The Bill of Law No. 231 of 2007 House, 072 of 2006 Senate, by which the Nation is linked to the celebration of the thirty (30) years of legal existence of the University of La Guajira, and orders in its homage the " The construction of some works has set the legal procedures within the Chamber of Representatives and the Senate of the Republic, and has been sent for the respective presidential sanction.

The Executive Branch, by its trade of 7 January 2010, makes representations to the legislative initiative, through which it expresses alleged reasons of unconstitutionality for its sanction and, on the basis of this, decides object.

II. OF OBJECTIONS TO UNCONSTITUTIONALITY

1. As regards the first objection, which is that the operative event is not required in the draft, it is necessary to indicate that this is not the case, given that this element of the tax is expressly set out in Article 2 (2) of the Treaty. of the draft amending Article 4 of Law 71 of 1986. See:

" Authorize the Departmental Assembly of La Guajira to determine the characteristics, rates, and all other matters concerning the mandatory use of the stamp in all activities and operations that are required perform in the department of La Guajira and its municipalities. The providences issued by the Assembly of the department of La Guajira under the provisions of this law, shall be brought to the attention of the National Government, through the Ministry of Finance and Public Credit. "

The above is compatible with the case law, even with the one cited in this objection, which states that it is up to the Congress to create the taxes of the territorial order and to point out the basic aspects of each of them and the district assemblies and the district and municipal councils the establishment of the other components, within the general or restricted parameters to be set by the corresponding law of authorization1 [1] [1].

In this way, the legislator states that while Congress has determined, as a fact generator all activities and operations to be performed in the department of La Guajira, it will be up to the Assembly to discriminate what those activities and operations are as it has been operating perfectly since the advent of Law 71 of 1886, in which the Congress determined in the Article 4o the fact that the operative event was all the operations that are carried out in the In the municipalities of the same one on which the assembly has jurisdiction, and this corporation by means of Ordinance 02 of 1987 expressly repealed by Ordinance 040 of 1997 considered as fact specific generators following:

a) Any account that is rotated by the Departmental Treasury and/or its decentralized entities, by the municipal treasures and their decentralized entities that have their origin in the Contracts, Additions or Extensions of Contracts, Contracts Awarded by Public or Private Tender, Supply Contracts, Work Contract, Professional Services, Consultancy, Concessions, Minutes, Records, Economic Balance, Acts, Work Orders, Cobro Accounts, Documents and Operations are carried out with the Departmental Government or any of the departments of Sectional Administration: rate two percent (2%);

b) All contracts additions or extensions that involve modification to the initial value, which shall be carried out by private coal companies and are carried out in the department of La Guajira, which are related to the holding. In the sense of including in contracts additions and extensions (otrosi), the two percent (2%) tariff will be applied to the total value of the contracts, whatever their legal denomination;

c) And as activities that are the subject of the stamp pro Universidad de La Guajira determined the following: The operations of Enrollment, Tuition, Extra Examination, Validation, Enablement, Law of Degree, Reintegrated, Transfer; to do the University of La Guajira: Pay salary from the Departmental and Municipal Treasury, from the decentralized entities of the Departmental and Municipal Order, from the University of La Guajira. Documents such as: Meat, certifications, Diplomas, Peace and Salvo that the University issues.

Regarding the second objection related to alleged violation of Article 69 of the Political Constitution that enshrines university autonomy, it is necessary to indicate that is considered to be unfounded.

In effect, the constitutional jurisprudence has clearly determined that the legislator is constitutionally authorized to limit university autonomy, as long as it does not invade or nullify its essential core. This rating can be seen inter alia in Case T-02 of 1994 MP. José Gregorio Hernández Galindo, C-299 , 1994 MP. Antonio Barrera Carbonell, C-06 from 1996 and C-053 from 1998 MP. Fabio Moron Diaz.

