG-087-2018 de las nueve horas de 2 de julio de 2018, cualquier otro incentivo o compensación existente que a la entrada en vigencia de la Ley N°9635 se encuentre expresado en términos porcentuales, deberá calcularse mediante un monto nominal fijo, resultante de la aplicación del porcentaje al salario base a julio de 2018.

(Así reformado por el artículo 1° del decreto ejecutivo N° 41729 del 20 de mayo del 2019)”.

Agravios de la parte accionante El accionante argumenta que, al igual que el art. 50 impugnado, esta norma vacía de contenido a futuro cualquier incentivo existente dispuesto por norma legal, convencional o reglamentaria, al decretarla nominalmente, sujetándola a la pérdida del valor adquisitivo de la moneda. Considera que se trata de una pésima técnica legislativa que lesiona la progresividad de los derechos y la autonomía de los entes descentralizados y que incide directamente en el poder adquisitivo de los funcionarios públicos, cuyo salario se vería confiscado. Es clara la relación irrazonable y desproporcionada de lo que busca el legislador: mayores impuestos al consumo y disminución de derechos laborales. El perjuicio no es solo para la clase profesional, sino también para los peones municipales, los policías administrativos, etc. El legislador pretende refinanciar el Estado a costa de los derechos de los costarricenses, sobre todo, de los funcionarios públicos, independientemente de su nivel salarial.

Alegatos del coadyuvante activo (SINAME) Aduce que el art. 17 del decreto ejecutivo n.º41564-MIDEPLAN-H debe ser declarado inconstitucional porque viola los derechos adquiridos y las situaciones jurídicas consolidadas de los funcionarios públicos, ya que se le está otorgando a la norma un efecto retroactivo, en detrimento de los administrados, en completo desacato del art. 34 constitucional. Lo establecido en ese numeral del reglamento de la ley n.º9635 es contrario a la Constitución Política porque nominaliza todas las anualidades y pluses salariales a pesar de que esos montos se establecieron como porcentuales desde su creación y esto crea una afectación a los derechos económicos de los administrados, dejándolos en completa desprotección y sin seguridad jurídica a pesar de que esos son derechos que provienen de negociaciones colectivas. En atención al principio de irretroactividad, no se puede admitir que una ley posterior influya en este tipo de relaciones forjadas al amparo de la ley. El ordenamiento jurídico debe proteger la intangibilidad de estos derechos adquiridos y situaciones jurídicas consolidadas que están siendo amenazadas por las normas impugnadas.

Informe de la PGR La PGR sugiere declarar sin lugar la acción de inconstitucionalidad con fundamento en los siguientes razonamientos:

“Tal y como lo indicamos en el informe original de 18 de marzo pasado, dentro de este expediente, a juicio de ésta Procuraduría, el legislador es el llamado a establecer los incentivos y la cuantía de los beneficios económicos que otorga a sus servidores; esto como parte del denominado “Estatuto de funcionarios públicos” (art. 191 constitucional).

Y partiendo de lo anterior, debe entenderse que el monto económico que se otorgue por concepto de incentivos o pluses, va en función de la intensidad con la que el legislador quiera incentivar la permanencia en el puesto de los funcionarios públicos, y con la posibilidad económica de cancelar las sumas que se derivan de ese incentivo.

Véase que mantener porcentuales los componentes salariales preexistentes implica una erogación mayor de recursos que no guarda congruencia con la intención de equilibrar las finanzas públicas que impera, por necesidad, actualmente. Ante esa situación, corresponde al legislador decidir ₋como ya lo hizo₋ efectuar dicha conversión nominalizándolos y propiciar así el equilibrio de las finanzas públicas, sin que optar por una u otra decisión implique violación alguna a normas o principios constitucionales, pues esas alternativas son constitucionalmente válidas frente a la regulación básica del régimen constitucional del empleo público (art. 191 Constitucional), que le compete al legislador configurar (arts. 105 y 121.1 Ibídem).

De modo que el carácter permanente que está implícito al otorgar a dichos componentes salariales un valor nominal que es estable en el tiempo, no tiene como finalidad desmejorar la situación de los empleados públicos, sino que se justifica válidamente en la necesidad real de lograr una situación de equilibrio en las finanzas públicas; necesidad que va más allá de superar una crisis económica pasajera o coyuntural, pues constituye un objetivo económico que es deseable que se mantenga en el tiempo.

Según reafirmamos, el Estado tiene la obligación de propiciar la eficiencia en la prestación de los servicios públicos, para lo cual es fundamental fomentar la eficiencia del empleo público. De hecho, parte de la garantía de eficiencia consiste en asegurar que existan recursos económicos suficientes para hacer frente a los egresos que genera la planilla del Estado, lo cual solo se logra mediante reconocimientos salariales razonables, ajustados a la situación económica del país, y a la disponibilidad de recursos.

En todo caso, debemos insistir que esa norma (art. 54) no deroga los incentivos o compensaciones existentes antes de la Ley de Fortalecimiento de las Finanzas Públicas, sino que establece la forma en que han de calcularse a futuro, ya no porcentualmente, sino mediante un monto nominal fijo. (Dictamen C-153-2018, de 6 de junio de 2019). Lo cual supone que, por mandato legal expreso, todos los componentes salariales que antes del 4 de diciembre del 2018 se calculaban porcentualmente, sin excepción deben nominalizarse conforme a lo previsto. Posición que reafirmamos en los pronunciamientos OJ-041-2019, de 29 de mayo de 2019, en el caso de la Caja Costarricense de Seguro Social; OJ-068-2019, de 20 de junio de 2019, en el caso del Poder Judicial; dictámenes C-166-2019, de 13 de junio de 2019, en el caso del Tribunal Supremo de Elecciones; C-194-2019, de 08 de julio de 2019, en el caso de las Municipalidades; C-281-2019, de 1 de octubre de 2019, en la que se determinó que, dado su ámbito de aplicación general y su innegable vocación de uniformidad y homogeneidad, como una opción constitucionalmente válida de regular las condiciones retributivas del empleo en todo el sector público (art. 192 constitucional), las disposiciones sobre empleo públicos contempladas en la Ley de Salarios de la Administración Pública relacionadas, entre otros temas, con la forma en que deben calcularse los salarios y sus componentes en el Sector Público, privan sobre cualquier otra disposición de rango legal o inferior preexistentes a nivel sectorial; esto a modo de derogación tácita –total o parcial- por incompatibilidad normativa de sus contenidos.

Recuérdese que el régimen de los derechos de los funcionarios públicos no es un régimen estático, sino variable por esencia, sobre todo en lo referido a los derechos de contenido económico, cuya cuantía puede incluso modificarse dentro de los límites de la Constitución (art. 34 constitucional), ya que el servidor no tiene un derecho adquirido frente al legislador, e incluso frente a la misma potestad normativa de la Administración empleadora, a que se mantenga una determinada regulación de sus derechos, cuando la experiencia demuestra que ha de someterse, conforme a la Ley, a un proceso más o menos continuo de ajustes y reformas por razones de interés general (Resolución No. 10340 de las 12:47 hrs del 11 de junio del 2010, Sala Constitucional).

Y al estar enmarcada la relación funcionarial en un régimen objetivo, definido legal o reglamentariamente, según se explicó, resulta también modificable por uno u otro instrumento normativo, sin que, consecuentemente, pueda pretenderse que esa situación estatutaria quede congelada en el tiempo, pues “nadie tiene derecho a la inmutabilidad del ordenamiento, es decir, a que las reglas nunca cambien, por eso el principio de irretroactividad no impide que una vez nacida a la vida jurídica la regla que conecta el hecho con el efecto, no puede ser modificada, e incluso suprimida por una norma posterior" ( Resolución N° 6134-98 de las 17:24 horas del 26 de agosto de 1998, Sala Constitucional).

De este modo, ha sido criterio consolidado el relativo a que el funcionario carece de un derecho adquirido general al mantenimiento de una determinada regulación de sus condiciones de trabajo o a impedir su modificación, matizándose que no son derechos adquiridos las meras condiciones previstas objetivamente en las normas o las situaciones de ventaja o meras expectativas que pudieran derivarse potencialmente de aquéllas, si no van acompañadas de un acto jurídico singular que confiera el derecho subjetivo a una situación jurídica individualizada que traiga causa de hechos amparados en la expresada norma objetiva, y siempre nacidas durante la vigencia de la misma. (Véase al respecto, entre otras, la sentencia N°84-2014-I de las 11:30 hrs. del 28 de noviembre de 2014, del Tribunal Contencioso Administrativo y Civil de Hacienda, Sección I).

Y en este caso, no debe perderse de vista que frente a la nominalización de los incentivos y pluses porcentuales preexistentes, ordenada por las disposiciones legislativas de la Ley de Fortalecimiento de la Finanzas Públicas, No. 9635, aquellos componentes salariales se conservan pero bajo un valor económico fijo; es decir, no se derogan, pero se preservan a futuro bajo un monto fijo resultante de la aplicación del porcentaje al salario base a julio de 2018; esto para salvaguardar los “derechos adquiridos”, por haberlo así dispuesto el Transitorio XXV de la propia Ley, en el sentido de que el salario total de los servidores que se encontraban activos al 4 de diciembre de 2018, fecha en la que entró en vigencia esa Ley, no puede ser disminuido.

Por último, en cuanto se acusa que con la nominalización de componentes salariales dispuesta en la Ley No. 9635 se afecta negativamente el derecho de negociación que contienen disposiciones sobre el pago de incentivos o compensaciones en forma porcentual, así abordado ese supuesto motivo de inconstitucionalidad, dichos reparos giran en torno al tema de la prevalencia o no de una ley sobrevenida (la Ley de Fortalecimiento de las Finanzas Públicas) sobre las convenciones colectivas vigentes. Y al respecto, debemos reiterar que la posición institucional de éste órgano asesor sobre dicho tema fue externada en nuestro dictamen C-060-2019, del 5 de marzo recién pasado. En dicho pronunciamiento se arribó a la conclusión de que las convenciones colectivas están supeditadas a la ley, aun cuando ésta última sea sobrevenida, sobre todo cuando esa ley va dirigida expresamente a derogar (con vigencia hacia el futuro, respetando en consecuencia los derechos adquiridos y las situaciones jurídicas consolidadas) las normas convencionales que tengan un contenido específico.

Por lo expuesto, los vicios alegados no resultan atendibles”.

Informe del Ministerio de Hacienda La ministra solicita que se declaren sin lugar los agravios planteados y afirma lo siguiente:

“[E]l tratamiento otorgado a las anualidades, el nominalizar los pluses no son medidas compensatorias, ni arbitrarias, ni violentan derechos adquiridos, sino que su orientación es uniformar el régimen de empleo público”.

Resolución de la Sala Constitucional En lo relativo a estos agravios, corresponde insistir sobre lo resuelto en los ítems anteriores. En primer término, los accionantes carecen de legitimación para cuestionar la presunta lesión a las autonomías de las municipalidades o entes descentralizados.

En segundo lugar, en lo relativo a los derechos laborales, corresponde insistir que el legislador dispuso que este tipo de reglas generales surtan efecto hacia el futuro, resguardando en cualquier caso el estatus salarial de los servidores públicos. Sobre el particular, corresponde insistir en lo que se dejó establecido en el art. 56 de la LSAP en el sentido de que “los incentivos, las compensaciones, los topes o las anualidades remunerados a la fecha de entrada en vigencia de la ley serán aplicados a futuro y no podrán ser aplicados de forma retroactiva en perjuicio del funcionario o sus derechos patrimoniales”. De modo que la voluntad del legislador en cualquier caso fue resguardar el salario y los derechos adquiridos de los servidores públicos. Sin embargo, como se ha desarrollado a lo largo de esta resolución, los antecedentes fiscales impulsaron al legislador a adoptar medidas con el propósito de frenar el desequilibrio en las finanzas públicas a través de disposiciones de contención en el gasto público y estandarización en el pago de los salarios de los servidores públicos. Todo lo cual resulta legítimo en el marco del Derecho de la Constitución, pues no hay un derecho fundamental a la inmutabilidad del ordenamiento jurídico y que las reglas sobre el reconocimiento de pluses e incentivos salariales no varíen en el tiempo. Por tanto, esta Sala advirtió que este tipo de disposiciones son legítimas siempre y cuando se deje a salvo la posibilidad de aquellos servidores públicos que no participan de la gestión pública de negociar mejoras salariales dentro de los márgenes de la razonabilidad, proporcionalidad y correcta disposición de fondos públicos en momentos de contracción económica. En cuyo caso, la nominalización a futuro de los incentivos salariales ‒y con los argumentos planteados por los accionantes‒ no luce como un vaciamiento de los derechos fundamentales de los funcionarios públicos.

Ahora bien, lo relativo a que se presenta un vaciamiento del salario, que se genera en la pérdida del valor adquisitivo, la progresividad salarial y supuestas condiciones confiscatorias e irrazonables, los agravios deben desestimarse por una insuficiente motivación y demostración de los agravios. Se ha insistido en esta resolución ‒basándose en la propia LJC y en la jurisprudencia constitucional‒ que quien alegue la lesión al Derecho de la Constitución o aduzca la irrazonabilidad de una norma, debe aportar argumentos sólidos y demostrar los supuestos efectos perniciosos de la disposición. En el caso concreto se constatan idénticos defectos y carencias, pues los accionantes se limitan a vaticinar aspectos salariales negativos, sin aportar mayores elementos de juicio a esta Sala para realizar un análisis apropiado de una verdadera afectación en la generalidad de los servidores públicos.

Finalmente, en lo relativo a eventuales antinomias o la prevalencia de otras normas especiales, se reitera que ello corresponde ser valorado y resuelto en las instancias ordinarias de legalidad.

XXXIII.- SOBRE LAS REFORMAS AL ART. 57 DE LA LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA Normas impugnadas El accionante cuestiona varios incisos del art. 57 de la LSAP. Las disposiciones cuestionadas regulan lo siguiente:

Artículo 57- Reformas. Se modifican las siguientes leyes, de la manera que se describe a continuación:

(…)

• f)Se reforma el párrafo primero del artículo 47 de la Ley N.°1581, Estatuto de Servicio Civil, de 30 de mayo de 1953. El texto es el siguiente:

Artículo 47- No obstante lo dispuesto en el artículo 43, el ministro podrá dar por concluidos los contratos de trabajo de los servidores, previo pago de las prestaciones que pudieran corresponderles, siempre que el Tribunal de Servicio Civil, al resolver la consulta que por anticipado le hará, estime que el caso está comprendido en alguna de las siguientes excepciones, muy calificadas.

• g)Se reforma el artículo 15 de la Ley N.° 8422, Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, de 6 de octubre de 2004. El texto es el siguiente:

Artículo 15- Retribución económica por la prohibición de ejercer profesiones liberales. La compensación económica por la aplicación del artículo anterior será equivalente a un pago de un quince por ciento (15%) bachilleres y un treinta por ciento (30%) licenciados o posgrados sobre el salario base fijado para la categoría del puesto respectivo.

• h)Se reforma el inciso b) del artículo 1 de la Ley N.°5867, Ley de Compensación por Pago de Prohibición, de 15 de diciembre de 1975. El texto es el siguiente:

Artículo 1- [.]

• b)Un quince por ciento (15%) para quienes sean bachilleres universitarios.
• i)Se reforma el artículo 5 de la Ley N.° 5867, Ley de Compensación por Pago de Prohibición, de 15 de diciembre de 1975. El texto es el siguiente:

Artículo 5- Salvo que exista un régimen especial de remuneración para el funcionario público, los beneficios dispuestos en los incisos a) y b) del artículo 1 de esta ley se aplican a los empleados del Poder Ejecutivo, Poder Judicial, Tribunal Supremo de Elecciones, Registro Civil, Contraloría General de la República, Procuraduría General de la República y municipalidades, referidos en el artículo 244 de la Ley N.° 8, Ley Orgánica del Poder Judicial, de 29 de noviembre de 1937. Tal compensación se calculará sobre el salario más bajo indicado en la escala de sueldos de la Administración Pública que emite la Dirección General del Servicio Civil.

(…)

• m)Se reforma el penúltimo párrafo del artículo 9 de la Ley N.° 7319, Ley de la Defensoría de los Habitantes de la República, de 10 de diciembre de 1992. El texto es el siguiente:

[.]

La prohibición del inciso 4) de este artículo se extiende solamente a los servidores profesionales que ocupen plazas de profesional en la Defensoría de los Habitantes. A estos funcionarios se les compensará económicamente de manera porcentual sobre su salario base. Los porcentajes que se pagarán para compensar la prohibición son: un treinta por ciento (30%) para los que ostenten el grado de licenciatura u otro superior y un quince por ciento (15%) para los bachilleres universitarios.

[.].

• n)Se reforman los artículos 1 y 2 de Ley N.° 6451, Autoriza Poder Judicial a Reconocer Beneficios, de 1 de agosto de 1980. Los textos son los siguientes:

Artículo 1- Se autoriza a la Corte Suprema de Justicia, para que reconozca el beneficio por concepto de prohibición al personal profesional que considere que por las funciones atinentes al cargo desempeñado se le impide ejercer la profesión o profesiones liberales de forma particular, o para desempeñar cargos en la empresa privada, la Administración Pública, y las instituciones autónomas o semiautónomas.

Artículo 2- El funcionario al que se le otorgue el beneficio, que establece el artículo anterior, recibirá una compensación económica de un porcentaje sobre el salario base. Un quince por ciento (15%), para los que posean el grado académico de bachiller universitario, y de un treinta por ciento (30%), para los que ostenten el grado de licenciatura u otro superior.

(…)

• o)Se reforma el artículo 23 de la Ley N.° 6934, Reforma Ley de Registro Nacional, de 28 de noviembre de 1983. El texto es el siguiente:

Artículo 23- Como compensación económica por concepto de prohibición, se reconocerá al personal profesional pagado por el presupuesto de la Junta Administrativa sobre su salario base un quince por ciento (15%), para los que posean el grado académico de bachiller universitario, y de un treinta por ciento (30%), para los que ostenten el grado de licenciatura u otro superior.

• p)Se adiciona un artículo 48 bis a la Ley N.° 7428, Ley Orgánica de la Contraloría General de la República, de 7 de noviembre de 1994. El texto es el siguiente:

Artículo 48 bis- Compensación económica. Como compensación económica por la prohibición, contenida en el artículo 48, inciso a), los funcionarios, a quienes alcance, tendrán de manera porcentual sobre su salario base un quince por ciento (15%), para los que posean el grado académico de bachiller universitario, y de un treinta por ciento (30%), para los que ostenten el grado de licenciatura u otro superior”.

Alegatos de la parte accionante El accionante cuestiona el inciso f) por violación al art. 192 constitucional sobre la idoneidad e inamovilidad de los funcionarios públicos, así como la estabilidad laboral de los mismos. Afirma que la intención del legislador es derogar la obligación estatal de indemnizar al trabajador incluido en el Estatuto de Servicio Civil. A lo que se suma la derogatoria del inciso f) del art. 37 de la ley n.°1581, Estatuto del Servicio Civil, de 30 de mayo de 1953, que disponía lo siguiente:

“f) Si cesaren en sus funciones por supresión del empleo, tendrán derecho a una indemnización de un mes por cada año o fracción de seis o más meses de servicios prestados. Es entendido que si en razón del derecho preferente que concede el artículo 47, en su penúltimo párrafo, el empleado cesante volviere a ocupar un puesto en la administración, antes de haber recibido la totalidad de las mensualidades a que tenga derecho por concepto de indemnización de despido, cesará de inmediato el pago de las mismas. En caso de nuevo despido por supresión de empleo, para determinar la indemnización a que tenga derecho, se sumará, al tiempo servido en el nuevo cargo, el monto de las mensualidades no pagadas y con causa en el primer despido por supresión de empleo de que hubiere sido objeto.

Para el pago de las mensualidades a que se refiere este inciso, se usarán los fondos del Presupuesto Ordinario que corresponden a la plaza suprimida, y para tal fin se mantendrá la partida hasta que se cancele totalmente la obligación.

(Así reformado el inciso anterior por el artículo 1º de la Ley Nº 4906 de 29 de noviembre de 1971, reforma que a su vez fue INTERPRETADA AUTENTICAMENTE por la Ley N 5173 de 10 de mayo de 1992, artículo 1º, en el sentido de que "los trabajadores que se acojan -aún voluntariamente- a jubilación, pensión de vejez, muerte o de retiro, concedidas por la Caja Costarricense de Seguro Social o por los diversos sistemas de pensiones de los Poderes del Estado, por el Tribunal Supremo de Elecciones, por las Instituciones Autónomas, semiautónomas, y las municipales, tienen derecho a que el patrono les pague el auxilio de cesantía.") (Texto modificado por Resolución de la Sala Constitucional No. 8232-00 de las 15:04 horas del 19 de setiembre de 2000).” El accionante refiere que estas normas que se derogan tienen una razón de ser. El constituyente consideró necesario incluir el régimen de empleo público dentro de nuestro cuerpo normativo mayor para garantizar la idoneidad y la estabilidad y con base en esta última es que estaba prevista la indemnización que contenía el art. 37 que garantizaba de alguna manera que el gobernante o los jerarcas administrativos no pudieran aplicar los casos de excepción (como lo es la reorganización) de forma indiscriminada para poder despedir funcionarios. Se da una equiparación con el trabajador privado, asistiéndole únicamente los derechos mínimos.

Los demás, por violación a los principios de igualdad, igualdad salarial y el inciso i) por violación a los principios de razonabilidad, proporcionalidad y seguridad jurídica. Sobre los incisos g), h), i), m), n), o) y p), se indicó que existe desigualdad evidente promovida por el legislador sin justificación alguna, al determinar que algunos funcionarios recibirán un porcentaje de pago de prohibición del 65% del salario base, mientras otros, en igualdad de condiciones con respecto al nivel académico y funciones, se les compensará solamente con un 30%.

El inciso i) es una disposición ambigua, contraria al principio de seguridad jurídica, pues reforma el art. 5 de la ley n.°5867, Ley de Compensación por Pago de Prohibición de 15 de diciembre de 1975. La norma reformada indica que la compensación se calculará sobre el salario más bajo indicado en la escala de sueldos de la Administración Pública que emite la DGSC. La norma original disponía que tal compensación se calcularía sobre el salario de base correspondiente a cada institución. El objetivo de pagar los porcentajes de prohibición a los profesionales, utilizando el salario más bajo de la escala, viola los principios de razonabilidad y proporcionalidad, en la medida que al profesional se le compensa la limitación de ejercer su profesión, con un monto que no corresponde a lo que dicho profesional podría obtener si no estuviera limitado legalmente.

Informe de la PGR La PGR solicita desestimar los agravios planteados, con fundamento en las siguientes consideraciones:

“Comencemos por aclarar que, recientemente, por medio del dictamen C-281-2019, de 1 de octubre de 2019, ante cualquier contradicción entre la regla general para el pago de la compensación económica por prohibición prevista en el artículo 36 de la Ley de Salarios de la Administración Pública (la cual contempla el pago de un 30% para licenciatura o superior), y lo dispuesto, por ejemplo, en el inciso a) del artículo 1° de la ley n.°5867 (el cual establece, para ese mismo supuesto, el pago de un 65% de compensación),o cualquier otra ley anterior sobre la misma materia, debe privar la pretensión de generalidad y uniformidad que inspiró la reforma a la Ley de Salarios de la Administración Pública, operada por medio de la Ley de Fortalecimiento de las Finanzas Públicas.

De ahí que la antinomia existente entre el artículo 36 de la Ley de Salarios de la Administración Pública que establece como parámetro para el cálculo de la compensación económica por prohibición el salario base de cada servidor, y el artículo 5 de la “Ley de Compensación por el pago de Prohibición” que dispone que el pago de la compensación por la prohibición a la que se refiere el artículo 244 de la Ley Orgánica del Poder Judicial debe calcularse sobre el salario más bajo indicado en la escala de sueldos de la Administración Pública, siguiendo siempre la pretensión de generalidad y uniformidad que inspiró la reforma a la Ley de Salarios de la Administración Pública, debe ser resuelta a favor de la regla general y uniforme establecida como parámetro unificador; esto es que el parámetro para el cálculo de la compensación económica aludida debe ser el del salario base de cada servidor.

A continuación, la PGR transcribe su propio dictamen C-281-2019, de 1° de octubre de 2019, que en lo conducente aclara la situación normativa a partir de la reforma y aclara cómo se debe interpretar la antinomia y la situación de los servidores de la Administración Tributaria del Estado:

Con el afán de aplicar la regla general a la que se refiere la norma recién transcrita, el artículo 57 de la Ley de Salarios de la Administración Pública dispuso realizar una serie de reformas a leyes preexistentes que regulaban el pago de compensaciones económicas por prohibición. Dentro de las disposiciones que se reformaron expresamente por medio de esa norma se encuentra el artículo 1° de la ley n.° 5867 de 15 de diciembre de 1975, denominada “Ley de Compensación Económica por el pago de Prohibición”. Ese artículo establecía, antes de la entrada en vigencia de la Ley de Fortalecimiento de las Finanzas Públicas, que los funcionarios sujetos a alguna prohibición para el ejercicio liberal de la profesión recibirían una compensación económica de un 65% en caso de profesionales con nivel de licenciatura u otro superior (inciso a), de un 45% en caso de ser egresados de programas de licenciatura o maestría (inciso b), y de un 30% en caso de ser bachilleres universitarios (inciso c).

(…)

Con los cambios mencionados quedó vigente el inciso a) del artículo 1° de la ley n.° 5867, inciso que establece ₋según ya indicamos₋ que en el caso de los profesionales con nivel de licenciatura u otro superior, la compensación económica sería de un 65% del salario base, lo cual contradice la regla general establecida en el artículo 36 de la Ley de Salarios de la Administración Pública en el sentido de que la compensación económica para ese tipo de funcionarios debe ser de un 30% del salario base.

El texto vigente del artículo 1° de la ley n.° 5867, incluyendo las reformas y las derogaciones a las que se ha hecho alusión, es el siguiente:

“Artículo 1.- Para el personal de la Administración Tributaria que, en razón de sus cargos, se encuentre sujeto a la prohibición contenida en el artículo 118 del Código de Normas y Procedimientos Tributarios, excepto para los miembros del Tribunal Fiscal Administrativo, se establece la siguiente compensación económica sobre el salario base de la escala de sueldos de la Ley de Salarios de la Administración Pública:

• a)Un sesenta y cinco por ciento (65%) para los profesionales en el nivel de licenciatura u otro grado académico superior.
• b)Un quince por ciento (15%) para quienes sean bachilleres universitarios.
• c)…” .

De lo expuesto es evidente que existe una contradicción entre la regla general para el pago de la compensación económica por prohibición prevista en el artículo 36 de la Ley de Salarios de la Administración Pública (la cual contempla el pago de un 30% para licenciatura o superior), y lo dispuesto en el inciso a) del artículo 1° de la ley n.° 5867 (el cual establece, para ese mismo supuesto, el pago de un 65% de compensación). Tal contradicción no es otra cosa que una antinomia, lo que supone la derogación tácita de uno de los dos preceptos. Ante ello, considera ésta Procuraduría que debe privar lo dispuesto en el artículo 36 de la Ley de Salarios de la Administración Pública, no solo por ser la norma más reciente, sino también porque en ella se refleja la pretensión de generalidad y uniformidad que inspiró la reforma en materia de empleo público operada por medio de la Ley de Fortalecimiento de las Finanzas Públicas.

(…)

Si bien podría afirmarse que la Ley de Compensación por Pago de Prohibición es una ley especial en relación con la Ley de Salarios de la Administración Pública, pues regula un aspecto puntual de las relaciones de servicio aplicable a un grupo específico de servidores (los sujetos a una prohibición para el ejercicio liberal de su profesión), lo cierto es que, en estos casos, la pretensión de generalidad y uniformidad de la Ley de Salarios de la Administración Pública debe privar sobre la ley anterior que regula el pago de la compensación económica por prohibición.

Seguir otro criterio, en este caso, implicaría desviarse de la finalidad de la reforma a la Ley de Salarios de la Administración Pública, consistente en establecer lineamientos generales sobre la manera en que han de reconocerse los incentivos y las compensaciones económicas derivadas de las relaciones de empleo en todo el sector público.

Además, no encuentra esta Procuraduría alguna particularidad que justifique cancelar a los funcionarios a los que se les aplica el artículo 1°, inciso a), de la ley n.° 5867 una compensación económica de un 65% de su salario base por concepto de prohibición, mientras que al resto de los funcionarios públicos se les cancela, por esa misma restricción, un 30%. Es decir, no existe algún rasgo distintivo constatable que respalde ese trato diferenciado, por lo que lo procedente, al amparo de los principios constitucionales de igualdad y razonabilidad, es aplicar la regla general contenida en el artículo 36 de la Ley de Salarios de la Administración Pública.

Aparte de lo anterior, la desproporción entre la compensación económica que se reconocería a un funcionario con grado académico de licenciado (65% sobre el salario) y la que se reconocería a uno con el grado académico de bachiller universitario (15%) sería irrazonable, lo que ratifica la validez de la tesis expuesta.

Adicionalmente, la PGR reconoce que ciertamente hay una contradicción en lo relativo al cálculo a partir del cual se realiza el pago de la compensación por la prohibición al ejercicio liberal de la profesión, siendo que, en tal caso, considera que debe darse prevalencia a la normativa con vocación de uniformidad:

“En este caso, siguiendo la pretensión de generalidad y uniformidad que inspiró la reforma a la Ley de Salarios de la Administración Pública, estimamos que el modo de cálculo de la compensación económica que debe aplicarse es el previsto en el artículo 36 de la Ley de Salarios de la Administración Pública (sobre el salario base de cada funcionario) y no el dispuesto en el artículo 5 de la ley n.° 5867 (sobre el salario más bajo indicado en la escala de sueldos de la Administración Pública).

Tal interpretación, aparte de mantener la uniformidad pretendida por la Ley de Salarios de la Administración Pública, es congruente con los principios constitucionales de igualdad y de razonabilidad, pues no existe justificación objetiva y razonable para que la compensación económica por la prohibición a la que se refiere el artículo 244 de la Ley Orgánica del Poder Judicial sea distinta (más baja) que la aplicable a otros profesionales por restricciones similares al ejercicio profesional”.

