En su momento, hubo constitucionalistas que responsabilizaron al TC de haberle quitado los dientes al Sernac. Sin embargo, antes de su pronunciamiento, fuimos muchos los que advertimos a las autoridades y al Congreso que un Sernac con facultad sancionatoria lo convertía en juez y parte. Esto debido a que el Sernac y las Asociaciones de Consumidores tienen legitimación activa, la herramienta más poderosa para defender a los consumidores.
Hernán Calderón
En abril, la Comisión de Sistema de Justicia y Órganos Autónomos de la Convención Constitucional, aprobó, por 16 votos a favor y 3 abstenciones, la creación de una “Agencia Nacional del Consumidor” que remplazaría al Servicio Nacional del Consumidor (Sernac), con facultades fiscalizadoras, sancionatorias y reguladoras, la que –según el texto– deberá ser autónoma e independiente del ciclo político y gobiernos de turno.
Hoy, el Sernac tiene facultad fiscalizadora, por lo que la norma constitucional es reiterativa. Sin embargo, se agregan las facultades sancionatoria y reguladora, las que ya fueron fruto de discusión en el Congreso Nacional hace algunos años. No se puede perder de vista que estas dos facultades fueron declaradas inconstitucionales por el Tribunal Constitucional (TC).
En su momento, hubo constitucionalistas que responsabilizaron al TC de haberle quitado los dientes al Sernac. Sin embargo, antes de su pronunciamiento, fuimos muchos los que advertimos a las autoridades y al Congreso que un Sernac con facultad sancionatoria lo convertía en juez y parte.
Por qué juez y parte? Porque el Sernac y las Asociaciones de Consumidores tienen legitimación activa, la herramienta más poderosa para defender a los consumidores, pues permite la presentación de demandas colectivas en representación de todos los consumidores afectados por un mismo hecho. Con esta herramienta, tanto el Sernac como las Asociaciones de Consumidores combaten los abusos, las colusiones, la falta de profesionalidad de los proveedores de bienes y servicios y otras afectaciones.
En nuestro diseño institucional, los organismos que aplican sanciones administrativas no tienen legitimación activa para representar a los ciudadanos, basta mirar la Dirección del Trabajo, las superintendencias y organismos reguladores que tienen facultades sancionatorias, pero no tienen legitimación activa para defender los derechos de los afectados después de sancionar.
A esta iniciativa le faltó conocer la opinión de las Asociaciones de Consumidores, las que –según la moción– no existen. Si bien introdujeron un comparado con legislaciones extranjeras, tener una agencia estatal superpoderosa no garantiza una mejor protección de los consumidores. Además, hoy los Juzgados de Policía Local están presentes en todas las comunas del país, siendo la justicia más cercana a los ciudadanos. También, es necesario considerar los costos que significaría implementar esta Agencia Nacional del Consumidor. Hoy es necesario darle autonomía al Sernac y definir su rol, así como dotarlo de atribuciones en las mayores necesidades de los consumidores.
La propuesta de Agencia Nacional del Consumidor considera la protección de los consumidores individuales, a los cuales el Sernac actual no representa en los Juzgados de Policía Local y ,en casos excepcionales, presenta acciones por el interés general, en los cuales el consumidor tiene que hacerse parte con fallo definitivo para defender su interés personal ante el juzgado; este es el procedimiento actual.
Sin embargo, las Asociaciones de Consumidores tienen atribuciones para representar ante Tribunales los intereses individuales de los consumidores, el problema es que las asociaciones no cuentan con los recursos para representarlos. En otros países, para resolver esta desprotección y falta de financiamiento, se ha creado un sistema que permite que la asociación que demande por interés general o individual reciba un porcentaje de la multa para financiar la defensa del consumidor. Hoy las multas van a beneficio fiscal.
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