By virtue of the above, it is appropriate to determine what is the essential core of such autonomy. For the same jurisprudence, this core is what constitutes all that allows to assure the full function of the university (Judgment C-337/96) and the subjects of that core, where not even the law can extend its regulations are those pertaining to the academic or administrative organization, as it would be, for example, in the aspects related to the teaching management, (selection and classification of their teachers), admission of the staff (i) the provision of services, training programmes, training and scientific work, their administrative authorities, management of their resources, etc. (Judgment number C-299/94), which does not occur in this case, because the determination of the destination of the stamp of the Pro-university of La Guajira, does not touch essential aspects of the university autonomy and On the contrary, it responds, as will be outlined in greater detail later in this writing, to the tax authority directly granted by the National Constitution to the Congress and to the departmental assemblies. An example case law! where the violation of the essential core of the autonomic principle is clear is found in the judgment number C-008/96 where an inexequible was declared a law that had determined that the institutions of higher education had to establish postgraduate and continuing education programmes in sport and recreation, which broke the core of this principle, given that the impetus and the creation of such programmes were not selected or established by the management bodies of the same.

In this order of ideas, it is mandatory to point out that university autonomy does not exclude legislative action, however, this does not mean that the legislator has been stripped of the regulatory exercise that corresponds to him. (Judgment T-310/99) and without a doubt, the determination by the legislator of the destination of the stamp collection in the Bill number 133 of 2008 Chamber, 354 of 2009 Senate, "for which the Law 71 of 1986 is amended", invades the essential core of the autonomy of the University of La Guajira, given the consideration that the project does not interfere in aspects related to its academic or administrative organization, especially if the action of the Congress is based on the article 338 incorporates the political principle according to which there can be no taxes without representation, predicable on the national and territorial orders through the Congress, the departmental assemblies and the district and municipal councils. In effect, article 338 prescribes that the law, ordinances and agreements must fix, directly, the active and passive subjects, the facts and the taxable bases, and the rates of the taxes. This topic can be seen in the judgments of Constitutional Court C-413 of 1996 and C-925/00. Let us look at the latter: Should it be taken into account that the legislator enjoys wide freedom to establish tax exemptions-following the initiative of the National Government, since it is up to him to set the tax policy, and this, in the background, develops the top principle stated in article 338 of the Political Constitution: it is the Congress, directly, the call, to determine the taxable persons of taxes, taxes and contributions from the national order. In doing so, it has the power to indicate who pays the taxes and who are excluded from the obligation to do so. In the same way, the legislator has competence to regulate the figure of the tax refund, to indicate to whom it is possible to shelter with it, when, in which cases and under which conditions.

It follows from the foregoing that the tax authority, within the current constitutional framework, belongs to the legislator and to the territorial corporations (assemblies and councils), without in any case having been granted to the Universities through their authorities (Superior Council, Academic Council or Rector) competence in these matters.

Now, Article 338 of the Constitution does not grant the assemblies, exclusively, the power to determine the destination of the collection. Congress in the enabling law, as in this case was done, following a legislative tradition in the matter of stamps, without thereby restricting the scope of the principle of territorial autonomy embodied in the Constitution (Judgment C- 538/02). Well, if this is so, that it would not have to be said of the self-employed university entities, those who in the tax field are barred from any intervention, for which reason it is not reasonable to preach violation of the principle of university autonomy, by the the fact that the legislator establishes in the project the destination of the stamp collection.

Additionally, it is evident that the participation of the Universities in relation to the stamps, consists in being simply the active subject of the rate or if you will, the direct beneficiary of the same, since it is clear, that When the law empowers the assemblies or councils to create it, these corporations are free to decree or not to decree the same, and may also repeal in their respective jurisdictions the tax decreed. According to the above, the practical effectiveness of the tribute will depend exclusively on the assemblies and the councils, rather than the university entities, so it is not appropriate that those who do not have any interference in the establishment of the tribute, you can define the destination of your collection.

