5.- That in a public deed executed on March 4, 2011, before Notaries Rolando Laclé Castro and Rolando Clemente Laclé Zúñiga, between Alejandra Navarro Solís and Luis Gerardo Solano Alvarado, and Banco de Costa Rica, they subscribe within the housing product to choose colones (colones cuota escalonada variable) with a variable stepped installment, which uses the minimum rate (tasa piso), in whose provisions, as pertinent, it is stated: \"OF THE LOAN INTERESTS.- A) ORDINARY INTERESTS (INTERESES CORRIENTES). That this loan accrues interest payable monthly in arrears, on the outstanding principal balances at an interest rate composed as follows: First Year Interest: During the first year of the loan, the interest rate shall be composed of a variable factor which is the BASIC PASSIVE RATE (TASA BÁSICA PASIVA) at a six-month term calculated and published by the Banco Central de Costa Rica, and that is in force at each moment. - Second Year Interest: During the second year of the loan, the interest rate shall be composed of the aforementioned BASIC PASSIVE RATE (TASA BÁSICA PASIVA) that is in force at each moment, plus a fixed factor of ONE percentage point per annum for commercial risk. Third Year Interest: During the third year of the loan, the interest rate shall be composed of the aforementioned BASIC PASSIVE RATE that is in force at each moment, plus a fixed factor of TWO percentage points per annum for commercial risk. From the fourth year and until the maturity of the loan. From the fourth year and until the maturity of the loan, the interest rate shall be composed of the aforementioned BASIC PASSIVE RATE that is in force at each moment, plus a fixed factor of THREE percentage points per annum for commercial risk, the interest rate of this loan being adjustable and variable according to the variations experienced by the Basic Passive Rate (Tasa Básica Pasiva). For informational purposes, the interest rate under current conditions as of today is SEVEN POINT TWENTY-FIVE percent per annum. B) MINIMUM RATE (TASA PISO). Notwithstanding the composition previously indicated, it has been agreed to establish a minimum interest rate that will govern during the entire term of the loan, which shall be SEVEN POINT TWENTY-FIVE percent per annum, payable in arrears on a monthly basis, such that the fluctuation and sum of the factors -fixed and variable-, may at no time cause the application of a rate lower than the minimum rate (tasa piso) previously indicated.\" (images 58 to 74 of the virtual file).-
6.- That by Affiliations (Afiliaciones) dated November 11, 2011, November 17, 2011, July 16, 2012, November 14, 2012, November 16, 2012, January 10, 2013, January 25, 2013, February 11, 2013, March 8, 2013, April 1, 2013, April 2, 2013, April 22, 2013, and May 20, 2013, Messrs. Emilio Soto Riggioni, Justo German López Brenes, José Luis Rodríguez Alpizar, Fernando Cortés Cantillo, Gil Esteban Monge Valenciano, Nombre147755, Nombre147756, Nombre110781, Damaris Porras Jiménez, Nombre147757, Nombre147758, Nombre134653, and Nombre147759, respectively, authorize the Asociación Nacional de Consumidores Libres to represent their rights as consumers before judicial and/or administrative instances. (Image 25 to 39 of the virtual file).-
7.- That on June 15, 2012, between Nombre40674 and Banco Crédito Agrícola de Cartago, they execute a credit agreement, using a minimum rate (tasa piso), which, as pertinent in the eighth clause, states: \"EIGHTH: OF THE MINIMUM RATE (TASA PISO): The agreed interest shall have a minimum rate (tasa piso), this being the Basic Passive Rate (Tasa Básica Pasiva) equivalent today to NINE POINT SEVENTY-FIVE plus three percentage points, and it shall not be possible to charge a rate lower than that established here during the entire term of the credit relationship.\" (Image 377 to 381 of the virtual file).-
8.- That according to the Analysis and proposal for the establishment of minimum rates (tasas piso) and ceiling rates (tasas techo) for loans in colones and dollars, official communication DRM-26-2012, dated February 28, 2013, prepared by Nombre147760 , Market Risk Department (Dirección de Riesgos de Mercado), of the Corporate Risk Division (Dirección Corporativa de Riesgo) of Banco Nacional de Costa Rica, it records: \"I. Justification. The purpose of this work is to carry out an analysis of the current methodology for determining lending rates (tasas activas) and a proposal to establish minimum rates (tasas piso) (floating) and ceiling rates (tasas techo) for loans in colones and dollars; it offers minimum rates and ceiling rates. (...) V. Final comments. For purposes of the minimum rates (tasas piso), the methodological change of the basic rate by the BCCR in December 2012 implied that there may be short-term increases in the funding cost of the BN that are not perceived in the indicator, whereby the profitability margin of floating rate loans could be reduced. In that sense, it is considered relevant to incorporate an adjustment factor that approximates that difference in the cost of structure, in line with what was previously proposed. In the case of floating rate loans, the operation is currently with a level of ceiling rate (tasa techo) in colones so high that it is inapplicable at the contractual level, while in the case of dollars they do not exist as such, so it is recommended to analyze the present methodology and results on the determination of ceiling rates, so that they are established in accordance with the current macroeconomic environment and taking into account risk scenarios such as those proposed in this document. It should be noted that for some activities the ceiling rate was calculated at a consolidated level (for example, consumer, housing and construction), so, if it is considered insufficient, the analysis could later be expanded to contemplate greater detail at the level of the subdivision of the activities themselves, especially for those that present greater credit risk.\" (Image 140 to 152 of the virtual file).-
9.- That on June 25, 2013, the General Board of Directors (Junta Directiva General) of Banco Nacional de Costa Rica, in article 7, session No. 11842, approved a comprehensive scheme of minimum rates (tasas piso) and ceiling rates (tasas techo) for loans in colones and dollars. (Image 165 to 169 of the judicial file).-
10.- That on November 1, 2013, by official communication SUGEF 2711-14-2013, signed by Nombre60826 , General Superintendent of the Superintendencia General de Entidades Financieras, the following is requested from Nombre143351 , General Manager of Coopeamistad R.L., as pertinent: \"This Superintendency has been informed through various means, of what was resolved by the Cámara de Comercio in the arbitration proceeding whose award was issued on March 13, 2013, in relation to the provisions of subsection e), of article 42, of Law No. 7472 'Ley para promover la competencia y defensa efectiva del consumidor'. By virtue of the foregoing, you are respectfully requested, within a maximum period of twenty business days, counted from the receipt of this communication, to submit to this Superintendency: a) The actions, from the risk management point of view, that the entity you represent has determined to manage the legal risk indicated above b) A technical study that determines the possible economic impact of the materialization of this risk, obviously under the worst possible scenario. (...)\" (Image 99 of the virtual file).-
11.- That on November 20, 2013, by official communication DRM-143-2013, prepared by Nombre147760 , from the Market Risk Department (Dirección de Riesgos de Mercado), of the General Risk Division (Dirección General de Riesgos), of Banco Nacional, a response is given to note SUGEF-2711-1-2013 regarding actions to manage the legal risk of establishing caps on lending rates (tasas activas), which, as pertinent, indicates: \"1.3. Benefits of the new scheme of minimum rates (tasas piso) and ceiling rates (tasas techo). Legal risk in contracts is minimized. The new implemented scheme generates greater transparency with the client, greater reciprocity and proportionality, by weighing the probability of reaching the floor and the ceiling, and greater reasonableness insofar as it is based on a technical methodology that considers the specific conditions of the BN and the environment. It provides the client with the option to choose between a scheme with minimum rates (tasas piso) and ceiling rates (tasas techo) or another without a floor and ceiling, according to their aversion to or appetite for risk. This follows the international trend of reducing, eliminating, or at least being increasingly transparent in this type of contractual clauses. It offers greater possibility for clients to benefit in contexts of declining interest rates, given the separation of minimum rates (tasas piso) at minimum protection levels or even if the scheme without a floor and ceiling is chosen. Which also allows us to be more competitive in the market. It generates greater protection for clients in case of rising rates, compared to the caps established in the past, which would positively impact even credit risk. The quarterly update of the minimum rates (tasas piso) and ceiling rates (tasas techo) provides flexibility to adjust to the specific conditions of the economic environment and at the micro level of the bank, under a technical methodology approved by the Investment Committee (Comité de Inversiones), as authorized by the Board of Directors (JD).\" (Image 154 to 158 of the virtual file).-
12.- That on December 16, 2013, by official communication DRM-163-2013, prepared by Nombre147760 , from the Market Risk Department (Dirección de Riesgos de Mercado), of the General Risk Division (Dirección General de Riesgos), of Banco Nacional, an Analysis of variability of the basic passive rate and of the current scheme of minimum rates (tasas piso) and ceiling rates (tasas techo) is carried out, which, as pertinent, indicates: \"II. Current scheme of minimum rates (tasas piso) and ceiling rates (tasas techo). The General Board of Directors (Junta Directiva General) of Banco Nacional has approved a comprehensive scheme of minimum rates (tasas piso) and ceiling rates (tasas techo) for loans in colones and dollars, as recorded in article 7, session No. 11,842, held on June 25, 2013.\" (Image 160 to 170 of the virtual file).-
13.- It is proven in the proceedings that the nominal basic passive rate (tasa básica pasiva), due to its variations in recent years, has not produced a serious impact on the rights of banking consumers. That financial entities cannot predict the behavior of the basic passive rate. That the basic passive rate is set by the Banco Central de Costa Rica based on the calculation of the average of resource capture from investors and other factors. That interest rates can be fixed or variable and are part of the business of financial intermediation entities resulting from capturing and placing resources through loans, under the protection of the autonomy of will. That SUGEF, as part of its supervisory competence, consulted financial entities on risk management and develops a model of adequate management of operational, tax, and legal contingency risks. (Proven in the testimony of the witness-expert; the audio of the oral and public trial can be heard).-
III.- UNPROVEN FACTS: Of relevance to this proceeding, the following are established:
1.- That the banking entities, being knowledgeable of the fluctuations in the basic passive rate, have placed users of banking services at unnecessary risk of losing their guarantees.-
2.- That the minimum rates (tasas piso) or the ceiling rates (tasas techo) violate contractual good faith, and that they conform to the principles of justice and equity in banking consumer relations.-
3.- That the minimum rates (tasas piso) and ceiling rates (tasas techo) have caused a 70% increase in foreclosures (remates) in the country.-
IV.- OF THE PURPOSE OF THE PROCEEDING.- In accordance with the claims determined in the aforementioned preliminary hearing, this proceeding fundamentally seeks to compel SUGEF and CONASSIF of the Banco Central de Costa Rica to regulate the tools for protecting the economic interest of the consumer, such as the ceiling rate (tasa techo) and the non-inclusion of abusive clauses, and to compel the co-defendant banks to implement the ceiling rate (tasa techo) in current and future credit operations; no annulment is sought, nor is the specific recognition of damages.-
V.- ARGUMENT OF THE PLAINTIFF: The purpose of this lawsuit is the soundness of the National Financial System, in the face of abusive practices and clauses in banking contracts, as well as the omission of the BCCR towards a more active participation, which has worsened the conditions of consumers of financial services. The claims are directed against SUGEF and CONASSIF so that they regulate the tools for protecting the economic interest of the consumer, such as the ceiling rate (tasa techo) and the non-inclusion of abusive clauses, as well as to compel the defendant banks to implement the ceiling rate (tasa techo) in current and future credit operations, as a tool for protecting the economic interest of the consumer, with the same difference between the initial ordinary interest rate and the minimum rate (tasa piso), and the costs of the proceeding. Regarding standing to sue (legitimación activa), they base their argument on Article 46 of the Constitution, as well as Articles 10, 20, 21 and 22 of the Civil Code referring to abuse of right and pacta sunt servanda, and Article 42 of Law No. 7472, the Ley de Defensa Efectiva del Consumidor, which grants standing to consumer associations. They argue that according to contract theory, the relationship must benefit both parties, and that pursuant to the General Law of Public Administration in its Articles 8, 10 and 11, it seeks to equalize and protect the weaker parties against violations and lack of protection due to unequal conditions and risks. It does not require proof that the defendant entities have experts of all kinds, and the power of knowledge and this empowerment gives them the obligation to foresee the future and protect users and in safeguarding the soundness of the national financial system. That although it is true that SUGEF and CONASSIF are regulatory bodies, they must ensure the soundness of the national financial system within the limits of society, mainly regarding minimum rates (tasas piso), and rates without a ceiling or with a very high ceiling. They note that there already exists as a precedent an Award issued by the Cámara de Comercio that ordered the return of abusively collected funds. Furthermore, regarding minimum rates (tasas piso), there is already jurisprudence in Spain that has reviewed them and points out that in the present proceeding they are not claiming damages. In the closing arguments phase, they state that the exception of lack of standing to sue (falta de legitimación activa) must be rejected, since they are supported by the standing granted by Articles 46 of the Constitution, 10 of the CPCA, 74 of Law No. 7472, as well as the provisions of judgment 1321-S1-2013 of the First Chamber of the Court. They insist that the constitutional precept speaks of consumers and users and does not deal with two types of recipients of special protection, since when it speaks of users, it refers to the public services of the State. In addition, Article 72 of Law No. 7472, which is a law of public order and recognizes inalienable rights for balance and social peace. In this sense, Article 42 of the same law, which addresses adhesion contracts, makes no distinction regarding sectors of society.
