17, of October 22, 1943. The Organic Law of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), No. 17, of October 22, 1943, is reformed in the following provisions:
- a)Article 1, the text of which shall read:
"Article 1.- The institution created to apply mandatory social insurance shall be called the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) and, for the purposes of this law and its regulations, CAJA.
The Fund (Caja) is an autonomous institution which is responsible for the governance and administration of social insurance. The funds and reserves of these insurances may not be transferred or used for purposes other than those that motivated their creation. The latter is expressly prohibited. Except for matters relating to public employment and salaries, the Fund (Caja) is not subject, nor may it be subject, to orders, instructions, circulars, or directives issued by the Executive Branch or the Budgetary Authority, in matters of governance and administration of said insurances, their funds, or reserves." b) Subsection 2 of Article 6, the text of which shall read:
"Article 6.- [...] 2.- Eight persons of maximum honorability, who shall be appointed as follows: a) Two representatives of the State, freely appointed by the Government Council, who may not be Ministers of State, nor their delegates. b) Three representatives of the employer sector. c) Three representatives of the labor sector.
The members cited in subsections b) and c) above shall be chosen and designated in accordance with the following rules: 1.- The representatives of the employer sector and the labor sector shall be appointed by the Government Council, after an election carried out by said sectors, respecting the democratic principles of the country and without the Executive Branch being able to challenge such designations. 2.- Regarding the representatives of the employer and labor sectors, the election and designation shall correspond to one representative of the cooperative movement; one representative of the solidarity movement (movimiento solidarista); and one representative of the trade union movement. The process for electing the representative of the cooperative movement shall be administered by the National Cooperative Council (Consejo Nacional de Cooperativas) based on this law. The process for electing the three representatives of the employer sector shall be administered by the Costa Rican Union of Chambers and Associations of Private Enterprise (Unión Costarricense de Cámaras y Asociaciones de la Empresa Privada) in accordance with this law. 3.- The Board of Directors (Junta Directiva) of the Fund (Caja) shall convene the sectors with sufficient notice to initiate the election process. The Executive Branch shall provide, through regulations, the procedures to be applied to the election processes, in which only organizations or entities duly registered and organized in accordance with the law may participate. The elections shall be held in Assemblies of Representatives of the trade union, cooperative, solidarity, and employer movements. Each must be held separately, observing the following rules: a) The weight of each organization of the labor movement within the total number of representatives shall be determined based on the number of its members affiliated with Social Insurance. In the case of employer organizations, it shall be established based on the number of their affiliates. b) Organizations or entities delinquent in their obligations to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) may not participate in the election processes. c) The representatives must be designated by their respective organizations, through assemblies held in accordance with the law. d) The Assemblies of Representatives shall elect the members of the Board of Directors of the Fund (Caja) referred to in this subsection, by an absolute majority of the members of each Assembly. If an Assembly of Representatives does not meet, is not held within the period established by regulation, or does not elect the respective member of the Board of Directors, the Government Council shall freely appoint them. If they are not elected by an absolute majority of the Assembly of Representatives, the Government Council shall appoint them from a slate (terna) formed by the three candidates who obtained the highest number of votes in the election. The Government Council may not reject this slate. 4.- The members of the Board of Directors of the Institution representing the labor and employer sectors shall be appointed for four-year terms and may be re-elected." c) Article 20, the text of which shall read:
"Article 20.- There shall be a body of inspectors charged with ensuring compliance with this law and its regulations. For such purpose, the inspectors shall have the character of authorities, with the duties and powers indicated in Articles 89 and 94 of the Organic Law of the Ministry of Labor and Social Security (Ley Orgánica del Ministerio de Trabajo y Seguridad Social). For the purposes of this law, the Director of the Inspection Department of the Fund (Caja) shall have the power to request in writing, from the Tax Administration (Tributación) and any other public office, the information contained in declarations, reports, and balance sheets and their annexes regarding salaries, remunerations, and income, paid or received by the insured persons, who may be required to give a sworn statement on the facts under investigation.
The reports (actas) drawn up by the inspectors and the reports they render in the exercise of their functions and powers must be reasoned and shall have the value of highly qualified evidence. Such reports and reports may only be disregarded when there is evidence revealing their inaccuracy, falsehood, or partiality.
All the information referred to in this article shall be confidential; its disclosure to third parties or its misuse shall be considered a serious fault of the responsible official and shall bring against them the corresponding administrative, disciplinary, and judicial consequences, including their immediate separation from the position." d) Article 22, the text of which shall read:
"Article 22.- The income of Social Insurance (Seguro Social) shall be obtained, in the case of dependent or salaried workers, through the system of triple contribution, based on compulsory contributions from the insured persons, from private employers, the State, and other Public Law entities when these act as employers, in addition to the income indicated in Article 24.