In short, the principle of university autonomy aims to give higher education institutions the necessary conditions to facilitate the free exercise of teaching and research without However, this principle is not absolute and must be developed in harmony with the Constitution and the Law and in this case, the limit has been imposed by the same Charter when incorporating the principle of the legality of taxes and by giving it its content. In fact, Article 150-12 states that it is the function of the law "to establish tax contributions and, exceptionally, parafiscal contributions ...". Similarly, authorizes ordinances and agreements to decree local (items 300-4, 313-4, and 338) and orders that the rules with the ability to create taxes should define the assets and liabilities, the facts and the taxable bases, the tariffs, and other basic aspects of the taxes, (i) the powers of the European Union and the Member State of the Universities.

If the above were not sufficient, it is necessary to indicate that from an unsuspecting reading of Article 85 of Law 30 of 1992, the revenue per concept of the collection of the In the first place, it is important for the European Parliament to be a member of the Council of the European Union, and I would like to thank the President-in-Office of the Council for his work on this report. approved the law of authorizations and if the assembly, discretionally, gives it the required efficiency, As a result, the educational entity cannot have any interference in the destination of resources that depend on the exclusive and exclusive arbitration of other state bodies.

III. FINAL CONSIDERATIONS

For all of the above, we ask the honourable Members of the Senate of the Republic and the House of Representative, respectively, to declare unfounded the objections presented by the President of the Republic to Bill No. 133 of 2008 House, 354 of 2009 Senate, by which Act 71 of 1986 is amended .. "

2.2.3 The Plenary of the Senate of the Republic announced the submission to the vote of the report on objections on Tuesday 08 June 2010, as stated in the Minutes number 40 published in the Congress Gazette number 393 of Thursday, July 8, 2010, page. 51_[19], as follows:

" In Bogotá, D.C., at eight (8) days of June 2010 prior to the summons, the honorable Senate of the Republic met in the chamber, with the purpose of meeting in plenary ... '

' ... To be discussed and discussed at the next session:

Bills for Second Debate: (...) '

' (...) Bill with objections report.

Bill No. 354 of 2009 Senate, 133 of 2008 House, for which Law 71 of 1986 is amended. (...)

Projects are read and announced for the next session tomorrow, Mr. President.

2.2.4 The aforementioned report was considered and approved by the Full Chamber of the honorable Senate of the Republic on June 9, 2010, as stated in the 41st Act of the same day, not accepting the objections of the executive. The publication of the respective Act was made at the Congress Gazette number 394 of June 8, 2010, page 6_[20], approved by a nominal vote of 55 votes for Yes:

" Objections by the President of the Republic, to Projects approved by the Congress.

Bill No. 354 of 2009 Senate, 133 of 2008 House, by which Act 71 of 1986 is amended.

The Presidency grants the use of the word to the honorable Senator Jorge Eliecer Ballesteros Bernier.

Words of the honorable Senator Jorge Eliecer Ballesteros Bernier.

[passage omitted] (El Comercio, 6 March)-in-Office of the President-In-Office -- President Jorge Eliecer Ballesteros Bernier, who is presenting the report for the second debate presented by the Accidental Commission appointed by the Presidency, is using the word. To study the Objections formulated by the Executive to the Bill of Law No. 354 of 2009 Senate, 133 of 2008 Chamber, for which the Law 71 of 1986 is amended.

Many thanks to President, this bill, simply trying to give effect to one that already existed on a Pro University of La Guajira stamp, of the presidential objections is raised two facts This is an unconstitutionality, one that has to do with the fact that, according to the presidency, the fact that the stamp is not needed is not needed.

However, this is not true to the extent that there is very good established in the project, which are the operative events, are all the activities and operations to be carried out in the department of La Guajira and its municipality and obviously the Departmental Assembly is authorized to determine the characteristics of the rates and all matters concerning this stamp in the same way.

CambioThere is another circumstance that you assume of unconstitutionality, which has to do with the fact that the project is apparently against university autonomy. that the bill does not attack the core core of what is the administration and the organization of the university and really about this there is already jurisprudence where it is established that the Legislator can be established, can define some issues that have to do with facts that do not have, impact the core core of the university in such a way that Under that circumstance, considering that there is no reason to object to this project, we are asking for the presidential objections to be denied, that was all President.