\n\nIt argues that article 1023 of the Commercial Code enshrines the principle of \"rebus sic stantibus\" and \"pacta sunt servanda,\" which is a guarantee for the community when there is an imbalance for one of the parties. The claim addresses the existence of conditions of reasonableness and proportionality of protection for both parties. It argues that the passive standing of the parties is based on subsection 131.6 of the Organic Law of the Central Bank, which grants it supervision over the interests not only of depositors of resources but also of persons who request loans, and in that sense, they may issue guidelines to protect consumers. It indicates that the passive standing of the other defendants is credited in the record, since in image 44 of the judicial file Banco Popular has used the floor rate in deed 206 of the year 2007, Banco de Costa Rica in image 67 has also used the floor rate in its contracts, Banco Crédito Agrícola de Cartago in image 381 records a commercial loan contract and use of these rates in the eighth clause, and Banco Nacional de Costa Rica, in images 140 to 152 offers minimum rates and ceiling rates, in images 146 and 147, the need for greater transparency as well as the implementation of floor and ceiling rates is recognized, and in image 157—all from the judicial file—the use of said rates is credited in the minutes of the Board of Directors and the great problem of temporary assets is mentioned. It insists that it is public and notorious that in recent years banks have assumed many properties which credits the volatility of rates, in the face of which banks must have foreseeable scenarios. Finally, it argues that CONASSIF and SUGEF can issue criteria and guidelines for this sector, in accordance with the National Banking System Law to protect the weaker party in the contractual relationship.VI.- ARGUMENT OF THE DEFENDANT PARTY: The representation of the Central Bank indicates that the first claim regarding the regulatory and supervisory bodies lacks support within the legal system, since subsection 42 of Law No. 7472 on consumer rights consists of specific norms that refer neither to the Central Bank, SUGEF, nor CONASSIF, but rather the defense of said rights must be pursued before the National Consumer Commission. It insists that CONASSIF does not have consumer defense competences assigned by the legislature, that SUGEF lacks legal possibilities to suggest or ensure those rights, since there is no express legal mandate. It indicated that regarding conventional interests these are defined freely by the parties, without SUGEF supervising or CONASSIF regulating said contractual provisions. It warns that in the lawsuit the plaintiff accuses its represented parties of omissive conduct, which in its judgment does not exist, since the legal system does not attribute any competence to it. Regarding the Arbitration Award in the Chamber of Commerce, SUGEF limits itself as part of its supervisory work to requesting reports and asking financial system entities to take mitigation measures in the face of a legal risk, such as that produced by said resolution, but reaffirms that SUGEF is not competent to delimit the commercial business of banks. In the closing arguments phase, it notes that the lawsuit is reckless, that SUGEF is not the avenue to regulate this type of circumstance, that neither the Central Bank nor CONASSIF have legal faculties to implement what is requested by the plaintiff, since they are not competent. That in its view there is no gap in the law that admits any type of interpretation, but rather the legislature has expressly provided that this is a matter for the National Consumer Commission. Coupled with the fact that any type of limitation on commercial activity, understood as a public freedom, must be done by law duly issued by the Legislative Assembly. Furthermore, it reiterates that the plaintiff accuses its represented party of omissive conduct, but it does not exist since they have no competence for what is sought in the lawsuit. That only a single concrete administrative act has been cited in the record in which SUGEF asked financial entities for information so they would take the necessary measures in the face of legal risks. It was not proven that the rates are disproportionate; rather, the faculties of its represented party are based on the principle of legality, on subsections 119 and 139 of the Organic Law of the National Banking System relating to SUGEF and article 171 of the Securities Market Regulatory Law relating to CONASSIF, which neither impose nor mention the regulation or supervision of interest rates; rather, article 497 of the Commercial Code authorizes variable rates and is not in contraposition to Law 7472. Case law, such as judgment 16-2013 of the First Section of this Tribunal, recognizes that its represented party should not intervene in the administration of banks, for which it reiterates the defenses raised in the answer to the lawsuit.- For its part, the representation of Banco Popular y Desarrollo Comunal, stated that the existence of abusive clauses is not credited in the record. It also affirms that the plaintiff confuses consumer loan relationships, since for that status one must be dealing with the final recipient and not for commercial credit, where there is no consumer involved, as differentiated by the Attorney General's Office in its opinion 180-2000, and refers to the existence of several votes from this same jurisdiction to that effect. In the closing arguments phase, it stated that in the record there is no specific allegation regarding abusive clauses but rather an abstract one, that it is evidenced that BPDC in image 41 of the judicial file has implemented the floor rate, over the basic passive rate plus four points, therefore the second claim lacks basis, it insists that in foreign legislation the problem is not the floor rate but the absence or deficiency in the right to information for the bank consumer. Finally, it warns that in the present proceeding the annulment of the floor rates is not being requested and it reiterates the defense of lack of right.- The representation of Banco Crédito Agrícola de Cartago stated that the reference to the first fact of the lawsuit where the plaintiff points out that the behavior of the basic passive rate is very varied, said assertion is indeterminate and lacks technical support. Regarding the assertion of the second fact, of the abuse of this type of rate to the detriment of the consumer, it denotes that 98% of bank debtors are current with their operations and only 2% in arrears, so said assertion also has no basis. In the sixth fact, it is indicated that clauses with rates exceeding 30% annually are granted, and in the specific case of its client, it notes that this is not true. It points out that the plaintiff cites Spanish case law without indicating what the judgment or judgments are, and in any case, the social and financial reality is different from that of our country. That the plaintiff breaks the aphorism that \"he who alleges must prove,\" since his arguments are not proven in the record. It reiterates the defense of lack of active standing since according to article 5 of the Statute of the Asociación Consumidores Libres, it does not have the faculty to sue, and additionally, in the case against its represented party, it presents a contract that is not for consumption, therefore, it is evidenced—in its judgment—a lack of passive standing. In the closing arguments phase, it notes that as case law has reiterated, it cites vote 290-F-S1-2009 of March 20, 2009 of the First Chamber of the Court, which establishes that the burden of proof corresponds to the one who invokes it, and that in the record the plaintiff does not demonstrate abuse or harm to bank consumers, and rather the delinquency level of 2% of total loan operations demonstrates the opposite, as the plaintiff lacks technical support for what it argues. Finally, in the specific case of its represented party, it warns that in the statement of facts there is no specific mention of BCAC, which evidences the lack of standing and that rather in the contract provided by the plaintiff at folio 369 of the judicial file, if the bank client is dissatisfied with the interest rate, they may request a debt renegotiation from the bank or turn to the competition, for them to purchase the credit.- The representation of Banco de Costa Rica warns that its client has already eliminated the floor rate and ceiling rate from its contracts, and that in cases where the contracting party was affected, alternatives such as loan arrangements have been offered. It insists that said clauses are lawful, there is no abuse by the Bank, and clients are not harmed, and that the loan portfolios are not in crisis. It indicates that the contracts are adhesion contracts due to the difficulty of negotiating in each individual case; however, they respond to international standards. Regarding the basic passive rate as a reference for calculating variable rates, its definition is external to BCR, which does not calculate or set it. It emphasizes that the bank is duly supervised and operates within risk standards, and that the plaintiff's claims are not supported by financial studies that credit the facts of the lawsuit. In the closing arguments phase, it stated that harm to users and debtors was not demonstrated in the record, and indicates that the Tribunal, in cases similar to the one at hand, has considered that the bank's contracts are lawful. It emphasizes that articles 495, 496, and 497 of the Commercial Code speak of fluctuating interests and that there has been no situation where its represented party has been condemned. It points out that the plaintiff lacks standing since article 54 of Law No. 7472 assigns the defense of the rights of its associates, but in the record there is no concurrence of an associate-bank debtor. It indicates that regarding the second claim, its represented party, although it had the floor rate system, has already changed it and offered its clients the possibility of making arrangements on their credits. Finally, it states that this lawsuit was filed generically and requests it be dismissed in all its aspects and that the defenses be upheld and costs be imposed on the plaintiff for the abuse of the administration of justice.- The representation of Banco Nacional notes that there is a lack of congruence between the facts and the claims. That the lawsuit lacks good faith, since it is only brought against public banks leaving out private banking entities, as well as solidarist associations and cooperatives, and generally other financial intermediation agents. Subsection 42 of Law No. 7472 establishes specific requirements, which are not configured in the lawsuit, that there is no relationship or proof to support the plaintiff's affirmations. Regarding the first fact, it insists that banks cannot predict fluctuations in loan operations; regarding the third fact, which affirms that banks placed consumers at risk, it is an unserious assessment and is not demonstrated; with respect to the fourth fact, which indicates that this practice is a dangerous modality, it is not demonstrated nor supported by evidence; and regarding the thirteenth fact about the Arbitration Award, that it does not constitute case law but a simple judgment. In the closing arguments phase, it warns that the plaintiff has not acted in good faith, since out of a total of 52 financial intermediation entities, it has only sued the state banks and Banco Popular. That the possibility alleged by the plaintiff that banks can predict the basic passive rate has not been demonstrated, nor was the allegation that users of banking services have been put at risk credited. It reiterates that as the witness-expert stated, the basic passive rate is not defined or set by the banks, as a tool for using an indicator in floor rates. That the existence of abusive clauses was not credited, and that on the contrary, subsection 495 of the Commercial Code regulates conventional interests and the use of reference rates. It emphasizes that this Tribunal, in a judgment of December 20, 2012, has already addressed this aspect, since this is not an administrative conduct but an economic phenomenon. Finally, it reiterates the request that the lawsuit be declared without merit in all its aspects and that the plaintiff be ordered to pay both costs.-
