(i) Validity
According to the rule of effectiveness provided for in Article 21, ".This law is effective as of its enactment and publication."The presidential sanction occurred on December 12, 2024, as reported by the Administrative Department of the Presidency of the Republic itself on its official website.1. As for publication, although the text was included in the Official Gazette No. 52,968 of December 12, the truth is that it was only visible on December 27. According to this, what should be taken as the date of publication to establish the temporal validity of the new law?
For the Constitutional Court, nothing should intervene between the promulgation and the access to effective knowledge of the norm: "In the Colombian legal system, the promulgation of the law is equivalent to its publication, which, although it is not a requirement for its validity, it is a requirement for its validity and enforceability, that is to say, for it to bind the associates. To this extent, the constitutional jurisprudence has related the concepts of promulgation of the law -which is materialized through its publication in the Official Gazette- and of its legal effectiveness or validity, the latter being understood as the force or capacity to produce legal effects of a norm, since, as previously stated, the legal mandates will only be enforceable against the associates -and therefore they will only be affected by its legal consequences- after its publication, therefore a law, as long as it has not been published, is unenforceable and does not produce legal effects."2.
Of course, it is blatantly unconstitutional that a law is inserted in the Official Gazette on a certain date, but on that same date its contents are not available to the citizens. It does not make sense that a law has been in force since December 12 when the effective publication only occurred fifteen days later, on the 27th. In a recent decision of the Council of State, dated September 2024, issued in the framework of a Public Enforcement Action for similar facts, the National Printing Office of Colombia, administrator of the Official Gazette, was ordered to do the following:
"FOURTH: Consequently, ORDER the National Printing Office to take the pertinent administrative steps so that, within a maximum term of 3 months, in all cases, the date of the Official Gazette is the same as the date of the uploading of the act or regulation and that it also corresponds to the date of its publication in the official website of the entity."3.
According to this, what happened with Law 2437 of 2024 could fall into the field of contempt. For practical purposes, as a term a quo The date of effectiveness must be understood as December 12, 2024, unless, due to constitutional relevance, the debate on the effective access to the knowledge of the norm is generated, in which surely the considerations will be different.
(ii) Content
Law 2437 of 2024 includes substantially the provisions of Legislative Decrees 560 and 772 of 2020. However, it is worth taking into account what was expressly left aside in the new regulation, which comes, in general, to complement the corporate insolvency statute made up by Law 1116 of 2006, Decree 1074 of 2015 and its complementary rules.
Regarding the regulation of the then Decree 560 of 2020, the following rules were not rescued: Article 1, on purpose and scope of application; Article 3, on flexibility of payment of small claims; Article 7, on moratorium of agreements in execution; Article 15, on suspension of certain rules; Article 16, on effectiveness; numeral 3 of paragraph 1 of Article 8, on deferral of administration expenses; Title III, on tax aspects.
As for what was regulated by the then Decree 772 of 2020, the rules that did not pass the legislator's filter were: Article 1, on purpose and scope of application; Article 7, on strengthening the list of assistants of justice; Article 8, on deferral of administration expenses; Article 13, on mechanisms for setting and paying fees to liquidators; Article 15, on tax aspects; Article 16; Article 17, on validity.
Consequently, having made the aforementioned discards, Law 2437 of 2024 deals with:
2. Constitutional Court, Decision C-932 of 2006, Vid. https://www.corteconstitucional.gov.co/relatoria/2006/C-932-06.htm#:~:text=La%20vigencia%20de%20la%20ley%20conlleva%20su%20%E2%80%9Ceficacia%20jur%C3%ADdica%E2%80%9D%2C,en%20vigor%E2%80%9D%5B14%5D
3. Council of State, Contentious-Administrative Chamber, Fifth Section, Judgment of September 26, 2024, Rad. 2024-01064, Vid. https://www.consejodeestado.gov.co/wp-content/uploads/2024/Cuml%20IMp%20Nal.pdf