The Presidency submits to the plenary the Report in which the Objections presented by the Executive to the Bill No. 354 of 2009 Senate, 133 of 2008, are declared founded, closes its discussion and, compliance with Legislative Act 01 2009; opens the vote, and tells the Secretariat to open the electronic register to proceed to the roll call vote.

The Presidency closes the vote, and tells the Secretariat to close the electronic register and report the outcome of the vote.

By Secretariat the following result is reported:

By Yes: 55

Total: 55 Votes

Nominal voting on the Report of Objections of Bill No. 354 of 2009 Senate, 133 of 2008 House, for which Law 71 of 1986 is amended.

Senators Honorables

By Yes

Consequently, the Report of Objections to Bill No. 354 of 2009 Senate, 133 of 2008, has been approved.

2.2.5 The Plenary of the House of Representatives announced the submission to the vote of the report on objections on June 9, 2010, as stated in the Minutes of Plenary number 245 of the same date, published in the Gazette of Congress number 401 of 2010 page. 33_[21], as follows:

" In Bogotá D. C., Constitutional Headquarters of the Congress of the Republic, on June 9, 2010, opening the registry at 12:08 p. m. and starting at 13:32 p. They met in the elliptical Hall of the National Capitol, the honorable Congressmen that are indicated for the purpose of meeting in accordance with the legal mandate ... ' ' ... Madam Secretary, please announce projects for next week.

Assistant Secretary General, Dr. Flor Marina Daza Ramirez:

President, the following projects are announced for the Plenary Session of June 15 or for the next Plenary Session, in which bills or legislative acts are discussed.

First ...

' ... Report presidential objections.

Bill 133 of 2008 House, 354 of 2009 Senate, by which Act 71 of 1986 is amended. "

2.2.6 The report was considered and voted in plenary session of the honorable Senate of the Republic on June 15, 2010, as stated in Act number 246 of the same date, published in the Congress Gazette 538 of 2010, pages 35, 36, 37 and 38_[22]. The project was approved by the Yes:

92 votes and by No: 0_[23] of 151 representatives present:

" In Bogotá, D. C., Constitutional Headquarters of the Congress of the Republic, on Tuesday, June 15, 2010, opening the registry at 11:45 a.m. m. and starting at 12:25 p.m., they gathered in the elliptical Hall of the National Capitol, the honorable Representatives that are indicated in order to sessionize according to the legal mandate ... ' Next point Mrs. Secretary

Undersecretary, Dr. Flor Marina Daza reports:

Presidential objection reports

Bill No. 133 of 2008 House, 354 of 2009 Senate, for which Law 71 of 1986 is amended.

The objections report reads as follows (...) '

' for all the above, we ask the honourable Members of the Senate of the Republic and the House of Representatives, respectively, to state the objections raised by the President of the Republic, to Bill No. 133 of 2008 House, 354 of 2009 Senate, for which the Law 71 of 1986 is amended.

Firman, Omar Yepes Alzate, Senator of the Republic and Representative to the House, Alfredo Ape Neck Baute '

' (...) In consideration of the recitals of the objections presented to the bill, it opens its discussion, announced that it will close, it is closed, please open registration.

Undersecretary, Dr. Flor Marina Daza reports:

Mr. President, registration opens to vote on the presidential objections report before read (...) '

'(...) Madam Secretary, please close the register, report the vote'.

' Assistant Secretary Dr. Flor Marina Daza reports:

Log closed, voting is as follows:

92 by Yes or by No.

Mr. President, the presidential objections of Bill 133 of the 2008 House, 354 of the 2009 Senate, have been approved, for which the law 71 of 1986 is amended ... ".

2.2.7 The President of the Senate of the Radic Republic on June 28, 2010_[24] in the Constitutional Court Secretariat the draft law in reference, in order to decide on the exequibility of the objections President.-The President-in-law.

2.2.8 From the fact that the report on the presidential objections has been confirmed, it is evident that they complied with what was stated in article 160_[25] The constitutional and, consequently, there was no interruption in the chain of the same.