VII.- REGARDING THE DECLARATION OF THE WITNESS-EXPERT: The witness-expert Nombre60826 , in his capacity as Superintendent of Financial Entities, stated that the basic passive rate is an economic indicator, calculated by the average capture of resources from investors, among other factors, which are set by the BCCR. On his part, the interest rate is what the financial institution charges for its intermediation risk activity, and that its volatility is not limited only to the basic passive rate, but has other variables such as unemployment, which is one of the main generators of delinquency. He indicated that SUGEF does not issue regulatory norms within its competences, but formulates them for CONASSIF, and that regarding floor and ceiling rates, he has not proposed such regulation. He discussed that the regulation of floor and ceiling rates varies globally, in some countries through special laws. Regarding the work SUGEF performs, he indicated that in the face of an Arbitration Award from the Chamber of Commerce, and within the framework of its competences to ensure the management of the risk of savers' and depositors' resources, it requested information from all the financial entities it supervises. He insisted that SUGEF ensures adequate risk management, both operational, tax, as well as legal contingencies. He responded that he does not specify cases where the increase in interest rates reaches double the originally agreed-upon installment. He emphasized that the financial intermediation activity is a business of capturing resources from investors and placing resources through credits, that interest rates are the costs associated with risk, and that their definition responds to the supply and demand conditions of the financial market. He indicated that SUGEF supervises the work of 52 financial intermediation agents, among which are the state banks, as well as private banks, savings and credit cooperatives, and financial companies. He emphasized that said financial intermediation entities cannot predict variations in the basic passive rate, but can predict the financial costs that are inherent to the market. Regarding the risks of losing the guarantees granted by financial consumers on their credits, he indicated that SUGEF does not have powers, but rather that this responds to the private relationships of commercial activity, and that the Superintendency does not perform that type of supervision since it is not its domain. Regarding whether referencing loans to the basic passive rate constitutes a danger, he responded that the responsibility of each banking entity is to analyze the payment capacity of the financial consumer, and that according to the Commercial Code, the use of variable rates, referenced to the basic passive rate, is usual. Regarding the setting of floor and ceiling rates, he stated that it is not SUGEF's competence, and he insisted that the variable rate cannot be considered a violation of equity in the relationship between the bank and its clients; he emphasized that the bank's obligation is the analysis of payment capacity. He illustrated that he knows of rulings from Courts in Spain on floor rates, but insisted that they respond to laws specific to other countries. He finished by noting that SUGEF is developing a risk supervision model, to serve the fulfillment of its competences in the supervision of financial entities.-
VIII.- OF THE DEFENSES OF LACK OF CURRENT INTEREST AND LACK OF STANDING: The co-defendants raised the defenses of lack of interest, lack of standing, and lack of right. Regarding the defense of lack of current interest. The representation of Banco Nacional raises the defense of lack of current interest, and stated that it admits as true and with variations the use of the variable rate, pursuant to 497 of the Commercial Code, also accepting that the credit products it offers to consumers of financial services are structured at different terms, whose rates fluctuating over time are faced by both parties of the contractual relationship, so its represented party applies this model, approved by the General Board of Directors in Article 7, session No. 11842, held on June 25, 2013, with a comprehensive scheme of floor and ceiling rates for loans in colones and dollars, appreciating consequently that there is a lack of current interest in the plaintiff's claim. It must be specified that for the intervening parties by reason of the claim of the lawsuit, there exists neither a conciliatory arrangement nor a withdrawal of the action, so the current interest in the matter at hand persists and consequently this defense must be rejected and is so declared. Regarding the defense of lack of active standing. The representation of Banco de Costa Rica, Banco Popular y Desarrollo Comunal, Banco Crédito Agrícola de Cartago, raised the defense of lack of standing; it must be recalled that active standing is relative to the person or persons who appear as plaintiffs, referring fully to the supposed ownership of the subjective right or legitimate interest alleged to be infringed, which is conceived as the suitability to perform acts of exercising the power of action that empowers them to demand the satisfaction of a determined benefit or object; therefore, this Tribunal reaches the conclusion that the plaintiff has sufficient active standing to participate in this process under article 46 of the Political Constitution, subsections 32 and 72 of Law No. 7472, Law for the Promotion of Competition and Effective Consumer Defense, in accordance with article 10 subsection a) of the Contentious Administrative Procedure Code, since they protect consumer interests. Regarding the defense of lack of passive standing: the representation of the Central Bank through SUGEF, Banco Crédito Agrícola de Cartago raised said defense. It is worth recalling in relation to the defendant party, that it manifests as the aptitude to bear the exercise of power. It thus faces a subjective right or legitimate interest against public powers or competences. Since the claims are directed at imposing conducts on both co-defendants, passive standing consequently exists, so that there are no elements to uphold said defense, so it must be rejected and is so declared.-
IX.- OF THE COMPETENCES OF SUGEF AND CONASSIF: In the first claim, the plaintiff requests that SUGEF and CONASSIF of the Banco Central de Costa Rica be compelled to regulate the tools for protecting the economic interest of the consumer, such as the ceiling rate and the non-inclusion of the abusive clause (article 42 of the Consumer Law). In its defense argument, the BCCR, through the representation of SUGEF, argued that said claim lacks juridical-competential, functional, and technical support. Consequently, it is appropriate to address the scope of the competences of SUGEF and CONASSIF. Of the competences of the Superintendencia General de Entidades Financieras. Law No. 7558, Organic Law of the Banco Central, which creates SUGEF as a body of maximum deconcentration of the BCCR, recognizes the faculty to establish in said banking entity the organizational structure and functions, providing: “Article 115.- Creation. The oversight of the country's financial entities is of public interest, for which the Superintendencia General de Entidades Financieras is created, also referred to in this law as the Superintendency, as a body of maximum deconcentration of the Banco Central de Costa Rica. The Superintendency shall govern its activities by the provisions of this law, its regulations, and other applicable laws.” and the \\\"Article 119.- Supervision and oversight of the Superintendency. With the purpose of ensuring the stability, soundness, and efficient operation of the National Financial System, the Superintendency shall carry out its supervision and oversight activities over all entities that conduct financial intermediation, in strict adherence to legal and regulatory provisions, ensuring that they comply with the precepts applicable to them. In relation to the own operation of the supervised entities and the recording of their transactions, the Superintendency shall be empowered to issue the general norms necessary for the establishment of sound banking practices, all in safekeeping of the interest of the community. For purposes of issuing and applying the norms within its competence, the Superintendency may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries. The general norms and guidelines issued by the Superintendency shall be of mandatory observance for the supervised entities. Conassif shall issue a prudential regulation on the Development Banking System, based on criteria and parameters that take into account the particular characteristics of the credit activity coming from the Development Banking System and that are in accordance with international provisions. (Thus amended by article 58 of the Development Banking System Law, No. 8634 of April 23, 2014)\\\" (articles taken from SINALEVI). In resolution 001247-F-S1-2011, of thirteen hours fifty-five minutes on September 26, 2011, the First Chamber of the Supreme Court of Justice, addresses the area of competence of the supervisory bodies, stating: “III.- Regarding the area of competence of the supervisory bodies. Before entering the analysis of the regulatory power, and its exercise in the specific case, it is appropriate to refer, in a general way, to the competence structure established in the legal system regarding supervision, a concept that is comprised of oversight and regulation. In the development that central banking has undergone, it is not disputed that an important part of that directing, supervisory, and vigilance power has passed to other public bodies. Thus, the legislature opted to distribute the various competences that make up these powers among a series of bodies attached to the Banco Central de Costa Rica. For purposes of overseeing certain activities, due to their importance in society, it created four superintendencies, in the form of bodies of maximum deconcentration, namely, the Superintendencia General de Entidades Financieras (Sugef), the Superintendencia General de Valores (Sugeval), the Superintendencia de Pensiones (Supen) and, recently, the Superintendencia General de Seguros (Sugese). Of these, the latter two have instrumental legal personality. From the organic point of view, each one has a superintendent, who acts as the hierarchical superior in administrative matters. It is their responsibility, according to the subject matter, to verify compliance by the supervised entities with the provisions that make up the respective normative subsystems, as well as the stability of the system, in what corresponds to them according to their area of competence. Along with the superintendencies, through the Securities Market Regulatory Law, a body called the Consejo Nacional de Supervisión del Sistema Financiero was also created. It is mainly assigned the task of regulating the system and at the same time acts as an improper single-phase hierarchical superior of the superintendencies for appeals purposes (article 171 of Law 7732).” In that same judgment of rite, the First Chamber also develops that concerning the regulatory power of the supervisory bodies, providing: “IV.- Regarding the regulatory power. (…) In this sense, it is essential to briefly refer to the content of the regulatory power and the different types of regulations that the Public Administration may issue.\n\nTraditionally, it has been indicated that these can be classified into two large groups, for which purpose, one may consult the ruling of this Chamber no. 749-F-04 of 9:30 a.m. on September 10, 2004, and of the Constitutional Chamber, among others, rulings no. 2005-14286 of 2:45 p.m. on October 19, 2005, and 2007-02063 of 2:45 p.m. on February 14, 2007. (…) The second type of regulations is that of autonomous regulations, the purpose of which is to regulate the organization of administrative dependencies (in which case they are called “autonomous regulations of organization”), or the functioning of the public services they provide (generically referred to as “autonomous regulations of service”). These may emanate from both the Central Administration and the decentralized administration. In the case of the former, by virtue of the express text contained in subsection 18) of Article 140 of the Constitution, and for the latter, as a logical and necessary derivation of the power of self-organization implicit in the degree of administrative autonomy or first-degree autonomy granted to them at the time of their creation (considerations noted in greater detail, through resolution of this Chamber no. 001000-F-S1-2010 of 9:35 a.m. on August 26, 2010).” To delve into the powers of SUGEF, judgment 2507-2010 of the Sixth Section of this Court has stated: “Given the allegations set forth in the present case, it is essential to briefly refer to the oversight and verification powers that the legal system grants to SUGEF regarding financial intermediation and banking financial activity. Financial intermediation activity, despite being a private activity, susceptible to private exploitation, given the incidence and effects it can cause in the national economy and in the patrimonial legal sphere of individuals, is an area of commercial endeavor that must be subject to intense regulation, in order to establish the soundness of the system in its generality and integrity. It therefore consists of a private activity of marked public relevance or public interest. This allows, as a basic thesis, regulation through legal and regulatory norms that set prior requirements to obtain authorization to carry out that type of business, as well as the creation of specialized public authorities, based on criteria of technical expertise, empowered to exercise oversight powers in order to verify the performance of the economic agents of financial supply, in adherence to the postulates that make up the legal regime to which they are subject. The support for this verification power emanates from the legally assigned competencies and purposes for the fulfillment of the public purpose materialized in safeguarding the correct functioning of the supervised entities, for which the ordering and control power over an activity of public significance is imperative, in protection and safeguarding of the rights of savers and the solvency of the system. To this end, conducts are imposed on the regulated or supervised entities, which are those with which it maintains a particular and special legal regime, close to a special relationship of subjection by virtue of the oversight link originating in the authorizing act for the exercise of the commercial activity, by legal imperative and the control framework conferred on the administrative authority. Such relevance of this financial intermediation activity is observed in Article 115 of the Organic Law of the Central Bank, Law No. 7558, as it states: \"The oversight of the country's financial entities is of public interest, for which purpose the Superintendencia General de Entidades Financieras is created, also referred to in this law as the Superintendencia, as a maximum deconcentration body of the Central Bank of Costa Rica. The Superintendencia shall govern its activities by the provisions of this law, its regulations, and other applicable laws.