Finalmente, en lo relativo a que supuestamente se derogaron de forma ilegítima las indemnizaciones especiales por supresión de las plazas, la PGR indicó lo siguiente:

“Tampoco es cierta la afirmación según la cual, con la reforma introducida por la Ley 9635 al párrafo 1 del artículo 47 y del inciso f) del ordinal 37 del Estatuto de Servicio Civil, se haya violentado la garantía de estabilidad en el empleo (art. 192 constitucional), y se autorice sin más en el empleo público el principio de libre despido sin indemnización, como infundadamente se acusa.

Según explicamos en nuestro dictamen C-086-2019, de 03 de abril de 2019, en uso de su poder configurador del empleo público (art. 191 constitucional), en uso de la inagotable potestad legislativa (arts. 105 y 121.1 Ibídem.), se introdujeron reformas al Estatuto de Servicio Civil en materia de auxilio de cesantía e indemnizaciones de similar naturaleza en casos de reorganizaciones o reestructuraciones.

Y puntualmente, tomando en consideración la derogación expresa del inciso f) del artículo 37 del Estatuto de Servicio Civil, y la modificación introducida al artículo 47 de ese mismo cuerpo legal, por parte del artículos 58 inciso b) y 57 inciso f), respectivamente, introducidos a la Ley de Salarios de la Administración Pública por la Ley No. 9635 –de Fortalecimiento de las Finanzas Públicas-, así como la aplicación de su régimen transitorio (Transitorio XXVII y art. 13 inciso a) e in fine del Decreto Ejecutivo No. 41564-MIDEPLAN-H), y en especial por la inexistencia de identidad entre las indemnizaciones normativamente previstas al efecto, según ordinal 111 inciso d) del Reglamento del Estatuto de Servicio Civil, concluimos:

• a)Si la reorganización operada implica la necesidad de prescindir de los servicios de algunos empleados cubiertos por instrumentos de negociación colectiva, sea porque no se requieren dentro de la nueva estructura orgánica, o porque éstos no acepten la reducción subsecuente de sus salarios, con posterioridad al 4 de diciembre de 2018, la indemnización procedente para aquellos cubiertos Convenciones Colectivas, sería aquella correspondiente al pago de prestaciones, concretamente por concepto de auxilio de cesantía, pero en ningún caso dicha indemnización podrá ser mayor a los doce años mientras se mantengan vigentes tales instrumentos colectivos (Dictamen C-060-2018, de 05 de marzo de 2019).
• b)Para aquellos otros empleados excluidos de la aplicación de esos instrumentos colectivos, que también pudieran ser cesados por reorganización, resultaría directamente aplicable el precepto normativo contenido en el artículo 39 de la citada Ley No. 9635; es decir, un tope máximo de los 8 años de cesantía; norma que para estos casos tiene eficacia inmediata -a partir de su fecha de publicación- y que, por su rango normativo, prevalece por sobre el ordinal 27 inciso c) del Reglamento del Estatuto de Servicio Civil.
• c)Mientras que, en el supuesto de rebaja o disminución salarial aludida, deberá seguirse aplicando la indemnización especial reglamentariamente prevista, a modo de regla general, por el citado ordinal 111 inciso d) del Reglamento del Estatuto de Servicio Civil, hasta tanto no se ejerza con respecto a ella la potestad derogatoria o de reforma reglamentaria que ostenta el Poder Ejecutivo (art. 140.3 de la Constitución Política).

Es decir, la garantía de estabilidad en el puesto o cargo público sigue existiendo a nivel legal, y como consecuencia de ello, cualquier cese injustificado conlleva reconocimiento de prestaciones legales. No existe, por tanto, una artificiosa o forzada equiparación al régimen laboral privado, como infundadamente se acusa.

Los vicios acusados son inatendibles, por infundados”.

Resolución de la Sala Constitucional Sobre el art. 57 inciso f) En relación con este numeral en concreto, se cuestiona que lesiona la inamovilidad de los servidores públicos y se reprocha que se derogó la obligación estatal de indemnizar al trabajador incluido en el Estatuto de Servicio Civil. Para mejor aclarar lo denunciado por los accionantes corresponde comparar las distintas versiones de la norma bajo análisis, sea el art. 47 del Estatuto de Servicio Civil:

Versión original Versión vigente Artículo 47.-No obstante lo dispuesto en el artículo 43, el Ministro podrá dar por concluídos los contratos de trabajo de los servidores, previo pago de las prestaciones que pudieren corresponderles conforme al artículo 37, inciso f) de esta ley, siempre que el Tribunal de Servicio Civil, al resolver la consulta que por anticipado le hará, estime que el caso está comprendido en alguna de las siguientes excepciones, muy calificadas:

• a)Reducción forzosa de servicios o de trabajos por falta absoluta de fondos; y b) Reducción forzosa de servicios para conseguir una más eficaz y económica reorganización de los mismos, siempre que esa reorganización afecte por lo menos al sesenta por ciento de los empleados de la respectiva dependencia.

La mencionada autoridad prescindirá de los empleados o funcionarios de que se trate, tomando en cuenta la eficiencia, la antigüedad, el carácter, la conducta, las aptitudes y demás condiciones que resulten de la calificación de sus servicios, y comunicará luego a la Dirección General de la nómina de los despedidos para su inscripción preferente entre los candidatos a empleo.

Si alguno de los casos contemplados en este artículo equivale a suspensión temporal de las relaciones de trabajo, la correspondiente autoridad podrá también actuar conforme a los artículos 74, 75 y 77 del Código de Trabajo.

*Lo destacado en negrita corresponde a la frase suprimida.

Artículo 47- No obstante lo dispuesto en el artículo 43, el ministro podrá dar por concluidos los contratos de trabajo de los servidores, previo pago de las prestaciones que pudieran corresponderles, siempre que el Tribunal de Servicio Civil, al resolver la consulta que por anticipado le hará, estime que el caso está comprendido en alguna de las siguientes excepciones, muy calificadas.

(Así reformado el párrafo anterior por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N° 9635 del 3 de diciembre de 2018, que adicionó el numeral 57 aparte f) a la Ley de Salarios de la Administración Publica, N° 2166 del 9 de octubre de 1957) a) Reducción forzosa de servicios o de trabajos por falta absoluta de fondos; y b) Reducción forzosa de servicios para conseguir una más eficaz y económica reorganización de los mismos, siempre que esa reorganización afecte por lo menos al sesenta por ciento de los empleados de la respectiva dependencia.

La mencionada autoridad prescindirá de los empleados o funcionarios de que se trate, tomando en cuenta la eficiencia, la antigüedad, el carácter, la conducta, las aptitudes y demás condiciones que resulten de la calificación de sus servicios, y comunicará luego a la Dirección General de la nómina de los despedidos para su inscripción preferente entre los candidatos a empleo.

Si alguno de los casos contemplados en este artículo equivale a suspensión temporal de las relaciones de trabajo, la correspondiente autoridad podrá también actuar conforme a los artículos 74, 75 y 77 del Código de Trabajo.

El cuestionamiento a dicha norma está vinculado con las derogatorias realizadas en virtud del art. 58 de la LSAP adicionado por la LFFP. En el inciso b) de dicho numeral se ordenó la derogatoria del inciso f) del art. 37 de la ley n.°1581, Estatuto del Servicio Civil, de 30 de mayo de 1953, que disponía lo siguiente:

“Artículo 37.- Los servidores del Poder Ejecutivo protegidos por esta ley gozarán de los siguientes derechos:

(…)

• f)Si cesaren en sus funciones por supresión del empleo, tendrán derecho a una indemnización de un mes por cada año o fracción de seis o más meses de servicios prestados. Es entendido que si en razón del derecho preferente que concede el artículo 47, en su penúltimo párrafo, el empleado cesante volviere a ocupar un puesto en la administración, antes de haber recibido la totalidad de las mensualidades a que tenga derecho por concepto de indemnización de despido, cesará de inmediato el pago de las mismas. En caso de nuevo despido por supresión de empleo, para determinar la indemnización a que tenga derecho, se sumará, al tiempo servido en el nuevo cargo, el monto de las mensualidades no pagadas y con causa en el primer despido por supresión de empleo de que hubiere sido objeto.

Para el pago de las mensualidades a que se refiere este inciso, se usarán los fondos del Presupuesto Ordinario que corresponden a la plaza suprimida, y para tal fin se mantendrá la partida hasta que se cancele totalmente la obligación”.

Conforme a tal panorama se aprecia que el alegato del accionante no es correcto, porque este aduce que con este conjunto de disposiciones se lesiona la garantía de inamovilidad de los servidores públicos. Según el accionante, de estas normas se desprendía la obligación para los jerarcas de no aplicar despidos excepcionales de forma indiscriminada ‒por ejemplo, por reorganización de los servicios‒, siendo que ahora se equipara a los servidores públicos a cualquier trabajador privado.

En primer lugar, recuérdese que el art. 192 de la Constitución Política establece de forma categórica que “los servidores públicos serán nombrados a base de idoneidad comprobada y sólo podrán ser removidos por las causales de despido justificado que exprese la legislación de trabajo, o en el caso de reducción forzosa de servicios, ya sea por falta de fondos o para conseguir una mejor organización de los mismos”. Además, de una atenta revisión de la situación normativa se deduce que el régimen de estabilidad de los servidores públicos sigue incólume y que el régimen excepcional de despidos también se mantiene vigente y con idénticos requisitos. Esto se observa con facilidad de la mera comparación de las normas en el cuadro inserto. Lo que ocurrió es que el legislador eliminó una norma específica para la regulación y pago de prestaciones legales en caso de que se presente una “reducción forzosa de servicios”, pero si se mira la norma con detalle esta sigue ordenando que la finalización del contrato se dará “previo pago de las prestaciones que pudieran corresponderles”, es decir, el pago de las prestaciones correspondientes sigue vigente y su supresión ilegítima sí podría contrariar el Derecho de la Constitución. Entonces, esta Sala coincide con las explicaciones realizadas por las autoridades informantes en el sentido de que la garantía de estabilidad en el puesto público sigue existiendo a nivel legal como derivación de la Constitución Política, siendo que, como consecuencia de ello, cualquier cese por reducción forzosa de servicios conlleva el reconocimiento de prestaciones legales y no hay una equiparación con el régimen laboral privado, como artificialmente alega el accionante. Esta Sala ha reconocido el pago de prestaciones legales en caso de reducción forzosa de servicios porque se equipara a un despido con responsabilidad patronal. Como ejemplo, se puede ver la sentencia n.°2020-021330 en donde se realizaron las siguientes consideraciones:

“El numeral de análisis señala que “Si la Municipalidad diera por concluidos los Contratos de Trabajo con sus empleadas (os), de acuerdo con el artículo anterior (artículo 19), o cuando el trabajador lo acepte”. En criterio de este Tribunal, el reconocimiento del pago de la cesantía en el primer supuesto no resulta inconstitucional porque su pago obedece a la voluntad del patrono de dar por terminado el contrato de trabajo debido a un proceso de reestructuración, cuyo supuesto ha sido asimilado por esta Sala a un despido con responsabilidad patronal. Así lo ha resuelto esta Sala al conocer reclamos similares al planteado en el sub lite. Por ejemplo, en la sentencia n.°2019-008679 en la que se consideró, en lo conducente, lo siguiente:

“La regla general, en la Constitución Política, es la de reconocer la estabilidad del funcionario público, pero ésta puede verse alterada en situaciones muy especiales al autorizar la remoción en los casos de una reducción forzosa de servicios causada por falta de fondos o por reorganización. El precedente citado es claro en la necesidad del establecimiento de un límite de años para el pago del auxilio de cesantía, para estos casos, así como reconocer que en la supresión de los puestos, no media la voluntad ni falta alguna del trabajador, que es la que precipitaría la terminación de la relación de servicio del funcionario. Muy por el contrario, la supresión del cargo no es otra cosa que procesos de reestructuración del recurso humano, que normalmente requieren de diagnósticos y estudios que luego se materializan en actos administrativos debidamente motivados y razonados, y que, si se concluye en la necesidad de suprimir plazas, los trabajadores deben recibir un tratamiento similar, como consecuencia natural, al mismo orden y categoría de las causales de despidos con responsabilidad patronal. En este sentido, el pago del auxilio de cesantía es legítimo con el pago del mínimo legal establecido por la legislación laboral correspondiente, o cuando este es desplazado por la negociación colectiva, bajo los parámetros mencionados para la procedencia del pago, siempre que imperen las razones de constitucionalidad que validan este tipo de causal.

Respecto de la supresión del cargo, el pago que corresponde hacerse, de conformidad con el nuevo criterio jurisprudencial de la Sala, no debe superar los doce años ya citados. Como el supuesto de la supresión del cargo de la Convención Colectiva es una causal constitucionalmente válida (art. 192), lo procedente es declarar sin lugar la acción en este extremo, siempre y cuando la indemnización otorgada no supere los doce años”.

Por eso, en tal supuesto, el motivo de la indemnización por reestructuración bajo la voluntad exclusiva del patrono de dar por terminado el contrato de trabajo, no es en sí misma inconstitucional”. (Lo destacado no corresponde al original).

Entonces, conforme al antecedente se tiene que la supresión del cargo producto de un proceso de reestructuración del recurso humano normalmente requiere de diagnósticos y estudios que luego se materializan en actos administrativos debidamente motivados y razonados, y que, si se concluye en la necesidad de suprimir plazas, los trabajadores deben recibir un tratamiento similar a un despido con responsabilidad patronal y, por tanto, pueden requerir las prestaciones que les correspondan.

Lo que está en discusión luego de las derogatorias en cuestión no tiene relación con las garantías de idoneidad o estabilidad constitucionales, sino más bien con la determinación sobre cuál es el monto que eventualmente correspondería reconocer a los servidores públicos que vean suprimida su plaza. Evidentemente, la decisión sobre el particular requiere una labor de integración y de interpretación por parte de los diferentes operadores jurídicos atendiendo a las específicas cualidades de la institución de que se trate y si los servidores están o no cubiertos por otras disposiciones especiales como por ejemplo las respectivas convenciones colectivas. Dicha labor de interpretación ‒a fin de determinar en cada caso concreto cuál es el monto de indemnización‒ es de legalidad y no de constitucionalidad y, como es evidente, nada dice de la supuesta inconstitucionalidad de las disposiciones cuestionadas. Por lo tanto, estos reproches deben desestimarse.

Sobre el art. 57 incisos g), h), m), n), o) y p) En relación con este numeral el accionante plantea discusiones típicas de legalidad ordinaria y no de constitucionalidad sobre cuáles normas deben prevalecer para efectos del reconocimiento por pago de la prohibición. Lo anterior se ratifica con la explicación realizada por la PGR en su informe en el sentido de cuáles normas deben o no prevalecer en cada caso concreto. Tales reparos no corresponden ser resueltos por esta Sala, sino ante las instancias ordinarias. Al respecto corresponde recordar y reiterar lo resuelto por esta Sala en la sentencia n.°2023-010798 en que se dijo lo siguiente:

“Con una escueta argumentación, el accionante hace referencia a la disminución que operó en los porcentajes de pago de prohibición que paga la Administración Pública a sus funcionarios, lo cual fue reformado en la Ley de Fortalecimiento de las Finanzas Públicas. Señala el paso de 65% a un 30%, y de un 45% a un 30%, y la derogación de los demás incisos de la norma convencional. El Sindicato sostiene que los porcentajes salvaguardan los intereses municipales, de tener un pago de prohibición al personal encargado de los tributos municipales, y no entrar en conflictos con horas fuera de su jornada. Sostienen que por la autonomía constitucional de la municipalidad, la Ley de Fortalecimiento de las Finanzas Públicas, no se aplica al personal, y si ese fuera el caso, sería para aquellos que ingresaron después de diciembre de 2018.

Como en efecto explica la Procuraduría General de la República, es claro que la discusión que se presenta en este numeral es de legalidad ordinaria, toda vez que involucra un conflicto de normas aplicables en el tiempo; es decir, de antinomias jurídicas. Está en discusión si han sido derogadas algunas de las disposiciones que dan sustento a los porcentajes regulados convencionalmente, establecidos por ley, con ello se discute si se produce una presunta derogatoria tácita a varias disposiciones de la Ley de Salarios de la Administración Pública, Ley de Compensación Económica por el pago de Prohibición, con la reformas introducidas en la Ley de Fortalecimiento de las Finanzas Públicas. Como es evidente, se tiene que definir si el inciso a), del artículo 1°, de la Ley de Compensación Económica por el pago de Prohibición, sobrevive a las reformas legales, y en este tipo de circunstancias, se requiere de la integración e interpretación de normas infra constitucionales, que no compete a la Sala Constitucional, sino a las autoridades administrativas y judiciales, según corresponda.

En consecuencia, sobre este extremo, debe desestimarse la acción”.

Del mismo modo, no es procedente que en el caso concreto la Sala valore todo el entramado jurídico con el propósito de definir cuáles disposiciones especiales aplican para cada servidor atendiendo a la situación jurídica en la que se encuentre, o cuál es el parámetro que debe adoptarse para realizar el cálculo correspondiente.

Finalmente, este Tribunal observa que la supuesta lesión a los principios de igualdad, razonabilidad, proporcionalidad y seguridad jurídica fue apenas enunciada sin que los argumentos planteados por el accionante permitan un análisis apropiado de la cuestión. Es decir, estos alegatos están apenas expresados y no se encuentran debidamente fundamentados. Por lo tanto, corresponde rechazar estos agravios.

XXXIV.- CONCLUSIONES GENERALES A partir del análisis realizado ‒a la luz de los alegatos planteados por los accionantes‒ esta acción debe declararse parcialmente con lugar, en orden a los siguientes argumentos:

Aspectos que deben ser desestimados en virtud de la legitimación de los accionantes: arts. 3, 4, 9 y 14 del decreto ejecutivo N.°41564-MIDEPLAN-H, el Título IX de la LFFP y lo atinente al destino de los superávits libres.

El magistrado Cruz Castro salva el voto y admite además la legitimación de los accionantes sobre la defensa de las autonomías institucionales, responsabilidad fiscal y destino de los superávits libres.

Sobre las anualidades: debe declararse parcialmente con lugar la acción únicamente por la irrazonabilidad del reconocimiento por el incentivo de la anualidad en el mes de junio de cada año y por romper la continuidad laboral. Esto según lo regulado en el art. 12 de la LSAP en su versión reformada por la LFFP y durante el plazo en que estuvo vigente. En todo lo demás, se declaran sin lugar los agravios.

Sobre las supuestas lesiones a derechos adquiridos: al no acreditarse ningún efecto retroactivo sobre los derechos patrimoniales de los servidores públicos, se impone declarar sin lugar los alegatos relacionados con la presunta lesión al principio de irretroactividad y al art. 34 de la Constitución Política.

Sobre el derecho fundamental a la negociación colectiva: el art. 55 ‒y, por tanto, todas las disposiciones relacionadas con los pluses cuestionados, a saber los arts. 39, 50, 54 de la LSAP y Transitorios XXVII y XXXI de la LFFP‒ deben reputarse constitucionales bajo el entendido de que la restricción para negociar no se aplica a los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. Todo lo anterior, sin perjuicio de los controles de legalidad y de constitucionalidad sobre el resultado de la negociación, en atención a los principios constitucionales de razonabilidad, proporcionalidad y el buen uso y manejo de los fondos públicos. Finalmente, se declara la inconstitucionalidad de lo dispuesto en el Transitorio XXXVI párrafo 1° de la LFFP ‒disposición transitoria al Título III de la Modificación de la ley n.°2166, LSAP‒ , pues dicho numeral deja de lado el carácter libre y voluntario de la negociación colectiva y, muy por el contrario, establece la obligación para todos los jerarcas de las entidades públicas de denunciar las convenciones colectivas, una vez que llegue el plazo de vencimiento. Respecto del párrafo segundo de dicha norma transitoria, se impone declarar sin lugar la acción.

En lo relativo a los contratos de dedicación exclusiva: no hay, a criterio de esta Sala, lesión al principio de seguridad jurídica, siendo que los aspectos atinentes al trámite de renovación o el plazo de los contratos no son temas de relevancia constitucional, sino que entra dentro de los aspectos de oportunidad y conveniencia que el legislador puede definir. Al respecto, no se acreditó ninguna lesión al Derecho de la Constitución.

Sobre la imposición del régimen de “prohibición” sin la compensación correspondiente: la Sala considera que se debe declarar la inconstitucionalidad de las siguientes frases: “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 p. 2 in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine). Lo anterior, en virtud de que pretenden imponer la restricción o limitación sobre el ejercicio profesional, pese a que no haya retribución alguna, lesionando los principios de razonabilidad, proporcionalidad y de no discriminación.

En lo relativo a los nuevos porcentajes definidos por el legislador para el pago de los contratos de dedicación exclusiva o de la prohibición: los alegatos deben desestimarse en virtud de una insuficiente fundamentación que acredite su irrazonabilidad, afectación salarial, discriminación o afectación al servicio público.

Respecto de la prohibición de incentivos adicionales: los argumentos deben ser rechazados por una insuficiente fundamentación por parte del accionante y porque lo planteado hace referencia a la resolución de antinomias jurídicas que deben resolverse en las vías ordinarias de legalidad.

Sobre la rectoría del MIDEPLAN y su impacto en los derechos de los servidores públicos: el argumento del accionante hace relación con eventuales conflictos normativos de aplicación de disposiciones de rango infra constitucional que nada dice de la constitucionalidad en sí misma de los numerales cuestionados y de una lesión cierta a los derechos fundamentales de los servidores públicos.

En lo relativo a las metas de evaluación del desempeño: se concluye que los alegatos del accionante se refieren a eventuales dificultades prácticas que no acreditan una lesión al Derecho de la Constitución.

Sobre los criterios para la evaluación del desempeño: se reiteran los criterios de esta Sala en el sentido de que el cuestionamiento sobre la subjetividad en la calificación a la que eventualmente podría ser sometido el servidor, no es más que una opinión abstracta, imprecisa y genérica que no necesariamente involucra la eventual vulneración de derechos fundamentales. Y, en todo caso, las disconformidades que pudieren tener los funcionarios con el resultado del examen efectuado, es un tema de legalidad que no le corresponde valorar a este Tribunal y que, por tanto, deberá ser discutido ante la Administración o en la vía jurisdiccional competente.

Sobre la exclusión de los jerarcas de participar de la negociación colectiva: esta Sala considera que no procura desincentivar la negociación colectiva, sino que estas negociaciones las lleven a cabo las personas que por su situación jerárquica no se vean beneficiadas a sí mismas y, por lo tanto, evitar un conflicto de intereses. En tal sentido, el legislador podría de forma legítima valorar y enumerar los cargos que, por su alto nivel gerencial, pueden verse excluidos de los beneficios de la negociación colectiva, sin que esto por sí mismo sea ilegítimo o inconstitucional.

En lo atinente al cambio en la modalidad de pago: no se acreditó una lesión particular en perjuicio de los derechos fundamentales de los servidores públicos.

Respecto de los agravios relacionados con la forma de reconocimiento y pago de los puntos por carrera profesional: no se acreditó ‒en los términos formulados por los accionantes‒ una lesión a los derechos y principios constitucionales invocados.

Sobre la nominalización de los pluses salariales: esta Sala descartó que ‒con los argumentos planteados‒ se constate alguna inconstitucionalidad.

Sobre el art. 57 de la LSAP: este Tribunal descartó que haya una habilitación para realizar reorganizaciones que estén desligadas del respectivo pago de las prestaciones laborales y que lo relativo a la adecuada interpretación sobre cuál debe ser la prevalencia para el pago correspondiente al monto de la prohibición es una discusión de legalidad y no de constitucionalidad.

El magistrado Cruz Castro consigna una nota general.

El magistrado Rueda Leal emite voto particular, en los siguientes términos:

• 1)declara con lugar la acción en cuanto a la frase “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año” contenida en el artículo 12 impugnado de la Ley de Salarios de la Administración Pública reformado por la ley nro. 9635 “Fortalecimiento de las finanzas públicas” durante su periodo de vigencia; 2) declara con lugar la acción en relación con los párrafos: “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 párrafo 2° in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine), ambos de la Ley de Salarios de la Administración Pública, adicionados por el artículo 3° del título III de la ley de "Fortalecimiento de las finanzas públicas", nro. 9635 de 3 de diciembre de 2018; 3) en los demás extremos, declara sin lugar las acciones.

El magistrado Lara Gamboa, declara con lugar la acción únicamente en cuanto a la frase “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año” contenida en el artículo 12 impugnado de la Ley de Salarios de la Administración Pública reformado por la ley nro. 9635 "Fortalecimiento de las finanzas públicas" durante su periodo de vigencia. En todos los demás extremos, declara sin lugar las acciones.

XXXV.- 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 declaran parcialmente con lugar las acciones de inconstitucionalidad acumuladas, siguiendo este orden de consideraciones:

Primero: Por mayoría, se admite parcialmente la legitimación de los accionantes.

El magistrado Cruz Castro salva el voto y admite además la legitimación de los accionantes sobre la defensa de las autonomías institucionales, responsabilidad fiscal y destino de los superávits libres.

Segundo: Se admite la coadyuvancia activa de [Nombre 002].

Tercero: Se rechazan las coadyuvancias de [Nombre 003] y de [Nombre 004] por ser extemporáneas.

Cuarto: Se desestiman la mayoría de los agravios en el entendido de que las normas cuestionadas se deben aplicar únicamente a los funcionarios de las instituciones que no están excluidas de la aplicación de la Ley de Fortalecimiento de las Finanzas Públicas en la materia salarial de conformidad con lo dispuesto por la opinión consultiva n.°2018-19511 de las 21:45 hrs. del 23 de noviembre de 2018.

Quinto: Se declara parcialmente con lugar la acción de inconstitucionalidad respecto del artículo 12 de la Ley de Salarios de la Administración Pública en su versión reformada por la Ley de Fortalecimiento de las Finanzas Públicas y durante el plazo en que estuvo vigente. Lo anterior, por la irrazonabilidad del reconocimiento por el incentivo de la anualidad en el mes de junio de cada año y por romper la continuidad laboral.

El magistrado Cruz Castro salva el voto y declara con lugar la acción en lo atinente a las anualidades, particularmente en cuanto al artículo 50 y el Transitorio XXXI.

Sexto: Por mayoría, se declara que el artículo 55 –y, por tanto, todas las disposiciones relacionadas con los pluses cuestionados, a saber los artículos 39, 50, 54 de la Ley de Salarios de la Administración Pública y Transitorios XXVII y XXXI de la Ley de Fortalecimiento de las Finanzas Públicas– deben interpretarse constitucionales bajo el entendido de que la restricción para negociar no se aplica a los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. Todo lo anterior, sin perjuicio de los controles de legalidad y de constitucionalidad sobre el resultado de la negociación, en atención a los principios constitucionales de razonabilidad, proporcionalidad y el buen uso de los fondos públicos.

El magistrado Cruz Castro salva parcialmente el voto y declara inconstitucionales los artículos 54, 55 y los transitorios XXVII y XXXI.

Sétimo: Por mayoría, se declara la inconstitucionalidad de lo dispuesto en el Transitorio XXXVI párrafo primero de la Ley de Fortalecimiento de las Finanzas Públicas.

El magistrado Cruz Castro consigna razones adicionales.

Octavo: Se declara la inconstitucionalidad de los siguientes párrafos: “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 párrafo 2° in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine), ambos de la Ley de Salarios de la Administración Pública, adicionados por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, n.°9635 del 3 de diciembre de 2018.

Noveno: En todo lo demás, por mayoría, se declaran sin lugar las acciones acumuladas.

El magistrado Cruz Castro consigna nota en lo relativo al contrato de dedicación exclusiva (artículo 28 de la Ley de Salarios de la Administración Pública).

El magistrado Cruz Castro salva el voto y declara inconstitucionales los artículos 35 y 36 de la Ley de Salarios de la Administración Pública.

El magistrado Cruz Castro salva el voto y declara inconstitucional el artículo 53 de la Ley de Salarios de la Administración Pública, el artículo 15 del reglamento n.°41564-MIDEPLAN, así como la resolución n.°DG-139-2019 de la Dirección General de Servicio Civil.

El magistrado Cruz Castro consigna una nota general.

El magistrado Rueda Leal emite voto particular, en los siguientes términos:

• 1)declara con lugar la acción en cuanto a la frase “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año” contenida en el artículo 12 impugnado de la Ley de Salarios de la Administración Pública reformado por la ley nro. 9635 “Fortalecimiento de las finanzas públicas” durante su periodo de vigencia; 2) declara con lugar la acción en relación con los párrafos: “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 párrafo 2° in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine), ambos de la Ley de Salarios de la Administración Pública, adicionados por el artículo 3° del título III de la ley de "Fortalecimiento de las finanzas públicas", nro. 9635 de 3 de diciembre de 2018; 3) en los demás extremos, declara sin lugar las acciones.

El magistrado Lara Gamboa, declara con lugar la acción únicamente en cuanto a la frase “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año” contenida en el artículo 12 impugnado de la Ley de Salarios de la Administración Pública reformado por la ley nro. 9635 "Fortalecimiento de las finanzas públicas" durante su periodo de vigencia. En todos los demás extremos, declara sin lugar las acciones.

Esta sentencia tiene efectos declarativos y retroactivos a la fecha de vigencia de las normas anuladas, sin perjuicio de derechos adquiridos de buena fe.

Notifíquese este pronunciamiento a las partes apersonadas y a la Procuraduría General de la República, el Ministerio de Hacienda, el Ministerio de Planificación y Política Económica y la Dirección General de Servicio Civil.

Reséñese este pronunciamiento en el Diario Oficial La Gaceta y publíquese íntegramente en el Boletín Judicial. Notifíquese.

Fernando Castillo V.

Fernando Cruz C. Paul Rueda L.

Aracelly Pacheco S. Alejandro Delgado F.

Jorge Isaac Solano A. Fernando Lara G.

Res. n.°2025-008201 Voto salvado del Magistrado Lara Gamboa. El magistrado Lara Gamboa, declara con lugar la acción únicamente en cuanto a la frase “El incentivo por anualidad se reconocerá en la primera quincena del mes de junio de cada año” contenida en el artículo 12 impugnado de la Ley de Salarios de la Administración Pública reformado por la ley nro. 9635 ‘Fortalecimiento de las finanzas públicas’ durante su periodo de vigencia. En todos los demás extremos, declara sin lugar las acciones.

Respetuosamente me permito hacer una breve y concisa justificación, de mis razones para separarme del voto de mayoría en cuanto a lo que fue declarado con lugar, y a algunos otros aspectos específicos.