The Constitutional Court then has to carry out the material examination of the objections.

3. Constitutional legal problem.

It is for the Court to analyze whether the Congress of the Republic, by law authorizing the territorial authorities to impose a tax, in this case the issue of a stamp, in order to capture own resources, must, according to with the principle of tax law, to point out in it all the essential elements of the tax. On the other hand, to establish whether the guarantee of the university autonomy of the educational entity is violated because it is the law of authorization of the tribute that indicates the percentage and destination of the resources collected on occasion of the issuance of the Stamp "Pro University of La Guajira".

Consequently, the Constitutional Court will have to establish whether the proposed law violates article 338 of the Political Constitution, by failing to point out the fact that it generates the tax, as is pointed out by the National Government and the article 69 Superior relative to the university autonomy, because in the article 40 of the a specific destination was established for the resources that were collect on the occasion of the issue of the stamp Pro University of La Guajira.

4. Decision Budgets

Constitutional Court will review: (i) The principle of the legality of the tax and the autonomy of territorial entities in tax matters. (ii) University autonomy and the allocation of resources collected on the occasion of the "Pro-Universidad de La Guajira" levy.

5. Examination of the Presidential objection

5.1 Principle of the legality of the tax and the autonomy of territorial entities in tax matters

The tenor of article 338 of the Charter, allows to warn that this does not concentrate in the Congress exclusive and exclusive competence to establish the elements of the tribute, for it would imply, no more or less, the lack of knowledge of the own and inalienable scope that the Constitution recognizes to the territorial entities in terms of the establishment of taxes in their respective territories_[26].

This is how the constitutional mandate recognizes the existence of different levels in relation to the tax law, thereby recognizing the departmental assemblies and the district and municipal councils to receive income. tax, fees and contributions, which they will have to apply for the performance of their duties and for the affirmation of their autonomy. Particularly, articles 300 numeral 4 and 313 numeral 4 of the Political Constitution, confer on assemblies and councils authority sufficient to decree, in accordance with the Constitution and the law, the taxes and contributions that its support requires.

The above shows that an element of primary importance in the Colombian tax system is the decentralization and autonomy of the territorial entities (article 1or C.P.), between whose basic rights is to "administer the resources and establish the necessary taxes for the performance of their functions" (article 287, numeral 3, in harmony with the items 294, 295, 300-4, and 313-4 C.P.).

When the Constitution statuettes that such powers of the people's election bodies will be exercised in accordance with the law, it is not giving rise to the absorption of the tax power by Congress, such that the assemblies and councils, must give absolutely their power of taxation to the legislator. This, on the contrary, in setting the guidelines and guidelines within which these corporations will work, must respect the margin that has been assigned to them, in order to have, within the specific circumstances and needs of the relevant territorial entity, which concerns the characteristics of the charges to be charged.

With regard to this, through Judgment C-538 of 2002, the Constitutional Court pointed out that the laws authorizing the territorial entities to establish a tax should not contain all the elements of the same. Hence the degree of interference of the legislator in the creation and administration of the resources of the territorial entities depends on the origin of the same. Aspect that had already been dealt with in Judgment C-084 of 1995, according to which " [s] i the law creates a national tax, then the same law must define all elements of the tax obligation. But instead, if it is a territorial tribute, and especially if the law is limited to authorize the tribute, then can the corresponding corporations of popular representation, in the territorial field, proceed to develop the tribute authorized by law. This means that in such events, 'the law may be more general, as long as it indicates, in a global way, the dizziness within which assemblies and councils must proceed to specify the concrete elements of the contribution'. Since its first rulings, this Corporation had already stated that ' the law of authorizations may be general or may specifically delimit the tribute, but at least it must contain the limits within which the ordinance or the agreement will set out the concrete contents of the above mentioned article_[27].