\" This norm not only provides for the marked relevance of financial intermediation, but also of the oversight of authorized entities, for which purpose the competent administrative authority is created for such effects. The subjective coverage scope of this oversight power is detailed in Article 117 ibidem, subjecting public and private banks, non-bank financial companies, mutual savings and loan associations, savings and credit cooperatives, and solidarist associations to this control. Additionally, any other entity authorized by law to carry out financial intermediation. At this point, there must be clarity regarding the concept of financial intermediation, a concept that the aforementioned law, in precept 116, defines as: \"... the regular capture of financial resources from the public, with the purpose of allocating them, at the intermediary's account and risk, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogous means in which the transactions are formalized.\" The same norm excludes from this term the capture of resources for working capital or for the financing of non-financial investment projects of the issuing company itself or its subsidiaries, provided that the issuances are registered with the National Securities Commission. Now, that same previously cited mandate states that financial intermediation can only be carried out by public or private entities that have been previously expressly authorized by SUGEF, after fulfilling the requirements established by the respective law. This once again highlights the relevance of the activity, which is not within a framework of benefit liberality, but rather, due to the public interest it entails, even though it is a private activity, the legal system imposes the figure of administrative authorization (as a mechanism for removing a legal obstacle for the exercise of conduct that is, in principle, one's own or not prohibited), to establish compliance with the legal requirements for that activity, which also allows for a preventive control filter through the verification of requirements, but also the establishment of registries of authorized entities, which simplifies the oversight process. Now, it is clear that the creation of SUGEF as a technical oversight body implies or requires the conferral of intense powers that allow it a due and substantive fulfillment of those competencies. Thus, for the purposes of protecting the stability, soundness, and efficiency of the national financial system, SUGEF exercises its oversight framework over every authorized entity, with the power, even, to dictate general norms, of mandatory compliance, to regulate the very operation of the supervised entities and the recording of their transactions, without invading, of course, the field proper to the administrative autonomy of each company, and with the aim of establishing and promoting sound banking practices. All in all, it is clear to this chamber that SUGEF's powers in financial intermediation occur within a direct framework regarding authorized entities (and potentially indirectly with respect to entities that form part of a local financial conglomerate), but also allow for ensuring that unauthorized financial intermediation is not carried out.”.- From the analysis of the legal and jurisprudential citations cited above, this Chamber considers that the competency framework of SUGEF as a technical oversight body implies or requires the conferral of intense powers that allow it a due and substantive fulfillment of those competencies; therefore, for the purposes of protecting the stability, soundness, and efficiency of the national financial system, SUGEF exercises its oversight framework over every authorized entity, with the power, even, to dictate general norms, of mandatory compliance, as has been evidenced in the case record with the request for information and implementation of mechanisms for managing operational, tax, and legal contingency risks, in addition to regulating the very operation of the supervised entities and the recording of their transactions, without invading, of course, the field proper to the administrative autonomy of each company, and with the aim of establishing and promoting sound banking practices. Regarding the competencies of the Consejo Nacional de Supervisión del Sistema Financiero. Law No. 7732, Securities Market Regulatory Law, provides the competencies of the Consejo Nacional de Supervisión del Sistema Financiero, in “Article 171.- Functions of the Consejo Nacional de Supervisión del Sistema Financiero. The functions of the Consejo Nacional de Supervisión del Sistema Financiero are: a) Appoint and remove the Superintendente General de Entidades Financieras, the Superintendente General de Valores, and the Superintendente de Pensiones; likewise, the respective intendentes, auditors, and the internal sub-auditor of the Superintendencia de Entidades Financieras. b) Approve the norms relating to the authorization, regulation, supervision, oversight, and surveillance that, in accordance with the law, must be executed by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. Requirements may not be set that unduly restrict the access of economic agents to the financial market, limit free competition, or include discriminatory conditions. c) Order the suspension of operations and the intervention of the entities regulated by the Superintendencias, and also decree the intervention and request liquidation before the competent authorities. d) Suspend or revoke the authorization granted to the entities regulated by the different Superintendencias or the authorization to carry out the public offering, when the respective entity fails to comply with the law's requirements or the regulations issued by the Consejo Nacional, or when the continuity of the authorization may affect the interests of savers, investors, members, or the integrity of the market. e) Approve the norms applicable to the procedures, requirements, and deadlines for the merger or transformation of financial entities. f) Approve the norms relating to the constitution, transfer, registration, and operation of financial groups, in accordance with the Organic Law of the Central Bank of Costa Rica. g) Hear and resolve on appeal the appeals filed against the resolutions issued by the Superintendencias. The Council's resolutions exhaust the administrative channel. h) Hear, on appeal, the resolutions issued by the stock exchanges regarding the authorization of bolsa seats and the imposition of sanctions on bolsa seats and agents, according to the Securities Market Regulatory Law. Any person with a legitimate interest shall be entitled to appeal. i) Regulate the exchange of information that the different Superintendencias may carry out among themselves, for the strict fulfillment of their prudential supervision functions. The Superintendencia that receives information by virtue of this subsection must maintain the confidentiality obligations to which the initial recipient of said information is subject. j) Approve the general organizational norms of the Superintendencias and the internal audits. k) Approve the annual operating plan, the budgets, their modifications, and the budget liquidation of the Superintendencias, within the global limit set by the Board of Directors of the Central Bank of Costa Rica and forward them to the Contraloría General de la República for final approval. l) Approve the annual report of each Superintendencia, as well as the annual reports that the Superintendentes must render on the performance of the entities supervised by the respective Superintendencia. m) Designate, at the opportune moment and during the periods it deems convenient, consultative committees composed of representatives of supervised entities, investors, or other economic sectors, to examine specific topics and issue non-binding recommendations. n) Approve the norms that define which natural or legal persons, related by ownership or management to the supervised entities, shall be considered part of the same economic interest group, to ensure adequate portfolio diversification and to resolve and avoid conflicts of interest. ñ) Approve the provisions relating to accounting and auditing standards, according to generally accepted accounting principles, as well as the frequency and disclosure of external audits to which the supervised entities must mandatorily submit. In case of conflict, these standards shall prevail over those issued by the Colegio de Contadores Públicos de Costa Rica. o) Approve the norms referring to the periodicity, scope, procedures, and publication of the reports rendered by the external audits of the supervised entities, in order to achieve the greatest reliability of these audits. p) Approve the norms applicable to the internal audits of the entities supervised by the Superintendencias, so that they duly execute the functions proper to their activity and ensure that such entities comply with legal norms. q) Approve the norms guaranteeing the supervision and safeguarding of the financial soundness of the pension regimes of the Judicial Branch and any others created by law or collective bargaining agreements. r) Resolve conflicts of jurisdiction that arise among the Superintendencias. s) Exercise the other attributions conferred in the respective laws, regarding the entities supervised by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. The Consejo Nacional may entrust the handling of certain matters to committees composed of some of its members, in accordance with the rules it establishes.” (As amended by Article 81 of Law No. 7983 of February 16, 2000)\". (article taken from SINALEVI). In judgment 20-2012-VI, the Sixth Section of this Court addressed the competencies of CONASSIF, stating: “IV. On the analysis of regulatory power set forth in ruling no. 1000-F-S1-2010 of the First Chamber. In view of the fact that both the plaintiff and the defendant party base their theory of the case to a large extent (when answering the complaint, in the hearing on the reply, and in their conclusions) on ruling no. 1000-F-S1-2010 issued by the First Chamber of the Supreme Court of Justice at 9:35 a.m. on August 26, 2010, —from which each party mentions its interpretation of said decision—; it is appropriate to outline fundamentally what is actually analyzed in that ruling regarding regulatory power. The Chamber heard a cassation appeal filed against resolution no. 66-2009-VI issued by the Sixth Section of this Court at 4:20 p.m. on January 20, 2009. This ruling analyzes in detail the regulatory power of CONASSIF and, at the same time, the traditional classification of regulations, noting since then that the challenged regulation emanated from the content of a norm of the Securities Market Regulatory Law, that is, as a derivation of the normative ordering powers given by law, which denoted that it was neither an executive regulation nor an autonomous one. The First Chamber, as stated, upon hearing the extraordinary appeal filed, enters the debate then raised and expands on what was noted by this Court as indicated below. As a starting point, the Chamber notes the existence of a traditional division of regulations, where it has been established that these are classified into two large groups, namely, executive regulations by means of which the Executive Power develops the contents of a legal norm, where regulatory power is given by the Political Constitution, in its Article 140 subsections 3) and 18), from which it concludes that it is an autonomous power, but also generic, as it can cover the entirety of the regulation contained in the law and does not require a specific enabling provision therein, as it is already given by the Magna Carta. On the other hand, the First Chamber points out in the cited ruling, there are autonomous regulations, which can emanate from the Central or Decentralized Administration and whose purpose will be to regulate the organization of the administrative dependencies (if they are autonomous regulations of organization) or the operation of the services it provides (in the case of service regulations), as a derivation of the power of administrative self-organization. In this framework of the traditional division of regulatory bodies, the First Chamber points out the need to reconsider said view, since it is clear and frequent that the legislator assigns to a decentralized entity the obligation to regulate a law. If in the preceding lines it was noted that executive regulations empower only the Executive Power to regulate a law, then the question asked by the Cassation Body is precisely, how are those regulations dictated by decentralized public entities classified where there is no autonomous power and where they are also not autonomous regulations, since the legislator itself establishes that concepts from a preceding law must be specified? In this sense, ruling 1000-F-S1-2010 maintains that the analysis of regulations acquires its own contours, as it involves regulations whose main characteristic is that their exercise depends on the legal precept in which their enabling is provided, which at the same time constitutes the jurisdictional limit for issuing the regulations. It therefore involves, according to the Chamber, a derived and specific power, and as a consequence of the principle of legality, in those regulatory norms only what the legislator expressly empowered through the assignment of a specific competence can be developed. Finally, it was noted in the ruling that \"as can be inferred from the general framework set forth, it is necessary to determine, in each specific case, whether the material content of the norm pertains or not to the service provided by the superintendencias, or if, on the contrary, they constitute legal norms intended to regulate the activity of a third party outside the legal service relationship that links them, in order to determine the type of regulation involved and, therefore, its legal regime.