The income of Social Insurance corresponding to independent or non-salaried workers shall be obtained through the system of contributions established in Article 3 of this law." e) Article 39, the text of which shall read:
"Article 39.- The Fund (Caja), in the investment of its resources, shall be governed by the following principles: a) They must be invested for the benefit of the members (afiliados), seeking the necessary balance between security, profitability, and liquidity, in accordance with their purpose and respecting the limits set by law. b) The resources of the funds may only be invested in securities registered in the National Registry of Securities and Intermediaries (Registro Nacional de Valores e Intermediarios) or in securities issued by financial entities supervised by the General Superintendency of Financial Institutions (Superintendencia General de Entidades Financieras). c) They must be rated in accordance with the legal provisions in force and the regulations issued by the National Council for Supervision of the Financial System (Consejo Nacional de Supervisión del Sistema Financiero). d) They must be traded through authorized markets based on the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores) or directly in duly authorized financial entities. e) The reserves of the Fund (Caja) shall be invested under the most efficient conditions of guarantee and profitability; in equality of circumstances, investments that, at the same time, yield advantages for the services of the Institution and contribute, for the benefit of the insured persons, to housing construction, disease prevention, and social welfare in general, shall be preferred.
For housing construction for insured persons, the Fund (Caja) may allocate up to twenty-five percent (25%) to the purchase of securities from the National Institute of Housing and Urbanism (Instituto Nacional de Vivienda y Urbanismo) and the Mortgage Housing Bank (Banco Hipotecario de la Vivienda). Furthermore, for the use of such resources, both institutions are authorized to enter into financing agreements with solidarity associations and cooperatives for the purpose of granting mortgage loans for housing to their associates. Within this limit, the Fund (Caja) may grant mortgage loans for housing to members (afiliados) of the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte), provided they are made under market conditions.
The securities purchased by the Fund (Caja) must be deposited in a securities depository (central de valores) authorized according to the Securities Market Regulatory Law. Additionally, the Board of Directors must establish by regulation the valuation mechanism for the securities purchased, so that they reflect their true market value." f) Article 40, the text of which shall read:
"Article 40.- The resources of the reserves of the Fund (Caja) may not be invested in securities issued or guaranteed by relatives up to the second degree, by consanguinity or affinity, of the members of the Board of Directors, managers, or legal representatives (apoderados) of the regulated entities, or by societies or companies in which any of said relatives have, individually or jointly, a shareholding participation exceeding five percent (5%) or any other form of effective control.
In no case may the Fund (Caja) carry out surety or financial operations that require the creation of pledges (prendas) or guarantees on the fund's assets. The Board of Directors shall regulate the figure of securities lending (préstamo de valores) in certain low-risk operations, such as the guarantee mechanism for operations of the clearing and settlement house (cámara de compensación y liquidación) of the securities market. Likewise, it may authorize certain operations with derivative instruments, in order to perform hedging of interest rate and exchange rate risks.
The corporate rights (derechos societarios) inherent to the shares of a corporation (sociedad anónima) that become part of the Fund's investment shall be exercised by the Fund (Caja)." g) The first paragraph of Article 41, the text of which shall read:
"Article 41.- Loans may be granted to the Government, municipalities, and other State bodies, provided that the total of those granted to all these institutions does not exceed twenty percent (20%) of the amount of the investments, the investment parameters established in Article 39 of this law are respected, and collateral in the form of mortgages (garantías reales) on real estate not intended for public services and income-producing is provided. [...]" h) Article 44, the text of which shall read:
"Article 44.- The following transgressions of this law shall be sanctioned in the following manner: a) Whoever does not initiate the registration process (proceso de empadronamiento) provided for in Article 37 of this law, within the eight working days following the start of the activity, shall be sanctioned with a fine equivalent to five percent (5%) of the total omitted salaries, remunerations, or income. b) Whoever: 1.- With the purpose of covering, at the expense of their workers, the contribution they must satisfy as an employer, reduces their salaries or remunerations. 2.- Does not comply with the resolutions of the Fund (Caja) regarding the obligation to correct transgressions of this law or its regulations, verified by its inspectors in the exercise of their functions. The resolutions must express the reasons that support them, the period granted to correct the defect, and the warning of the sanction to which the interested party would be subject, should they fail to comply. 3.- Does not deduct the worker’s contribution mentioned in Article 30 of this law, does not pay the employer’s contribution, or the one corresponding to them as an independent worker. shall be sanctioned with a fine equivalent to the amount of three base salaries (salarios base). c) Whoever does not include one or several of their workers in the respective payrolls or incurs falsehoods regarding the amount of their salaries, remunerations, net income, or the information used to calculate the amount of their contributions to social security, shall be sanctioned with a fine of five base salaries.