This freedom is due, precisely to the fact that the resources, needs and interests of each territorial entity are different from each other and, in view of this, the content of the levies is different. amendment of Law 71 of 1986, for which the Department of Guajira was authorized to establish a rate "Pro-University of Guajira" through the issuance of a stamp, so that the bill in study modifies the limit of initially established that passes from eight hundred million ($800,000,000.00) to one hundred billion ($100,000,000,000.00), as well as the destination of the retreads as the initial collection went to the purchase of own land, construction and financing of the university and, the modification that is studied allocates the resources to the works of infrastructure, endowment, creation and payment of teaching places, research and training according to the parameters that in the matter of activities and operations taxed with the stamp determine the assembly departmental.

Thus, in accordance with Article 338 of the Constitution and in accordance with the foregoing jurisprudential criteria, it is necessary to conclude that the draft law objected to, It was necessary to contain each and every element of the tribute, since in the development of such authorization, the missing elements can be defined by the departmental assembly. Nevertheless, it is worth noting that the bill, as well as the Law 71 of 1986, which is amended, establishes (i) the subject to whom the authorization of the Department of La Guajira is directed. (ii) the active subject of the charge: The Department of Guajira. (iii) the beneficiary of the levy: The University of Guajira. (iv) the subject of the authorisation: the issue of a pro-university stamp of the Guajira. (v) the allocation of the collection: Financing the infrastructure and endowment of the university by 70% and training, research and teaching in 30% of the collection. (vi) And the most important, the operative event that according to the foreign objections is the National Government: all the activities and operations that are carried out in the Department of Guajira and in its municipalities, which may be specified by the departmental assembly. (vii) the limit to the total amount of collected by the issue of the stamps: up to a hundred billion pesos current. It is worth noting that while the draft law in reference amends Article 4 of Law 71 of 1986, for which the departmental assembly was expressly authorized to set the tariff, in such a way that it is silent on the point, the truth is which is necessarily to be pointed out by the departmental assembly by ordinance in compliance with constitutional article 338 .

subhead] In these terms, in the case of the territorial entities ' own resources, there is no reason for the legislator to delimit each of the elements of the tax, because in this way it would ring out the fiscal autonomy of those who enjoy constitutional mandate. As a result, the charge according to which the draft object is unconstitutional because it does not contain all the constituent elements of the tribute, is not called to prosper, even less when the operative event was matter of parameter within the Bill of law.

5.2 University autonomy and the allocation of resources raised on the occasion of the "Pro University of Guajira" tax

It remains to be determined whether the legislator incurs undue interference in university autonomy, in establishing in the draft objecting that the allocation of the resources to be collected from the issue of the stamp must be invested as follows: "... seventy percent (70%) in infrastructure and endowment; and thirty percent (30%) for training, research and teacher creation and payment," restricting, according to the presidential objections, the discretion of the university body to decide autonomously in respect of the investment of the retreads.

The above, because article 69 of the Constitution guarantees university autonomy, which translates into the faculty that universities have to self-determine and self-rule without the interference of external powers. This autonomy is manifested not only in the academic field, as an expression of the freedom of thought and the ideological pluralism embodied in the Political Charter, but in the administrative and financial aspect, so that it is self-determined in all of the related to the internal organization of the entity, which implies verifying and completing the idea to manage its budget and its resources_[28].

According to the Law 30 of 1992 and the constitutional jurisprudence, autonomy is determined by the field of action of the universities, which manifests itself in the freedom to: (1) to give its own statutes; (2) set guidelines for the appointment and appointment of their teachers, academic and administrative authorities; (3) select their students; (4) identify their academic programs and study plans that will govern their activities academic, according to the minimum parameters outlined in the law, and (5) approve and manage their budget_[29].

In terms of resource management, it is clear that one of the functions inherent in universities and essential to their capacity for administrative self-regulation is to develop and manage their own resources. The universities have the power to distribute their resources according to their needs and priorities, which are defined autonomously by those entities without any intervention by the public authority or the private sector. Law 30 of 1992 recognized such a faculty when it pointed out that state or official universities should be organized as autonomous university entities, with special status and linked to the Ministry of Education. National but only in terms of the policies and planning of the education sector; and within its characteristics it indicated the need to have legal status, academic, administrative and financial autonomy, independent heritage and attribution to develop and manage your budget according to the functions that you correspond_[30].