• A)Con respecto al artículo 12 de la Ley de Salarios de la Administración Pública en su versión reformada por la Ley de Fortalecimiento de las Finanzas Públicas lo estimo inconstitucional, no solo debido a que resulta irracional, como fue dispuesto por la mayoría; sino también porque es discriminatorio el reconocimiento del incentivo de la anualidad hasta el mes de junio de cada año, en lugar de que se reconozca a todos por igual, en el mes en que cada funcionario haya cumplido su año laboral.
• B)En lo relativo al art. 55 (reserva de ley en la creación de incentivos y compensaciones salariales), es opinión del suscrito que la reserva de ley para la creación de incentivos y compensaciones no solo es constitucional, debido a que el legislador puede establecer regulaciones generales al sector público, sino que también es imprescindible contar con una habilitación legal expresa, de conformidad con la Constitución Política y las exigencias del principio de legalidad. Únicamente de esa forma se podría disponer de fondos públicos y negociarlos en una convención colectiva convirtiéndolos en fondos privados en forma de pluses, vacaciones, años de auxilio de cesantía, incentivo por anualidades, permisos con goce de salario, becas, o cualquier otro tipo de incentivo o compensación. De no existir esa habilitación legal expresa, los jerarcas no estarían actuando con arreglo a la ley, y por lo tanto dichas normas se tornarían inconstitucionales. Nuestra Constitución Política establece en su artículo 11 el Principio de Legalidad aplicado a los funcionarios públicos “Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella…” (lo resaltado no es del original), el cual se debe aplicar a las convenciones colectivas en el sector público. (ver al respecto voto salvado del suscrito en la Resolución Nº 16981-2022, Expediente: 16-013968-0007-CO, Sala Constitucional) C) En cuando al Transitorio XXXVI párrafo 1° de la LFFP, quien suscribe estima que el legislador puede establecer, por ley, la obligación de denunciar las convenciones colectivas para todos los jerarcas de las entidades públicas, una vez que llegue el plazo de vencimiento de estas; ya que las convenciones colectivas son un acuerdo de voluntades y la Asamblea Legislativa tiene legitimidad para que, por ley, pueda manifestar la voluntad del Estado en este tipo de supuestos. De igual manera, el Poder Legislativo podrá aprobar una ley, cambiando dicha disposición, en el momento en que lo estime adecuado.
• D)Finalmente, quien suscribe estima que existe libertad para quien quiera aceptar un puesto en la Administración Pública, si lo estima bien remunerado, el cual puede tener o no condiciones o restricciones en cuanto a la dedicación exclusiva, las cuales no necesariamente tienen que ser remuneradas. También el Estado puede ofrecer trabajo, con restricciones de dedicación exclusiva, sin que sea obligatorio dar una contraprestación a cambio de dicha limitación. Es por ello que, siempre y cuando, sean reglas generales que se apliquen igual para todos los que se encuentren en las mismas condiciones, se estiman constitucionales, siendo este el caso del párrafo segundo del artículo 32, y el artículo 33 de la Ley de Salarios de la Administración Pública, adicionados por el artículo 3° del título III de la ley de ‘Fortalecimiento de las finanzas públicas’, nro. 9635 de 3 de diciembre de 2018.

Fernando Lara G.

Res. 2025008201 Voto particular del magistrado Rueda Leal.

A los efectos del sub examine, debo mencionar que, en lo relativo a las coadyuvancias, admisibilidad y legitimación de las partes accionantes, comparto lo consignado en el voto de la mayoría.

En cuanto al contexto de aprobación de la normativa impugnada y los razonamientos que se desarrollan en los apartados en los que no me separo de la sentencia, aclaro que la situación fiscal del país debe comprenderse en el marco del año en que fue aprobada la normativa impugnada. En consecuencia, con respecto a mi posición, me atengo únicamente a lo desarrollado en la resolución nro. 2018019511 de las 21:45 horas de 23 de noviembre de 2018, toda vez que esta acción se planteó en febrero de 2019; es decir, menos de tres meses después.

Por otra parte, advierto que con respecto a los considerandos VII, VIII, IX, X, XI y XII no emito pronunciamiento alguno, toda vez que se trata de argumentos desarrollados en abstracto y jurisprudencia en general que, en mi criterio, no son imprescindibles para la resolución de este asunto. Justamente, en cada apartado de agravios consignaré los casos en los que comparta la jurisprudencia citada, o bien, expondré la tesis que estime correcta.

Sobre el considerando XIII “Cambio de regulación en lo relativo a las anualidades”.

Al respecto, comparto que el artículo 50 de la Ley de Salarios de la Administración Pública y el transitorio XXXI de la ley de ‘Fortalecimiento de las finanzas públicas’ no son inconstitucionales por los motivos señalados por la mayoría, toda vez que se encuentran cobijados por el principio de libre configuración del legislador (dentro de los límites permitidos por el Derecho de la Constitución) y no existe un derecho a la inmutabilidad del ordenamiento jurídico. Cabe aclarar que, en mi criterio, este tipo de decisiones del legislador son plenamente susceptibles de control de constitucionalidad, pero para ello debe existir una adecuada fundamentación por parte de las personas accionantes que permita a la Sala llevar a cabo la ponderación respectiva de bienes jurídicos. Ahora, observo que ambas normas disponen la regulación a futuro del incentivo por anualidad, por lo que prima facie descarto alguna afectación al salario de las personas servidoras públicas susceptible de ser declarado por la Sala. Empero, aclaro que no en todos los casos se deben reconocer per se derechos adquiridos y situaciones jurídicas consolidadas. En cuanto a estas dos últimas categorías, la Sala, en la sentencia nro. 1997002765 de las 15:03 horas de 20 de mayo de 1997, señaló:

“Los conceptos de “derechos adquiridos” y “situaciones jurídicas consolidadas” aparecen estrechamente relacionadas en la doctrina constitucionalista. Es dable afirmar que, en términos generales, el primero denota a aquella circunstancia consumada en lo que una cosa –material o inmaterial, trátese de un bien previamente ajeno o de un derecho antes inexistente- ha ingresado (o incidido sobre) la esfera patrimonial de la persona, de manera que ésta (sic) experimenta una ventaja o beneficio constatable. Por su parte, la “situación jurídica consolidada” representa no tanto un plus patrimonial, sino un estado de cosas definido plenamente en cuanto a sus características jurídicas y a sus efectos, aun cuando éstos no se hayan extinguido aún. Lo relevante es cuanto a la situación jurídica consolidada, precisamente, no es que esos efectos todavía perduren o no, sino que –por virtud de mandato legal o una sentencia que así lo haya declarado- haya surgido ya a la vida jurídica una regla, clara y definida, que conecta a un presupuesto fáctico (hecho condicionante) con una consecuencia dada (efecto condicionado). Desde esta óptica, la situación de la persona viene dada por una proposición lógica del tipo “si…, entonces…M, vale decir: si se ha dado el hecho condicionante, entonces la “situación jurídica consolidada” implica que, necesariamente, deberá darse también el efecto condicionado. En ambos casos (derechos adquiridos o situaciones jurídicas consolidadas), el ordenamiento protege –tornándola intangible – la situación de quien obtuvo el derecho o disfruta de la situación, por razones de equidad y certeza jurídica”.

No obstante, tanto los derechos adquiridos como las situaciones jurídicas consolidadas están condicionados a que no deriven de iniquidades grotescas, aberrantes y palmarias. Es decir, ese estado de las cosas previo que se pretende resguardar, parte de un mínimo de cordura constitucional. Justamente, he sostenido que cuando existan normas que lesionen el orden constitucional de tan abrumadora magnitud que sean imposibles de justificar, se configura desde su propia génesis lo que denomino “una norma jurídica inexistente” por razones de inconstitucionalidad, en aplicación mutatis mutandis de la doctrina del acto jurídico inexistente por cuestiones de legalidad, tesitura sostenida por un sector relevante de la ciencia jurídica. La inexistencia designa una inconstitucionalidad profundamente grosera de la norma impugnada (incluso, en otro proceso podría estar referido a un acto), un grado extremo de nulidad por motivos de inconstitucionalidad a partir del cual se advierte la ausencia de un elemento esencial en el momento propio del surgimiento de la norma objeto de la acción. Debido a ese vicio extremo en la génesis propia de la norma, resulta improcedente preservar los efectos derivados de las disposiciones legales manifiestamente inconstitucionales, irrazonables y carentes de justificación alguna. Se trata de disposiciones palmariamente inconstitucionales en su base, merced a lo cual no se le pueden reconocer derechos adquiridos “de buena fe”.

En este caso, no considero que estemos ante algún supuesto de tal naturaleza, por lo que es constitucionalmente válido que las normas impugnadas regulen a futuro este incentivo y respeten los montos recibidos de buena fe con anterioridad por las personas servidoras.

Ahora, en este punto, la mayoría cita la sentencia 8254-2020 de las 17:15 horas de 30 de abril de 2020; sin embargo, en esa oportunidad manifesté en cuanto al reconocimiento del incentivo de la anualidad y el proceso de evaluación del desempeño:

“Voto salvado del Magistrado Rueda Leal, con respecto al transitorio I, que establece una anualidad por antigüedad. En el caso de marras, establezco que la norma no exige algún tipo de mecanismo de evaluación del desempeño. Destaco que de la palabra “servicio eficiente ” no puede desprenderse que exista tal mecanismo de evaluación. Además, el concepto “servicio eficiente” no establece un umbral para el otorgamiento de ese incentivo, de manera que el cumplimiento del servicio mínimo también podría llevar a su aplicación. En ese tanto, considero aplicables ‑ mutatis mutandis‑ los argumentos que expuse en la sentencia n.° 2014-001227 de las 16:21 horas del 29 de enero de 2014:

“ El suscrito Magistrado consigno este voto salvado por las razones que de seguido se exponen. Considero que la acción de inconstitucionalidad debió haberse declarado parcialmente con lugar contra los artículos 156 de la Convención Colectiva de RECOPE 2011-2012 (pero por razones diferentes a las de mayoría) y 13 de las Normas para la Evaluación del Desempeño de esa misma institución. I.- Sobre la relevancia constitucional de la evaluación del desempeño durante el ejercicio de la función pública. La evaluación de desempeño consiste en aquellos procedimientos, métodos o estrategias comúnmente utilizados para evaluar o medir el recurso humano de algún centro de trabajo. Según el Diccionario de la Real Academia de la Lengua Española, el término “evaluar” significa: “determinar el valor o importancia de una cosa o de las aptitudes, conducta, etc., de una persona”. Es decir, la evaluación del desempeño de una persona significa estimar el valor que tiene una persona en términos productivos así como apreciar el desenvolvimiento del individuo en su cargo o funciones. Estos procedimientos tienden a medir y calificar el rendimiento de un empleado con base en parámetros previamente definidos. Este examen acerca de la calidad laboral de un individuo pasa por el respeto a uno de los principios constitucionales más importantes para el ejercicio de la función pública: la idoneidad comprobada. Este requisito -de rango constitucional- para el desempeño de cargos públicos ha sido potenciado por la jurisprudencia de la Sala a lo largo de los años. Verbigracia, recientemente, en sentencia número 2013-013202 de las 9:05 horas del 4 de octubre de 2013, este Tribunal indicó que el artículo 192 de la Constitución Política garantiza el acceso y nombramiento de los servidores públicos sobre la base de la idoneidad comprobada. En concordancia con el artículo 191 constitucional, todo régimen público de empleo tiene la finalidad o propósito de garantizar la eficiencia de la Administración, la cual se puede alcanzar, entre otras formas, mediante un procedimiento de evaluación del desempeño que se realice de forma periódica a cada uno de los servidores públicos. Este principio de idoneidad comprobada también fue desarrollado en la sentencia número 1696-92 de las 15:30 horas del 23 de agosto de 1992, en la que se indicó: "(…) En aquellas fechas, muchos de los servidores públicos, eran removidos de sus puestos para dar cabida a los partidarios del nuevo gobierno, lesionando el funcionamiento de la administración pública. Precisamente para atacar este mal, un grupo de constituyentes propugnó la creación de ese instrumento jurídico a fin de dotar a la Administración Pública de una mayor eficiencia administrativa y funcional”. De igual forma, en sentencia número 0140-93 de las 16:05 horas del 12 de enero de 1993, se ampliaron los conceptos anteriores: “(…) Desde una perspectiva histórico-jurídica, los dos artículos antes transcritos son el producto de un intenso debate en el seno de la Asamblea Constituyente de 1949, que tuvo por objeto: -Eliminar la práctica del "botín" -como se le llamó-, aludiendo al comportamiento que los políticos habían tenido tradicionalmente, consistente en que con cada nuevo Gobierno o Administración, se despedía a los servidores públicos, para poner en su lugar a los seguidores del partido político ganador; y, -Conformar una Administración Pública con recursos humanos de la mejor calidad y condición (moral, técnica y científicamente hablando), a efecto de hacerla eficiente para el cumplimiento de sus objetivos”. La idoneidad comprobada significa que es condición necesaria para el nombramiento y mantenimiento de los servidores públicos tener o reunir las características y condiciones que los faculten para desempeñarse óptimamente en el trabajo, puesto o cargo público; es decir, reunir los méritos que la función demande. En sentencia número 1696-92 se expuso que: “(…) la idoneidad de los servidores públicos no solamente debe entenderse en un sentido específico, "académica" o "física" por ejemplo, sino que debe más bien asumirse como una conjunción de elementos o factores de diversa índole que, valorados en su conjunto producen que una persona resulte ser la más idónea para el cargo”. El Estado debe implementar políticas en las instituciones estatales para establecer los requisitos adecuados para desempeñar un puesto, los cuales además deben basarse en parámetros de razonabilidad y proporcionalidad. Precisamente, la importancia de la evaluación del desempeño de los funcionarios públicos radica en reexaminar constantemente si los requisitos y méritos que permitieron a una persona ingresar al régimen de empleo público se mantienen a través del tiempo, en aras de garantizar la eficiencia en la prestación de los servicios públicos propios del Estado. Estos principios constitucionales han sido, a su vez, recogidos en la Carta Iberoamericana de la Función Pública, aprobada en la V Conferencia Iberoamericana de Ministros de Administración Pública y Reforma del Estado, celebrada Santa Cruz de la Sierra, Bolivia, del 26 al 27 de junio de 2003. En tal instrumento se estatuyó, entre otros principios rectores de todo el sistema de función pública, que el mérito, desempeño y capacidad son criterios orientadores del acceso, la carrera y las restantes políticas de recursos humanos, lo que evidentemente incluye la gestión de empleo público (artículo 8). Como lo han señalado los precedentes de esta Sala, el cumplimiento de estos elementos básicos de la función pública, solamente pueden ser alcanzados si la propia Administración Pública establece medios adecuados que posibiliten la contratación de personal debidamente capacitado y con un marco ético apropiado, toda vez que el empleado público es quien finalmente ejecuta el servicio público y, en consecuencia, quien define, con su accionar cotidiano, el rumbo y la forma en que el Estado cumple sus tareas (ver sentencia número 2010-021051). A mayor abundamiento, en doctrina se ha dicho que los sistemas de evaluación del desempeño se deben adecuar a los criterios de transparencia, objetividad, imparcialidad y no discriminación. Cada Administración determinará la periodicidad de las evaluaciones, los órganos encargados de su realización, así como los procedimientos aplicables que deberán respetar los principios citados. De esta manera, de la capacidad para combinar métodos de valoración que garanticen la objetividad y el respeto a los principios de mérito y capacidad depende el éxito del sistema. Entre los factores que se pueden evaluar está la conducta profesional así como el rendimiento o logro de resultados. No solamente son relevantes los aspectos a valorar (es decir, qué valorar), sino también en igual medida los métodos de valoración (cómo valorar). La plasmación de los principios de mérito, capacidad e idoneidad en el Texto Constitucional no determina su aplicación exclusivamente en el procedimiento de ingreso a la función pública (que es el campo en el que la Sala ha tenido más oportunidad de potenciar), sino que prolongan su vigencia a lo largo de la vida laboral del funcionario público, de manera que son igualmente exigibles durante la pertenencia y permanencia en el régimen de empleo público. La ratio iuris de la evaluación del desempeño en la función pública precisamente procura examinar la vigencia de méritos, capacidades, aptitudes e idoneidad durante la permanencia de una persona en el aparato estatal. La evaluación del desempeño no solo conlleva beneficios para la parte patronal (v.gr., tomar medidas con el fin de mejorar el comportamiento de los trabajadores, alcanzar una mejor comunicación, planificar y organizar más adecuadamente las labores, identificar a los individuos que requieran perfeccionamiento en determinada área, etc.), sino que los brinda también para los propios trabajadores, al permitirles conocer los aspectos de comportamiento y desempeño que su patrono más valoriza en sus colaboradores, pone en evidencia las expectativas de su superior y, además, se brinda la oportunidad para hacer una autoevaluación y autocrítica en su desarrollo laboral. Los mecanismos para controlar el desempeño de un servidor público en sus funciones diarias permiten también a la Administración constatar si aquellas personas que se han superado y obtenido nuevos conocimientos y destrezas en su campo, están aplicándolos durante el ejercicio de su cargo y, con esto, evaluar si el servicio público prestado se está viendo beneficiado con este tipo de personal calificado. Con ello se garantiza que permanezcan en la función pública aquellas personas, cuyo aporte en el campo laboral sea altamente positivo. Resulta imposible aspirar al buen funcionamiento de los servicios públicos, si el recurso humano de la Administración no posee el dominio del campo científico requerido y el nivel de razonamiento necesario para el desempeño óptimo de sus funciones, y si estos requerimientos no se reevalúan constantemente. Como se dijo en la sentencia número 2012-07163 de las 16:00 horas del 29 de mayo de 2012, en la que fungí como Magistrado Ponente, un pilar fundamental del sistema democrático es la confianza de la ciudadanía en sus instituciones, lo que demanda, entre otras exigencias, que el administrado se fíe del correcto funcionamiento de la Administración; esto implica irremediablemente, amén de cuestiones éticas y de personalidad, que el funcionario domine la materia en que trabaja y tenga un nivel de razonamiento apropiado, a lo que debe estribar la gestión de empleo público. Estas cualidades y aptitudes no solo deben ser evaluadas por la Administración al momento de ingresar al régimen de empleo público, sino que deben ser constantemente reexaminadas en aras de mantener la confianza de la ciudadanía en la calidad de sus instituciones. Asimismo, se debe destacar que la evaluación del desempeño de los funcionarios públicos es de tan alto valor que mediante la reforma del año 2000 el Constituyente Derivado quiso otorgarle raigambre constitucional. En concreto, es el artículo 11, párrafo 2º, de la Carta Política el que reconoce la importancia de la evaluación de resultados de la Administración Pública, al señalar lo siguiente: “(…) La Administración Pública es sentido amplio, estará sometida a un procedimiento de evaluación de resultados y rendición de cuentas, con la consecuente responsabilidad personal para los funcionarios en el cumplimiento de sus deberes. La ley señalará los medios para que este control de resultados y rendición de cuentas opere como un sistema que cubra todas las instituciones públicas”. En consecuencia, en este estado de las cosas, la evaluación del desempeño de los funcionarios públicos ya no es solo una exigencia legal ni reglamentaria (como se verá adelante), sino constitucional, con la que se pretende alcanzar una buena y eficiente gestión pública. En conclusión, la importancia de la utilización de diversos instrumentos que tiendan a evaluar el desempeño en la función pública encuentra su razón de ser en altos principios constitucionales potenciados reiteradamente por la jurisprudencia de esta Sala, principalmente la idoneidad comprobada del artículo 192 constitucional y el texto del ordinal 11 también de la Constitución. II.- Sobre la inconstitucionalidad del artículo 156 de la Convención Colectiva de Trabajo de RECOPE 2011-2012. En primer lugar, es preciso pronunciarse sobre el tema del doble pago por concepto de anualidades que reciben los trabajadores de RECOPE, en virtud de los beneficios obtenidos a través de su convención colectiva y de los que también les reconoce la Ley de Salarios de la Administración Pública (Ley Nº 2166 y sus reformas). Tal como lo expone la parte accionante, a la generalidad de los servidores que conforman el sector público se les reconoce un único incentivo económico según sus años de servicio con la Administración Pública. Tal beneficio o plus salarial es comúnmente denominado como anualidades, que se idearon como un reconocimiento de la Administración para premiar, aparentemente, la experiencia adquirida por los funcionarios que, de manera continua, le han prestado sus servicios, aunque, como se verá adelante, en realidad está condicionado al rendimiento del servidor. Esta figura encuentra su fundamento normativo justamente en la Ley de Salarios de la Administración Pública, en la que se reconoce este incentivo a favor de todos los funcionarios que brindan sus servicios a la Administración Pública, dentro de los cuales se encuentran los servidores de RECOPE. Ahora bien, el artículo 155 de la Convención Colectiva de RECOPE remite a la escala de salarios de la Ley de Salarios de la Administración Pública, en los siguientes términos: “Artículo 155.- La escala de salarios establecida en la Ley de Salarios de la Administración Pública, será aplicada a los trabajadores a que este Convenio se refiere. Se continuar á reconociendo cada uno de los pasos siguientes de dicha escala, conforme los trabajadores vayan adquiriendo su derecho al disfrute de vacaciones”. Sin embargo, en el ordinal 156 de la Convención nuevamente se reconoce a favor de los trabajadores de RECOPE otro pago por el mismo concepto de anualidades: “Artículo 156. Los trabajadores mantendrán y recibirán un aumento del porcentaje de la anualidad del cuatro por ciento al cinco por ciento del salario base por cada año laborado, que han venido recibiendo en virtud de negociaciones anteriores”. Ante este panorama, tenemos dos normas de la convención colectiva que reconocen a favor de los trabajadores de RECOPE dos montos diferentes por un único concepto: anualidades o años de servicio. Esto, en mi consideración, es abiertamente inconstitucional. No comparto la tesis de que este doble pago por el rubro de anualidades esté adecuadamente fundado en el objetivo de reducir la brecha salarial entre cierto grupo de trabajadores de RECOPE y los demás funcionarios de la Administración Pública. Tal fin se debe alcanzar a través de mecanismos naturales y directos, como el aumento del salario base, y no mediante vías que impliquen beneficios desproporcionados, como ocurre en la especie, en que los trabajadores de RECOPE reciben doble paga por un mismo concepto: la anualidad. Ante tal situación, opto por preservar la constitucionalidad del numeral 155 de la Convención de cita, no solo porque no ha sido objeto de la acción, sino también porque dicha norma se limita a asignar el beneficio de la anualidad previamente reconocido en la Ley Nº 2166 y que se extiende a los trabajadores de RECOPE. Ahora bien, como la anualidad que estimo constitucional es la reconocida en la Ley de Salarios de la Administración Pública, es preciso efectuar algunas acotaciones en torno a este incentivo. En primer lugar, el artículo 5 de esta Ley de Salarios exige una evaluación de méritos para proceder con el pago de las anualidades en el sector público. Así reza el texto legal: “(…) Los aumentos anuales serán concedidos por méritos a aquellos servidores que hayan recibido calificación por lo menos de "bueno", en el año anterior, otorgándoseles un paso adicional, dentro de la misma categoría, hasta llegar al sueldo máximo” (lo subrayado no corresponde al original). En la práctica, este pago ha sido concedido de modo automático, es decir, sin que de previo se verifique si la calificación del servidor beneficiado ha sido de “buena”. A tenor de este artículo 5 mencionado, así como en concordancia con los principios constitucionales de idoneidad comprobada (numeral 192 de la Constitución Política) y evaluación de resultados (ordinal 11 de la Constitución Política), el pago de la anualidad no debe ser automático, como ha operado a la fecha, sino que se debe atribuir solo a aquellos servidores que destaquen en el desempeño en sus funciones públicas. Es decir, en verdad la anualidad no es un plus salarial fijado como reconocimiento a la experiencia del servidor en una institución, sino más bien un premio a la “buena experiencia” que se haya tenido con tal funcionario, o mejor dicho, a su “buen desempeño”. Como se vio anteriormente, el artículo 11, párrafo 2º, de la Constitución establece la imperiosa necesidad de evaluar los resultados de la gestión pública. Es cierto que a la fecha no existe una ley regulatoria en el país que busque uniformar la aplicación efectiva de las evaluaciones de desempeño en el ámbito de la función pública; empero, ello no demerita la relevancia de la evaluación en tanto principio constitucional que debe orientar la gestión de la Administración Pública. En mi criterio, el texto del artículo 11, párrafo 2º, de la Constitución estatuye un mandato claro e inequívoco: se deben evaluar los resultados en la gestión pública. Así las cosas, en este contexto en que, por un lado, la citada norma constitucional impone la evaluación de los resultados de la gestión pública, y, por el otro, el ordinal 5 de la Ley de Salarios exige una evaluación de méritos previa al pago de las anualidades, cobra mayor sentido la necesidad de una ley regulatoria de la evaluación de desempeño en la Administración, porque esta facilitaría el pago de las anualidades con base en los méritos. Corolario de lo expuesto, estimo pertinente declarar la inconstitucionalidad del artículo 156 de la Convención Colectiva de Trabajo de RECOPE 2011-2012, por devenir en un privilegio intolerable y, además, aprovecho para señalar que el pago de anualidades establecido en la Ley de Salarios de la Administración Pública (Nº 2166), concretamente en su numeral 5, exige que previo a su reconocimiento sea efectuada una evaluación del desempeño, pues tal pago solo procede cuando el servidor es calificado al menos con un “bueno”. Ergo, las anualidades establecidas en la Ley Nº 2166 no son, de ninguna manera, automáticas, en virtud de lo cual tampoco lo son las que se dan conforme al artículo 155 de la Convención Colectiva citada. III.- Sobre la inconstitucionalidad del numeral 13 de las Normas para la Evaluación del Desempeño de RECOPE y el premio al mínimo esfuerzo. Por otra parte, estimo que el artículo 13 de las Normas para la Evaluación del Desempeño de RECOPE reconoce el pago de un incentivo salarial a funcionarios que no precisamente destacan por su excelencia. Esta disposición prohíbe acreditar dicho incentivo salarial a aquellos servidores de RECOPE que obtengan una calificación inferior a 70 en la evaluación de desempeño correspondiente; a contrario sensu, a los empleados que superen el 70 (aunque sea una calificación mínima), sí se les cancela dicho incentivo. Esto significa, ni más ni menos, que un funcionario que obtenga una calificación de 70 en su evaluación de desempeño recibirá el mismo incentivo salarial que aquel cuya eficiencia y calidad en el ejercicio de la función pública sea sobresaliente y, por ende, haya recibido una nota de 90 o superior. Revisadas las Normas para la Evaluación del Desempeño de RECOPE, no se constató que existiera alguna disposición tendente a reconocer una escala que permitiera graduar el monto del pago de tal beneficio en función de la calificación obtenida, cuando esta fuere superior a 70. Esto significa inexorablemente que el artículo 13 de las Normas para la Evaluación del Desempeño de RECOPE premia el mínimo esfuerzo de algunos y, en consecuencia, devalúa la calidad de otros, al tratar por igual a trabajadores en situaciones evidentemente diferentes. Subrayo que la evaluación del desempeño de los funcionarios tiene que ser el punto clave para la procedencia o no de este incentivo salarial. Bien aplicado, este resulta sumamente beneficioso en aras de un servicio público eficiente, pues permite mantener en el ejercicio de la función pública a aquellas personas que no solamente demostraron ab initio ser aptas para ocupar el puesto, sino que también a través del tiempo siguen demostrando esas cualidades de idoneidad y eficiencia en el desempeño de sus funciones. Ahora bien, para evaluar el adecuado ejercicio de las funciones públicas de un servidor resulta obvio pensar que antes deben haberse definido las expectativas, metas y objetivos que se pretenden cumplir en el grupo laboral correspondiente. En la medida que estos propósitos de la gestión pública se encuentren debidamente preestablecidos y conocidos por todos, será más transparente precisar cuáles fueron alcanzados y quiénes cumplieron un papel fundamental para lograrlos. En la especie, el artículo 13 de las Normas para la Evaluación del Desempeño de RECOPE viene a premiar a aquellos funcionarios que, luego de la evaluación de desempeño correspondiente, la superan sin mayores méritos. Tal como se encuentra redactada la norma, el incentivo salarial regulado no solo va dirigido a aquellos funcionarios que sobresalen por sus logros, sino también a aquellos que realizan el mínimo esfuerzo. De ahí que una disposición tan complaciente contravenga el espíritu de la evaluación de desempeño en la función pública que se pretendió resguardar en el ordinal 11 de la Constitución Política, así como el principio de idoneidad comprobada desarrollado en el artículo 192 constitucional, por lo que tal norma la declaro francamente inconstitucional. Independientemente de lo anterior, el artículo 13 de las Normas para la Evaluación del Desempeño de RECOPE también resulta inconstitucional, pues si partimos del supuesto de que el beneficio de la anualidad del ordinal 155 de la Convención Colectiva de RECOPE 2011-2012 remite a la anualidad tal como está regulada en el ordinal 5 de la Ley de Salarios de la Administración Pública (que exige que aquella solo sea reconocida al funcionario cuyo rendimiento ha sido calificado al menos como “bueno”), entonces arribamos fácilmente a la conclusión de que en ambos el beneficio salarial depende del nivel de desempeño del funcionario, por lo que nuevamente se estaría ante el doble pago de un plus salarial a partir de una misma causa”.”.

En adición, comparto la desestimatoria de la acción acerca de los argumentos que no fueron fundamentados de forma suficiente. En efecto, no basta alegar de forma superficial lesiones a numerales o principios constitucionales. Ahora, aclaro que no conocí por el fondo los extremos desestimados en la sentencia nro. 2024007057 de las 10:10 horas de 14 de marzo de 2024 (pues declaré con lugar la acción por transgresión al derecho fundamental a la participación ciudadana); empero, comulgo con que, en tesis de principio, deben ser rechazados los enunciados genéricos planteados en una acción de inconstitucionalidad sin fundamentación ni prueba.

En lo relativo al cuestionamiento del artículo 12 impugnado de la Ley de Salarios de la Administración Pública concurro parcialmente con la inconstitucionalidad referida por la mayoría, pero solo en cuanto a que con el pago computado en junio de cada año (con independencia de la fecha de ingreso) se configura una situación irrazonable. No existe justificación alguna para hacer esperar a personas servidoras que adquirieron el derecho de pago de anualidades y cumplieron los requisitos legales correspondientes. Se trata de una situación evidentemente contraria al Derecho de la Constitución.