If there is proven employer delinquency or the worker was not insured in a timely manner, the employer shall be fully liable to the Fund (Caja) for all the benefits and entitlements granted to the workers in application of this law. In the same manner, those engaged in self-employed or non-salaried activities shall be liable when they are in these same situations.
Without prejudice to what is stated in the preceding paragraph, the Fund (Caja) shall be obligated to grant the pension and proceed directly against the responsible employers, to claim the amount of the pension and the damages caused to the Institution. The fact that the worker’s contributions have not been deducted does not exempt the employers from liability. The action to claim the amount of the pension is imprescriptible and independent of that which may be established to demand the reimbursement of overdue contributions and other damages caused." i) Article 45, the text of which shall read:
"Article 45.- It constitutes undue withholding (retención indebida) and, consequently, the penalty determined in Article 216 of the Penal Code shall be imposed, on whoever does not deliver to the Fund (Caja) the amount of the mandatory worker contributions set forth in this law." j) Article 46, the text of which shall read:
"Article 46.- An employer who dismisses their workers or takes reprisals of any kind against them, to prevent them from seeking the assistance of the authorities charged with ensuring compliance with and the application of this law or its regulations, shall be sanctioned with a fine of five base salaries." k) Article 47, the text of which shall read:
"Article 47.- The person responsible for paying the resources ordered by this law, who refuses to provide the data and background information considered necessary to verify the correctness of the operations, raises unfounded obstacles, or incurs unjustified delay in supplying them, shall be sanctioned with a fine of five base salaries." l) Article 48, the text of which shall read:
"Article 48.- The Fund (Caja) may order, administratively, the closure of the establishment, premises, or center where the activity is carried out when: a) The responsible person or their representative unjustifiably and repeatedly refuses to provide the information that the inspectors of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) request from them within their legal powers. Such measure shall not be applied if the required information is delivered within five days following the notification of the resolution ordering the closure. b) When there is delinquency for more than two months in the payment of the corresponding contributions, provided that no payment arrangement process or declaratory judgment of rights is underway between the employer and the Fund (Caja).
The closure of the establishment, premises, or center where the activity is carried out shall be effected by placing official seals on doors, windows, and other access points to the establishment. The destruction of these seals shall result in the corresponding criminal liability.
The closure may be ordered for a maximum period of five days, extendable for an equal period when the reasons for which it was ordered persist. For the imposition of this measure and before its resolution and execution, the Fund (Caja) must guarantee the affected party respect for their right to due administrative process, in accordance with Article 55 of this law, which shall be regulated through the respective regulation." m) Article 49, the text of which shall read:
"Article 49.- In any proceeding that may culminate in the imposition of a sanction in an administrative venue, the interested party shall be granted the right of defense and due process shall be respected before the matter is resolved. For the purpose of calculating the respective amount of the economic sanctions provided for herein, base salary (salario base) shall be understood as that established by Article 2 of Law No. 7337." Individuals who are administratively sanctioned for violating the laws and regulations governing social security or who fail to comply with the regulatory deadlines defined for fulfilling their obligations shall also be subject to the payment of the resulting administrative costs. Likewise, those who do not pay the corresponding contributions shall be subject to the payment of legal interest on the amount of the contributions owed." n) Article 51, the text of which shall read:
"Article 51.- Legal persons, entities, or groups that constitute an economic unit, possess assets, and have functional autonomy, even if the latter have or do not have legal personality, shall be jointly and severally liable for the actions or omissions violating this law, committed by their representatives in the exercise of their duties." ñ) Article 53, the text of which shall read:
"Article 53.- When the committed infraction implies economic loss for the Caja, without prejudice to the administratively established sanction, the offender must compensate the Institution for the damages caused and must also restore the violated rights. For this purpose, the necessary measures leading to those ends shall be adopted, and proceedings shall be conducted in accordance with Title VII, Chapter VII of the Labor Code (Código de Trabajo).
The certification issued by the Caja, through its Administrative Collection Department or the competent branch of the Institution, regardless of the nature of the debt, shall have the character of an executory title (título ejecutivo), once final in the administrative venue.
Debts owed to the Caja shall have payment priority over common creditors, without prejudice to higher priorities granted by other regulations. This priority is applicable in universal proceedings and in any process or procedure conducted against the debtor's assets." o) Article 54, the text of which shall read:
"Article 54.- Any person may report to the Caja or its inspectors the infractions committed against this law and its regulations. In the processes conducted for judging infractions against this law and its regulations, the labor courts must always have the Caja as a party, to which the action shall be referred at its Legal Directorate. To prove the legal capacity with which the institution's lawyers act, the citation of La Gaceta in which their appointment was published shall suffice.