\" - According to the legal and jurisprudential references mentioned above, this Chamber agrees, as the Chamber held, that the powers of CONASSIF are derived and specific, and as a consequence of the principle of legality, in those regulatory norms only what the legislator expressly empowered through the assignment of a specific competence can be developed, such that in each specific case, the material content that the norm entails or not for the service provided by the superintendencias must be addressed, or if, on the contrary, they constitute legal norms intended to regulate the activity of a third party outside the legal service relationship that links them, in order to determine the type of regulation involved and, therefore, its legal regime. In accordance with the foregoing, the following recitals will address matters relating to the scope of freedom of commerce, and the commercial contract as part of the proper sphere of administrative autonomy of each entity carrying out financial intermediation, and whether that sphere is or is not within the supervisory competencies of SUGEF, as well as whether within that framework, and in the specific case, regarding floor and ceiling rates and the non-contractual inclusion of abusive clauses, a specific competence was assigned by the legislator to CONASSIF.-\n\nX.- ON FINANCIAL INTERMEDIATION: The co-defendant banking entities raised in their theory of the case that only the state banks and the Banco Popular y Desarrollo Comunal were sued, representing only one sector within the wide range of financial entities. In this aspect, it is pertinent to address matters relating to financial intermediation and the entities that carry out said activity. Law No. 7558, Organic Law of the Central Bank of Costa Rica, also regulates matters relating to financial intermediation, by providing: “Article 116.- Financial intermediation. Only public or private entities, expressly authorized by law to do so, may carry out financial intermediation in the country, after fulfilling the requirements established by the respective law and prior authorization from the Superintendencia. The Superintendencia's authorization must be granted when the legal requirements are met. For the purposes of this law, financial intermediation is understood as the regular capture of financial resources from the public, with the purpose of allocating them, at the intermediary's account and risk, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogous means in which the transactions are formalized (…)”. In judgment 39-2011-VI, the Sixth Section of the Contentious-Administrative Court has developed the concept and scope of financial intermediation activity, by resolving that: “2) Concept and scope of financial intermediation activity : In accordance with the provisions of paragraph 2 of Article 116, paragraph 2 of the Organic Law of the Central Bank, it is indicated: …financial intermediation is understood as the regular capture of financial resources from the public, with the purpose of allocating them, at the intermediary's account and risk, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogous means in which the transactions are formalized…”. Now, given the public interest involved in the oversight of financial entities, only public or private entities, expressly authorized by law to do so, may carry out financial intermediation in the country, after fulfilling the requirements established by the respective law and prior authorization from the Superintendencia (Articles 115 and 116, paragraph 1 of the Organic Law of the Central Bank of Costa Rica). It should be noted that among the requirements that financial entities must meet are: maintaining in the Central Bank, in the form of sight deposits, a reserve proportional to the total amount of their deposits and capturings, which shall constitute the minimum legal reserve requirement (Article 62 of the Organic Law of the BCCR); respecting the limits established by the Board of Directors of the Superintendencia de Entidades Financieras for active, direct, or indirect operations that financial intermediaries may carry out with each natural or legal person, in each of the modalities of their operations and in the set of all of them (Article 135 of the Organic Law of the BCCR), among others.” (in the same sense, judgment 3918-2010 of the Sixth Section of this same Court). As a corollary to the foregoing, Law No. 7558, Organic Law of the Central Bank of Costa Rica, also regulates the supervised bodies, by stating, where relevant, that: “Article 117.- Supervised bodies. Public and private banks, non-bank financial companies, mutual savings and loan associations, savings and credit cooperatives, and solidarist associations are subject to the oversight of the Superintendencia and the monetary control powers of the Central Bank. Additionally, any other entity authorized by law to carry out financial intermediation.\n\n(...)”.- It is clear to this Chamber that although the plaintiff defines the scope of its claims and the entities against which it may bring action, under the transcribed legal and jurisprudential citations, financial intermediation (intermediación financiera) involves the regular capture of financial resources from the public, with the purpose of allocating them, on the account and at the risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, and that this activity is carried out not only by the state banks and the Banco Popular sued here, but also by private banks, non-bank financial companies, mutual savings and loan associations, savings and credit cooperatives, and solidarist associations (asociaciones solidaristas). Therefore, in view of the plaintiff's claim, which seeks to establish regulation for a part of the supervised sector, not only is the principle of equality violated but also that of technical reasonableness, since no sufficient cause was proven to discriminate against some in relation to the others, an action that would lead to breaking the principle of equality among the regulated entities. The presence of said subjects in the financial intermediation operation is lacking in the lawsuit, so the scope of a judgment for only the first sector could generate serious distortions in the soundness of the national financial system as a whole, and consequently, one of the aspects sustaining the plaintiff's theory of the case is weakened. In addition, it should not be overlooked that granting the plaintiff's request would imply a transgression by the judges into the sphere of competence of the supervised bodies, which would produce co-administration (coadministración).-
XI.- ON FREEDOM OF COMMERCE: The defendants, mainly the state banks and the BPDC, alleged in their defense that the setting of interest rates corresponds to free commercial activity and is a matter for commercial contracts. We therefore proceed to analyze the scope of freedom of commerce. In this regard, the Code of Commerce regulates matters related to freedom of commerce, and in particular, regarding commercial loans and conventional interest, by prescribing: “Article 496.- Unless otherwise agreed, the commercial loan shall always be compensated. The compensation shall consist, in the absence of an agreement, of legal interest calculated on the sum of money or the value of the thing lent. Ordinary interest shall begin to run from the date of the contract, and default interest from the maturity of the obligation.”, and for its part, in “Article 497.- Conventional interest is that agreed upon by the parties, which may be fixed or variable. If it is variable interest, to determine the variation, national or international reference rates or indices may be agreed upon, provided they are objective and publicly known. Legal interest is that applied supplementarily in the absence of an agreement, and it is equal to the basic passive rate of the Banco Central de Costa Rica for operations in national currency and to the 'prime rate' for operations in U.S. dollars. The interest rates provided for in this article may be used in all kinds of commercial obligations, including those documented in negotiable instruments.” In this sense, the Constitutional Chamber in vote 3495-92, recognizes freedom of contract “XIII- Starting from the constitutional recognition of the principle and system of freedom, in general (art. 28), the right to private property (art. 45) and freedom of enterprise (art. 46), the principle of free contract is inscribed as a constitutional principle, a conditio sine qua non for the exercise of both, the essential content of which the Chamber summarizes in four elements, namely: a) The freedom to choose the co-contractor; b) The freedom in choosing the object of the contract itself and, therefore, the main provision that materializes it; c) The freedom in determining the price, content or economic value of the contract stipulated as consideration; d) The balance of the positions of both parties and between their mutual provisions; a balance which demands, in turn, respect for the fundamental principles of equality, reasonableness and proportionality, according to which the position of the parties and the content and scope of their reciprocal obligations must be reasonably equivalent to each other and, in addition, proportionate to the nature, object and purposes of the contract.” In greater depth, in judgment 74-2013, the Fourth Section of the Contentious-Administrative Tribunal has ruled on freedom of commerce, stating: “II) ON THE MERITS: I.1) REGARDING THE EFFECTS, REQUIREMENTS AND LEGAL ASSUMPTIONS THAT MUST BE TAKEN INTO CONSIDERATION FOR PURPOSES OF LOAN CONTRACTS ENTERED INTO BETWEEN SUBJECTS GOVERNED BY PRIVATE CIVIL AND COMMERCIAL LAW: Regarding the general theory of private contracts, the contract is defined as a meeting of minds whose purpose is to create an obligation, by which one or more persons undertake to give, do, or not do something in favor of another or others, thereby creating, extinguishing and modifying legal situations, all in accordance with sections 629 and following of the Civil Code. The principle of freedom of contract and autonomy of will are essential principles governing the freedom and power to agree, but subject to the limitations that public order and public interest require, as expressed in constitutional section 28, according to which \"Private actions that do not harm morals or public order, or that do not harm third parties, are beyond the action of the law.\" Thus, all persons may freely contract on matters of private interest, which is also related to freedom of commerce and the constitutional norm that protects private property. (…) Regarding the commercial loan contract, regulated in sections 495 to 508 of the Code of Commerce, it has been stipulated that the \"loan contract shall be deemed commercial when it is granted for valuable consideration, even if it is in favor of non-commercial persons\". It has also been provided, in these contracts, in article 496 ibid, that unless \"(…) otherwise agreed, the commercial loan shall always be compensated. The compensation shall consist, in the absence of an agreement, of legal interest calculated on the sum of money or the value of the thing lent. Ordinary interest shall begin to run from the date of the contract, and default interest from the maturity of the obligation.