Sin embargo, no estimo inconstitucional que se haya eliminado el reconocimiento o conteo de anualidades en otras dependencias del sector público, pues, tal y como lo indica la Procuraduría General de la República, su creación tuvo origen legal por lo que el legislador, en principio, tiene la facultad de variarla para procurar un sano manejo de las finanzas públicas. Nótese que incluso ese numeral fue reformado por la ‘Ley Marco de Empleo Público’ en el que se reconoce el tiempo servido en otras entidades del sector público para efectos del cómputo de las anualidades.

Por otra parte, comulgo con las consideraciones relativas a que las discusiones de interpretación e integración normativa del ordinal 12 impugnado en cuanto al reconocimiento de anualidades en ascensos son aspectos de legalidad que no revisten, en los términos planteados, alguna situación de relevancia constitucional.

Con respecto a la alegada lesión al principio de razonabilidad por el establecimiento de los porcentajes de anualidades en normas transitorias, concurro con el voto y con la posición de la Procuraduría General de la República con respecto a que constituye un problema de técnica legislativa, pero no de constitucionalidad.

Asimismo, las posibles antinomias entre las disposiciones de la Ley de Salarios de Administración Pública y los estatutos de personal constituyen aspectos de legalidad propios de ser ventilados en las vías comunes.

Sobre el considerando XIV “SOBRE LA SUPUESTA Violación AL principio de irretroactividad de la ley e irrespeto a las situaciones jurídicas consolidadas”.

En primer lugar, concuerdo con el voto de la mayoría en relación con que todos los argumentos referidos a la autonomía municipal o de los entes descentralizados deben ser desestimados, por cuanto las personas accionantes no están legitimadas para tales efectos.

En adición, comulgo con la desestimatoria de argumentos por falta de fundamentación al no justificarse ni demostrarse transgresiones al Derecho de la Constitución.

Con respecto a que los montos de las anualidades y otros pluses (artículos 50, 54 y transitorio XXXI) desconocen lo establecido en otros instrumentos jurídicos, debo señalar que, tal y como lo indiqué, los derechos adquiridos y las situaciones jurídicas consolidadas parten de un mínimo de cordura constitucional que no implica su reconocimiento en todos los casos (verbigracia, cuando existan situaciones aberrantes y groseramente inconstitucionales); sin embargo, tanto las anualidades como los pluses pueden ser regulados válidamente hacia el futuro, por lo que prima facie descarto alguna lesión al numeral 34 de la Constitución Política. En consecuencia, comparto los razonamientos expuestos una vez hecha esta precisión.

De igual forma, estoy de acuerdo con que, a la Sala, en principio, no le compete resolver problemas de aplicación o de interpretación de normas de rango infra constitucional para determinar la prevalencia de unas u otras para la resolución de conflictos de carácter laboral.

Reitero que el reconocimiento de anualidades se encuentra cobijado por el principio de libre configuración del legislador (dentro de los límites permitidos por el Derecho de la Constitución) y no existe un derecho a la inmutabilidad del ordenamiento jurídico. Asimismo, en mi criterio, este tipo de decisiones del legislador son plenamente susceptibles de control de constitucionalidad, pero para ello debe existir una adecuada fundamentación por parte de las personas accionantes que permita a la Sala llevar a cabo la ponderación respectiva de bienes jurídicos. En consecuencia, la Asamblea Legislativa puede, en principio, regular a futuro los requisitos, montos y términos de los incentivos salariales.

En cuanto al transitorio XXVII coincido con que, según los precedentes citados en este apartado, es constitucionalmente legítimo que se imponga un tope máximo de 12 años por concepto de cesantía. Así, comulgo con los términos de la desestimatoria de estos alegatos.

Sobre el considerando XV “Violación al principio de libre negociación colectiva”.

Al respecto, los alegatos referidos a la autonomía municipal o de los entes descentralizados, así como los relacionados con los entes menores, deben ser desestimados, por cuanto las personas accionantes no están legitimadas para tales efectos.

En igual sentido, reitero que los argumentos relacionados con eventuales antinomias entre las normas impugnadas, las convenciones colectivas y estatutos internos de trabajo, deben declararse sin lugar por no involucrar, en los términos planteados, algún reclamo de relevancia constitucional, sino una cuestión de mera legalidad.

Asimismo, los alegatos relativos al tope de la cesantía y los derechos adquiridos se desestiman por los mismos motivos expuestos ut supra en este voto particular.

Ahora, en cuanto al artículo 55 de la Ley de Salarios de la Administración Pública (adicionado por la ley de ‘Fortalecimiento de las finanzas públicas’) y la negociación colectiva, no compartí lo dispuesto por la mayoría en la opinión consultiva nro. 2018019511 de las 21:45 horas de 23 de noviembre de 2018. En tal oportunidad señalé:

“VIII.- Razones diferentes del Magistrado Rueda Leal, con respecto al numeral 3 del Título III “Modificación a la Ley de Salarios de la Administración Pública” del proyecto, que adiciona el artículo 55 del capítulo VII “Disposiciones Generales”.

Los consultantes cuestionan la constitucionalidad del numeral 3 del Título III “Modificación a la Ley de Salarios de la Administración Pública” del proyecto, que adiciona el ordinal 55 del capítulo VII “Disposiciones Generales”, del proyecto legislativo 20.580. Esta norma estatuye:

“Artículo 55- Reserva de Ley en la creación de incentivos y compensaciones salariales La creación de incentivos o compensaciones, o pluses salariales sólo podrá realizarse a través de ley".

Basan su reclamo en el numeral 4 del Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (n.° 98) de la Organización Internacional de Trabajo (OIT), que señala:

“Artículo 4 Deberán adoptarse medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar entre los empleadores y las organizaciones de empleadores, por una parte, y las organizaciones de trabajadores, por otra, el pleno desarrollo y uso de procedimientos de negociación voluntaria, con objeto de reglamentar, por medio de contratos colectivos, las condiciones de empleo.” Estiman que el Estado tiene el compromiso de respetar, promover y hacer realidad, de buena fe y de conformidad con la Constitución, los principios atinentes a la libertad de asociación y la libertad sindical, así como el reconocimiento efectivo del derecho a la negociación colectiva.

Tras analizar los reclamos, considero que el punto de partida del análisis de constitucionalidad debe ser, precisamente, nuestra Constitución Política. En materia de negociación colectiva, su ordinal 62 reza:

“ARTÍCULO 62.- Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados.” Tomando como base los reclamos externados y las normas transcritas, acoto que la labor del juez constitucional es examinar si los tres textos transcritos son conciliables. Únicamente en caso de ser inviable una lectura constitucional del ordinal 55, procedería su declaratoria de inconstitucionalidad.

Lo primero que observo es que el artículo 4 del Convenio impone la obligación de adoptar “…medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar…” (el subrayado es agregado) las negociaciones colectivas.

Dos puntos sobresalen de su literalidad. Por un lado, se trata de medidas para estimular y fomentar la negociación colectiva. Es decir, la regulación no delega la definición de todos los elementos del contrato laboral en la negociación colectiva; tampoco se observa que ella límite la potestad configurativa del legislador en la materia, ya de por sí garantizada por el artículo 62 constitucional, como se verá de seguido.

Más importante aún es el segundo punto. El mencionado ordinal 4 remite a las “condiciones nacionales”, a fin de determinar las medidas a tomar por parte del Estado. Un elemento básico de tales requerimientos es el ordenamiento jurídico doméstico e, ineludiblemente, la Constitución Política. Esta remisión obliga a revisar el texto del numeral 62 de nuestra Carta Magna, transcrito supra. Entre sus regulaciones, se nota la fuerza de ley que otorga a las convenciones colectivas y la definición de las partes de la negociación colectiva. A los efectos del sub examine, debe subrayarse que nuestra Constitución, de forma expresa, descansa la regulación de la negociación colectiva en una norma legal, toda vez que la fuerza de ley de la convención colectiva está condicionada a que ella sea concertada “…con arreglo a la ley…”. Este precepto no solo estatuye la obligación de acatar la ley al momento de negociar una convención colectiva, sino que instaura el deber de legislar en la materia, a fin de establecer un marco legal que regule la negociación colectiva.

Esta primera aproximación a nuestra Constitución permite colegir la compatibilidad del precepto impugnado con su texto, toda vez que el citado artículo 55 exige que la regulación de incentivos, compensaciones o pluses salariales en el sector público sea realizada a través de una ley. En otras palabras, tanto la Constitución como la norma cuestionada imponen una regulación legal de la materia. En el caso de esta última, su letra se aboca concretamente al tema de los incentivos, compensaciones o pluses salariales. Así, si la Constitución exige regulación legal en la materia, no puede cuestionarse por inconstitucional un artículo que propugna la misma exigencia.

Si se continúan examinando las “… condiciones nacionales…” que establece nuestra Carta Magna, se refuerza el resultado anterior. Un primer punto, de modo específico aplicable a los funcionarios públicos, es el principio de legalidad, neurálgico para cualquier Estado de Derecho. Dicho principio somete el actuar de tales servidores a los lineamientos de la ley. Tal como señala literalmente el artículo 11 constitucional, los funcionarios públicos “…no pueden arrogarse facultades no concedidas…” en ley, norma que es desarrollada por el numeral 11 de la Ley General de la Administración Pública, al decir que “…La Administración Pública actuará sometida al ordenamiento jurídico y sólo podrá realizar aquellos actos o prestar aquellos servicios públicos que autorice dicho ordenamiento, según la escala jerárquica de sus fuentes…” En este orden de ideas, no puede estimarse inconstitucional que el numeral consultado requiera de una norma habilitante a fin de regular las facultades de las autoridades que fungen como patronos en una negociación colectiva, especialmente si se trata del manejo de fondos públicos, como es la materia de incentivos, compensaciones o pluses salariales. Todo lo contrario, tal exigencia es una manifestación patente del principio de legalidad.

La noción de que los funcionarios públicos están sometidos a la ley, básica en el Estado de Derecho, ha sido recogida en la jurisprudencia de la Sala en materia de negociación colectiva. Así, en la sentencia n.° 2000-004453 de las 14:56 horas del 24 de mayo de 2000, este Tribunal sostuvo:

“Sexta: No obstante lo ya expresado, es importante aclarar que aún en el sector público en el que resulta constitucionalmente posible la aplicación de la institución de las convenciones colectivas, valga decir, en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública, en los términos del inciso 2 del artículo 112 de la Ley General de la Administración Pública, la Sala repite y confirma su jurisprudencia en el sentido de que la autorización para negociar no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que por esa vía, no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes, ni modificar o derogar leyes que otorgan o regulan competencias de los entes públicos, atribuidas en razón de la jerarquía normativa o de las especiales condiciones de la Administración Pública con relación a sus trabajadores, conclusión que se infiere del artículo 112 inciso 3) de la Ley General de la Administración Pública y del considerando XI de la sentencia No. 1696-92 de esta Sala.” (El destacado no corresponde al original; ver en igual sentido las sentencias números 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 y 2006-17436).

Finalmente, se debe hacer énfasis en el hecho de que la disposición cuestionada guarda estrecha relación con el uso de fondos públicos destinados a “incentivos o compensaciones, o pluses salariales”. Justamente, en tanto se trate de fondos públicos, el Estado se encuentra en la obligación de velar por su sano manejo. Asimismo, el criterio de asignación de estos debe estar sujeto al principio de razonabilidad, en el entendido de que los funcionarios deben procurar satisfacer “…primordialmente el interés público…” (numeral 113 de la Ley General de la Administración Pública). Una forma de velar por su correcta administración es evitar la creación casuística, arbitraria o desproporcionada de tales incentivos, procurando brindar un marco regulatorio mediante una ley. Concerniente a la tesitura expuesta, al estudiar la constitucionalidad de las convenciones colectivas, la Sala ha manifestado:

“ Después de todo como lo reconoce la doctrina, la Administración Pública no es hacienda privada y por lo tanto el dinero que se compromete, como no es propio, debe ser administrado dentro del marco de la ley, lo cual incluye necesariamente el mencionado test de razonabilidad y proporcionalidad. Está claro que la actividad financiera supone el cumplimiento de criterios de economía y eficiencia, es decir de racionalización de la actividad financiera que impide legal y moralmente el derroche y da el derecho a la colectividad de exigir no sólo la eficacia sino impedir ese derroche, después de todo son los dineros de esa colectividad los que están siendo administrados. Estos deberes se imponen a la Administración en general, lo cual incluye sin duda a la empresa pública, y tal vez con mayor rigor aún, especialmente si son fondos públicos utilizados a favor de empleados sujetos a un régimen privado. Es por eso que la jurisprudencia de esta Sala ha concluido que si bien se permiten los laudos y las convenciones colectivas en las empresas del Estado, la posibilidad de negociación no puede ser irrestricta, debiendo respetarse, entre otras, las limitaciones que se exigen para armonizar el gasto público con la disponibilidad presupuestaria, así como que no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes como consecuencia del proceso de negociación.” (Sentencia n.° 2006-7261 de las 14:45 horas del 23 de mayo de 2006. El destacado no corresponde al original).

Obsérvese que la obligación de velar por el sano manejo de los fondos públicos por parte de los servidores de la Administración Pública no solo deriva de la obligación de rendir cuentas y actuar conforme a la ley, según lo reglado en el ordinal 11 constitucional, sino también de otras normas de la Ley Fundamental que explícitamente imponen tal deber:

“Artículo 24.- (…)

La ley fijará los casos en que los funcionarios competentes del Ministerio de Hacienda y de la Contraloría General de la República podrán revisar los libros de contabilidad y sus anexos para fines tributarios y para fiscalizar la correcta utilización de los fondos públicos.

Artículo 184.- Son deberes y atribuciones de la Contraloría:

Fiscalizar la ejecución y liquidación de los presupuestos ordinarios y extraordinarios de la República. No se emitirá ninguna orden de pago contra los fondos del Estado sino cuando el gasto respectivo haya sido visado por la Contraloría; ni constituirá obligación para el Estado la que no haya sido refrendada por ella.

Examinar, aprobar o improbar los presupuestos de las Municipalidades e instituciones autónomas, y fiscalizar su ejecución y liquidación.

Enviar anualmente a la Asamblea Legislativa, en su primera sesión ordinaria, una memoria del movimiento correspondiente al año económico anterior, con detalle de las labores del Contralor y exposición de las opiniones y sugestiones que éste considere necesarias para el mejor manejo de los fondos públicos.

Examinar, glosar y fenecer las cuentas de las instituciones del Estado y de los funcionarios públicos.

Las demás que esta Constitución o las leyes le asignen.

Artículo 193.- El Presidente de la República, los Ministros de Gobierno y los funcionarios que manejen fondos públicos , están obligados a declarar sus bienes, los cuales deben ser valorados, todo conforme a la ley.” (Lo destacado no corresponde al original).

Como se colige de la estructura lógica en este tipo de relación jurídica clásica, frente a la referida obligación del servidor se sitúa el correlativo derecho de los habitantes a la correcta administración de los fondos públicos.

El análisis efectuado infra permite concluir que el Constituyente delegó en el legislador ordinario el deber de reglar la negociación colectiva por medio de la ley. Ahora bien, por tratarse de trabajadores públicos (esto es, lo servidores que sí pueden válidamente suscribir una convención colectiva) y del sano uso de fondos públicos, no resulta inconstitucional que se exija que la creación de incentivos, compensaciones o pluses salariales se efectúe mediante ley. Tal cuerpo normativo no solo correspondería al desarrollo legal del artículo 62 de la Carta Magna, sino también de los ordinales 11, 24, 184 inciso 3) y 193 constitucionales, al sujetar a los servidores públicos que ejerzan cargos patronales al principio de legalidad y al sano manejo de los fondos públicos.

Evidentemente, el desarrollo de ese marco legal estará sujeto a los límites que imponen la Constitución y los instrumentos del Derecho Internacional de los Derechos Humanos, que incluyen los convenios de la Organización Internacional del Trabajo. Por ende, a través de una ley que regulare la creación de incentivos, compensaciones o pluses salariales no podría establecerse precepto alguno que viniere a vaciar de contenido los derechos laborales y sindicales contemplados en los citados convenios y la Ley Fundamental. Dicho con otras palabras, el sano propósito de velar por la correcta administración de los fondos públicos no podría ser la excusa para limitar irrazonablemente el derecho a la negociación colectiva. Empero, la mera disposición general para que tal materia sea regulada por ley (sin que a la vista se tenga su contenido concreto) no implica per se una violación actual e inmediata a la libertad sindical, toda vez que el derecho de los ciudadanos al sano manejo de los fondos públicos y el respeto al principio de legalidad lo justifican sin duda alguna.

Ahora bien, también considero que la aprobación del numeral 55 conlleva el deber de la Asamblea Legislativa de dictar, dentro de un periodo razonable, el marco legal que serviría de base a la negociación colectiva de los rubros indicados. En otras palabras, si llegare a transcurrir un plazo irrazonable sin que se dictare tal norma, la situación se tornaría materialmente en un vaciamiento de la negociación colectiva en lo concerniente a tales rubros, situación que sí contravendría el artículo 62 de la Constitución Política.

Así las cosas, estimo que el ordinal 62 (al remitir a la ley), el numeral 11 (que impone el principio de legalidad) y este último precepto junto con los artículos 24, 184 inciso 3) y 193 (que sustentan el derecho de los ciudadanos al sano manejo de los fondos públicos), todos de la Constitución Política, facultan al legislador a regular la creación de incentivos, compensaciones o pluses salariales a través de la ley, siempre que por esta vía no se vacíe de contenido el derecho a la negociación colectiva”.

En consecuencia, de acuerdo con lo transcrito, el artículo 62 constitucional faculta al legislador a regular la creación de incentivos, compensaciones o pluses salariales a través de la ley, siempre que por esta vía no se vacíe de contenido el derecho a la negociación colectiva. Justamente, el ámbito de aplicación de esta última incluye una variedad de temas que va más allá de los límites, cuya negociación permanece invariable, por ejemplo, aquellos relacionados con la configuración del trabajo, régimen disciplinario, organizaciones sindicales, entre otros. El hecho de que una ley venga a regular las materias objeto de negociación colectiva no solo concuerda con la Constitución, sino que es prescrito por ella.

En adición, con respecto a este apartado y la negociación colectiva, la mayoría de la Sala cita la resolución nro. 2021017098 de las 23:15 horas de 31 de julio de 2021; empero, en tal oportunidad di las siguientes razones diferentes:

“a) Razones diferentes del magistrado Rueda Leal sobre el ordinal 43 y el Transitorio XV del proyecto.

Concerniente al numeral 43 y partiendo de que se trate del sector público que puede válidamente efectuar una negociación colectiva, estimo que no existen roces de constitucionalidad, por cuanto únicamente establece límites parciales a la negociación colectiva, que están íntimamente vinculados con el principio de equilibrio presupuestario. En mi criterio, el ámbito de aplicación de la negociación colectiva incluye una variedad de temas que va más allá de los límites de ese artículo, cuya negociación permanecería invariable con la eventual entrada en vigor de este proyecto de ley, por ejemplo, aquellas relacionados con la configuración del trabajo, régimen disciplinario, organizaciones sindicales, entre otros. El hecho de que una ley venga a regular las materias objeto de negociación colectiva no solo es acorde a la Constitución, sino prescrito por ella, tal como expliqué en mis razones diferentes consignadas en la sentencia n.° 2018-019511:

“Tras analizar los reclamos, considero que el punto de partida del análisis de constitucionalidad debe ser, precisamente, nuestra Constitución Política. En materia de negociación colectiva, su ordinal 62 reza:

“ARTÍCULO 62.- Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados.” Tomando como base los reclamos externados y las normas transcritas, acoto que la labor del juez constitucional es examinar si los tres textos transcritos son conciliables. Únicamente en caso de ser inviable una lectura constitucional del ordinal 55, procedería su declaratoria de inconstitucionalidad.

Lo primero que observo es que el artículo 4 del Convenio impone la obligación de adoptar “…medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar…” (el subrayado es agregado) las negociaciones colectivas.

Dos puntos sobresalen de su literalidad. Por un lado, se trata de medidas para estimular y fomentar la negociación colectiva. Es decir, la regulación no delega la definición de todos los elementos del contrato laboral en la negociación colectiva; tampoco se observa que ella límite la potestad configurativa del legislador en la materia, ya de por sí garantizada por el artículo 62 constitucional, como se verá de seguido.

Más importante aún es el segundo punto. El mencionado ordinal 4 remite a las “condiciones nacionales”, a fin de determinar las medidas a tomar por parte del Estado. Un elemento básico de tales requerimientos es el ordenamiento jurídico doméstico e, ineludiblemente, la Constitución Política. Esta remisión obliga a revisar el texto del numeral 62 de nuestra Carta Magna, transcrito supra. Entre sus regulaciones, se nota la fuerza de ley que otorga a las convenciones colectivas y la definición de las partes de la negociación colectiva. A los efectos del sub examine, debe subrayarse que nuestra Constitución, de forma expresa, descansa la regulación de la negociación colectiva en una norma legal, toda vez que la fuerza de ley de la convención colectiva está condicionada a que ella sea concertada “…con arreglo a la ley…”. Este precepto no solo estatuye la obligación de acatar la ley al momento de negociar una convención colectiva, sino que instaura el deber de legislar en la materia, a fin de establecer un marco legal que regule la negociación colectiva.” Con respecto al transitorio XV, dada su redacción, resultan aplicables las consideraciones que expresé en el citado voto n.° 2018-019511, al analizar una disposición transitoria idéntica:

“Los consultantes cuestionan la constitucionalidad del transitorio L del proyecto 20.580, que indica:

“TRANSITORIO L - A partir de la entrada en vigencia de la presente ley los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento.

En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo." Consideran que tal obligación limita el derecho a la renegociación o a la prórroga automática en las condiciones estipuladas en el inciso e) del artículo 58 del Código de Trabajo.

Tras analizar el escrito de interposición, observo que la fundamentación brindada por la parte se refiere únicamente a la aparente oposición de la disposición cuestionada con el citado numeral del Código de Trabajo. Tal conflicto normativo es una cuestión de mera legalidad, ajeno a las competencias de esta Sala.

Por otro lado, descarto que la simple mención de una alegada infracción al artículo 62 constitucional sea suficiente para satisfacer los requisitos de una consulta legislativa. Tal como exige el numeral 99 de la Ley de la Jurisdicción Constitucional, la consulta facultativa debe efectuarse en un “memorial razonado”, situación que la diferencia de la consulta preceptiva. Así, los gestionantes tienen el deber de manifestar de forma clara los motivos de la supuesta infracción constitucional, como ha indicado la Sala en otras ocasiones:

“Al respecto, la Sala Constitucional, al desarrollar los alcances de esa norma, por medio de la sentencia No. 5544-95 de las 15:00 hrs. de 11 de octubre de 1995, expresó:

“En cuanto la consulta se refiere al artículo 28 del Proyecto por no formularse razonadamente, "con expresión de los aspectos cuestionados del proyecto, así como de los motivos por los cuales se tuvieren dudas u objeciones sobre su constitucionalidad" (art. 99 de la Ley de la Jurisdicción Constitucional), ya que los consultantes simplemente señalan el tema consultado, prescindiendo de realizar algún tipo de argumento de constitucionalidad, no procede evacuar la consulta. Así lo ha resuelto reiteradamente la jurisprudencia constitucional y por ese motivo en cuanto a este aspecto se refiere, no ha lugar a evacuar la consulta formulada (Vid. Opinión Consultiva Nº 5399-95, relacionada con la Consulta Nº 4773-95 y resolución interlocutoria posterior, Nº 501-I-95)”.

Independientemente de lo anterior, un análisis prima facie de la norma –límite impuesto dada la ausencia de fundamentación en el escrito de interposición- no permite visualizar su inconstitucionalidad. Resalto que se trata de una regulación transitoria y de aplicación limitada a las convenciones colectivas donde figura el Estado como parte patronal. Enfatizo este hecho toda vez que considero que la obligación impuesta por dicha disposición tiene la finalidad de ajustar las convenciones colectivas al marco legal que entraría en vigor con el proyecto impugnado. De ahí que la posible renegociación de la convención conlleve que ella sea adaptada “…en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo.” Asimismo, aclaro y subrayo que tal artículo no significa la suspensión, derogación o anulación de convenciones colectivas o sus disposiciones, ni impone una restricción a sus efectos que sea diferente de la vigencia temporal que había sido previamente pactada por las partes.

Ahora bien, debe recordarse que la Constitución Política establece un requisito básico para las convenciones colectivas y es que ellas sean concertadas “…con arreglo a la ley…”. Así, queda claro que el contenido y la forma de una convención colectiva quedan sometidos a la ley, por mandato constitucional. Ergo, no es inconstitucional que una norma –como la impugnada- busque que las convenciones colectivas respeten la ley. Nótese asimismo que ella no deroga ni vacía el contenido del artículo inciso e) del artículo 58 del Código de Trabajo, dejando intacta la posibilidad de renegociar la convención colectiva”.

A partir de lo anterior, en un determinado contexto de déficit fiscal grave, las medidas legislativas que se tomen encaminadas al sano manejo de las finanzas públicas y el principio de equilibrio presupuestario solo pueden ser derribadas por transgresiones más graves a otros derechos fundamentales, lo que no se constata en el sub examine.

Por otra parte, en la opinión consultiva nro. 2018019511 de las 21:45 horas de 23 de noviembre de 2018, consigné las siguientes razones particulares en cuanto al transitorio L:

“IX.- Razones particulares del Magistrado Rueda Leal en cuanto al transitorio L del Título V “Disposiciones Transitorias”.

Los consultantes cuestionan la constitucionalidad del transitorio L del proyecto 20.580, que indica:

“TRANSITORIO L - A partir de la entrada en vigencia de la presente ley los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento.

En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo." Consideran que tal obligación limita el derecho a la renegociación o a la prórroga automática en las condiciones estipuladas en el inciso e) del artículo 58 del Código de Trabajo.

Tras analizar el escrito de interposición, observo que la fundamentación brindada por la parte se refiere únicamente a la aparente oposición de la disposición cuestionada con el citado numeral del Código de Trabajo. Tal conflicto normativo es una cuestión de mera legalidad, ajeno a las competencias de esta Sala.

Por otro lado, descarto que la simple mención de una alegada infracción al artículo 62 constitucional sea suficiente para satisfacer los requisitos de una consulta legislativa. Tal como exige el numeral 99 de la Ley de la Jurisdicción Constitucional, la consulta facultativa debe efectuarse en un “memorial razonado”, situación que la diferencia de la consulta preceptiva. Así, los gestionantes tienen el deber de manifestar de forma clara los motivos de la supuesta infracción constitucional, como ha indicado la Sala en otras ocasiones:

“Al respecto, la Sala Constitucional, al desarrollar los alcances de esa norma, por medio de la sentencia No. 5544-95 de las 15:00 hrs. de 11 de octubre de 1995, expresó:

“En cuanto la consulta se refiere al artículo 28 del Proyecto por no formularse razonadamente, "con expresión de los aspectos cuestionados del proyecto, así como de los motivos por los cuales se tuvieren dudas u objeciones sobre su constitucionalidad" (art. 99 de la Ley de la Jurisdicción Constitucional), ya que los consultantes simplemente señalan el tema consultado, prescindiendo de realizar algún tipo de argumento de constitucionalidad, no procede evacuar la consulta. Así lo ha resuelto reiteradamente la jurisprudencia constitucional y por ese motivo en cuanto a este aspecto se refiere, no ha lugar a evacuar la consulta formulada (Vid. Opinión Consultiva Nº 5399-95, relacionada con la Consulta Nº 4773-95 y resolución interlocutoria posterior, Nº 501-I-95)”.

Independientemente de lo anterior, un análisis prima facie de la norma –límite impuesto dada la ausencia de fundamentación en el escrito de interposición- no permite visualizar su inconstitucionalidad. Resalto que se trata de una regulación transitoria y de aplicación limitada a las convenciones colectivas donde figura el Estado como parte patronal. Enfatizo este hecho toda vez que considero que la obligación impuesta por dicha disposición tiene la finalidad de ajustar las convenciones colectivas al marco legal que entraría en vigor con el proyecto impugnado. De ahí que la posible renegociación de la convención conlleve que ella sea adaptada “…en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo.” Asimismo, aclaro y subrayo que tal artículo no significa la suspensión, derogación o anulación de convenciones colectivas o sus disposiciones, ni impone una restricción a sus efectos que sea diferente de la vigencia temporal que había sido previamente pactada por las partes.

Ahora bien, debe recordarse que la Constitución Política establece un requisito básico para las convenciones colectivas y es que ellas sean concertadas “…con arreglo a la ley…”. Así, queda claro que el contenido y la forma de una convención colectiva quedan sometidos a la ley, por mandato constitucional. Ergo, no es inconstitucional que una norma –como la impugnada- busque que las convenciones colectivas respeten la ley. Nótese asimismo que ella no deroga ni vacía el contenido del artículo inciso e) del artículo 58 del Código de Trabajo, dejando intacta la posibilidad de renegociar la convención colectiva”.

En virtud de las consideraciones expuestas, descarto alguna inconstitucionalidad en los términos planteados en el sub lite, por cuanto las convenciones colectivas están sometidas a la ley por mandato constitucional.

Con respecto a la alegada lesión al principio de igualdad en relación con las asociaciones solidaristas, comparto los argumentos vertidos en el voto de la mayoría y la jurisprudencia citada.

Sobre la aludida inconstitucionalidad del transitorio XXXVI aplica lo acotado ut supra en cuanto a la negociación colectiva. Asimismo, la sujeción general de las convenciones colectivas a disposiciones del Poder Ejecutivo no resulta inconstitucional per se, por cuanto, por ejemplo, el propio Código de Trabajo prevé la consideración de disposiciones reglamentarias en esta materia, las cuales son sujetas de control de constitucionalidad. Empero, no se desarrollaron argumentos que evidenciaran alguna transgresión susceptible de ser declarada.

A partir de lo expuesto, considero que el artículo 55 impugnado (y las demás disposiciones relacionadas con los pluses cuestionados, a saber, los numerales 39, 50, 54 de la Ley de Salario de la Administración Pública y los transitorios XXVII y XXXI de la ley de ‘Fortalecimiento de las finanzas públicas’) no son inconstitucionales. De igual forma, estimo que el transitorio XXXVI no es contrario al Derecho a la Constitución al establecer la obligación de los jerarcas de denunciar las convenciones colectivas al plazo de su vencimiento, ni tampoco al contemplar la sujeción general a disposiciones reglamentarias.

