A new momentous controversy has arisen within the pension fund management (AFP) industry. This is because on Saturday November 27, Cuprum SA filed an action for the protection of constitutional guarantees against its regulator, the Superintendency of Pensions.
Cuprum alleges that the regulator has imposed “a gag on its right to have an opinion” and to express publicly “at the hottest moment since its creation.” This is due to the issuance and communication of Reserved Official Letter No. 30,452 of the aforementioned superintendency, regarding the “Add, do not subtract” campaign, carried out by the fund manager.
Cuprum’s campaign, published on September 20 on its YouTube channel, affirms that “your savings are no longer yours, it would be subtraction; that they take away your freedom to choose, it would subtract.” The audiovisual piece was broadcast while Congress was discussing the fourth retirement of pension savings.
It was also issued in the second part of an electoral year in which the next Congress has already been chosen and the next President will be elected. Context in which the discussion on a possible reform of the pension system has been relieved again.
The office of the Superintendency
In the office of the Superintendency of Pensions, a series of restrictive measures is mandatorily instructed. Specifically, it prohibits the directors, executives, workers and representatives of AFP Cuprum from making, hereinafter, statements, comments or opinions regarding matters that are not related to the activities of the AFP itself, such as contingent policy.
The basis of the administrative act is that, since the AFPs have a unique and exclusive business, as provided in article 23 of Decree Law No. 3,500, the opinions and public statements that they make must also be limited to such matters; Issues such as contingent policy would exceed that limit and would therefore be “illegal”.
In his protection action, led by the lawyers Gustavo Parraguez and Vicente Marin, AFP Cuprum considers that the decision adopted by the regulatory body is illegal and arbitrary, and detrimental to certain constitutional rights recognized by the Magna Carta for every person, including legal persons, such as the administrator.
It explains that the AFPs are actors with rights and duties, whose interests may be harmed by legislative initiatives that impact their operation and thereby affect their affiliates.
It adds that the decision of the superintendency seems to ignore the applicable regulatory block in the matter that not only allows, but also obliges the AFPs to carry out information and social security education activities for their affiliates.
Finally, Cuprum reproaches that, with its actions, the regulatory body incurred a serious misuse of power, since it has used a public authority –the one that allows you to interpret the law– for purposes other than those provided for in the standard.