\" Furthermore, article 497 has defined the various types of interest, stating that \"Conventional interest is that agreed upon by the parties, which may be fixed or variable. If it is variable interest, to determine the variation, national or international reference rates or indices may be agreed upon, provided they are objective and publicly known. Legal interest is that applied supplementarily in the absence of an agreement, and it is equal to the basic passive rate of the Banco Central de Costa Rica for operations in national currency and to the 'prime rate' for operations in U.S. dollars. The interest rates provided for in this article may be used in all kinds of commercial obligations, including those documented in negotiable instruments.\".- For its part, in judgment 107-2014-VI, the Sixth Section of this Tribunal, regarding interest agreed upon in commercial contracts, has indicated that: “Interest is the gradual increase experienced by debts in money, by reason of their amount and the time elapsed. Interest, it can be stated, is the price charged by credit entities for granting a loan. That is, in a monetary or pecuniary obligation, interest is the price of money. Its setting may occur conventionally or legally and, in either case, it is possible –and, in fact, frequent– to refer its amount to some kind of financial parameter, objectively verifiable, which reflects the flows of the national and/or international market, which determines that the interest is not fixed but fluctuating. The fluctuation of interest in a commercial obligation finds its reason for being in adaptation to the current state of the economy; for this purpose, economic reference indices are used, which must have calculated the market cost, be immune to the influence of the entity itself, and have as support bases or indices calculated according to a mathematical procedure. Through Law No. 7107 of November 4, 1998, article 70 of the Organic Law of the National Banking System was reformed and from then on, the state commercial banks and the private banks governed supplementarily by said law were granted the power to establish variable and adjustable interest rates. The Code of Commerce provides in its article 497 that \"Conventional interest is that agreed upon by the parties, which may be fixed or variable. If it is variable interest, to determine the variation, national or international reference rates or indices may be agreed upon, provided they are objective and publicly known.\" In our environment, the Basic Passive Rate (Tasa Básica Pasiva, TBP), mentioned in that same norm, constitutes an important and well-known economic indicator applicable to obligations in national currency. It is set by the Banco Central de Costa Rica (not by the defendant bank, thus ruling out any kind of possible fraudulent manipulation to the detriment of the plaintiff's interests), an entity that makes said information public, enabling its objective and independent verification. The TBP, used as a reference for interest in bank loans, seeks to reflect the cost that banks have when capturing funds. For its calculation, the Banco Central considers the rates of deposits with terms between five and seven months from this entity, the Ministerio de Hacienda, the public and private banks, and other financial intermediaries. As noted, the plaintiff is a merchant, which makes her an educated and informed consumer in this field; therefore, the thesis that she was unaware of the fact that, when a rate referenced to a basic rate is agreed upon, interest may vary according to the fluctuations of the internal market, which is subject to the market and the world economy, is not acceptable.”.- In accordance with the foregoing legal and jurisprudential citations, this Chamber recognizes that freedom of commerce includes, as fundamental elements, the freedom to choose the co-contractor; the freedom in choosing the object of the contract itself and, therefore, the main provision that materializes it; the freedom in determining the price, content or economic value of the contract stipulated as consideration; and the balance of the positions of both parties and between their mutual provisions. In the case file, the plaintiff has not been able to prove that any of these essential elements has been violated in the relationships between the defendant banking entities here and the consumers of financial services. Furthermore, regarding the determination of interest rates, they operate in accordance with the provisions of the Code of Commerce, which, as indicated, may be fixed or variable, without it having been proven in the case file that variable rates, referenced to the basic passive rate, have caused harm to the consumers of banking services, as the plaintiff argued in its thesis.-
XII.- THE SPECIFIC CASE: ON THE FIRST CLAIM: The plaintiff, in the adjustment of the first claim, requests that: \"1.- SUGEF and the Consejo Nacional de Supervisión del Sistema Financiero CONASIF (sic) of the Banco Central de Costa Rica be compelled to regulate tools for the protection of the consumer's economic interest, such as the ceiling rate (tasa techo) and the non-inclusion of the abusive clause (article 42 of the Consumer Law)\".- In its arguments, the representation of SUGEF, on behalf of the Banco Central, stated that regarding floor rates (tasas piso) and ceiling rates (tasas techo), as well as variations in interest rates that may have caused some injury to consumer rights, the First Section of the Contentious-Administrative Tribunal has already indicated in its judgment number 16-2013-I, that it is not possible to deduce that SUGEF has the duty to oversee the functioning of purely operational aspects of financial entities, but rather that its supervisory work is aimed at ensuring that the entire national financial system as a whole functions in a stable, sound, and efficient manner, given its importance and impact on national economic activity. In this sense, Chapter IV, Section I of the Organic Law of the Banco Central establishes the powers that the legal system has granted to SUGEF, provided in Article 119: \"Supervision and oversight of the Superintendency. With the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendency shall exercise its supervision and oversight activities over all entities that carry out financial intermediation (intermediación financiera), in strict adherence to legal and regulatory provisions, ensuring that they comply with the precepts applicable to them. In relation to the operation of the supervised entities and the recording of their transactions, the Superintendency shall be empowered to issue the general rules necessary for the establishment of sound banking practices, all in safeguarding the interest of the community. For the purposes of issuing and applying the rules within its competence, the Superintendency may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries. The general rules and guidelines issued by the Superintendency shall be of mandatory observance for the supervised entities. CONASSIF shall issue prudential regulation on the Development Banking System (Sistema de Banca para el Desarrollo), based on criteria and parameters that take into account the particular characteristics of the credit activity originating from the Development Banking System and that are in accordance with international provisions. (Thus reformed by article 58 of the Law of the Development Banking System, No. 8634 of April 23, 2014)\" (underlining is not from the original). It argues that the definition of the interest rate in a credit contract is a matter of a private nature, and that it does not correspond to SUGEF to resolve the conflicts arising from them, adding that it corresponds to a commercial and contractual relationship established by the Code of Commerce pursuant to sections 495, 496, and 497 of said legal body; section 497 provides: \"Conventional interest is that agreed upon by the parties, which may be fixed or variable. If it is variable interest, to determine the variation, national or international reference rates or indices may be agreed upon, provided they are objective and publicly known. Legal interest is that applied supplementarily in the absence of an agreement, and it is equal to the basic rate of the Banco Central de Costa Rica for operations in national currency and the 'prime rate' for operations in U.S. dollars. The interest rates provided for in this article may be used in all kinds of commercial obligations, including those documented in negotiable instruments\". In this vein, the representation of the defendant, regarding the regulatory powers of the national financial system, pointed out that article 171 subsection b) of the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores), in relation to the Consejo Nacional de Supervisión del Sistema Financiero (CONASSIF), states that: \"Article 171.- Functions of the Consejo Nacional de Supervisión del Sistema Financiero. The functions of the Consejo Nacional de Supervisión del Sistema Financiero are: (...) b) To approve the rules pertaining to the authorization, regulation, supervision, oversight, and surveillance that, in accordance with the law, must be executed by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. Requirements may not be set that unduly restrict the access of economic agents to the financial market, limit free competition, or include discriminatory conditions. (...)\" (underlining is not from the original). It is noted that the regulatory body of the financial system is CONASSIF, which has the function of approving the rules that SUGEF must execute. In greater depth, the First Chamber of the Supreme Court of Justice in judgment 1000-F-S1-2010, indicated: \"XIII. On the competence of CONASSIF. (...) It must be recognized, on the contrary, that the legislation has delegated to CONASSIF the regulation of financial activity, granting it the specific competence to issue regulations that impose the creation, modification, or suppression of legal situations of the supervised subjects, or the development of a legal text. In these cases, it is a specific legal authorization in the terms set forth in the preceding whereas clause, which constitutes the competence limit of CONASSIF, and, as stated, it is not an autonomous and generic power, but a derived and specific one. In sum, as deduced from the general framework exposed, it is necessary to determine, in each specific case, whether the material content of the rule pertains or not to the service provided by the superintendencies (...)\".- In the opinion of this Tribunal, the purpose indicated by law is the stability, soundness, and efficient functioning of the national banking system. SUGEF is the supervisory and oversight body related to technical and procedural aspects that entail the financial health of financial intermediaries, as the witness-expert stated in his deposition. This Chamber considers that what is requested in this claim is inadmissible, not for lack of competence in the regulation of the matter, but because it does not correspond to a regulation of all regulated entities, nor has sufficient cause been proven to discriminate against some in relation to others, consequently generating a rupture of the principle of equality, a transgression of the scope of competence of the supervised bodies, and the obvious avoidance of judges participating in co-administration (coadministración). The competence of the Superintendency of Financial Entities is limited to technical and procedural aspects and not to the definition of the interest rate in a credit contract, and according to the line of the First Chamber, CONASSIF has its competence limit in the material content of the rule that pertains to the superintendency in question, that is, SUGEF. Therefore, the first claim of the lawsuit must be rejected for lack of right and must be so declared.- ON THE SECOND CLAIM. The main object of the present lawsuit is to compel the supervisory and oversight bodies, and the operators of the state and public national banking system. In that sense, the second claim of the lawsuit requests that: \"2. Each defendant bank be compelled to implement the ceiling rate (tasa techo) in existing and future credit operations, as a tool for protecting the consumer's economic interest, with the same difference between the initial ordinary interest rate and the floor rate (tasa piso)\". The plaintiff alleges that floor rates (tasas piso) only benefit the banking entities and that the absence of ceiling rates (tasas techo) is detrimental to the protection of banking consumers, consequently generating a violation of the principles of reasonableness and proportionality, contained in section 10 of the Political Constitution, as well as the consumer rights of constitutional section 46, which are fundamental and inalienable, in accordance with the protection of the economic interests of the consumer, enshrined in article 32 subsection b, of Law No. 7472, Law for the Promotion of Competition and Effective Consumer Defense, as well as the right to safety and to a fair and equitable consumer relationship, and to the non-inclusion of abusive clauses.- For their part, the defendant state and public banking entities center their defense on the fact that it was not proven in the case that floor rates (tasas piso) and ceiling rates (tasas techo) are abusive and distort the contractual relationship between their represented entities and the clients of banking services.