Sobre el considerando XVI “Art. 3 del decreto ejecutivo n.°41564-MIDEPLAN-H, Reglamento del Título III de la LFFP, Ley N°9635 referente al Empleo Público”.

Si bien no voté la resolución nro. 2019010635 de las 9:20 horas de 12 de junio de 2019, comparto la desestimatoria de estos extremos por falta de fundamentación y por haberse rechazado la legitimación del accionante con respecto la presunta infracción al principio de autonomía.

Sobre el considerando XVII “Arts. 4, 9 y 14 del decreto ejecutivo n.°41564-MIDEPLAN-H, Reglamento del Título III de la LFFP, Ley N°9635 referente al Empleo Público”.

Reitero que no voté la resolución nro. 2019010635 de las 9:20 horas de 12 de junio de 2019; sin embargo, concuerdo con la desestimatoria en cuanto a estas normas al no estar expresamente impugnadas.

Sobre los considerandos XVIII “REGLAS DE RESPONSABILIDAD FISCAL. TÍTULO IV DE LA LFFP. RESPONSABILIDAD FISCAL DE LA REPÚBLICA” y XIX “RESPONSABILIDAD FISCAL. DESTINOS DE LOS SUPERAVITS LIBRES”.

En relación con estos extremos, concurro con la fundamentación efectuada por la mayoría en cuanto a la falta de legitimación de la parte accionante.

Sobre el considerando XX “CONTRATOS DE DEDICACIÓN EXCLUSIVA”.

Si bien no voté la resolución nro. 2019010635 de las 9:20 horas de 12 de junio de 2019, estoy de acuerdo con que la parte accionante no se encuentra legitimada para accionar en defensa de la autonomía de los entes municipales o autónomos. Asimismo, comparto la desestimatoria de los alegatos restantes por falta de fundamentación.

Sobre el considerando XXI “PRÓRROGA DE LOS CONTRATOS DE DEDICACIÓN EXCLUSIVA”.

Al respecto, aclaro que las normas aquí impugnadas no son inconstitucionales, toda vez que el legislador, en principio, es libre de regular las condiciones de renovación y los plazos de los contratos de dedicación exclusiva sin que se observe, en los términos planteados, alguna situación de relevancia constitucional.

En cuanto a la aludida lesión al artículo 34 constitucional y los demás argumentos concurro con la desestimatoria desarrollada en el voto de la mayoría.

Sobre el considerando XXII “SERVIDORES A LOS QUE SE LES PUEDE RECONOCER LA DEDICACIÓN EXCLUSIVA O LA PROHIBICIÓN”.

En relación con este apartado, concurro con la fundamentación de la desestimatoria efectuada por la mayoría.

Sobre el considerando XXIII “OBLIGACIONES IMPUESTAS A LOS SERVIDORES PÚBLICOS EN VIRTUD DEL CONTRATO DE DEDICACIÓN EXCLUSIVA Y LA PROHIBICIÓN”.

Con respecto a este extremo, comulgo tanto con la fundamentación efectuada por la mayoría como con la estimatoria declarada. Ergo, declaro con lugar la acción en relación con los párrafos: “Los funcionarios sujetos por ley al régimen de prohibición no podrán ejercer su profesión o profesiones, independientemente de que cumplan o no con los requisitos para hacerse acreedores a la compensación por este concepto” (art. 32 párrafo 2° in fine) y “Para los funcionarios señalados en la ley como posibles beneficiarios de compensación económica por prohibición, no podrán ejercer de manera privada, de forma remunerada o ad honorem la profesión o las profesiones que ostenten” (art. 33 in fine), ambos de la Ley de Salarios de la Administración Pública, adicionados por el artículo 3° del título III de la ley de "Fortalecimiento de las finanzas públicas", nro. 9635 de 3 de diciembre de 2018; Sobre el considerando XXIV “NUEVOS PORCENTAJES DE DEDICACIÓN EXCLUSIVA Y DE PROHIBICIÓN”.

En relación con este considerando, estoy de acuerdo con la fundamentación efectuada por la mayoría, con excepción de la remisión al considerando VII. Asimismo, no conocí por el fondo los extremos desestimados en la sentencia nro. 2024007057 de las 10:10 horas de 14 de marzo de 2024 (pues declaré con lugar la acción por transgresión al derecho fundamental a la participación ciudadana); empero, estoy de acuerdo con que, en tesis de principio, deben ser rechazados los enunciados genéricos planteados en una acción de inconstitucionalidad sin fundamentación ni prueba.

Sobre el considerando XXV “PROHIBICIÓN DE INCENTIVOS ADICIONALES”.

En relación con este extremo, concurro tanto con la fundamentación efectuada por la mayoría como con la desestimatoria dispuesta.

Sobre el considerando XXVI “RECTORÍA DE MIDEPLAN”.

En relación con este considerando, estoy de acuerdo con la fundamentación efectuada por la mayoría, con las siguientes salvedades.

Aun cuando no me pronuncié por el fondo sobre los extremos desestimados en la sentencia nro. 2024007057 de las 10:10 horas de 14 de marzo de 2024 (pues declaré con lugar la acción por transgresión al derecho fundamental a la participación ciudadana), sí voté la opinión consultiva nro. 2018-19511 de las 21:45 horas del 23 de noviembre de 2018. Ahora, en este último voto se explicaron los alcances generales de la rectoría del Mideplan, por lo que, en principio, corresponde al operador ordinario del derecho analizar las normas que debe aplicar de acuerdo con los criterios de constitucionalidad ahí establecidos. No está de más señalar que este Tribunal tomó en consideración que existían salvedades y exclusiones previstas en normas legales especiales que no habían sido derogadas por la ley de ‘Fortalecimiento de las finanzas públicas’; sin embargo, considero que, a los efectos de este proceso de control de constitucionalidad, basta con lo señalado en la resolución nro. 2018-19511 de las 21:45 horas del 23 de noviembre de 2018 (es decir, omito pronunciarme sobre lo resuelto en la sentencia nro. 2024007057 de las 10:10 horas de 14 de marzo de 2024). Justamente, en la opinión consultiva nro. 2018-19511 de las 21:45 horas del 23 de noviembre de 2018, se indicó:

“a) En cuanto a la rectoría en materia de empleo público del MIDEPLAN y el acatamiento de los lineamientos de la Dirección General de Servicio Civil.

Las primeras dos objeciones mencionadas son:

“2.) De conformidad con el anterior informe, se determina que el proyecto sí afecta la organización y funcionamiento del Poder Judicial, y que hay oposición al mismo, siempre y cuando no se elimine lo referente a:

a.- Las disposiciones establecidas en la reforma de los artículos 46 y 47 a la Ley de Salarios de la Administración Pública, N° 2166 de 9 de octubre de 1957, referente a la rectoría de la materia empleo público de MIDEPLAN para con el Poder Judicial.

b.- Las disposiciones establecidas en la reforma de la adición del artículo 49 in fine a la Ley de Salarios de la Administración Pública, N° 2166 de 9 de octubre de 1957, en lo referente a la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil para con el Poder Judicial.” A fin de conocer con claridad estos puntos, se transcriben las normas correspondientes:

“Artículo 46- Rectoría de Empleo Público Toda la materia de empleo del Sector Público estará bajo la rectoría del Ministro (a) de Planificación Nacional y Política Económica, quien deberá establecer dirigir y coordinar las políticas generales, la coordinación, asesoría y apoyo a todas las instituciones públicas, y definir los lineamientos y normativas administrativas que tienda a la unificación, simplificación y coherencia del empleo en el sector público; velando que instituciones del sector público respondan adecuadamente a los objetivos, metas y acciones definidas.

Además, deberá evaluar el sistema de empleo público y todos sus componentes, en términos de eficiencia, eficacia, economía y calidad; y proponer y promover los ajustes necesarios para el mejor desempeño de los funcionarios y las instituciones públicas.

Artículo 47- Fundamento metodológico de la evaluación del desempeño La evaluación del desempeño de los funcionarios se fundamentará en indicadores cuantitativos de cumplimiento de metas individuales de productos y servicios prestados, vinculados a los procesos y proyectos que realice la dependencia a la que pertenece; y la del cuerpo gerencial en todos sus niveles para el cumplimiento de las metas y objetivos institucionales.

Será responsabilidad de cada superior, definir los procesos y proyectos de la dependencia, así como los productos y servicios prestados; de conformidad con la normativa vigente y los planes estratégicos gubernamentales institucionales.

Los lineamientos generales aplicables para todo sector público, los definirá el Ministerio de Planificación Nacional y Política Económica, con el objetivo de homogenizar y estandarizar, con las salvedades respectivas, los métodos de evaluación y los sistemas de información respectivos.

(…)

Artículo 49.- Efectos de la evaluación anual El resultado de la evaluación anual será el único parámetro para el otorgamiento del incentivo por anualidad a cada funcionario.

Las calificaciones anuales constituirán antecedente para la concesión de estímulos que establece la ley y sugerir recomendaciones relacionadas con el mejoramiento y desarrollo de los recursos humanos. Será considerado para los ascensos, promociones, reconocimientos, capacitaciones y adiestramientos, y estará determinado por el historial de evaluaciones del desempeño del funcionario. Igualmente el proceso de evaluación deberá ser considerado para implementar las acciones de mejora y fortalecimiento del potencial humano.

Anualmente la Dirección General de Servicio Civil dictará los lineamientos técnicos y metodológicos para la aplicación de los instrumentos de evaluación del desempeño los cuales será de acatamiento obligatorio.” Según se desprende de la literalidad del acuerdo, los primeros dos preceptos son objetados porque disponen una “…rectoría de la materia empleo público de MIDEPLAN …”, mientras que el tercero habla de “… la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil para con el Poder Judicial.” Para precisar las implicaciones concretas de esta normativa con respecto al Poder Judicial, se debe efectuar tanto el examen interno de su articulado como verificar su interacción con el resto ordenamiento jurídico. En otras palabras, debe valorarse la literalidad de las normas del proyecto, así como su hipotética interpretación sistemática en caso de que pasara a formar parte de nuestra legislación.

En cuanto al primer nivel de análisis, los numerales 46 y 47 conceden y detallan el tema de la rectoría de empleo público a cargo del Ministro de Planificación Nacional y Política Económica.

En torno al tema, las diputadas y los diputados consultantes señalan que “… el articulo 46 y el 47 (sic) no interfieren con la organización ni el funcionamiento del Poder Judicial en vista de que una interpretación conforme con los límites constitucionales acota necesariamente su aplicación a aquellos entes sobre los que existe efectiva dirección intersubjetiva, respetando el principio de Separación de Poderes y la independencia judicial. Siempre que se interprete así la mencionada norma, como en efecto debe serlo de acuerdo al espíritu del legislador, esta resultará conforme al derecho de la Constitución, sin trastocar en modo alguno la función jurisdiccional del Poder Judicial ni aquellas labores administrativas esenciales para su cumplimiento.” La Sala también rescata que la Ministra de Hacienda explicó a la Corte Suprema de Justicia lo siguiente: “…en cuanto a la rectoría de MIDEPLAN en materia de evaluación del empleo público, el proyecto es claro en señalar que esta rectoría se ejerce con las excepciones respectivas. En ese sentido sé que existe voluntad de las y los diputados la voluntad (sic) de presentar una interpretación auténtica que garantice absoluta independencia del Poder Judicial en materia de evaluación de desempeño…” (Oficio n.° DM-2362-2018 de 16 de octubre de 2018. El subrayado es agregado).

Se extrae de lo expuesto que la rectoría del Ministro de Planificación Nacional y Política Económica en materia de empleo público tiene excepciones en el proyecto de ley. La Sala comprueba la veracidad de este argumento, pues el cuestionado ordinal 47 establece in fine:

“Los lineamientos generales aplicables para todo sector público, los definirá el Ministerio de Planificación Nacional y Política Económica, con el objetivo de homogenizar y estandarizar, con las salvedades respectivas, los métodos de evaluación y los sistemas de información respectivos.” (El subrayado es agregado).

La Sala observa que los mencionados artículos 46, 47 y 49 se encuentran en el capítulo VI, denominado “RECTORÍA Y EVALUACIÓN DEL DESEMPEÑO DE LOS SERVIDORES PÚBLICOS”.

La aplicación de este capítulo al Poder Judicial es asumida en la propuesta de reforma a la Ley de Salarios de la Administración Pública, que introduce un numeral 26 con la siguiente redacción:

“Artículo 26- Aplicación Las disposiciones del presente capítulo y de los siguientes se aplicarán a:

1.La Administración Central, entendida como el Poder Ejecutivo y sus dependencias, así como todos los órganos de desconcentración adscritos a los distintos ministerios, el Poder Legislativo, el Poder Judicial, el Tribunal Supremo de Elecciones, así como las dependencias y los órganos auxiliares de estos. (…)” La Sala llama la atención al hecho de que casi todos los capítulos de la modificación a la Ley de Salarios de la Administración Pública remiten, al menos en uno de sus artículos, al citado ordinal 26. Así, el capítulo III es el que justamente contiene el numeral 26 , mientras que el capítulo IV lo cita en sus preceptos 39 y 40:

“Artículo 39- Auxilio de cesantía La indemnización por concepto de auxilio de cesantía de todos los funcionarios de las instituciones contempladas en el artículo 26 de la presente ley se regulará según lo establecido en el Código de Trabajo, y no podrá superar los 8 años.

Artículo 40- Incentivos adicionales improcedentes No procede la creación, incremento, ni el pago de remuneración por concepto de “discrecionalidad y confidencialidad”, ni el pago o reconocimiento por concepto de bienios, quinquenios o ninguna otra remuneración por acumulación de años de servicio distintos a las anualidades, en ninguna de las instituciones contempladas en el artículo 26 de esta ley .” (El subrayado es agregado).

Por su parte, el capítulo V refiere a tal norma en su ordinal 42:

“Artículo 42- Límite a las remuneraciones totales en la función pública La remuneración total de aquellos servidores cuya designación sea por elección popular, así como los jerarcas, titulares subordinados y cualquier otro funcionario del ámbito institucional de aplicación contemplado en el artículo 26 de la presente ley, no podrá superar por mes el equivalente a veinte salarios base mensual de la categoría más baja de la escala de sueldos de la Administración Pública, salvo lo indicado en el artículo 41 sobre la remuneración del Presidente. (…)” (El subrayado es agregado).

Mientras que el capítulo VII lo hace en su numeral 52:

“Artículo 52- Modalidad de pago para los servidores públicos Las instituciones contempladas en el artículo 26 de la presente ley ajustarán la periodicidad de pago de los salarios de sus funcionarios, con la modalidad de pago mensual con adelanto quincenal.” (El subrayado es agregado).

Así, se verifica que los únicos capítulos que no remiten al citado numeral 26 son el VIII –relacionado con la reforma y derogación de otra normativa- y el cuestionado VI, que es, ciertamente, el que habla de “salvedades”.

La relevancia de este hecho radica en la interpretación que se deriva de la conjunción de ambos supuestos. Si, por un lado, la norma general contemplada en el artículo 26 no se menciona ni trae a colación en el capítulo VI y, por otro, dicho capítulo es el que habla de “salvedades”, entonces se revela la necesidad ineludible de efectuar una interpretación sistemática, a fin de establecer tales salvedades con claridad. Es evidente que, si el legislador remite literalmente a excepciones, la labor del operador jurídico es, precisamente, determinar tales excepciones.

Siguiendo esta línea, la extensión de estas “salvedades” al Poder Judicial se verifica y comprende mejor cuando se efectúa el segundo nivel de análisis, que implica una lectura sistemática del ordenamiento jurídico.

Los principios que regulan la interpretación sistemática permiten solucionar problemas de colisiones (aparentes) de normas. A los efectos del sub lite, debe reconocerse que la Constitución tiene un influjo directo sobre la exégesis de todo el ordenamiento jurídico. La Constitución es un texto vivo, cuyas previsiones imbuyen de sentido el resto de la normativa infra constitucional.

Aunado a lo anterior, la solución de una colisión de normas presupone la aplicación de otros principios interpretativos, como es la prevalencia de las normas especiales sobre las generales.

Estos elementos básicos de hermenéutica jurídica orientan el estudio de las normas cuestionadas.

La lectura del marco constitucional inicia con el reconocimiento de la independencia del Poder Judicial, uno de los cimientos cardinales de nuestro Estado de Derecho:

“ARTÍCULO 9º-El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial.

Ninguno de los Poderes puede delegar el ejercicio de funciones que le son propias. (…)” “ARTÍCULO 154.- El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos.” “ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc.

De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República.

El hecho de que el Poder Judicial goce de una regulación particular pone en la palestra el segundo punto de análisis de la interpretación sistemática. En este sentido, debe estudiarse si existen normas particulares para el Poder Judicial y verificar su relación con el articulado cuestionado.

Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:

“Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto:

“Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días.

La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial".” Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas:

“Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena.” Luego, el detalle de la normativa del Estatuto de Servicio Judicial distingue las diferentes competencias en materia de evaluación del desempeño, lo que corrobora la existencia de normativa especial para ese Poder. Así, verbigracia, los numerales 8 y 10 del Estatuto de Servicio Judicial rezan:

“Artículo 8º.- Corresponde al Jefe del Departamento de Personal:

• c)Establecer los procedimientos e instrumentos técnicos necesarios para una mayor eficiencia del personal entre ellos la calificación periódica de servicios, el expediente y prontuario de cada servidor y los formularios que sean de utilidad técnica; (…)

Artículo 10.- La calificación periódica de servicios se hará anualmente por el Jefe de cada oficina judicial respecto de los subalternos que laboren en ella, usando formularios especiales que el Jefe del Departamento de Personal enviará a las diferentes oficinas en los meses que él determine. (…)” Es decir, las calificaciones periódicas del personal judicial, como sería la evaluación anual, son efectuadas mediante los procedimientos fijados por el Jefe del Departamento de Personal del Poder Judicial. Se trata de normas especiales, atinentes en forma exclusiva al Poder Judicial, que se impondrían a las normas generales del proyecto, dado el caso de que entraren en vigor.

La Sala resalta que el proyecto de ley no deroga ni modifica de manera alguna las disposiciones anteriormente transcritas, ni ninguna otra del Estatuto de Servicio Judicial. Este Estatuto rige la materia de empleo en el Poder Judicial y representa una garantía para los servidores judiciales, en consonancia con los postulados constitucionales que salvaguardan la independencia judicial; su modificación o derogatoria no podría ser tácita ni provenir de una mera inferencia, pues ello denotaría el desconocimiento de las reglas hermenéuticas.

Por otro lado, ante el cuestionamiento de que el artículo 49 del proyecto ordena al Poder Judicial el acatamiento obligatorio de los lineamientos de la Dirección General de Servicio Civil, lo cierto es que la relación entre dicha Dirección y el Poder Judicial conoce una norma específica, según se desprende del citado ordinal 8:

“(…) El Jefe del Departamento de Personal podrá hacer a la Dirección General de Servicio Civil las consultas que fueran necesarias y solicitar a esta Dirección el asesoramiento que corresponda, para la mejor realización de sus funciones. (…)” Es decir, el marco legal del Poder Judicial prevé la potestad del Jefe de su Departamento de Personal (hoy denominado Gestión Humana) de consultar a la Dirección General de Servicio Civil y solicitar su asesoramiento para la realización de sus funciones. Dichas funciones incluyen, tal como se vio, la obligación de determinar los procedimientos e instrumentos técnicos para la calificación periódica del personal (numeral 8 supra citado). Tal disposición de ley especial vuelve inaplicable al Poder Judicial las normas cuestionadas del proyecto n.° 20.580.

De nuevo, se recuerda que se trata de una norma especial que tiene preponderancia frente a la disposición general. Además, se destaca que las normas del Estatuto de Servicio Judicial permanecerían incólumes tras la reforma propuesta mediante el proyecto n.° 20.580, pues este no lo modifica ni deroga.

En conclusión, visto que el capítulo VI de la pretendida modificación a la Ley de Salarios de la Administración Pública contempla una excepción al Poder Judicial, aunado al hecho de que este último tiene normativa de rango legal especial relacionada con la evaluación del desempeño de sus funcionarios, no se observa que el proyecto de ley consultado incida realmente en la organización o el funcionamiento del Poder Judicial”.

En relación con los demás argumentos, comparto la desestimatoria desarrollada por la mayoría de la Sala.

Sobre el considerando XXVII “MEDICIÓN DE LA EVALUACIÓN DEL DESEMPEÑO”.

En relación con este extremo, concurro tanto con la fundamentación efectuada por la mayoría como con la desestimatoria dispuesta.

Sobre el considerando XXVIII “CRITERIOS DE LA EVALUACIÓN DEL DESEMPEÑO”.

En relación con este considerando, estoy de acuerdo con la fundamentación efectuada por la mayoría, con las siguientes salvedades.

Aun cuando no me pronuncié por el fondo sobre los extremos desestimados en la sentencia nro. 2024007057 de las 10:10 horas de 14 de marzo de 2024 (pues declaré con lugar la acción por transgresión al derecho fundamental a la participación ciudadana), sí voté la opinión consultiva nro. 2018-19511 de las 21:45 horas del 23 de noviembre de 2018. Ahora, en este último voto se explicaron los alcances generales de la ley de ‘Fortalecimiento de las finanzas públicas’ en materia salarial y evaluación del desempeño, por lo que, en principio, corresponde al operador ordinario del derecho analizar las normas que debe aplicar de acuerdo con los criterios de constitucionalidad ahí establecidos. No está de más señalar que este Tribunal tomó en consideración que existían salvedades y exclusiones previstas en normas legales especiales que no habían sido derogadas por la ley de ‘Fortalecimiento de las finanzas públicas’; sin embargo, considero que, a los efectos de este proceso de control de constitucionalidad, basta con lo señalado en la resolución nro. 2018-19511 de las 21:45 horas del 23 de noviembre de 2018 (es decir, omito pronunciarme sobre lo resuelto en la sentencia nro. 2024007057 de las 10:10 horas de 14 de marzo de 2024). Justamente, en la opinión consultiva nro. 2018-19511 de las 21:45 horas del 23 de noviembre de 2018, además de lo citado ut supra en cuanto a la evaluación del desempeño, también señaló:

“c.- En cuanto a la materia salarial.

Atinente a este punto, el acuerdo ya mencionado plantea:

“ 2.) De conformidad con el anterior informe, se determina que el proyecto sí afecta la organización y funcionamiento del Poder Judicial, y que hay oposición al mismo, siempre y cuando no se elimine lo referente a:

(…)

d.- Las restricciones establecidas en el proyecto de ley en materia salarial y sus respectivos componentes para los funcionarios y las funcionarias del Poder Judicial.” Tras analizar el articulado del proyecto n.° 20.580, tocante a las modificaciones a la Ley de Salarios de la Administración Pública, la Sala recuerda que la afectación al sueldo de los funcionarios judiciales puede incidir en la independencia judicial. Según se expresó someramente en el citado voto n.° 2018-5758 de las 15:40 horas del 12 de abril de 2018:

“(…) Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, (…)” Ahora bien, se debe resaltar que la normativa cuestionada no es particular para los funcionarios judiciales, sino que abarca de manera generalizada a la Administración Pública. La importancia de este punto radica en el hecho de que la Sala ha sustentado un criterio sólido en cuanto a la improcedencia de consultas institucionales obligatorias (como las dispuestas en los numerales 167 y 190 de la Constitución Política), cuando un proyecto es de carácter nacional o general:

“(…) Ahora bien, propiamente sobre la consulta a la Caja Costarricense de Seguro Social, conforme se desprende del artículo 190 Constitucional (“Para la discusión y aprobación de proyectos relativos a una institución autónoma, la Asamblea Legislativa oirá previamente la opinión de aquélla.”) y la reiterada jurisprudencia de esta Sala (véanse las resoluciones números Sentencia 2012-02675 y 2008-004569) antes de la aprobación legislativa de un proyecto de ley relativo a una institución autónoma la Asamblea Legislativa debe oír la opinión de esta. Lo anterior, claro está, no significa que todo proyecto de ley o cualquier modificación relacionada con una institución autónoma mediante un proyecto de ley deba ser consultado a esta, sino, solamente, aquellos aspectos referidos a su constitución o estructura orgánica, o bien, los relativos al ámbito esencial de las competencias de las instituciones involucradas. En este caso, el proyecto de ley que dio origen a la ley cuestionada no tiene relación ni con la estructura orgánica de la Caja Costarricense de Seguro Social, ni tampoco con sus competencias, antes bien se refiere al establecimiento de una escala salarial para todas las instituciones públicas y privadas que contraten médicos, no sólo para la Caja. Si bien es cierto pudiera tener relación con sus finanzas, el legislador ordinario es competente y soberano para establecer criterios salariales a un determinado sector profesional. Por lo tanto, en este caso, no aplicaba la obligada consulta a la Caja Costarricense de Seguro Social, como parte del procedimiento parlamentario. En el mismo sentido en que esta Sala consideró que no era procedente la consulta obligatoria a las universidades públicas, mediante el voto 1602-98 se dijo:

“II. DEL INCUMPLIMIENTO AL TRÁMITE LEGISLATIVO (CONSULTA OBLIGADA A LA UNIVERSIDAD DE COSTA RICA). Sin embargo, con anterioridad, esta Sala en sentencia número 3530-97, de las quince horas con cincuenta y siete minutos del veinticuatro de junio de mil novecientos noventa y siete, conoció de la constitucionalidad de la normativa impugnada y por los mismos motivos en esta gestión señalados, concluyendo, en forma determinante, su conformidad con el orden constitucional, bajo las siguientes consideraciones:

“ I.- Inconstitucionalidad por omisiones en el trámite legislativo: En primera instancia, el accionante considera que la totalidad de la ley 6836 y el artículo 61 de la ley 7064 son inconstitucionales por vicios en el procedimiento de aprobación, pues por su contenido, de conformidad con lo que dispone el artículo 88 de la Constitución y 126 y 157 del Reglamento de la Asamblea Legislativa, son leyes de consulta obligada a las Universidades, por incidir directamente sobre materias puestas bajo su competencia. Sobre el artículo 88 citado, se estableció en sentencia número 1313-93 de las trece y cincuenta y cuatro horas del veintiséis de marzo de mil novecientos noventa y tres, que la específica competencia funcional de las Universidades, la llamada «especialidad orgánica» se refiere a «impartir enseñanza superior en diversas carreras universitarias, y otras actividades conexas» y esto es lo que tiende a garantizar la consulta constitucional. Las normas que se impugnan en esta acción se refieren a la fijación de salarios e incentivos para profesionales en ciencias médicas y no tienen relación directa con la competencia funcional de la Universidad y por ello, sobre este punto, se debe rechazar por el fondo la acción.

En virtud de lo anterior, es cabe desestimar la impugnación de la Ley de Incentivos a los Profesionales en Ciencias Médicas, número 6836, de veintidós de diciembre de mil novecientos ochenta y dos, en lo que se refiere al incumplimiento de trámites legislativos sustanciales.” (Sentencia n.° 2013-014736 de las 15:45 horas del 6 de noviembre de 2013) En sentido similar, la Sala indicó:

“V.- Rechazo de la acción en cuanto a al impuesto sobre bienes inmuebles y al impuesto al traspaso de bienes inmuebles.- Como se viene de explicarse, el accionante acude en su calidad de Alcalde de la Municipalidad de Belén e instruido por el Concejo Municipal de dicho cantón con el fin de defender los intereses de su comunidad frente a normas legislativas que dicen afectarles en los términos específicos arriba indicados, es decir en cuanto se trata de imponer prórrogas a las exoneraciones de tributos municipales sin cumplir con el trámite de consulta del artículo 190 Constitucional.- Ahora bien, la legitimación del párrafo segundo del artículo 75 de la Ley de la Jurisdicción Constitucional en que se apoya el accionante no le alcanza para cuestionar todos los tributos exonerados mediante la ley número 7210 de Zonas Francas, sino solamente para defender sus intereses respecto de los tributos de carácter municipal, vale decir los que han surgido a la vida jurídica por la iniciativa municipal en los términos del artículo 121 inciso 13) de la Constitución Política. De ese modo, debe rechazarse en primer lugar la objeción por falta de consulta en cuanto se dirige contra el impuesto sobre bienes inmuebles establecido en la ley número 7509 del 9 de mayo de 1995 y sus reformas, el cual -como lo indica la Procuraduría- posee un carácter nacional por haber sido emitido a través de una ley ordinaria, aún cuando la competencia tributaria para su administración y la definición del destino de los fondos le corresponda a las corporaciones municipales.- Este punto fue precisado con claridad por esta Sala en la sentencia número 2011-003075 que indicó:

A.- Sobre la jurisprudencia relacionada con el impuesto sobre bienes inmuebles. Uno de los aspectos que debe dirimir esta Sala está resuelto en la jurisprudencia de la Sala, al haberse determinado la naturaleza del impuesto, es decir, si es un gravamen municipal o nacional. Lo anterior tiene consecuencias para el enfoque de los reclamos planteados por la Municipalidad de Escazú. Los precedentes de esta Sala han reiterado que se trata de un impuesto nacional con destino municipal, y que, si bien se reconoce la iniciativa tributaria a las municipalidades, no es posible entender exclusividad en esta materia que limite la libertad de configuración cuando la iniciativa la ejerza el legislador. En este sentido, el Estado puede mediante impuestos nacionales dotar de recursos extraordinarios a las Municipalidades del país con el importante objetivo de financiarlas. (…)

Se concluye que no podría el accionante venir a reclamar la defensa de competencias municipales de participación en la configuración de tributos, respecto de un impuesto de incuestionable carácter nacional como lo es el citado impuesto sobre bienes inmuebles.- Los mismos razonamientos cabe hacer en relación con lo que el accionante identifica como impuesto de traspaso de bienes inmuebles y que, como también lo precisa el órgano asesor, parece referirse más bien al timbre municipal que debe pagarse como parte de la carga tributaria de algunas operaciones inscribibles en el Registro Público y que aparece regulado en el artículo 84 del Código Municipal, por lo que posee también un indudable carácter nacional.- En resumen, respecto de estos dos tributos recién citados, la acción planteada debe rechazarse de plano.” (Sentencia n.° 2015-7688 de las 9:00 horas del 27 de mayo de 2015).