On the budgetary autonomy of the universities, the Court stated that " the essential content of the budgetary autonomy of the institutions lies in the possibility that they have to order and execute the appropriate resources. according to the priorities they themselves determine, and in harmony with the constitutional and legal tasks of the respective entity. This Corporation had already pointed out that the execution of the budget by the constitutional bodies to which budgetary autonomy is recognized implies the possibility of having, independently, of the resources approved in the Law Budget_[31]" (underlined out of text).

However, the budgetary autonomy of these educational authorities, as noted in previous paragraphs, does not extend to resources of tax origin authorized by law to the "territorial authorities" for the purpose of contributing to the development of his educational management.

To explain this statement, it should be noted that the stamps have been defined by the case law of the State_[32] as taxes within the "parafiscal charges" species, to the extent that they participate in the the nature of the parafiscal contributions, since they constitute a charge which must be paid by users of certain transactions or activities which are carried out in relation to bodies of a public nature; the taxable person of the tax; the resources are reversed for the benefit of a specific sector; and they are intended to cover expenses ' incurred by the entities which develop or provide a public service, as a function of the State.

The "rate" may correspond to the direct provision of a public service, of which the taxpayer is effectively benefiting, may also correspond to the potential benefit of the use of services of Common exploitation, such as education, health, sport, culture, that is to say, that the charge is reversed to social benefit. The first ones are defined as administrative rates as they amount to the remuneration paid by the administrative services, and the second ones, such as parafiscal charges that are perceived in the benefit of public or private bodies, but not for the provision of a proper service, but for the purpose of containing a social character.

Then, the "stamps", depending on whether they are imposed as a means of verification to prove the payment of the public service received, will have the character of administrative; or of parafiscal, if they correspond to the fulfillment of a benefit This is the case for the national or territorial entity as a tax tax subject.

In this regard, the Constitutional Court in Judgment C-1097 , 2001, stated:

" From all the above it follows that the stamp corresponds generally to the scope of the rates, ...

Then, within the fiscal orbit, how could the stamp be defined? It depends on the role that the same performs in the respective economic relationship this is, already as an autonomous tax end, prays as simple instrument of verification. As a tax end, the stamp is a charge that is caused by a person for the provision of a service, as provided for in the law and in the territorial rules on active and passive subjects, operative events, bases taxable, fees, exemptions and destination of your collection ".

Thus, in accordance with Article 338 higher in terms of fees and contributions, there is legal reserve for the purposes of pointing out the "form" in which revenue or profits must be distributed, i.e. the material limits of application of the collection, in such a way that no administrative authority is authorized for this purpose. For this first reason, the Constitutional Court does not find any repair in the law in the material sense, which in the specific case has indicated the percentage limits of the destination of the collection for the benefit of the University of Guajira, since It is sufficient to indicate that the standard only points to a material limit for the distribution of the collection, without interfering in the application of these percentages or in the execution of the expenditure.

This Court is precisely in the face of several laws that create pro-university stamps, such as Law 26 of 1990, which creates the issue of the Pro University of Valle or the 1993 Law 85 . authorizes the issuance of the Pro-Industrial University of Santander and the percentages of distribution of the retreads are indicated, stated its exequability when considering that with this material limitation of the collection by law was not Territorial autonomy has been violated. In this regard, the 2002 and C-873 2002 C-873 Sentences indicated that it was not the exclusive competence of the assembly or council because the legislator may interfere in the destination and the distribution of the tax, without this being contrary to territorial autonomy. The last providence that " [the] article 338 of the Constitution does not grant to the respective assemblies or councils, exclusively, the faculty of determine the destination of the collection, being able to do so by the Congress in the enabling law, without thereby restricting the scope of the principle of territorial autonomy embodied in the Constitution ".