\n\nThat in the specific case, a loan contract relationship is observed, whose interpretation and nature corresponds to civil law, in accordance with the rules of ordinal 1022 of said code, and furthermore that the definition of the credit conditions respond to regulations of the Commercial Code in its article 497 on fluctuating rates, which have their legal basis, adding the existence of votes 6515-93, 2784-94, both of the Constitutional Chamber on this aspect, and that it was not proven by the plaintiff's representation that said rates produce serious harm to bank consumers, relying on the fact that only 2% of current operations present delinquency problems, and that said situation is multifactorial, regarding aspects of inflation, unemployment, fiscal deficit, and not only the variables of interest rates. They also warn that the plaintiff should have resorted to the National Consumer Commission as the entity with the legal powers to ensure consumer rights and not to the judicial route since this demonstrates its procedural bad faith. They argue that the setting of floor rates (tasas piso) is referenced, in the banking entities that use this modality, except for BCR, to the use of the basic passive rate (tasa básica pasiva), and that said instrument is not set or defined by the banking entities but by the Central Bank of Costa Rica, using various variables as was proven by the explanation offered by the witness-expert Nombre60826, General Superintendent of Financial Entities. In this regard, this same Court, in the Eighth Section, with a different composition, resolved the matter of the credit contract, the basic passive rate (tasa básica pasiva), and the floor rate (tasa piso), in judgment 108-2012-VIII at 9:00 on December 20, 2012, which in its pertinent part states: \"Regarding this issue, the Court is of the opinion that interest rates correspond to a market phenomenon of supply and demand, whose variation cannot be controlled by the credit entity through the deployment of administrative conduct, hence responsibility cannot be attributed to it for a situation it cannot control. When a consumer takes on a credit, they assume a risk, for which reason they must be clear about their payment capacity, in an uncertain market full of vicissitudes; it is a responsibility that they must assume personally, and not transfer it to the bank which is unaware of the total dynamics of their finances; the lack of this exercise on the plaintiff's part can only lead to damages that translate into insolvency situations. While it is true that in a contract there are variables over which the bank has influence and control and for which it can be held responsible, there are other aspects, among which interest rates can be cited, which respond to reasons of a macroeconomic nature, which as indicated the bank cannot control. In relation to the nullity petitioned, for not including a ceiling rate (tasa techo) in the clause, although a floor rate (tasa piso) that only protects the defendant Bank is recorded, it is necessary to point out that even though the bank could make a consideration in favor of the client, through the insertion of a ceiling rate (tasa techo), which reduces the asymmetry of the relationship, the truth is that such omission does not generate nullity in the clause, nor does it imply abuse; the variation of rates are uncertain facts that depend on market phenomena, since even with the establishment of this type of rate, the variation in them could cause serious harm to a consumer who, even if it did not exceed the ceiling, could not meet the payment of that obligation.\" In this process, the plaintiff does not specify or question specific or precise clauses in the contracts of the co-defendant banking entities that would be configured as abusive, but rather limits itself to listing clauses with floor interest. For their part, the banking entities indicate that regarding the relationship of fair, equitable consumption and the non-inclusion of abusive clauses, these are not established, for which reason they estimate that, of the constituent elements that guarantee the credits, the balance does not tip towards one of the contracting parties but rather it is the market that sets the guideline. This Chamber estimates that, finding no elements of fact or law that would change its position, it is concluded that the basic passive rate (tasa básica pasiva) is used as a reference for interest in bank loans, that interest rates correspond to a phenomenon of supply and demand, in application of the principle of autonomy of will, whose variation cannot be controlled by the credit entity through the deployment of administrative conduct, hence responsibility cannot be attributed to it for a situation it cannot control. Regarding floor or ceiling rates (tasas piso o techo), the criterion is maintained that even though the banking entity could make a consideration in favor of the client, through the insertion of a ceiling rate (tasa techo), which reduces the asymmetry of the relationship, the truth is that such omission does not generate nullity in the clause, nor does it imply abuse, and therefore, the variation of rates are uncertain facts that depend on market phenomena, coupled with the fact that no evidentiary elements were provided to determine, in specific and precise cases, the alleged use of abusive clauses. By reason of the foregoing, the second claim also lacks factual and legal support and consequently must be rejected and is so declared.\n\nXIII.- COROLLARY. ANALYSIS OF THE EXCEPTION OF LACK OF RIGHT: Regarding the exception of lack of right (falta de derecho). The representation of Banco Nacional de Costa Rica, Banco de Costa Rica, Banco Popular y Desarrollo Comunal, Banco Central through SUGEF, Banco Crédito Agrícola de Cartago, formulated the exception of lack of right (falta de derecho), which must be granted, it having been established that there is substantial conformity with the legal system, and which in this Chamber's opinion is indeed admissible, it being sufficient to refer the parties to the analysis carried out on the merits within this judgment; suffice it to say that, it not having been proven that the plaintiffs have a right to access what was petitioned, it is necessary to grant the exception of lack of right (falta de derecho). Consequently, the appropriate course is to order the rejection in all its aspects of the claim subject to this process.\n\nXIV.- COSTS. In accordance with numeral 193 of the Contentious Administrative Procedure Code, procedural and personal costs constitute a burden imposed on the losing party by the mere fact of being so. The exemption from this sentence is only viable when, in the Court's judgment, there was sufficient reason to litigate or when the judgment is issued by virtue of evidence whose existence was unknown to the opposing party. In this case, this Court does not observe any reason to exempt the application of such a maxim, for which reason, the due course is to impose them on the losing plaintiff party.\n\nPOR TANTO\n\nThe exceptions of lack of current interest (falta de interés actual), lack of active standing (falta de legitimación activa), and lack of passive standing (falta de legitimación pasiva), raised by the co-defendants, are rejected. The exception of lack of right (falta de derecho) is granted; consequently, the claim filed by ASOCIACIÓN DE CONSUMIDORES LIBRES against BANCO CENTRAL DE COSTA RICA, BANCO NACIONAL DE COSTA RICA, BANCO DE COSTA RICA, BANCO POPULAR Y DESARROLLO COMUNAL, and BANCO CRÉDITO AGRÍCOLA DE CARTAGO is declared without merit in all its aspects. The procedural and personal costs derived from this process are at the expense of the plaintiff, in favor of the defendant party. The determination of the corresponding costs is reserved for the judgment execution stage. NOTIFÍQUESE.- Carlos Humberto Góngora Fuentes // Paulo André Alonso Soto // Rosa María Cortés Morales.\n\nDISSENTING VOTE OF JUDGE CORTÉS MORALES:\n\nDespite the fact that the undersigned agrees with the operative part of the judgment, in that the exception of lack of right (falta de derecho) filed by the co-defendant parties is granted and the claim is declared without merit, she respectfully departs from the majority vote by differing from the legal basis set forth therein, considering that the claim must be rejected based on the following:\n\nI. REGULATORY POWERS WITHIN THE FINANCIAL MARKET AND THEIR CONTROL BY THIS JURISDICTION: One of the most recent fields in which administrative law has entered is the regulation of economic sectors operating in a given market, which is understood within the change in the relationship that the State has had with the economy, in which private companies are supposed to behave correctly when developing public utility activities. From this perspective, the function of regulation is understood not only as the power to dictate rules concerning the correct performance of the actors in that field, but also \"to use all instruments, normative and executive, necessary to guide the functioning of markets towards competition and impose public service obligations on operators so that their natural profit motive is compatible with the demands of the general interest.\" (Nombre147761, . Tratado de Derecho Administrativo y Derecho Público General. Volume IV, p. 499. First Edition. Iustel. Portal Derecho, S.A., Madrid, Spain, 2011). In general terms, the so-called regulatory agencies are endowed with sufficient powers to ensure that markets in which services of general interest are provided or which carry out activities of public interest behave appropriately so that they are not distorted and those who participate in them are not harmed. In the Costa Rican legal system, regulatory law has been developing with the insertion of our markets into the world economy, with the consequent opening of monopolies, as well as in markets of public interest. Within the first case, one can cite the most recently created superintendencies, with the opening of the telecommunications and insurance markets as a result of the laws enacted after the signing of the Free Trade Agreement with the United States of America, namely the Superintendency of Telecommunications (SUTEL), as a deconcentrated organ with instrumental legal personality of the Regulatory Authority of Public Services (article 59 of Ley 7593 and its reforms) and the Superintendency of Insurance (SUGESE), with the same legal nature as the previous one, but attached to the Banco Central de Costa Rica (article 28 of Ley 8653). In the second case is the Superintendency of Pensions (SUPEN), whose origin is in article 33 of the Worker Protection Law, when mandatory supplementary pensions were established and, due to their public interest, it was created to regulate the market of pension operators, as a deconcentrated organ with instrumental legal personality of Banco de Costa Rica. In the case of the financial market, specifically financial intermediation (in which an institution captures resources from investors and places them in the market, mainly through loans), without intending to go into further detail, it originated from the abuses that occurred in the nineteen-eighties, in which intermediation occurred without much control, very high interest rates were offered to investors, who deposited their money attracted by the prospect of a great gain and then lost their resources because the captors could not honor their commitments. The Central Bank, as the primary competent entity to regulate the country's financial sector, established a series of controls through its organs for that sector, as well as ensuring compliance with those provisions that it had been establishing and that still remain regarding the establishment of reserve requirements for banks. Finally, SUGEF was created, as a deconcentrated organ of said Bank, with the purpose of ensuring the financial stability and transparency of this market, in which not only public and private banks participate, but also financial institutions, such as savings and loan cooperatives, solidarist associations, and others that provide financial intermediation (article 117 of the Organic Law of the Banco Central de Costa Rica), as well as those performing under the assumptions of article 15 of the same law, but keeping in mind that the market operates under free trade rules, and the Superintendency cannot impose specific conduct on the actors, beyond that necessary to achieve the purposes sought by the legal system. Financial intermediation is understood in the terms established in the second paragraph of article 116 of the cited Law, which states:\n\n\"For the purposes of this law, financial intermediation is understood as the habitual capture of financial resources from the public, with the aim of allocating them, on the account and at the risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other similar means in which the transactions are formalized.