Whether the tax reform that introduced a tax on ultra-processed foods and ultra-processed sugary beverages (Law No. 2227 of 2022) violates the principles of equality, freedom of enterprise, and free competition.
In Decision C-435-23, the Constitutional Court [Corte Constitucional] declared the tax reform constitutional, ordering against two actions (D-15137 and D-15129).
– Lawsuit D-15137 challenged the constitutionality of the process that led to the adoption of the tax reform. It claimed that the conciliation committee formed within the Colombian Congress to discuss and adopt the reform was procedurally flawed. The Constitutional Court dismissed this claim, declaring the process legal and constitutional.
– Lawsuit D-15129 challenged the tariff of the tax on ultra-processed sugary beverages on allegations that it violated the principle of equality and infringed the principle of economic freedom and free competition. The Court dismissed all claims, declaring the constitutionality of the tax and its tariff.
With respect to the principle of equality, the Court emphasized that the tax had the purpose of discouraging the consumption of ultra-processed sugar-sweetened beverages in order to mitigate their negative externalities. In this context, the Court deemed that a tax rate that is based on an objective criterion (the level of sugar per milliliter of beverage) treats consumers on an equal footing, and therefore does not violate the principle of equality.
In relation to the allegations regarding the right to free competition and freedom of enterprise, the Court emphasized that economic freedoms are not absolute and can be limited to promote the effective enjoyment of fundamental rights and the protection of the general interest. Accordingly, the Court found that the proposed limitations were constitutionally permissible because they fulfilled the following criteria: they were established by law, did not affect the essential core of economic freedoms, were adequately justified, and were aimed at protecting the general interest. For this reason, the limitations were considered reasonable and proportional.
[Full text of the decision is not available yet pending publication by the constitutional court]