That is to say, under the perspective of the articles cited, the Congress of the Republic appears as the sovereign body in tax matters. This is, the Congress through the law that creates the taxes of a national character or that it enables them in territorial matter, it can in respect of the latter to set parameters that allow the departmental assemblies and the municipal councils exercise the tax power within their respective jurisdictions.

In that order, being a territorial order fee, the resources are counted in the territorial entity, as an ordinary income of tax origin, in their condition as the active subject of the tax_[33], without prejudice to the application that according to the law should be given to the collection. For the same reason, it cannot be stated that in strict sense such collections are directly linked to the educational heritage or that they are the endogenous resources of the educational entity.

So that in the terms of the article 338 Superior the determination and destination of the resources that are obtained on the occasion of the collection of a tribute is subject to the destination and form of application pointed out in the law-in the material sense. From there the Congress, the councils and the assemblies are constitutionally empowered to establish the essential elements of the tribute of a territorial character, among them, their application, beneficiary and, above all, in the treatment of contributions the form of distribution.

Hence, the establishment of the percentages of the collection that must be destined for infrastructure and endowment, on the one hand, and training, research and teaching, on the other, does not translate into violation of the guarantee of university autonomy but in the constitutional exercise of the tax law. It is reiterated, then, that the active subject of the tribute is the department of La Guajira, not the University of La Guajira, so that what is obtained by such income correspond to endogenous resources of the territorial entity that in compliance with the The law must be used for the educational promotion of the university level of the department, in any case, the limits mentioned in the law and, through the Special Board Pro Universidad de La Guajira.

This Board is created as an entity that is responsible for the administration and allocation of resources, and is integrated, as outlined in article 3 of the draft law in study, by all members of the University's Higher Council. de la Guajira, from where the computer of the expenditure is the Rector, aspect with which it is assured in last that the application of the resources is realized according to the needs, requirements and planning of the university institution, with which the autonomy of the university in what has to do with the execution of the resources of origin tax.

It should be remembered that, in any way, that the aforementioned article 3 of the draft law in question is not a matter of objection, which is why this Court, according to settled case law, is not competent to make any pronouncement on this point, even more so when one thing is the material limit of the destination of the collection that has to do with the tax faculty and, another very different the mechanism of execution of the resources coming from the tribute of specific destination through an entity expressly created for the administration of the resources.

Corollary of the foregoing, the Court concludes that in the case under review, the Congress is attending to the Congress to indicate the distribution of the revenues from the aforementioned tax in accordance with Article 338 Higher, without the exercise of such power being against the guarantee of university autonomy, even more so when the resources generated during the issue of the stamp do not correspond to an endogenous source of the University of La Guajira, but to resources of the territorial level that by legal order are destined to support This institution of higher education and whose execution in any case is concentrated in the higher authorities of the university body in the head of the Rector. It is therefore an additional resource that does not alter the general budget of the entity nor hinder its normal functioning. The norm must then be understood as a mechanism to contribute to the strengthening of the institution, which, by its nature and social impact, transcends beyond the simply local scope. Therefore, the objection to Article 4 of the draft law of the reference will be declared unfounded.

III. Decision

On the merits of the above, the Plena Chamber of the Constitutional Court, on behalf of the people and by mandate of the Constitution,

RESOLVES:

First. To lift the decision of the Plena Chamber to abstain from deciding on the objections of the National Government contained in the Auto 284 of 10 August 2010.

Second. To declare unfounded the objections raised by the National Government against Bill No. 133/08 Chamber, 354/09 Senate "By which law 71 of 15 December 1986 is amended". Consequently, it is declared its This is a matter for the Commission and the Commission.

Notify, copy, contact the President of the Republic and the President of the Congress, post and comply.

Mauricio González Cuervo, President; Maria Victoria Calle Correa, with voting clarification; Juan Carlos Henao Pérez, Gabriel Eduardo Mendoza Martelo, Jorge Ivan Palacio Palacio, Nilson Pinilla Pinilla, Jorge Ignacio Pretelt Chaljub, Humberto Antonio Sierra Porto, Luis Ernesto Vargas Silva, Martha Victoria Sachica Mendez, Magistrates.

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