Workers' or employers' organizations and insured persons, in general, shall have the right to request from the Board of Directors (Junta Directiva) of the Caja, and it shall give them access to, all the information they request, provided there is no legal provision safeguarding the confidentiality of what is requested. They shall have access to the following:
1.- Information on the general evolution of the economic, financial, and accounting situation of the Institution, its investment program, and projections regarding the probable evolution of the Caja's economic-financial situation and the levels of contribution, under-declaration (sub-declaración), coverage, and delinquency.
2.- Information on the measures implemented for the financial rehabilitation and economic-financial improvement of the institution, as well as the specific measures and their effects regarding contribution, under-declaration (sub-declaración), coverage, and delinquency.
3.- Statistical information supporting the information indicated in the preceding subsections.
The information mentioned in the preceding subsections must be available at least semi-annually." p) Article 55, the text of which shall read:
"Article 55.- Controversies arising from the application of the Disability, Old Age, and Death Regime (Régimen de Invalidez, Vejez y Muerte) and those prompted by the application of laws and regulations by the Inspection Service or against it, shall be processed and resolved by the corresponding office, and against what this Service decides, an appeal may be filed before the corresponding Division Management (Gerencia de División), provided it is filed before the office that issued the resolution, within three working days following the respective notification. The ruling must be issued within twenty working days following the date on which the appeal was filed.
Other controversies that arise due to the application of this law or its regulations shall be processed and resolved by the respective Division Management (Gerencia de División). Against its decision, an appeal may be filed before the Board of Directors (Junta Directiva), which must be filed before the same Division Management that issued the contested resolution, within three working days following the notification. The ruling of the Board of Directors must be issued within twenty days following the date on which the appeal was filed.
Each Division Manager shall hear matters pertaining to their competence, according to the subject matter involved. If any Manager considers that a case does not correspond to them, they shall refer it ex officio without further procedure to the respective Division. The period to challenge before the courts the final resolutions issued by the Caja shall be six months." q) The second paragraph of Article 74, the text of which shall read:
"Article 74.- [...]
The obligation to annually budget sufficient revenues to guarantee the universalization of social insurance and to order, in any case, the effective and complete payment of the contributions owed to the Caja by the State, as such and as an employer, shall correspond to the Minister of Finance. The breach of any of these duties shall entail the responsibilities established by law against him. Criminally, this conduct shall be sanctioned with the penalty provided in Article 330 of the Penal Code.
Employers and persons who carry out, totally or partially, independent or non-salaried activities must be current in the payment of their obligations to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), in accordance with the law. To carry out the following administrative procedures, being current in the payment of obligations in accordance with Article 31 of this law shall be a requirement.
1.- The admissibility of any administrative application for authorizations submitted to the Public Administration that it must decide upon in the exercise of public oversight and tutelage functions or when dealing with applications for permits, exemptions, concessions, or licenses. For the purposes of this article, the Public Administration is understood in the terms indicated in Article 1 of both the General Law of Public Administration (Ley General de la Administración Pública) and the Law Regulating the Contentious-Administrative Jurisdiction (Ley Reguladora de la Jurisdicción Contencioso-Administrativa).
2.- In relation to legal persons, the registration of any document in the public registries: commercial, associations, sports associations, and the Registry of Social Organizations of the Ministry of Labor and Social Security, except those issued by judicial authorities.
3.- Participating in any public procurement process regulated by the Law on Administrative Procurement (Ley de Contratación Administrativa) or by the Law on Public Works Concession (Ley de Concesión de Obra Pública). In every administrative contract, a clause must be included that establishes non-payment of obligations to social security as a contractual breach.
4.- The granting of the benefit provided in the second paragraph of Article 5 of the Organic Law of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República).
5.- The enjoyment of any exemption regime and fiscal incentives. Failure to comply with social security obligations shall be cause for loss of the exemptions and fiscal incentives granted, which shall be determined within a due process followed for that purpose.
The verification of compliance with the obligation established in this article shall be the competence of each of the administrative instances where the respective procedure must be carried out; for this purpose, the Caja must supply the necessary information monthly. The breach of this obligation by the Caja shall not prevent or hinder the respective procedure. Similarly, through agreements with each of these administrative instances, the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) may establish joint databases and control and verification systems that facilitate the control of compliance with the payment of social security obligations." Article sheet
Reforms to Finance the Non-Contributory Regime of the Costa Rican Social Security Fund