En el caso de marras, las normas del proyecto relacionadas con materia salarial tienen aplicación general, sin que este Tribunal tenga elementos para considerar que estas llegarán a afectar en tal grado el sustento financiero de los funcionarios dedicados a la administración de justicia, como para que no se asegure al menos “una suficiencia económica digna ”.

La Sala no omite subrayar que las normas de la Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial no se ven afectadas por la reforma propuesta. Dichas normas posibilitan la autonomía del Poder Judicial en lo referido a cambiar su escala salarial o variar los salarios base. En ese sentido, nótese lo manifestado por la Ministra de Hacienda a Corte Plena:

“En cuanto a la posibilidad de que el proyecto afecte la independencia del Poder Judicial al regular la aplicación de determinados pluses, quisiera señalar de manera respetuosa que el proyecto no afecta o elimina la potestad del Poder Judicial de modificar su escala salarial o modificar los salarios bases. De modo que, si el Poder Judicial considerara que es necesario aumentar el salario de algún funcionario, tiene toda la potestad y autonomía para hacerlo. Particularmente, si el Poder Judicial considera que, ante la regulación de la dedicación exclusiva o las anualidades, es necesario incrementar el salario de algún funcionario, puede hacerlo al amparo de su independencia en materia salarial.” Esta observación no solo es compartida por la Sala, sino que determina con claridad indiscutible que el proyecto consultado no afecta la organización o funcionamiento del Poder Judicial en materia salarial.

Con fundamento en lo supra explicado, la Sala determina que la normativa cuestionada del proyecto legislativo 20.580 no afecta, en el sentido expuesto, la organización o funcionamiento del Poder Judicial.

• d)Finalmente, la Sala observa que el proyecto consultado es tramitado mediante el procedimiento especial establecido en el artículo 208 bis del Reglamento de la Asamblea Legislativa. Dicho numeral reza:

“Artículo 208 bis.-Procedimientos Especiales Mediante moción de orden, aprobada por dos tercios de sus votos, la Asamblea Legislativa podrá establecer procedimientos especiales para tramitar las reformas a su Reglamento y proyectos de ley cuya aprobación requiera mayoría absoluta, exceptuando la aprobación de contratos administrativos, los relacionados a la venta de activos del Estado o apertura de sus monopolios y los tratados y convenios internacionales sin importar la votación requerida para su aprobación. Todo procedimiento especial deberá respetar el principio democrático, y salvaguardar el derecho de enmienda.” (El subrayado es agregado).

La norma transcrita dispone que el procedimiento especial del 208 bis debe ser utilizado únicamente en proyectos cuya aprobación requiera mayoría absoluta. Además, para establecer tal procedimiento, las diputadas y los diputados deben llegar a un acuerdo de dos tercios de los votos. En otras palabras, para aplicar un procedimiento por el ordinal 208 bis, debe existir el consenso de una mayoría calificada de las diputadas y los diputados en cuanto a que el proyecto que se pretende tramitar por dicha vía es uno que puede ser aprobado por mayoría absoluta.

Por otro lado, este Tribunal también nota que la Asamblea Legislativa basó la consulta efectuada a la Corte Plena en el artículo 157 del Reglamento de la Asamblea Legislativa, norma que enumera las consultas institucionales de orden constitucional. Dicho ordinal es complementado por el artículo 126 del mismo Reglamento, toda vez que ambos se diferencian únicamente por la etapa del procedimiento en que se efectúa la consulta. Así, las consultas del numeral 126 son realizadas en comisión, mientras que aquellas del artículo 157 corresponden al plenario:

“ARTICULO 126.- Consultas constitucionales obligatorias Cuando en el seno de una comisión se discuta un proyecto o se apruebe una moción que, de acuerdo con los artículos 88, 97, 167 y 190 de la Constitución Política, deban ser consultados la consulta respectiva la efectuará el Presidente. Las consultas de las comisiones se considerarán como hechas por la propia Asamblea y, en lo pertinente, se aplicará lo dispuesto en el artículo 157 de este Reglamento.

(…)

ARTICULO 157.- Consultas institucionales Cuando en la discusión de un proyecto la Asamblea determine que debe ser consultado el Tribunal Supremo de Elecciones, la Universidad de Costa Rica, el Poder Judicial o una institución autónoma, y no lo hubiera hecho la Comisión, se suspenderá el conocimiento del proyecto, procediéndose a hacer la consulta correspondiente. Si transcurridos ocho días hábiles no se recibiere respuesta a la consulta a que se refiere este artículo, se tendrá por entendido que el organismo consultado no tiene objeción que hacer al proyecto. En caso de que el organismo consultado, dentro del término dicho, hiciera observaciones al proyecto, éste pasará automáticamente a la comisión respectiva, si la Asamblea aceptara dichas observaciones. Si ésta las desechare, respetando lo que determina la Constitución Política, el asunto continuará su trámite ordinario.” Retomando el caso concreto se observa que, efectivamente, la Asamblea Legislativa remitió a la aplicación del artículo 157 al dirigir la consulta institucional al Poder Judicial:

“Asunto: Consulta institucional conforme al artículo 157 del Reglamento de la Asamblea Legislativa, del texto actualizado del Expediente Legislativo N.° 20580, LEY DE FORTALECIMIENTO DE LAS FINANZAS PÚBLICAS.

Estimados señores:

Con instrucciones superiores y de conformidad con las disposiciones del artículo 157 del Reglamento de la Asamblea Legislativa, se consulta del texto actualizado del Expediente Legislativo N.° 20.580, LEY DE FORTALECIMIENTO DE LAS FINANZAS PÚBLICA, el cual se adjunta con la presente comunicación.

De conformidad con el artículo 157 del Reglamento de la Asamblea Legislativa, el plazo estipulado para referirse al proyecto es de ocho días hábiles contados a partir de la fecha de recibo del presente oficio; de no recibirse respuesta de la persona o ente consultado, se asumirá que no existe objeción por el asunto. (…)” (Oficio n.° AL-DSDI-OFI-0329-2018 del 5 de octubre de 2018, visible a folio n.° 19390 del expediente legislativo).

La Sala no desconoce que el trámite de aprobación de leyes requiere cierta flexibilidad – incluso, se habla del principio de flexibilidad parlamentaria –; sin embargo, no debe confundirse tal ductilidad de las formas con falta de congruencia o inconsecuencia en el actuar parlamentario.

Volviendo al caso de marras, si la Asamblea Legislativa se decantó por un procedimiento basado en el artículo 208 bis, por existir consenso en cuanto a la aprobación del proyecto por mayoría absoluta, entonces deviene incongruente que se inicie, dentro de ese trámite, un proceso de consultas constitucionales, a fin de determinar si el proyecto requiere mayoría calificada, como ocurrió en este caso.

No es, entiéndase bien, que la Asamblea Legislativa no pueda consultar a las instancias que determine pertinente. Tal conclusión sería errónea, pues el procedimiento parlamentario debe enriquecerse con los insumos de diversos sectores, lo que es propio del sistema democrático. Lo que sí es improcedente es dedicar recursos públicos de toda índole en un procedimiento tramitado bajo la incertidumbre de si su votación corresponde a una mayoría absoluta, cuando la norma (208 bis) expresamente requiere certeza en ese respecto. Si existió duda en cuanto al tipo de votación requerida para la aprobación del proyecto, entonces ab initio no debió optarse por un procedimiento basado en el artículo 208 bis. Tal actuar se opone a la eficiencia y razonabilidad que debe imperar en el actuar de la Administración.

En el caso concreto del expediente n.° 20.580 y según lo expresado anteriormente, la Sala constató que no guarda relación con la organización o el funcionamiento del Poder Judicial, por lo que desaparece la incertidumbre apuntada. Empero, este Tribunal sí determina que la consulta efectuada era improcedente por incongruente, con base en el razonamiento supra efectuado.

Corolario de lo expuesto, se evacuan los puntos c) y d), en el sentido de que la consulta efectuada por la Asamblea Legislativa a la Corte Suprema de Justicia es improcedente, puesto que a la luz del artículo 167 de la Constitución Política, dicho proyecto no viene a afectar la organización o funcionamiento del Poder Judicial, toda vez que mantiene sus competencias constitucionales propias específicamente en relación con los extremos consultados. En consecuencia, la aprobación del proyecto en cuestión no requiere la votación calificada dispuesta en el numeral 167 de la Constitución Política”.

En cuanto a los demás argumentos, comparto el criterio de la mayoría de la Sala y los precedentes jurisprudenciales citados.

Sobre el considerando XXIX “EXCLUSIÓN DE BENEFICIOS PARA JERARCAS Y OTROS SERVIDORES”.

En relación con este considerando, estoy de acuerdo tanto con la fundamentación efectuada por la mayoría como con la desestimatoria dispuesta.

Sobre el considerando XXX “MODALIDAD DE PAGO PARA LOS SERVIDORES PÚBLICOS”.

Con respecto a este apartado, concurro tanto con fundamentación efectuada por la mayoría como con la desestimatoria declarada.

Sobre el considerando XXXI “INCENTIVO POR CARRERA PROFESIONAL”.

En relación con este considerando, estoy de acuerdo con la fundamentación efectuada por la mayoría y la desestimatoria dispuesta, con las siguientes salvedades.

Aclaro que no emitido pronunciamiento alguno en cuanto a los principios de razonabilidad y no discriminación, pues no se desarrolló de manera fundada algún reclamo vinculado a estos.

Con respecto a la negociación colectiva sostengo que, en aplicación del numeral 62 de la Constitución Política, las convenciones colectivas pueden estar válidamente sujetas a disposiciones legales. A mayor abundamiento remito a los argumentos consignados ut supra en cuanto a la negociación colectiva; sin embargo, en concreto, considero que el mencionado artículo constitucional faculta al legislador a regular la creación de incentivos, compensaciones o pluses salariales a través de la ley, siempre que por esta vía no se vacíe de contenido el derecho a la negociación colectiva. Justamente, el ámbito de aplicación de esta última incluye una variedad de temas que va más allá de los límites, cuya negociación permanece invariable, por ejemplo, aquellos relacionados con la configuración del trabajo, régimen disciplinario, organizaciones sindicales, entre otros. El hecho de que una ley venga a regular las materias objeto de negociación colectiva no solo concuerda con la Constitución, sino que es prescrito por ella. A partir de lo anterior, en un determinado contexto de déficit fiscal grave, las medidas legislativas que se tomen encaminadas al sano manejo de las finanzas públicas y el principio de equilibrio presupuestario solo pueden ser derribadas por transgresiones más graves a otros derechos fundamentales, lo que no se constata en el sub examine.

Además, en cuanto a los incentivos salariales, debo señalar que, tal y como lo indiqué, los derechos adquiridos y las situaciones jurídicas consolidadas parten de un mínimo de cordura constitucional que no implica su reconocimiento en todos los casos (verbigracia, cuando existan situaciones aberrantes y groseramente inconstitucionales); sin embargo, en principio, pueden ser regulados válidamente hacia el futuro, por lo que prima facie descarto alguna lesión al numeral 34 de la Constitución Política. En consecuencia, comparto los razonamientos expuestos una vez hecha esta precisión. Reitero que este aspecto se encuentra cobijado por el principio de libre configuración del legislador (dentro de los límites permitidos por el Derecho de la Constitución) y no existe un derecho a la inmutabilidad del ordenamiento jurídico. Asimismo, en mi criterio, este tipo de decisiones del legislador son plenamente susceptibles de control de constitucionalidad, pero para ello debe existir una adecuada fundamentación por parte de las personas accionantes que permita a la Sala llevar a cabo la valoración de bienes jurídicos respectiva. En consecuencia, la Asamblea Legislativa puede regular a futuro los requisitos, montos y términos de los incentivos salariales. Ergo, tampoco observo alguna lesión al ordinal 74 constitucional.

Finalmente, no emito pronunciamiento alguno en cuanto a los escenarios planteados por la mayoría con respecto a la retención del personal y su capacitación, ni tampoco sobre los argumentos relacionados con tales temas, toda vez que considero que, en este momento, al Tribunal no le corresponde tomar postura al respecto, pues las disposiciones impugnadas se encuentran dentro de la libre configuración del legislador y no se desarrolló alguna inconstitucionalidad susceptible de ser declarada en este momento.

Sobre el considerando XXXII “CONVERSIÓN DE INCENTIVOS A MONTOS NOMINALES FIJOS”.

En relación con este considerando, estoy de acuerdo con la fundamentación efectuada por la mayoría y la desestimatoria dispuesta, con las siguientes salvedades.

En primer lugar, con respecto a la negociación colectiva sostengo que, en aplicación del numeral 62 de la Constitución Política, las convenciones colectivas pueden estar válidamente sujetas a disposiciones legales. A mayor abundamiento remito a los argumentos consignados ut supra en cuanto a la negociación colectiva; sin embargo, en concreto, considero que el mencionado artículo constitucional faculta al legislador a regular la creación de incentivos, compensaciones o pluses salariales a través de la ley, siempre que por esta vía no se vacíe de contenido el derecho a la negociación colectiva. Justamente, el ámbito de aplicación de esta última incluye una variedad de temas que va más allá de los límites, cuya negociación permanece invariable, por ejemplo, aquellos relacionados con la configuración del trabajo, régimen disciplinario, organizaciones sindicales, entre otros. El hecho de que una ley venga a regular las materias objeto de negociación colectiva no solo concuerda con la Constitución, sino que es prescrito por ella. A partir de lo anterior, en un determinado contexto de déficit fiscal grave, las medidas legislativas que se tomen encaminadas al sano manejo de las finanzas públicas y el principio de equilibrio presupuestario solo pueden ser derribadas por transgresiones más graves a otros derechos fundamentales, lo que no se constata en el sub examine.

Además, en cuanto a los incentivos salariales, debo señalar que, tal y como lo indiqué, se encuentran cobijados por el principio de libre configuración del legislador (dentro de los límites permitidos por el Derecho de la Constitución) y no existe un derecho a la inmutabilidad del ordenamiento jurídico. Asimismo, en mi criterio, este tipo de decisiones del legislador son plenamente susceptibles de control de constitucionalidad, pero para ello debe existir una adecuada fundamentación por parte de las personas accionantes que permita a la Sala llevar a cabo la ponderación de bienes jurídicos respectiva. En consecuencia, la Asamblea Legislativa puede regular a futuro los requisitos, montos y términos de los incentivos salariales.

Por su parte, comparto las desestimatorias por insuficiente motivación y demostración de agravios, así como los aludidos problemas de legalidad susceptibles de ser valorados en las instancias ordinarias.

Sobre el considerando XXXIII “REFORMAS AL ART. 57 DE LA LEY DE SALARIOS DE LA ADMINISTRACIÓN PÚBLICA”.

En relación con este considerando, estoy de acuerdo tanto con la fundamentación efectuada por la mayoría como con la desestimatoria dispuesta.

Paul Rueda L.

Res. N°2025-008201 1. Voto salvado del Magistrado Cruz Castro respecto de la legitimación de los accionantes para la defensa de las autonomías institucionales, responsabilidad fiscal y destino de los superávits libres.- Además de lo indicado por la mayoría, considero que los accionantes también ostentan legitimación suficiente para la defensa de las autonomías institucionales, responsabilidad fiscal y destino de los superávits libres, por tratarse todos ellos -en mi criterio- categorías incluidas dentro de los intereses difusos. Tal como lo he indicado en votos anteriores (sentencia número 2015-19623 de las once horas cincuenta minutos del dieciséis de diciembre del dos mil quince y sentencia número 2016-01669 de las nueve horas y treinta minutos del tres de febrero de dos mil dieciséis), aplico un criterio más amplio en la admisión de la acción en defensa de la autonomía de las instituciones descentralizadas. En este caso, aplico el mismo criterio, pues se trata de intereses de tal relevancia que su defensa no puede quedar limitada a los personeros o representantes de una determinada institución.

Considero que en la defensa de los intereses institucionales y/o de la autonomía de las instituciones descentralizadas existe un interés de relevancia social y política que no debe quedar bajo el control exclusivo de los representantes de la institución. No puedo ignorar que los condicionantes políticos que determinan la actuación de los jerarcas y representantes de las instituciones exigen, como contrapeso, que la propia ciudadanía pueda señalar los vicios o los actos que lesionan los intereses institucionales. Así que, desde el punto de vista político y constitucional no es admisible que sólo los personeros de la institución sean los que defiendan sus intereses. Muchas veces no lo pueden hacer porque su nombramiento tiene un ligamen político poderoso con el Poder Ejecutivo. Los valores y principios que sustentan la autonomía de los entes autónomos, tiene mayor relevancia que el compromiso de los personeros que transitoriamente representan a la institución. En esa defensa hay un interés que incide en el equilibrio de poderes, la participación ciudadana y la transparencia. La autonomía institucional tiene especial relevancia en función del principio de equilibrio de poderes y el fortalecimiento de la democracia. La defensa de la institución y su autonomía son valores de mayor relevancia que la misma institución, por esta razón discrepo del criterio de mayoría en el sentido que sólo los representantes institucionales son los que pueden defender los intereses de relevancia constitucional ante esta instancia. La transparencia, el equilibrio de poderes y la participación ciudadana requieren criterios más amplios en la admisibilidad de la acción, razón por la que me aparto del criterio de mayoría y me inclino por salvar el voto en este aspecto. Los ciudadanos que no son representantes institucionales en sentido estricto, deben tener mayor protagonismo, porque la autonomía y los intereses de los entes autónomos no interesa sólo a sus jerarcas. La democracia se fortalece en la discusión de estos temas constitucionales. Es una materia relevante para el equilibrio de poderes y la transparencia. En virtud de lo expuesto, también considero que a los accionantes les asiste legitimación para la defensa de intereses difusos relacionados con la responsabilidad fiscal y destino de los superávits libres. Los accionantes, en tanto ciudadanos, están legitimado para plantear su objeción constitucional en esos términos. Esta apertura propicia el control y la participación ciudadana en asuntos tan relevantes para la democracia como la materia fiscal.

2. Voto salvado del Magistrado Cruz Castro respecto de las anualidades (art.50 y transitorio XXXI) El criterio de mayoría indica que “dado que otorgar o reconocer anualidades, responde a criterios de oportunidad y conveniencia que el legislador debe establecer, no se considera que el mecanismo regulatorio establecido sea abiertamente irrazonable o desproporcionado.” Concluyendo que los pluses y su crecimiento es materia disponible para el legislador. Ahora bien, en voto salvado al voto n°2024-07057 de las 10:10 horas del 14 de marzo de 2024, he indicado lo siguiente: Si bien es cierto no existe un derecho a la inmutabilidad de las normas, y ello permite que la forma de cálculo de anualidades FUTURAS se pueda cambiar. Es lo cierto que las anualidades ya contabilizadas tenían una forma de cálculo que debe seguirse respetando en el futuro, so pena de considerarse una violación a derechos adquiridos y situaciones jurídicas consolidadas. Consideré además que, en aplicación de las normas y principios constitucionales, debe reconocerse que existe una situación jurídica consolidada a favor de los trabajadores públicos, la cual consiste en el derecho a continuar recibiendo -en el futuro- el pago efectivo de anualidades ganadas antes de la entrada en vigencia de la ley, pero además, que dicho pago se calcule según el método (cálculo porcentual) que rigió en su momento y que, debe mantenerse, no sólo porque la ley así lo ordenó, sino porque el mismo artículo 34 Constitucional así lo establece. Correspondiendo únicamente dejar el pago en forma nominativa solo para las anualidades que se ganen en el futuro. Con ello se protegen los efectos jurídicos de una situación jurídica consolidada, que tiene relación directa con el derecho al salario. El monto de las anualidades ya se definieron, no pueden variarse retroactivamente; se trata de un derecho adquirido, si se quiere variar lo que se definió antes de la vigencia, de la ley, debe reconocerse un monto específico de indemnización.

Por lo demás, si bien se considera las anualidades como un plus salarial, es lo cierto que su protección cabe dentro del derecho al salario. En general, sobre el derecho al salario, la jurisprudencia constitucional ha indicado que: “El salario como remuneración debida al servidor en virtud de una relación estatutaria, por los servicios que haya prestado, no es sólo una obligación del empleador, sino un derecho constitucionalmente protegido.” (ver voto n°2015-009504). Derecho fundamental que, por demás, resulta irrenunciable (art. 74 constitucional). Esta vinculación del derecho al salario con la dignidad humana se encuentra no solo en la Constitución Política, sino también en instrumentos de Derecho Internacional. Así, el artículo 23.3 de la Declaración Universal de Derechos Humanos establece: “3. Toda persona que trabaja tiene derecho a una remuneración equitativa y satisfactoria, que le asegure, así como a su familia, una existencia conforme a la dignidad humana y que será completada, en caso necesario, por cualesquiera otros medios de protección social”. La dignidad humana es el criterio rector en el desarrollo del contenido esencial del derecho al salario y sus límites, pues lo que se busca es que el trabajador cuente con un nivel de vida adecuado, de acuerdo con sus necesidades elementales. Los salarios mínimos buscan propiciar que los servidores públicos y sus familias lleven una vida digna; sin embargo, esta base salarial no garantiza, por sí misma, que los niveles establecidos cumplan realmente esa condición. Ante esta situación, la Ley prevé el aumento de salarios. En este sentido, sería inconstitucional congelar salarios, pero además, disminuir salarios, variando la forma de cálculo de las anualidades, como lo es en este caso. Se trata de una variación retroactiva. Si el trabajo se concibe como un derecho del individuo cuyo ejercicio beneficia a la sociedad, y el Estado como empleador en una relación estatutaria tiene la obligación de pagar de manera periódica el salario, que es un derecho constitucionalmente protegido (ver sentencia N° 2009-008062 de las 21:35 horas del 13 de mayo de 2009), no es aceptable constitucionalmente una norma que tenga como efecto su reducción. En este sentido, nunca las crisis económicas deben justificar la disminución o regresión en la protección de los derechos sociales, como lo es en este caso, el derecho al salario. No es cualquier derecho, es uno de los elementos nucleares del derecho al salario.

En virtud de lo anterior, he considerado bajo estos mismos razonamientos, salvar el voto, por estimar que los artículos 50 y el transitorio XXXI de la ley impugnada, al establecer un modo diferente de calcular las anualidades ya contabilizadas, lo hace en violación de derechos adquiridos, situaciones jurídicas consolidadas y del derecho al salario y dignidad humana del trabajador público.

3. Voto salvado parcial del Magistrado Cruz Castro respecto de la inconstitucionalidad de los artículos 54, 55 y los transitorios XXVII y XXXI.- En este apartado, he considerado inconstitucionales los artículos 54, 55 y los transitorios XXVII y XXXI, conforme lo indico a continuación.

-El art. 54 impugnado se refiere a la “conversión de incentivos a montos nominales fijos”, sin considerar la existencia de convenciones colectivas con otro tipo de disposiciones.

-El art.55 se refiere a la creación de incentivos y compensaciones salariales solo mediante ley, desconociendo otras disposiciones normativas como lo serían las convenciones colectivas. En este sentido comparto y traigo a colación en este caso, lo que esta Sala indicó en la opinión consultiva n°2018-019511, donde concluyó que resulta contrario al Derecho de la Constitución ‒en específico a la libertad sindical y al derecho a la negociación colectiva‒ que el legislador impida que los extremos relacionados con componentes salariales puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal. En esa oportunidad la Sala determinó que el art. 55 no debía percibirse inconstitucional, bajo el entendido de que no aplica para aquellos trabajadores del sector público que sí pueden celebrar convenciones colectivas de trabajo. Sin embargo, mi posición va incluso más allá de ello, pues considero que todo el contenido del art.55, resulta inconstitucional, por desconocer el derecho a la negociación colectiva consagrado en el artículo 62 constitucional.

-El Transitorio XXVII se refiere a la aplicación del auxilio de cesantía, limitando el pago su pago en los casos que superen los doce años.

-El transitorio XXXI, tal como se dijo, establece un modo diferente de calcular las anualidades ya contabilizadas.

Todas estas normas resultan violatorias de nuestro Derecho de la Constitución, debido a varias razones. En primer lugar, implican una derogatoria de las convenciones colectivas y reglamentos o estatutos que ya contienen disposiciones sobre el pago de incentivos o compensaciones en forma porcentual; o que han creado incentivos y compensaciones salariales por esa vía. Por ello se trata de una violación al derecho de la negociación colectiva. Todo además en violación de derechos adquiridos, situaciones jurídicas consolidadas y del derecho al salario y dignidad humana del trabajador público.

Asimismo, en cuanto al tope del auxilio de cesantía repito lo que he indicado en votos salvados anteriores:

“La cesantía, expresión del derecho social solidario y el seguro de desempleo. En el mismo sentido en que lo he expresado en votos anteriores, no considero que las normas de Convenciones Colectivas que establezcan el pago del auxilio de cesantía en supuestos de renuncia del trabajador, sean inconstitucionales, sino todo lo contrario. Bajo una tesis similar a la expresada por esta Sala en el voto número 2000-00643, considero que, el artículo 63 constitucional no prohíbe que se otorgue el llamado auxilio de cesantía aun en la hipótesis en que no hay despido "sin justa causa". Lo que sí manda, con carácter supremo, diríase, es que siempre que el despido sea incausado, procede la indemnización. Pero no prohíbe el que pueda otorgarse y reconocer, jurídicamente, un tipo de auxilio de cesantía en cualquier otro caso. Además, el artículo 74 de la Constitución Política es claro en señalar que los derechos y beneficios que contiene su Título de Derechos y Garantías Sociales, no excluyen otros que se deriven del principio cristiano de justicia social y que indique la ley. Además, tal como lo indiqué el voto salvado al voto número 2008-001739, en relación con el artículo 72 Constitucional y el seguro de desempleo, las autoridades públicas han incurrido en una omisión al mandato que establece el artículo 72 de la Constitución Política en el sentido que: “mientras no exista seguro de desocupación”, lo cual incluso es reforzado por otro mandato tácito que posee el mismo contenido (sea el artículo 63 ídem), el cual establece: “Artículo 63.- Los trabajadores despedidos sin justa causa tendrán derecho a una indemnización cuando no se encuentren cubiertos por un seguro de desocupación.” Ninguna de las autoridades públicas con poder normativo han tomado las medidas necesarias para dotar de plena exigibilidad los mandatos implícitos que establecen los artículos 63 y 72 constitucionales sobre el seguro por desocupación (pese a que ello ha sido exigido desde el momento en que ha sido promulgada la Constitución, es decir el 8 de noviembre de 1949), todo lo cual sin duda constituye una omisión injustificada que viola, a toda luz, el Derecho de la Constitución. Es claro que la configuración del auxilio de cesantía en los términos en que ha sido diseñado por la Ley de Protección al Trabajador, a diferencia de lo que sostiene el Órgano Asesor y el Presidente de la Asamblea Legislativa, en modo alguno exime al Estado de su obligación de asegurar a los trabajadores desocupados el pleno disfrute de sus derechos fundamentales, entre ellos su derecho al seguro por desocupación, por la falta de desarrollo infraconstitucional que permita la exigibilidad plena de esta cláusula constitucional de ejecución diferida, todo lo cual sin duda incide sobre la noción de la Constitución como Norma Jurídica dotada de coercitividad. El artículo 63 de la constitución es una disposición esencialmente transitoria, en la que se asume que deberá producirse un desarrollo progresivo del ordenamiento y de las políticas estatales con el fin de establecer un seguro de desocupación, pues los trabajadores despedidos con justa causa, no encuentran una respuesta solidaria que les permita sobrevivir dignamente mientras logran encontrar otro trabajo; por otra parte, en muchos casos, la indemnización por cesantía, sólo cubre, temporalmente, los gastos que demanda el trabajador y su familia, sin desconocer, además, que la litigiosidad de esta compensación económica, impide que el asalariado despedido con justa causa, reciba, tardíamente, la indemnización que le corresponde. El plazo para el desarrollo progresivo de un marco normativo y de una política que asegure la existencia digna de los ciudadanos desocupados, ha excedido parámetros de razonabilidad, pues es un mandato que sigue sin cumplirse después de cincuenta y nueve años de haberse promulgado. Esta omisión se profundiza en un ambiente político en el que se promueve una restricción de los derechos de todos los ciudadanos que dependen de un salario, aunque éste sea muy elevado. La omisión de las autoridades encargadas de las definición de políticas de solidaridad y desarrollo social, según las previsiones de los artículos 50 y 74 de la norma fundamental, no han desarrollado una política integral y solidaria que se traduzca en un sistema que le dé una respuesta específica a los desocupados involuntarios, concepto que incluye, desde una perspectiva del desarrollo de la dignidad de la persona, el sub-empleo o empleo informal. La complejidad del fenómeno de la desocupación exige un marco normativo y una política estatal que visibilice, en toda su extensión, un fenómeno que incide en la dignidad del desocupado y que es un componente fundamental de la solidaridad que prevé el artículo setenta y cuatro de la constitución. El trabajo, el derecho a la vida y la libertad, son parte esencial de la dignidad, su ausencia lesiona directamente la dignidad de la persona. Como bien lo establece la doctrina social de la Iglesia, que es un referente ideológico que el artículo 74 de la constitución, “…Quien está desempleado o subempleado padece, en efecto, las consecuencias profundamente negativas que esta condición produce en la personalidad y corre el riesgo de quedar al margen de la sociedad y de convertirse en víctima de la exclusión social. Además de a los jóvenes, este drama afecta, por lo general, a las mujeres, a los trabajadores menos especializados, a los minusválidos, a los inmigrantes, a los ex reclusos, a los analfabetos, personas todas que encuentran mayores dificultades en la búsqueda de una colocación en el mundo del trabajo…” (Ver “Compendio de la Doctrina Social de la Iglesia” Celam. 2005- p. 208) La norma constitucional sobre el seguro de desempleo fue presentada por el grupo social demócrata; uno de sus representantes, el Lic. Rodrigo Facio, expresó algunos comentarios que mantienen actualidad y que explican la necesidad de convertir esta norma en derecho viviente. Señalaba el constituyente Facio que “… en la fórmula general que han sometido al conocimiento de la Cámara no hace referencia al género de asistencia que proveerá el Estado a los desocupados, asunto que se resolverá de acuerdo con las circunstancias y condiciones económicas del Fisco, y especialmente de acuerdo con la naturaleza del fenómeno de desocupación que se presente. La asistencia puede ser mínima o llegar a ser lo suficientemente amplia para que el desocupa-do y su familia no sufran la falta del salario del primero. Añadió que el principio debe establecerse, ya que se trata de una de las pocas garantías sociales cuya naturaleza no es clasista. Todas las garantías sociales de nuestra Constitución son disposiciones relacionadas con los conflictos obrero-patronales. En cambio, el principio que se propone se sitúa al margen de estos conflictos clasistas, y contempla al obrero cuando precisamente necesita más la ayuda del Estado, cuando pierde el trabajo, al quedar cesante. El momento más trágico del trabajador es cuando se queda sin ocupación. La Constitución debe necesariamente prestar atención a ese problema. Es cierto que en casos de crisis económica será muy difícil, tanto la asistencia como la reintegración del trabajador a sus labores, pero la dificultad no es óbice para no dejar en la Constitución una fórmula general que deje constancia del interés del Estado por el problema de la desocupación. Se refirió a los métodos empleados por el extinto Presidente Roosevelt para solucionar el grave problema de la desocupación que se le presentó a los Estados Unidos durante la crisis económica mundial iniciada en el año 29. Roosevelt resolvió el grave problema echando mano a una serie de recursos que muchas críticas levantaron, pero que sirvieron para comenzar a atacar el problema: inició obras públicas y una amplia política de subsidios, finan-ciados con déficits presupuestarios….”, posteriormente, ante las objeciones de algunos constituyentes, Facio argumentó que “.. todos estaban de acuerdo en que el fenómeno de la desocupación es uno de los más graves y difíciles del mundo con-temporáneo. No por el hecho de que nuestro país esté al margen de ese problema como problema normal del mundo industrial, debemos despreocuparnos del mismo. Agregó que estaba de acuerdo con el señor Arias en que la fórmula adecuada y razonable para solucionar el problema de la cesantía estaba en el seguro de desocupación. Por esa razón, su fracción presentó en una de las sesiones anteriores la fórmula -que se aprobó- de que el trabajador despedido injustamente de su trabajo recibirá una indemnización, siempre y cuando no estuviera establecido el seguro de desocupación. Sin embargo, entiendo que el seguro de desocupación es difícil de establecer, máxime en un medio como el nuestro, que no se puede crear de golpe. Por tanto, mientras no se llegue al establecimiento del mismo, el Estado, por los medios más adecuados, debe hacer frente al problema de la desocupación. Aun en los países más organizados y económicamente poderosos como los Estados Unidos, donde los seguros han alcanzado una gran extensión y una gran eficiencia, en el presupuesto cuando la desocupación crece, existe un renglón importante de muchos millones de dólares para hacer frente a la desocupación. ¿Por qué? Porque el Seguro no puede dar abasto por sí solo. En Costa Rica, país poco organizado y débil económicamente, el establecimiento del seguro de desocupación sería difícil de alcanzar. La Misma Caja de Seguro Social tropieza con una serie de dificultades con los seguros hasta ahora establecidos. Agregó que el problema del auxilio de cesantía es muy difícil. Prácticamente sólo existen dos soluciones para el mismo -como lo ha demostrado en varios artículos que recientemente publicara el Licenciado don Hernán Bejarano- que son: el auxilio de cesantía en la forma establecida y el seguro de desocupación. El ideal sería llegar al seguro de desocupación. Sin embargo, mientras no se logre ese desiderátum, debe establecerse una institución que se haga cargo de esos servicios de protección y reintegración del desocupado al trabajo…” Estas palabras de Rodrigo Facio, adquieren mayor relevancia a pesar del tiempo transcurrido, son las visiones que adquieren permanencia en el imaginario de justicia que debe guiar a la sociedad en su desarrollo humano y equitativo. Después de tantas décadas, es razonable que el seguro de desocupación se convierta en una pretensión tangible, la situación ideal a la que se refirió Rodrigo Facio. Es lógico admitir que el seguro de desocupación pudiese parecer una meta lejana en 1949, pero tal lejanía y postergación no es justificable en el actual desarrollo económico y social que tiene el país. La desocupación involuntaria es un tema que incide en el desarrollo de la dignidad de la persona y que exige una respuesta específica, conforme a las aspiraciones y características que definen el estado solidario o del bienestar. Es claro que en razón de la fuerza normativa de la Constitución, toda ella es exigible a la actuación de los poderes públicos, “en toda su integridad, en todas sus partes, en todos sus contenidos, también en sus implicitudes”. Así entonces, frente al hecho que la Constitución Política es una constitución de mínimos, y de que ha habido una omisión de las Autoridades Públicas en establecer el seguro de desempleo, resulta razonable que, mediante otras figuras al alcance del trabajador, como lo son las Convenciones Colectivas, se puedan establecer supuestos que favorezcan al trabajador que quede desempleado, por las razones que fueren. Lo cual va también en la línea de considerar al auxilio de cesantía, como un instituto que ha evolucionado, para poder convertirse en un verdadero derecho real, tal como así se establece, por ejemplo, en la Ley de Asociaciones Solidaristas. Por otro lado, tampoco considero inconstitucional aquellas cláusulas de convenciones colectivas que rompan el nuevo tope establecido por esta Sala de doce años. Aunque ya había estado de acuerdo, anteriormente, con el establecimiento del tope de veinte años, no estimo que existan razones para reducirlo en esta ocasión a doce años, y considerar inconstitucional cuando se superen los doce años. Esta instancia constitucional no puede ser la vía para que con relativa facilidad se le reduzcan garantías y beneficios a los trabajadores. Ha sido reiterada la jurisprudencia de esta Sala, en donde se ha aceptado la existencia de topes mayores fijados, por convenciones colectivas, a los establecidos en el Código de Trabajo, por cuanto se ha entendido que dicho código establece reglas mínimas que pueden ser superadas, claro está, siempre y cuando se haga dentro de parámetros de razonabilidad y proporcionalidad. No considero que superar un máximo de doce años, en comparación con los ocho que establece el Código de Trabajo, sea inconstitucional.

