The Burden of Proof in Pension Regime Transfers


By: Luz Eneida Saldaña, attorney, Universidad del Rosario, specialist in Administrative and Financial Law

In ruling SU-107 of 2024, the Constitutional Court took a significant step toward ensuring fairness and justice in how pension-regime transfers are evaluated. The change aims to ensure that affiliates receive adequate information to make informed decisions about their pension future.

What Changed With Ruling SU-107 of 2024?

Effective date: The measure took effect on May 8, 2024, the date the Constitutional Court published the ruling. The ruling "modulates and clarifies" the precedent of the Supreme Court's Labor Cassation Chamber, specifically regarding the burden of proof in ordinary labor proceedings over the "ineffectiveness of transfers of affiliates from the pay-as-you-go regime (RPM) to the individual savings regime with solidarity (RAIS)."

Prior Precedent

The Supreme Court had held that when a pension fund administrator (AFP) failed to adequately explain the implications of switching pension regimes, the burden of proof fell on the AFP to show that it had in fact informed the affiliate properly.

The Clarification or Modulation

The Constitutional Court determined that, under the General Procedure Code, Law 100, the Labor Procedure Code, and the Constitution, the judge may request a range of evidence. This includes:

• Confessions
• Sworn statements
• Third-party testimony
• Expert opinions

This new measure also affects pending cases and has inter pares effects — meaning it applies immediately to everyone in identical situations.

Practical Implications

In practice, this change means the burden of proof can shift to the affiliate. The labor judge has the discretion to reverse the burden of proof in cases where the plaintiff can't substantiate their claims, taking into account the rules of the Constitution, the Labor and Social Security Procedure Code, and the General Procedure Code.

Conditions for Switching Regimes

It's important to note that the conditions for switching regimes haven't changed. Women under 47 and men under 52 can switch freely between the two regimes every five years. Once past that age, switching is no longer possible.

Double Advisory Session

To transfer from the public to the private regime or vice versa, a Double Advisory Session (with both the AFP and Colpensiones) is mandatory. Both entities must clearly explain the differences between the regimes to help the affiliate make the best decision.

Verifying Your Work History

It's essential to verify your Work History after every transfer. If an affiliate believes the AFP didn't inform them adequately or misled them, they can sue to have the transfer declared void. From now on, however, expert attorneys will be needed to gather sufficient evidence.

At CONSEJURIDICO, our team of attorneys specializing in labor and pension law is ready to advise you on any matter relating to pension-regime transfers and the burden of proof. Send us a message and learn more by clicking here.

At Consejurídico, #WeWantToBeThere

Source: Constitutional Court, Ruling SU-107/24

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