Nótese además, las siguientes variaciones de criterio que esta Sala ha tenido respecto de estos temas:

• a)LA CESANTÍA SE PUEDE PAGAR EN CUALQUIER CASO, INCLUSO EN CASO DE RENUNCIA, EN PARTICULAR PARA LOS SOLIDARISTAS DEL SECTOR PÚBLICO O PRIVADO, PERO NO SI ESTO SE ESTABLECE POR MEDIO DE UNA CONVENCIÓN COLECTIVA DE TRABAJO EN NEGOCIACIÓN CON LOS SINDICATOS.- Cuando la reforma a la cesantía de la Ley de Protección al Trabajador se consultó a la Sala Constitucional, se dijo que la Constitución Política no impide que el auxilio de cesantía se pague en otros casos distintos al despido injustificado. Así, en el voto 2000-643 se señaló que es posible pagar la cesantía en caso de renuncia al empleo o despido justificado, pero que lo que exige la Constitución es que en caso de despido injustificado se pague siempre:

“En contraste con el criterio que ha venido prevaleciendo en la discusión del proyecto consultado, para este tribunal el artículo 63 constitucional no prohíbe que se otorgue el llamado auxilio de cesantía aun en hipótesis en que no hay despido "sin justa causa". Lo que sí manda, con carácter supremo, diríase, es que siempre que el despido sea incausado, procede la indemnización.” (Sala Constitucional, voto no. 2000-00643, considerando III).

De tal manera, la Sala estableció que la cesantía se puede transformar en un derecho adquirido, que puede incluso pagarse en caso de despido sin justa causa. Siguiendo esta idea, La Ley de Asociaciones Solidaristas había establecido desde 1984, que la cesantía acumulada en el fondo de cesantía, la recibiría el trabajador en cualquier caso. Otro tanto habían hecho convenciones colectivas. Sin embargo, en sentencia reciente (7690-2018, reiterada por otras) sobre la convención colectiva de trabajo del Sistema Nacional de Radio y Televisión (SINART), se declaró inconstitucional el pago de cesantía en caso de renuncia. De forma tal que podemos sintetizar la jurisprudencia de la Sala Constitucional en que se puede pagar la cesantía en cualquier caso, incluso en caso de renuncia, en el sector público y privado, sobre todo si se es solidarista, pero no si se es sindicalista, es decir, si se negocia por medio de una convención colectiva de trabajo. No deja de ser paradójico que se admite en un supuesto y se suprima, si se trata de una convención colectiva.

b. LA CESANTÍA SE PUEDE PAGAR SIN LÍMITE DE AÑOS, EN EL SECTOR PÚBLICO Y EN EL SECTOR PRIVADO, SI SE ES SOLIDARISTA O SI SE ESTABLECE POR LEY, PERO NUNCA SI SE HACE POR CONVENCIÓN COLECTIVA DE TRABAJO. TAMBIÉN SE PUEDE PAGAR UNA CESANTÍA QUE IGNORE TOTALMENTE LOS CRITERIOS DE ANTIGÜEDAD Y SALARIO DEVENGADO POR LOS TRABAJADORES, SI LA CESANTÍA SE ESTABLECE PARA PRIVATIZAR UNA INSTITUCIÓN PÚBLICA.- El tope de 8 años de cesantía fue modificado en Costa Rica por diversos mecanismos, logrando topes mayores que van de los 9 años al pago sin límite de años. Esto se ha hecho por diversos mecanismos. Veamos algunos:

• La ley de asociaciones solidaristas (art. 18 inc. B) establece el pago de auxilio de cesantía sin límite de años, es decir, si una persona trabaja 40 años para una institución pública o para un empleador privado, tiene derecho a 40 años de auxilio de cesantía.

• El Estatuto de servicio civil (art. 37 inc. f y 47) establece que, si un trabajador es despedido por reestructuración institucional, tiene derecho a la cesantía por todos los años laborados, es decir, sin límite de años.

• La misma Ley de Protección al Trabajador que transformó una parte del auxilio de cesantía en el Fondo de Capitalización Laboral que deposita mes a mes el empleador sin límite de años en una cuenta a nombre de la persona trabajadora.

• La Reforma Procesal Laboral (Código de Trabajo reformado por la RPL, art. 576) establece que si un trabajador-a protegido-a por fuero especial, obtiene una sentencia que anula el despido y ordena su reinstalación en el empleo, la persona trabajadora puede sustituir su reinstalación con el pago de auxilio de cesantía sin límite de años.

• Por convenciones colectivas se ha roto el tope de cesantía, estableciendo topes mayores a 8 años, incluso estableciendo la cesantía sin límite de años, es decir, por todo el tiempo efectivamente laborado.

En todos estos casos el auxilio de cesantía se calcula en función de los criterios definidos por el Código de Trabajo: antigüedad y salario devengado por la persona trabajadora. No obstante, a principios de los años 2000, la convención colectiva del INCOP estableció una norma muy especial, ya que no solo rompió el tope de cesantía estableciéndolo en 12 años, sino que además estableció que, si la relación laboral terminaba por privatizarse el INCOP (cosa que finalmente sucedió), los trabajadores recibirían un auxilio de cesantía ADICIONAL a los 12 años establecido en una tabla que iba de los US$6.000 si se tenía un año de antigüedad hasta llegar una cesantía ADICIONAL de US$50.000 si se tenía treinta años de antigüedad. Al respecto, la Sala Constitucional resolvió la consulta de la siguiente manera:

“V.- CONVENCIÓN COLECTIVA Y FUNDAMENTO DE LA TRANSFERENCIA. En criterio de los consultantes la celebración de un acuerdo entre los diversos sectores involucrados en el fortalecimiento y modernización del INCOP y la posterior adición a la convención colectiva para agregar la indemnización consultada a los trabajadores cesados de esa entidad, no son suficientes para dar sustento a tal beneficio extraordinario o gratificación. En lo atinente a este punto, en el considerando IV ya se expusieron las razones por las cuales este Tribunal no entiende que la indemnización adicionada a la convención colectiva sea una suerte de regalía o liberalidad singular y, por ende, inconstitucional. La norma presupuestaria consultada no es atípica, puesto que, la indemnización se encuentra adicionada a la convención colectiva de la institución en beneficio de los trabajadores, siendo que ésta tiene, según lo dispuesto, en el numeral 62 de la Constitución Política, fuerza de ley.” Es decir, la Sala Constitucional en esa ocasión señaló que bastaba que tal cesantía adicional estuviera incluida en una convención colectiva de trabajo para que fuera constitucional. Poco tiempo después, la Sala Constitucional declaró inconstitucional una norma de la Convención Colectiva de Trabajo de la Junta de Protección Social (JPS), que copiaba casi literalmente la norma del Estatuto de Servicio Civil, es decir, señalaba que si la institución era reestructurada los trabajadores recibirían el auxilio de cesantía sin límite de años, es decir, se pagaría reconociendo todos los años efectivamente laborados por las personas trabajadoras. En este caso, la Sala Constitucional declaró inconstitucional la norma de la convención colectiva por irrazonable y desproporcionada (06727-2006). Finalmente, por muchos años, la Sala Constitucional estableció un nuevo tope de cesantía en 20 años, manteniendo que, ese era un tope razonable. En la actual coyuntura donde los vientos políticos soplan en contra de lo público y en particular de los servidores públicos, la Sala Constitucional dice que el tope de cesantía la encuentra en 12 años y ya no en 20. La visiones políticas han cambiado, orientándose hacia una visión restrictiva, en contradicción con lo que fue la visión original que inspiraron el espíritu de las garantías sociales introducidas con gran optimismo en 1943. En definitiva, según la jurisprudencia actual de la Sala Constitucional:

• no importa otorgar cesantías exageradas sin relación alguna a ningún tipo de criterio si es para permitir la privatización de una institución pública; • es constitucional pagar la cesantía en caso de renuncia en el sector público por medio de las asociaciones solidaristas, pero jamás por medio de convenciones colectivas negociadas con sindicatos; • es constitucional pagar la cesantía sin límite de años en el sector público por medio de las asociaciones solidaristas, pero jamás por medio de convenciones colectivas negociadas con sindicatos.

Así entonces, considero la desproporción más allá de los veinte años, pero no estimo desproporcionado el reconocimiento de la cesantía por plazos mayores a los doce e inferiores a veinte años. La mejora de las condiciones de los trabajadores, por medio de mecanismos que superen los mínimos establecidos en el Código de Trabajo, no me parecen inconstitucionales, siempre y cuando no resulten desproporcionados e irracionales. La Sala se ha convertido en un árbitro de la razonabilidad y proporcionalidad respecto de los beneficios concedidos a los trabajadores, pero esa evaluación, por diversas razones, no se aplica a otros sectores sociales y económicos. El trabajador depende de beneficios salariales y sociales, eso no ocurre con otros sectores de la economía laboral. Hay una vulnerabilidad estructural de la mayoría de los trabajadores públicos y privados. Esa condición no hay que perderla de vista en una sociedad que se guía orienta por el principio de solidaridad. Por esta razón, superar el pago de cesantía, para este tipo de empresas estatales, más allá de los doce años, siempre y cuando no sea mayor a los veinte años, no resulta irrazonable, sino que se justifica, por ejemplo, en estímulos para que la institución intente retener a sus empleados con mayor experiencia y con ello beneficiar el ejercicio de la función pública y los servicios públicos. Se justifica, además, porque el trabajador no tiene más fuente de ingreso que los beneficios que recibe por su trabajo, en esta situación, no tiene alternativa.” Finalmente, en cuanto al modo diferente de calcular las anualidades ya contabilizadas, reitero lo indicado en el voto salvado al voto n°2024-07057:

“Voto Salvado del Magistrado Cruz Castro.- El cambio en el pago de anualidades y pluses salariales ganados con anterioridad a la ley (para que ahora se pague de forma nominal y no porcentual) es inconstitucional porque es una disminución al derecho al salario y una aplicación retroactiva de la ley (…)

-Si bien es cierto no existe un derecho a la inmutabilidad de las normas, y ello permite que la forma de cálculo de anualidades FUTURAS se pueda cambiar. Es lo cierto que las anualidades ya contabilizadas tenían una forma de cálculo que debe seguirse respetando en el futuro, so pena de considerarse una violación a derechos adquiridos y situaciones jurídicas consolidadas.

-Violación al principio de irretroactividad: claramente del art.34 Constitucional se desprende que las leyes no pueden tener efecto retroactivo, en perjuicio de derechos patrimoniales adquiridos. En este caso se trata de una norma reglamentaria con efecto retroactivo, en perjuicio del derecho al salario. Además, claramente hay un exceso de la potestad reglamentaria, por ir más allá que lo indicado en la ley cuando se observa que, la citada ley es clara al disponer, en su Transitorio XXV, que "El salario total de los servidores que se encuentren activos en las instituciones contempladas en el artículo 26 a la entrada en vigencia de esta ley no podrá ser disminuido y se les respetarán los derechos adquiridos que ostentan”, mientras que el artículo 3 del reglamento aludido dispone que: “Corresponden a derechos adquiridos, los incentivos, sobresueldos, pluses, remuneraciones adicionales o cualquier otro de naturaleza equivalente, que previo a la entrada en vigencia de la Ley No 9635 integraban el salario total del servidor público, en propiedad o interino".

La Sala, en aplicación de las normas y principios constitucionales, debe reconocer que existe una situación jurídica consolidada a favor de los trabajadores públicos, la cual consiste en el derecho a continuar recibiendo -en el futuro- el pago efectivo de anualidades ganadas antes de la entrada en vigencia de la ley, pero además, que dicho pago se calcule según el método (cálculo porcentual) que rigió en su momento y que, debe mantenerse, no sólo porque la ley así lo ordenó, sino porque el mismo artículo 34 Constitucional así lo establece. Correspondiendo únicamente dejar el pago en forma nominativa solo para las anualidades que se ganen en el futuro. Con ello se protegen los efectos jurídicos de una situación jurídica consolidada, que tiene relación directa con el derecho al salario.

-Violación al principio de reserva legal: según ha dicho reiterada jurisprudencia de esta Sala, está reservada a la ley la restricción de derechos fundamentales. El derecho al salario es un derecho fundamental, y cualquier restricción establecida reglamentariamente, para cambiar la forma de cálculo de pago de anualidades anteriores (situación jurídica consolidada) constituye una violación al principio de reserva legal. Tal como se dijo en el voto citado por la mayoría, "(…) El principio de reserva de ley implica, en lo que aquí interesa, que los reglamentos ejecutivos pueden desarrollar los preceptos legales pero no pueden incrementar las restricciones establecidas ni crear las que no fueron previstas por el legislador, y deben respetar rigurosamente su "contenido esencial". (Sentencia N° 2001-05916 de las 15:28 horas del 3 de julio del 2001). En este caso se está AMPLIANDO restricciones pues en el reglamento cuestionado se está cambiando la forma de cálculo de anualidades anteriores.

-Sobre la violación al derecho al salario y a la dignidad del trabajador.- En general, sobre el derecho al salario, la jurisprudencia constitucional ha indicado, que: “El salario como remuneración debida al servidor en virtud de una relación estatutaria, por los servicios que haya prestado, no es sólo una obligación del empleador, sino un derecho constitucionalmente protegido.” (ver voto n°2015-009504). Derecho fundamental que, por demás, resulta irrenunciable (art. 74 constitucional). Esta vinculación del derecho al salario con la dignidad humana se encuentra no solo en la Constitución Política, sino también en instrumentos de Derecho Internacional. Así, el artículo 23.3 de la Declaración Universal de Derechos Humanos establece: “3. Toda persona que trabaja tiene derecho a una remuneración equitativa y satisfactoria, que le asegure, así como a su familia, una existencia conforme a la dignidad humana y que será completada, en caso necesario, por cualesquiera otros medios de protección social”. La dignidad humana es el criterio rector en el desarrollo del contenido esencial del derecho al salario y sus límites, pues lo que se busca es que el trabajador cuente con un nivel de vida adecuado, de acuerdo con sus necesidades elementales. Los salarios mínimos buscan propiciar que los servidores públicos y sus familias lleven una vida digna; sin embargo, esta base salarial no garantiza, por sí misma, que los niveles establecidos cumplan realmente esa condición. Ante esta situación, la Ley prevé el aumento de salarios. En este sentido, sería inconstitucional congelar salarios, pero además, disminuir salarios, variando la forma de cálculo de las anualidades, como lo es en este caso. Entonces, si el trabajo se concibe como un derecho del individuo cuyo ejercicio beneficia a la sociedad, y el Estado como empleador en una relación estatutaria tiene la obligación de pagar de manera periódica el salario, que es un derecho constitucionalmente protegido (ver sentencia N° 2009-008062 de las 21:35 horas del 13 de mayo de 2009), no es aceptable constitucionalmente una norma reglamentaria que tenga como efecto la reducción de los salarios. En este sentido, nunca las crisis económicas deben justificar la disminución o regresión en la protección de los derechos sociales, como lo es en este caso, el derecho al salario.” 4. Razones adicionales del Magistrado Cruz Castro respecto de la inconstitucionalidad del Transitorio XXXVI.- El Transitorio XXXVI indica lo siguiente:

“TRANSITORIO XXXVI. A partir de la entrada en vigencia de la presente ley, los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento.

En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta ley y demás regulaciones que dicte el Poder Ejecutivo”.

Entre los alegatos de los accionantes se indica que obligar a los jerarcas a denunciar las convenciones colectivas a su vencimiento, junto a otras disposiciones, implica vaciar de contenido el derecho a la negociación colectiva. Se indica también que este transitorio es una intromisión del Poder Público en el derecho a la negociación colectiva, toda vez que obliga a los jerarcas de las entidades públicas a denunciar las convenciones colectivas a su vencimiento, suprimiendo con ello el contenido del art. 62 de la Constitución Política y de los Convenios 87 y 98 de la OIT, en conjunto con los arts. 26 de la CADH y 8 inciso a) del Protocolo de San Salvador, por lo que considera que es contrario al Derecho de la Constitución; ese retroceso también se observa porque el Transitorio impone la obligación de que, de negociarse nuevas convenciones colectivas, se deberán adaptar a lo dispuesto en la ley n.º9635, lo que significa que se tendrán que insertar condiciones laborales que desmejoren las anteriores, sin respeto de las situaciones jurídicas consolidadas. Además, la norma permite que el Poder Ejecutivo pueda establecer cualquier contenido a esas convenciones, todo lo cual además se introduce en una norma de carácter transitorio, causando efectos permanentes y definitivos.

En esta sentencia la Sala declara la inconstitucionalidad de lo dispuesto en el Transitorio XXXVI párrafo primero de la Ley de Fortalecimiento de las Finanzas Públicas, con fundamento en que el carácter obligatorio de la denuncia es contrario al principio de la negociación libre y voluntaria. A tales efectos, este Tribunal reitera lo indicado en los votos n°2018-019511 y n°2021-17098, donde se apoyó en criterios de la OIT que dicen que “La negociación colectiva, para ser eficaz, debe tener carácter voluntario y no implica el recurso a medidas de coacción que alterarían el carácter voluntario de dicha negociación.” Por lo anterior, la Sala concluyó que “una disposición jurídica que obligara a una parte a concluir un convenio colectivo con otra sería contraria al principio de la negociación libre y voluntaria”. Así, dicho numeral es inconstitucional al dejar de lado el carácter libre y voluntario de la negociación colectiva, puesto que, muy por el contrario, establece la obligación para todos los jerarcas de las entidades públicas de denunciar las convenciones colectivas, una vez que llegue el plazo de vencimiento. Por lo que declara la inconstitucionalidad de la disposición allí contenida en el sentido de someter a los jerarcas a la obligación de denunciar las convenciones colectivas en perjuicio de los derechos fundamentales acá examinados.

Al respecto, además de compartir las razones que se indican para esta declaratoria de inconstitucionalidad, indico las siguientes razones adicionales:

-El primer párrafo es inconstitucional, no solo por dejar de lado el carácter libre y voluntario de la negociación colectiva, sino por vaciar de todo contenido y con ello propiciar una regresión absoluta en el derecho a la negociación colectiva. Claramente el legislador cometió un exceso inconstitucional al obligar a todos los jerarcas de las entidades públicas a denunciar todas las convenciones colectivas, por el simple hecho de que así lo disponga un transitorio, desconociendo todo el proceso de negociación que antecedió a la convención colectiva. Tal como lo he indicado en otros votos salvados, considero que las Convenciones colectivas son parte de esa visión social que convierte a la Constitución en algo más que los derechos individuales. La incorporación de este capítulo en nuestra Carta Magna, se produjo en el año 1943, que vino a reformar la Constitución de 1871 y éste a su vez se incluyó en nuestra constitución actual. Uno de estos derechos, atinentes al tema de estudio, es la libre sindicalización, independientemente del sector laboral al que pertenezca el trabajador (sea público o privado), que consagra el artículo 60. Por otro lado, el artículo 61 establece el derecho de huelga como ejercicio de la libertad sindical, el cual si bien está limitado a determinadas regulaciones en el sector público (según el mismo artículo constitucional), lo cierto es que es admisible para dicho sector y así lo estableció este Tribunal en la sentencia No. 1998-1317, al indicar:

“El derecho de sindicación tiene pues, rango constitucional en Costa Rica y se regula internamente mediante normas de carácter legal, específicamente el Código de Trabajo, que norma en su artículo 332 y siguientes -ubicados en el Título Quinto “De las Organizaciones Sociales”- lo referente al funcionamiento y disolución de los sindicatos y define las reglas de protección de los derechos sindicales. En el artículo 332 del Código de Trabajo se declara además de interés público la constitución legal de los sindicatos, que se distinguen “(…) como uno de los medios más eficaces de contribuir al sostenimiento y desarrollo de la cultura popular y de la democracia costarricense”. La referencia anterior permite concluir en esta etapa, que el derecho fundamental de sindicación se reconoce sin distingo de la naturaleza pública o privada de los sectores laborales; es decir, en magnitud equiparable. En relación con el contenido de la acción sindical, específicamente lo que toca al derecho de huelga, el artículo 61 de la Constitución Política establece que la regulación del citado derecho de acción colectiva es materia de reserva de ley, siendo que toda restricción del citado derecho debe darse por vía ley y de ningún modo puede favorecer los actos de coacción o violencia. Es además resultado de la atribución conferida mediante el numeral 61 constitucional citado, que compete al legislador definir en qué casos de la actividad pública se restringe o excluye el ejercicio del derecho de huelga; mandato que se satisface mediante el artículo 375 (antes, 368) del Código de Trabajo, que debe ajustarse a los criterios de razonabilidad y proporcionalidad para que sea congruente con el principio democrático sobre el que descansa el ordenamiento jurídico patrio, plasmado en el artículo 1° de la Constitución Política y que es valor supremo del Estado Constitucional de Derecho...” La negociación colectiva representa un elemento básico en el contenido de la libertad sindical, precisamente porque a través de los Sindicatos se puede promover una negociación que propicie resolver las situaciones laborales de los trabajadores. La misma libertad sindical en sí misma, implica negociar colectivamente para obtener los beneficios económicos, sociales y profesionales que consagra nuestra Carta Fundamental. La negociación surge también como instrumento pacificador ante conflictos colectivos, como el derecho a huelga, que es reconocido en el sector público y puede plasmarse en los acuerdos de una convención colectiva. Nuestra Constitución Política así lo precisó en el artículo 62 dentro del capítulo que regula los derechos y garantías sociales, reconociendo que tendrán fuerza de ley las convenciones colectivas de trabajo que con arreglo a la ley se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados, sin hacer distinción entre trabajadores públicos o privados. La correcta dimensión que debe adquirir este derecho de negociación colectiva, constitucional, consagrado en el capítulo de garantías sociales, en el caso del sector público, no es la de un cercenamiento total para el servidor, sino entender que su ejercicio está sujeto a ciertas limitaciones en atención a la observancia del ordenamiento jurídico, a los límites del gasto público y a las correspondientes regulaciones que existen en esta materia.

-El segundo párrafo, donde se establece que en el caso de que se decida renegociar una convención colectiva esta deberá adaptarse en todos sus extremos a lo establecido en la ley y “demás regulaciones que dicte el Poder Ejecutivo”. Así considero que los accionantes llevan razón y que dicha norma “deja abierta la puerta” para que el Poder Ejecutivo pueda establecer cualquier contenido a esas regulaciones. Entonces, las convenciones colectivas ya no solo deben someterse a las disposiciones legales, sino a cualquier otra reglamentación del Poder Ejecutivo, lo cual considero abiertamente inconstitucional. Si bien es cierto comparto la tesis de que la capacidad de negociación colectiva no puede ser irrestricta, tal como lo he indicado en voto salvado anterior, no considero admisible la injerencia del Poder Ejecutivo en el ejercicio de un derecho fundamental, como lo es la negociación colectiva. Claramente ello también resulta contrario al principio de reserva legal, según el cual la regulación de derechos fundamentales (como lo es en este caso el derecho de negociación colectiva) es materia reserva legal. La reserva legal también tutela los derechos sociales, no puede existir una visión restrictiva de una garantía tan importante como la reserva de ley. Esta garantía también tutela los derechos sociales.

Considero que el sólo hecho de permitir al Poder Ejecutivo emitir lineamientos en materia del ejercicio de un derecho fundamental, resulta per se inconstitucional. Es como una especie de control y supervisión sobre los derechos de los trabajadores, que no requieren ningún tutelaje. El derecho a la sindicación, a la negociación colectiva y a la resolución efectiva de los conflictos colectivos, son una trilogía de derechos fundamentales que le da efectividad y respuesta a la necesidad de los trabajadores de agruparse, compensando su inferioridad real frente a los empleadores. Se requieren mecanismos que compensen la asimetría que caracteriza la relación trabajador empleador. La propia Carta Fundamental reconoce el derecho a la negociación colectiva, junto a diversos instrumentos internacionales (Convenios de la Organización Internacional del Trabajo números 87, 98, 135 y 151). Ciertamente, en el sector público, la entidad patronal no es enteramente libre, pues el Estado está sujeto al principio de legalidad o juridicidad. Sin embargo, asumir esa limitación es muy diferente a someter la convención colectiva a los lineamientos dados por el Poder Ejecutivo, ignorando que deben definirse mediante acto legislativo. Es indudable, que el derecho de negociación colectiva es un derecho fundamental que puede ser limitado, pero únicamente por vía legal, no así mediante normas reglamentarias, como esta norma permite. Los sueños de la década de los cuarenta con la reforma social, siguen sin realizarse. Se pensaba que la Convención Colectiva sería el horizonte de progreso social para los trabajadores, pero eso no ha sido posible. Constantemente se pretende limitar legislativamente a los sindicatos y las Convenciones Colectivas. Quedan en el papel de la Constitución esas aspiraciones, porque esas negociaciones son una excepción para la gran mayoría de trabajadores y por eso se visualizan como un privilegio. Las aspiraciones de la Constitución, han quedado truncadas, la realidad política impone una férrea restricción de los derechos sindicales y las negociaciones colectivas. Hay varias materias pendientes con relación a la vigencia plena de la Constitución, especialmente en materia social. Creo que se aspira a tener derechos sindicales y negociaciones colectivas de papel, tenerlas allí, hablar de ellas, para mantener nuestra buena imagen internacional, pero en la realidad, esos derechos los ejercen, en parte, una minoría sindical; el resto de los trabajadores comprenden que es mejor no sindicalizarse, ni tampoco, pretender una negociación de sus condiciones laborales. Serían pretensiones irreales, porque en el panorama actual, es suficiente tener trabajo, la realidad económica y política, no da para más. Triste realidad, la Constitución social tiene una larga espera para tener una sociedad más justa, más equitativa, más decente. Es un tema que trasciende mi función como juez Constitucional.

5. Nota del magistrado Cruz Castro respecto al contrato de dedicación exclusiva (artículo 28 de la Ley de Salarios de la Administración Pública).

Si bien es cierto en cuanto a los cuestionamientos a las disposiciones del contrato de dedicación exclusiva he suscrito el criterio de mayoría, sí considero necesario consignar esta nota para indicar lo siguiente:

Si bien el régimen de la dedicación exclusiva es materia de regulación legal, sí es materia constitucional la constatación de cumplimiento del principio de progresividad y de no regresión, en particular en este caso, cuando de derechos y condicionales laborales se trata. En este caso la Sala indica que “el accionante acusa que se lesionan los principios de progresividad de los derechos laborales y el protector. Sin embargo, a juicio de esta Sala ese mero enunciado sin un adecuado análisis de las normas y el impacto que estas puedan tener en los derechos laborales de los trabajadores, impiden realizar un apropiado análisis de constitucionalidad. Deben desestimarse tales enunciados por una indebida e insuficiente fundamentación por parte del accionante.” Razón por la cual, la insuficiente fundamentación le impidió a esta Sala realizar el examen de constitucionalidad y examinar el respeto o no de los principios de progresividad y de no regresión. Pero dicho examen continúa siendo una tarea pendiente, esta Sala en la sentencia No. 2011-016153 de las 9:30 hrs. del 25 de noviembre del 2011, así: “(…) Los derechos sociales o prestacionales deben ser, según los imperativos del Derecho Internacional Público de los Derechos Humanos, objeto de un desarrollo progresivo, de manera que las autoridades nacionales o poderes públicos deben adoptar todas las medidas necesarias, en la mayor medida que permitan sus recursos, posibilidades y capacidades, para garantizar su goce y ejercicio efectivos.” En este sentido considero que el examen del desarrollo progresivo de los derechos fundamentales, también es predicable respecto de los derechos laborales. Así, la Constitución Social deja de ser un mero enunciado en el papel para valorar su puesta en realidad.

El trabajo, el derecho a la vida y la libertad, son parte esencial de la dignidad, su ausencia lesiona directamente la dignidad de la persona. Como bien lo establece la doctrina social de la Iglesia, que es un referente ideológico que el artículo 74 de la constitución, “…Quien está desempleado o subempleado padece, en efecto, las consecuencias profundamente negativas que esta condición produce en la personalidad y corre el riesgo de quedar al margen de la sociedad y de convertirse en víctima de la exclusión social. Además de a los jóvenes, este drama afecta, por lo general, a las mujeres, a los trabajadores menos especializados, a los minusválidos, a los inmigrantes, a los ex reclusos, a los analfabetos, personas todas que encuentran mayores dificultades en la búsqueda de una colocación en el mundo del trabajo…” (Ver “Compendio de la Doctrina Social de la Iglesia” Celam. 2005- p. 208). Es claro que en razón de la fuerza normativa de la Constitución, toda ella es exigible a la actuación de los poderes públicos, “en toda su integridad, en todas sus partes, en todos sus contenidos, también en sus implicitudes”. Así entonces, frente al hecho que la Constitución Política es una constitución de mínimos, la progresividad de los derechos fundamentales debe pasar de ser un ideal a una exigencia constitucional. Esta instancia constitucional no puede ser la vía para que con relativa facilidad se le reduzcan garantías y beneficios a los trabajadores, aunque esos beneficios hayan sido establecidos por ley, no quiere decir que puedan ser regresivos en cualquier momento. En este sentido, queda pendiente en esta sede constitucional examinar, cuando se plantee fundadamente, si los cambios en la normativa que regula los contratos de dedicación exclusiva en el sector público, son progresivos, o por el contrario, son regresivos, sin fundamento alguno.

6. Voto salvado del magistrado Cruz Castro respecto de la inconstitucionalidad de los artículos 35 y 36 de la Ley de Salarios de la Administración Pública.

He considerado salvar el voto en estos temas y estimar que los cambios realizados a los artículos 35 y 36 de la Ley de Salarios de la Administración Pública, resultan inconstitucionales. Tales normas, luego de la reforma realizada por la la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 establecen lo siguiente:

“Art. 35- Porcentajes de compensación por dedicación exclusiva.

Se establecen las siguientes compensaciones económicas sobre el salario base del puesto que desempeñan los funcionarios profesionales que suscriban contratos de dedicación exclusiva con la Administración:

1. Un veinticinco por ciento (25%) para los servidores con el nivel de licenciatura u otro grado académico superior.

2. Un diez por ciento (10%) para los profesionales con el nivel de bachiller universitario.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018) Art. 36- Prohibición y porcentajes de compensación.

Los funcionarios públicos a los que por vía legal se les ha impuesto la restricción para el ejercicio liberal de su profesión, denominada prohibición, y que cumplan con los requisitos establecidos en el artículo 31 de la presente ley, recibirán una compensación económica calculada sobre el salario base del puesto que desempeñan, de conformidad con las siguientes reglas:

1. Un treinta por ciento (30%) para los servidores en el nivel de licenciatura u otro grado académico superior.

2. Un quince por ciento (15%) para los profesionales en el nivel de bachiller universitario.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N°9635 del 3 de diciembre de 2018)” Se cuestiona que los nuevos porcentajes de reconocimiento de sobresueldos de dedicación exclusiva y prohibición, en condiciones menos beneficiosas, lesionan el principio de progresividad de los derechos. Además, se carece de un estudio técnico que pueda respaldar ese menoscabo en las condiciones laborales, sin que exista certeza de que sea el causante del problema fiscal del país, cuando se ha señalado que las causas del déficit fiscal se derivan de problemas más complejos como lo son la evasión y elución fiscal. Asimismo, se cuestiona que, el rebajo de porcentajes, tanto en los contratos de dedicación exclusiva como de prohibición, genera una clara desigualdad de condiciones entre los mismos funcionarios, tanto los que fueron contratados por la Administración antes de la entrada en vigencia de la ley 9635, con respecto a las nuevas contrataciones.

Al respecto, la mayoría de la Sala consideró que, el cumplimiento del principio de equilibrio financiero o presupuestario es una justificación objetiva y razonable para regular los aspectos salariales y que “frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable” (opinión consultiva n.°2018-18505).

Respecto de este argumeto he considerado salvar el voto, pues estimo que los accionantes llevan razón. Las variantes dispuestas en el Título III de la LFFP en lo relativo a los porcentajes de la Dedicación Exclusiva y de Prohibición, riñen con las disposiciones contenidas en la Constitución Política. No sólo se está atentando en contra de los principios de progresividad y no regresión de los derechos fundamentales, sino además contra la seguridad jurídica, el principio de razonabilidad técnica y el principio de igualdad. Nótese la clara desmejora en los porcentajes establecidos, que suponen una total regresión a las condiciones laborales anteriores; sino además, nótese la creación de una diferenciación entre funcionarios anteriores y posteriores a la entrada en vigencia de tales normas. Todo ello sin mencionar la carencia de sustento técnico, el cual no puede ser suplido por una fundamentación genérica de la situación crítica de las finanzas públicas, pues si nos ponemos a escudriñar en todos los tiempos y en cada momento se aducen problemas con las finanzas públicas. Así que no puede ser utilizado dicho argumento como un sustento genérico para cualquier regresión de derechos laborales. Incluso la seguridad jurídica se ve afectada puesto que, aunque no existe derecho a la inmutabilidad del ordenamiento jurídico, lo que sí existe es derecho a la progresividad. No siendo admisible que la Constitución avale cambios y más cambios que dirigen los derechos laborales a una regresión. En lugar de salarios crecientes, se aprecia la voluntad política de reducirlos, decisión que evidencia, sin la menor duda, la regresión en el bienestar de un sector de los trabajadores.

7. Voto salvado del magistrado Cruz Castro respecto de la inconstitucionalidad del artículo 53 de la Ley de Salarios de la Administración Pública, el artículo 15 del reglamento n.°41564-MIDEPLAN, así como la resolución n.°DG-139-2019 de la Dirección General de Servicio Civil.

Se cuestiona el art. 53 de LSAP, adicionado por la LFFP n.°9635 y el art. 15 del reglamento n.°41564-MIDEPLAN:

“Art. 53- Incentivo por carrera profesional. El incentivo por carrera profesional no será reconocido para aquellos títulos o grados académicos que sean requisito para el puesto.

Las actividades de capacitación se reconocerán a los servidores públicos siempre y cuando estas no hayan sido sufragadas por las instituciones públicas.

Los nuevos puntos de carrera profesional solo serán reconocidos salarialmente por un plazo máximo de cinco años.

(Así adicionado por el artículo 3° del título III de la Ley de Fortalecimiento de las Finanzas Públicas, N° 9635 del 3 de diciembre de 2018) Art. 15.- Carrera profesional. El incentivo por carrera profesional será otorgado en las siguientes condiciones:

Será reconocido por aquellos títulos o grados académicos que no sean requisitos para el puesto.

• E)Procederá el reconocimiento de carrera profesional cuando las actividades de capacitación sean sufragadas por el servidor interesado, sean en horario laboral o fuera de éste, siempre y cuando sean atinentes al cargo que desempeña. En aquellas actividades de capacitación que no sean sufragadas por instituciones públicas, de manera motivada podrá otorgarse permiso con goce de salario para recibir la capacitación.

Los nuevos puntos de carrera profesional serán reconocidos salarialmente por el plazo de 5 años.

d)Podrán reconocerse los puntos de carrera profesional, según los parámetros previos a la entrada en vigencia a la Ley N°9635, única y exclusivamente en los casos de aquellas solicitudes presentadas ante las Oficinas de Gestión Institucional de Recursos Humanos de previo a la publicación de dicha ley y que no hayan sido tramitadas por la Administración”.

Además, la resolución DG-139-2019 de las 15:00 hrs. del 24 de julio de 2019 de la DGSC que dice lo siguiente:

“Artículo 1. Modificar los artículos 1, 2, 4, 5, 6, 9 y 18 de la Resolución DG-064-2008 del 28 de febrero de 2008, para que respectivamente se lean de la siguiente manera:

(…)

“Artículo 9: Cada punto que se considere en cualquier factor de Carrera Profesional, tendrá una vigencia única e independiente, y retribución salarial, por un plazo de cinco (5) años a partir de la fecha en la cual rige el respectivo reconocimiento. Las Oficinas de Gestión Institucional de Recursos Humanos deberán establecer los controles correspondientes, a fin de que al cumplirse dicho plazo, se proceda a caducar los puntajes respectivos y cesar los pagos inherentes.

Dichas Oficinas también deberán establecer los mecanismos de control necesarios, para que los títulos académicos y certificados de capacitación de nivel profesional, presentados por cada servidor, sean reconocidos exclusivamente en una ocasión y además no se transgreda el límite de cinco años de vigencia”.

“Artículo 4. Modificar los artículos 1, 2, 3, 7, 8, 9, 10, 18, 20 y 21 de la Resolución DG-333-2005 del 30 de noviembre de 2005, para que respectivamente se lean de la siguiente manera:

(…)

“Artículo 10.- Cada punto que se considere en cualquier factor de Carrera Profesional Docente, tendrá una vigencia única e independiente, y retribución salarial, por un plazo de cinco (5) años a partir de la fecha en la cual rige el respectivo reconocimiento. La Oficina de Gestión Institucional de Recursos Humanos del Ministerio de Educación Pública, deberá establecer los controles correspondientes, a fin de que al cumplirse dicho plazo, se proceda a caducar los puntajes respectivos y cesar los pagos inherentes.

Dicha oficina también deberá establecer los mecanismos de control necesarios, para que los títulos académicos y certificados de capacitación de nivel profesional, presentados por cada servidor, sean reconocidos exclusivamente en una ocasión y además no se transgreda el límite de cinco años de vigencia”.

Tales normas se impugnaron con fundamento en que ellas suponen un retroceso en relación con el propósito de contratar los funcionarios idóneos, pues se introduce una limitación temporal del reconocimiento de los puntos por carrera profesional, dado que al cabo de los cinco años se deja de cancelar el incentivo lesionando los derechos subjetivos y la irrenunciabilidad del derecho. Además, se indica que la redacción de la norma provoca inseguridad jurídica, pues es ambigua y no permite determinar con certeza cuál fue el espíritu del legislador: si reconocer hasta cinco años de capacitación o pagar solamente durante cinco años.

Al respecto, la mayoría de esta Sala consideró desestimar este extremo de la acción sin perjuicio que el debate se reabra o se replantee en otros términos si se logra determinar que las disposiciones provocan un empobrecimiento de los salarios de los profesionales o se constata que esta medida aspiracional a la retención de los servidores públicos más idóneos se está viendo lesionada por la fuga de personal capacitado.

Sin embargo, estimo que en efecto la normativa cuestionada resulta inconstitucional, pues como lo indican los accionantes, se infringe el derecho fundamental al salario (consagrado en el art. 57 constitucional y ordinales 23 de la Declaración Universal de Derechos Humanos, 7 del Pacto Internacional de Derechos Económicos, Sociales y Culturales y 7 del Protocolo de San Salvador), en tanto se enerva el derecho subjetivo del funcionario a seguir devengando la remuneración por carrera profesional, una vez cumplidos los referidos cinco años después de su respectivo reconocimiento. También se elimina de forma arbitraria el correspondiente reconocimiento y produce un cese de la remuneración sin que exista una razón legítima que justifique la interdicción de ese derecho. La normativa impugnada sustrae del patrimonio del trabajador, a la vuelta de cinco años, un beneficio económico, de carácter salarial, que se le reconoció porque cumplió los requisitos establecidos. Se suprime, sin mayor sustento, un componente que integra el salario. El reconocimiento de la carrera profesional tiene por objetivo último asegurar que la Administración cuente con el personal altamente capacitado que necesita para un adecuado desempeño de la función pública. Con esta retribución se ha pretendido también coadyuvar en el reclutamiento y retención de los profesionales mejor calificados en cada área de actividad, para un adecuado desempeño de la función pública, así como incrementar la productividad de los profesionales. Ahora bien, una regresión en la regulación de esta materia constituye un desincentivo irrazonable para el personal que busca estar cada vez más capacitado y con ello, se configura un desincentivo a la profesionalización de lo público.

Debo destacar que si bien es cierto se indica que no hay ninguna lesión al art. 34 de la Constitución Política porque la reforma deja a salvo los derechos adquiridos de los servidores públicos que gozaban de ese incentivo. Es lo cierto que en lo relativo al plazo de reconocimiento de los nuevos puntos de carrera profesional, el legislador cometió un exceso que redundó, no solo en la violación del bloque de derechos fundamentales laborales -por ser regresivo-, sino además, del bloque de principios que operan en la esfera pública -por eliminar el incentivo que estimula la superación de los funcionarios públicos-.

Si bien no hay un derecho a la inmutabilidad del ordenamiento, como lo dice el voto de mayoría, es lo cierto que el ordenamiento debe ser progresivo y no regresivo. El ordenamiento puede cambiar, pero no para empeorar las condiciones de los derechos fundamentales asociados a derechos laborales. La situación fiscal no puede servir de excusa genérica para que el legislador acote a lo mínimo el reconocimiento de incentivos laborales. La discrecionalidad legislativa también está sujeta a límites y con las normas impugnadas, considero que tales límites han sido transgredidos por resultar violatorios del bloque de constitucionalidad.

No se trata de que no haya un derecho subjetivo del funcionario a continuar devengando la remuneración por carrera profesional, una vez cumplidos los cinco años posteriores a su respectivo reconocimiento. Sino que la normativa que reconoce ciertos derechos e incentivos laborales no puede degradarse, pues ello sería contrario al principio constitucional de progresividad de los derechos fundamentales. Máxime en este caso, ya que dichos incentivos están asociados a fomentar la formación continua de los servidores públicos y con ello, de la prestación de servicios públicos. No hay ninguna razón para devaluar o desnaturalizar el salario de un trabajador, considerando que hay incentivos que pueden suprimirse después de un determinado plazo. El acto legislativo cuestionado, desconoce la trascendencia constitucional del salario y los límites que existen para su modificación o supresión.

8. Nota general del magistrado Cruz Castro.

He considerado necesario consignar esta nota general para referirme a varios aspectos, particularmente aquellos que la mayoría de la Sala consigna en los considerandos previos, con argumentos que no comparto.

Se ha dicho que la Ley de Fortalecimiento de las Finanzas Públicas (LFFP) se dio como respuesta a la crítica situación fiscal costarricense y en procurar la uniformidad y la contención del gasto en lo relativo a la planilla de los servidores públicos. Sin embargo, este argumento se vuelve una falacia si no se acompaña de sustento técnico. No hay estudio que indique cuánto porcentaje de la crisis fiscal es causa directa de las remuneraciones en el sector público, si ese porcentaje es determinante respecto del déficit fiscal. Tampoco hay un estudio que concluya fehacientemente que la causa de la crisis fiscal sean dichas remuneraciones en el sector público, antes bien, los expertos en la materia aducen múltiples causas, sustentándose la mayoría de ellas en problemas de evasión fiscal, ineficiencia en la recaudación, el pago creciente en los intereses de la deuda, y en general, en el deficiente marco legal e institucional de la carga tributaria. Las consideraciones que se indican en el voto de mayoría, realizadas por la Contraloría General de la República, se refieren a la necesidad de contener el gasto de salarios, pero no se presentan datos concretos que lleven a afirmar, ni que el gasto en salarios sea la principal causa del déficit fiscal, ni mucho menos, cuánto de dicho déficit se solucionaría con todos los recortes y regresiones que la normativa pretendió. Todo lo cual resulta una argumentación insuficiente y un espejismo, que hizo creer que la solución al déficit fiscal estaba en debilitar los derechos laborales de los servidores públicos. Trascribo a continuación lo que un experto economista nos dice:

“La crisis fiscal en sencillo agosto 14, 2024 editor1850 Luis Paulino Vargas Solís.

(…)

¿Dónde está el problema?

No, en los salarios no. Ese discurso es hoy insostenible, cuando más bien debe reconocerse que los salarios han sido comprimidos de forma brutal. Eso no solo conlleva un serio deterioro en las condiciones de vida de la gente, sino que, asimismo, está dificultando retener el personal altamente calificado.

Una parte del problema está en el fuerte crecimiento de los pagos por intereses, lo que hace obligatorio reconocer que las políticas que pretendían reducirlos, han fallado. No se me malentienda: no estoy diciendo, y ni siquiera insinuando, que se dejen de pagar. Pero si estoy advirtiendo que es necesario un replanteamiento y buscar nuevas opciones que permitan reducir la hemorragia que esto significa.

Pero el problema principal está en los ingresos. Son claramente insuficientes, lo cual demuestra que el plan fiscal de Carlos Alvarado, seguido y aplicado al pie de la letra por Chaves, también es un fracaso. El problema debería resultar obvio para quien desee verlo: los gastos han sido comprimidos a lo bestia, los salarios públicos lanzados a un hueco, y, entretanto, los ingresos fiscales se frenan y debemos seguir tomando deuda.

La situación es preocupante, y amenaza llegar a ser insostenible. Y eso podría ocurrir más pronto de lo que quisiéramos.

Tenemos gravísimos problemas de fraude fiscal, pero, además, es innegable que los muy ricos de Costa Rica solo tributan una pequeña fracción de lo que deberían aportar.” El voto de mayoría indica que “era insoslayable que el Estado costarricense adoptara medidas para garantizar las cualidades y principios de nuestro Estado Social y de Derecho. Lo anterior, bajo una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho.” Sin embargo, he sostenido el criterio que el Estado Social de Derecho no puede nunca supeditarse a razones económicas ni financieras. Peor aún, cuando se asume que la ciencia económica es una supuesta ciencia exacta, insensible a temas morales y derechos fundamentales. Además, el principio de equilibrio presupuestario, en su verdadero alcance constitucional, no puede interpretarse como aquel principio que sustente la degradación en el cumplimiento y eficacia de los derechos fundamentales. La economía, las finanzas, se refieren a personas, sujetos de derechos y a los que se les debe asegurar el cumplimiento de condiciones para que alcancen su dignidad. El llamado equilibrio entre las políticas salariales y los derechos de los servidores públicos no puede ser una ecuación que siempre se resuelve en perjuicio de los derechos de estos últimos. Así, he mantenido una posición disidente respecto del límite al derecho de auxilio de cesantía, de modo que, a contrapelo de lo que indica la mayoría, considero que la situación financiera y fiscal del Estado costarricense no debe ser la justificación para la eliminación de derechos y mejoras laborales. Ciertamente no niego la existencia de un interés público en reducir el gasto público, pero dicha reducción del gasto no puede pesar sobre las espaldas de los trabajadores, los que dependen de un salario. Subrayo lo que la misma Sala indica: “no es válido el vaciamiento de los derechos fundamentales de los trabajadores del sector público con el afán de solventar la problemática de las finanzas públicas.” Además, cuando indica que: “estas regulaciones no deben quedarse congeladas en el tiempo en perjuicio de los servidores públicos, al punto que los salarios no sean atractivos ‒lo que podría impactar la eficiencia de la Administración Pública‒ o no garanticen condiciones mínimas de dignidad y de bienestar de los trabajadores.” Tal como lo he indicado en la nota al voto n°2016-12803, los derechos sociales no son aspiraciones de segundo orden:

“VII.- Nota del Magistrado Cruz Castro. Los derechos económicos y sociales no son aspiraciones de segundo orden. En esta acción surgen interrogantes sobre la condición de los derechos sociales y económicos. No se trata de simples aspiraciones, son derechos subjetivos que no quedan a la discrecionalidad del legislador; son auténticos derechos, se integran en las exigencias de un estado constitucional de derecho. No puede existir un ejercicio pleno de los derechos individuales y políticos, sino se garantiza la efectiva de vigencia de los derechos prestacionales.

La existencia de un derecho fundamental supone su vigencia sin intermediaciones o condicionamientos. La dignidad del ser humano como eje central de una democracia constitucional requiere la efectiva vigencia de los derechos prestacionales. No hay progreso humano, no hay equidad social si la educación es una aspiración sin sustento presupuestario y sin eficaz vigencia en la vida de los ciudadanos. El mínimo constitucional exige que la garantía de la educación y de los derechos que por ser sociales, no son menos que los individuales. Una existencia digna y justa requiere el reconocimiento de los derechos económicos y sociales. Es el reto de una auténtico estado de derecho constitucional.

Los derechos de vocación social deben definir el horizonte del progreso humano que requiere una sociedad que da efectiva vigencia a la dignidad de la persona. Como bien se ha dicho, el contenido esencial del Estado Social de Derecho y del constitucionalismo democrático debe asegurar un desarrollo humano justo y digno.

En la comunidad latinoamericana se reconoce que el artículo 26 de la Convención Americana sobre Derechos Humanos, posibilita la presentación de peticiones individuales en relación con derechos económicos, sociales y culturales, tema sobre el que se ha pronunciado la Corte Interamericana de Derechos Humanos en el caso "cinco pensionistas v/s Perú" en su sentencia de 28 de febrero de 2003. Pueden citarse otros precedentes.

Los derechos económicos, sociales y culturales son derechos en serio, según lo define el Pacto Internacional de Derechos Económicos, Sociales y Culturales de Naciones Unidas, así como el Protocolo de Derechos Económicos, Sociales y Culturales de la Convención Americana de Derechos Humanos aprobada en San Salvador y vigente en América. El que sean derechos prestacionales no debilita su exigibilidad y su vigencia.

Todos los derechos, tanto los individuales como los sociales generan obligaciones positivas y negativas al Estado, no es posible definir una línea de primer orden para los individuales y dejar en segundo lugar, debilitados, los derechos prestacionales. Hay obligaciones ineludibles para el estado y la sociedad, como el medio ambiente, el acceso a la educación, el derecho a huelga, la formación de sindicatos, la irreversibilidad injustificada de los derechos prestacionales.

Estimo que el legislador no tiene total discrecionalidad para haber trazado una ley como la LFFP, antes bien, debía ajustarse al marco constitucional, particularmente a toda nuestra Constitución Política Social. En este sentido, las remuneraciones y demás condiciones laborales de los trabajadores, que se elevan a la categoría de derechos fundamentales debían haber sido los límites infranqueables para el legislador. En otra época José Figueres habló, muy claramente, de los salarios crecientes. Eso se olvidó, ahora imperan salarios decrecientes para todos, porque la economía globalizada no permite reconocer el salario justo y digno a los trabajadores. Aunque se dice y reitera en el voto de mayoría que nadie tiene un “derecho a la inmutabilidad del ordenamiento” (derecho a que las reglas nunca cambien), es lo cierto que el principio de progresividad y el principio de no regresión exigen que dicho ordenamiento sea reformado para mejorar, para avanzar, para progresar, y no para retroceder en el reconocimiento de derechos laborales a los trabajadores. Así, la mutabilidad del ordenamiento en esta materia, debe estar dirigida a satisfacer el interés de la colectividad y la progresión en la protección de los derechos fundamentales, particularmente los sociales, que han venido a menos en los últimos veinte años. Pareciera que para los del Sur, los de las economías dependientes, no es muy realista hablar de un estado del bienestar. Así vamos capitulando en los sueños de una democracia económica, social y política.

Me parece que sostengo una visión más amplia del principio de progresividad y no represión, del que se hace en el voto de mayoría. Comienzo citando el considerando 11 de la sentencia 275/2016 de la Corte Constitucional Italiana:

“La garantía de los derechos humanos irreductibles compromete al Presupuesto, y el equilibrio de este no puede condicionar su cumplida satisfacción.” Además, la discusión en torno al caso Colombiano (sentencia SU-140/19) donde se debe tener claro que ninguna autoridad pública podrá invocar la sostenibilidad fiscal para socavar derechos fundamentales, restringir su alcance, o negar su protección efectiva. Importante prioridad se define en ese criterio. El principio de progresividad de los derechos humanos debe dársele la suficiente fuerza normativa para que se presuma inconstitucional toda regresividad.

A diferencia de lo que indica la Sala en el voto de mayoría, considero que la sostenibilidad financiera y disponibilidad de recursos económicos del Estado no deben ser el tamiz para medir el cumplimiento de esos principios. Al contrario, en el mismo sentido en que se indica en el voto de minoría de la sentencia México del año 2008 (ver Silva y Rosales, 2009) se dice:

“aun en situaciones de escasos recursos, o un mal funcionamiento de las instituciones de seguridad social, el Estado debe hacer esfuerzos, inclusive a través de la cooperación internacional, para avanzar —y no derogar o menguar cómo ocurre en este caso— el disfrute de derechos como las pensiones por jubilación y vejez, (…)

(…) una vez alcanzado cierto nivel de protección constitucional y legal … la libertad de configuración del legislador en materia de derechos sociales se ve restringida.” Cito además, lo indicado por la Corte Constitucional de Colombia (sentencia C 272 de 2009, cuando ha señalado que, en un Estado social de derecho implica que “las autoridades están obligadas a corregir las visibles desigualdades sociales, a facilitar la inclusión y participación de sectores más marginados y vulnerables de la población en la vida económica y social de la nación, y a estimular un mejoramiento progresivo de las condiciones materiales de existencia de los sectores más deprimidos de la sociedad.” Asimismo, la sentencia C-1064 del año 2002 y C-931 del año 2004 (ver además sentencia T-025 del año 2004), donde se especifica la justificación que debe dar el Estado para aplicar una medida regresiva:

“Como ya lo ha explicado esta Corte, cuando una medida regresiva es sometida a juicio constitucional, corresponderá al Estado demostrar, con datos suficientes y pertinentes, (1) que la medida busca satisfacer una finalidad constitucional imperativa; (2) que, luego de una evaluación juiciosa, resulta demostrado que la medida es efectivamente conducente para lograr la finalidad perseguida; (3) que luego de un análisis de las distintas alternativas, la medida parece necesaria para alcanzar el fin propuesto; (4) que no afectan el contenido mínimo no disponible del derecho social comprometido; (5) que el beneficio que alcanza es claramente superior al costo que apareja.” De modo que, no se trata que sin más, con insensible superficialidad, el legislador proceda al dictado de normas regresivas, como lo ha hecho en este caso de la LFFP, y las distintas disposiciones que aquí se impugnan y que he considerado inconstitucionales. Esta ley define la orientación que debilita la esencia del estado social, sacrificando los derechos sociales de la mayoría en función de un economicismo que desconoce, de hecho, los derechos sociales de los ciudadanos y ciudadanas que dependen de un salario. Triste escuchar que el descalabro de las finanzas del Estado se origina en una asignación salarial excesiva e injustificada. Con pocas excepciones, el parlamento alcanzó un consenso abrumador para debilitar el estado benefactor, incidiendo en uno de sus componentes más sensibles: los salarios. No puedo dejar de mencionar que sin buenos salarios, la Administración Pública no puede ser eficiente en la prestación de sus servicios. La globalización nos impone salarios decrecientes, lo que significa también, que los servicios que brindan los funcionarios públicos, tienen poca trascendencia. Qué va quedando de un estado del bienestar que siempre ha tenido tantos adversarios, a pesar de las aspiraciones que contiene la Constitución. En esta globalización tan pujante, no existe espacio para el progreso y la movilidad social que propicia el estado social. Eso percibo muy claramente en este economicismo que inspira esta ley de Fortalecimiento de las Finanzas Públicas. La prioridad política es la contabilidad de las finanzas públicas, el estado del bienestar, se debilita, se arrincona, se posterga. Es la realidad del desarrollo económico en la era de la globalidad, del libre comercio.

Fernando Cruz C.

1 Res. n.°2025-008201