\"\n\nThe creation of SUGEF is established in article 115 of the same cited norm in the following terms:\n\n\"It is of public interest to supervise the financial entities of the country, for which purpose the Superintendencia General de Entidades Financieras, also referred to in this law as the Superintendency, is created as an organ of maximum deconcentration of the Banco Central de Costa Rica. The Superintendency shall govern its activities by the provisions of this law, its regulations, and other applicable laws.\"\n\nRegarding the powers of the Superintendency, numeral 119 of the norm provides:\n\n\"With the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendency shall exercise its supervision and oversight activities over all entities that carry out financial intermediation, with strict adherence to legal and regulatory provisions, ensuring that they comply with the precepts applicable to them.\n\nIn relation to the proper operation of the supervised entities and the recording of their transactions, the Superintendency shall be empowered to issue the general rules necessary for the establishment of sound banking practices, all in safeguarding the interest of the community.\n\nFor the purpose of issuing and applying the rules within its competence, the Superintendency may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries.\n\nThe general rules and directives issued by the Superintendency shall be mandatory for the supervised entities.\n\nConassif shall issue prudential regulation on the Development Banking System, based on criteria and parameters that take into account the particular characteristics of the credit activity originating from the Development Banking System and that are in accordance with international provisions.\"\n\nWithin the supervision of the financial market, the National Council for Supervision of the Financial System (Consejo Nacional de Supervisión del Sistema Financiero, CONASSIF) also acts, whose most important power, for the purposes of resolving this case, is the approval \"of the rules pertaining to the authorization, regulation, supervision, oversight, and surveillance that, in accordance with the law, must be executed by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. No requirements may be set that unduly restrict economic agents' access to the financial market, limit free competition, or include discriminatory conditions.\" (article 171 b) of the Securities Market Regulatory Law). Having made the foregoing preamble, it is considered that the regulatory organs, with the powers granted by the legal system, in general terms ensure that the market behaves appropriately in safeguarding not only the investors, for whose purposes a series of obligations are established to guarantee the solvency of market participants, but also the other face of the market, namely those who acquire the products (which are mostly of a credit nature) offered by financial institutions, as a regulation that safeguards in favor of only one of the possible affected parties in the market is not understood. The exercise of the powers of supervision and oversight (which include the authorization of the provision of financial intermediation activity and the exercise thereof), is in turn an expression of the discretionary powers of the regulatory organs, in this case SUGEF and CONASSIF, whose exercise and limits are established in articles 15, 16, and 17 of the General Law of Public Administration. From this perspective, the regulators, within the supervision of the market, will establish the rules, in a broad sense, that they deem convenient for the protection of the public interest immersed in this market. The discretion exercised within the framework of their competence is the hard core of these public administrations, which in principle possess all the specialized criteria in the activity. In accordance with the cited articles of the LGAP, there is control over the exercise of the action of the Administrations in the exercise of discretionary powers, by this Court, in the terms provided in the aforementioned articles of the LGAP. Analyzing the plaintiff's claim, it is noted that it consists of imposing a conduct so that SUGEF and CONASSIF regulate the tools for protecting the consumer's economic interest, such as the ceiling rate (tasa techo) and the non-inclusion of abusive clauses. In this regard, it would be necessary to elucidate, first of all, whether this type of conduct can be imposed by this Court on the organs in question. It is the criterion of this judge that it is not possible, because the limits of the control of discretion imposed by substantive law would be exceeded, as it would be entering into a kind of co-administration with the public administration that exceeds the jurisdictional function. A court of justice cannot tell a regulatory organ the decisions it must make in a given market. Jurisdictional control is limited to deciding, when it has already acted, whether it is within the limits established by law, or to ordering a conduct when it is proven that an omission exists, a situation that does not occur in this case. The foregoing is also based on procedural law, which provides that what the Court can do is the control of the exercise of administrative power (article 36 b) of the CPCA). Specifically, in a judgment, what this Organ can do is set the limits and rules imposed by the Legal System for the exercise of discretionary power (article 122.f) of the CPCA). It is concluded, then, that a conduct could not be imposed on SUGEF (except regarding omissions as just indicated), as it exceeds the constitutional competence established in article 49 of the Political Constitution, which would make the plaintiff's claim unviable. However, the following assessments are pertinent: in the event that there were a disruption in the market due to abusive clauses or the imposition of arbitrary rates that affected credit subjects in broad terms, causing distortions and damages to consumers of foreign exchange products (without the purpose of the resources from the credits being important for this), SUGEF could indeed intervene, because, as stated earlier, it must ensure the health of the market in general and not only that of investors, beyond what is established in Ley 7472 regarding consumer protection, because the law authorizes it to do so. On the other hand, the imposition by SUGEF of specific conditions on contracts a priori could threaten the exercise of commerce and the principle of party autonomy established in articles 46 and 28 of the Political Constitution. For the reasons set forth, the first claim is rejected.\n\nII. THE IMPOSITION OF CEILING RATES (TASAS TECHO) ON THE DEFENDANT BANKS IN CREDIT OPERATIONS: According to article 1 of the LGAP, public administrations have capacity under public law and private law. State banks, despite their condition as autonomous institutions, in accordance with article 189 of the Political Constitution, as well as with each of their founding laws, are governed in their activity towards third parties in their capacity as subjects of private law, as public enterprises.\n\nWhen this Court reviews the actions of banks, which are mostly contractual, as has occurred in the case of the contracts that the plaintiff association has been bringing to its attention, it acts as a civil judge does, applying commercial law and Law 7472, in the case of the liability regime established therein for consumer protection. The decision was legislative, when article 2.f) of the CPCA provided that ordinary proceedings in which a public enterprise is involved shall be heard by this jurisdiction. In principle, in private contractual law, the principle of party autonomy (autonomía de voluntad de las partes) prevails, where the parties contract freely and are bound by what the contracts stipulate. This is so even in the case of adhesion contracts (contratos de adhesión), in which a party cannot negotiate any of the contract clauses, to which it simply adheres. What has been regulated is consumer protection, as the weaker party in the relationship, so that they have an effective defense of their rights, regarding access to information and the prohibition of unfair terms (cláusulas abusivas), among others (article 32 of the Law on Promotion of Competition and Effective Consumer Protection). In consideration of the foregoing, the administrative-contentious judge, acting as a civil judge, could not establish a priori conditions for private parties, as this would violate the party disposition principle (principio dispositivo) inherent in party autonomy between the parties, which would also exceed the competence of the civil jurisdiction. The same reasoning must be applied to Banco Popular y de Desarrollo Comunal, which has a different legal nature, being a non-state public entity. Similar to what was indicated regarding the first claim, all this jurisdiction can do is review a specific and concrete legal relationship, to determine if there is unlawfulness in accordance with the rules applicable to the case. To do otherwise would imply a violation of article 46 of the Political Constitution, as it would violate freedom of commerce (libertad de comercio). For this reason alone, this claim is dismissed. Notwithstanding the foregoing, the undersigned notes that the lawsuit is directed solely against the four defendant banks, leaving out the rest of the financial intermediation sector, which is arbitrary. In the event that the imposition of general conditions on loans were possible, it would create an odious and unlawful inequality, which would be a reason that, by itself, would lead to the dismissal of the lawsuit.
Rosa Cortés Morales
\n\nLaw No. 7558, the Organic Law of the Central Bank, which creates SUGEF as the maximum deconcentrated body of the BCCR, recognizes the power to establish the organizational structure and functions in said banking entity, providing: “*Article 115.- Creation. The supervision of the country's financial entities is of public interest, for which the Superintendencia General de Entidades Financieras, also referred to in this law as the Superintendencia, is created as a maximum deconcentrated body of the Banco Central de Costa Rica. The Superintendencia shall govern its activities by the provisions of this law, its regulations, and other applicable laws*.” and the \"*Article 119.- Supervision and oversight by the Superintendencia.* *For the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendencia shall exercise its supervision and oversight activities over all entities engaged in financial intermediation, in strict compliance with legal and regulatory provisions, ensuring that they comply with the applicable precepts.* *In relation to the operations of the supervised entities and the recording of their transactions, the Superintendencia is empowered to issue the general rules necessary for the establishment of sound banking practices, all in safeguarding the public interest.* *For the purpose of issuing and applying the rules within its competence, the Superintendencia may establish categories of financial intermediaries based on the type, size, and degree of risk of those intermediaries.* *The general rules and directives issued by the Superintendencia shall be mandatory for the supervised entities.* *Conassif shall issue prudential regulation on the Banking System for Development (Sistema de Banca para el Desarrollo), based on criteria and parameters that take into account the particular characteristics of lending activity from the Banking System for Development (Sistema de Banca para el Desarrollo) and that are in accordance with international provisions.* *(Thus amended by Article 58 of the Law on the Banking System for Development (Sistema de Banca para el Desarrollo), No. 8634 of April 23, 2014)*\" (articles taken from SINALEVI). In resolution 001247-F-S1-2011, at thirteen hours fifty-five minutes on September 26, 2011, the First Chamber of the Supreme Court of Justice addresses the scope of competence of the supervisory bodies, stating: “**III.- On the scope of competence of the supervisory bodies.** Prior to entering into the analysis of the regulatory power, and its exercise in the specific case, it is appropriate to refer, in general terms, to the competency structure established in the legal system regarding supervision, a concept that is comprised of oversight (fiscalización) and regulation. In the development that central banking has undergone, it is undisputed that an important part of that directive, supervisory, and monitoring power has passed to other public bodies. In this way, the legislator chose to distribute the different competencies that make up these powers among a series of bodies attached to the Banco Central de Costa Rica. For the purpose of overseeing certain activities, due to their importance in society, it created four superintendencias, in the form of maximum deconcentrated bodies, namely, the Superintendencia General de Entidades Financieras (Sugef), the Superintendencia General de Valores (Sugeval), the Superintendencia de Pensiones (Supen) and, recently, the Superintendencia General de Seguros (Sugese). Of these, the last two have instrumental legal personality. From an organic point of view, each of them has a superintendent, who acts as the head in administrative matters. They are responsible, according to the subject matter, for verifying compliance by the supervised entities with the provisions that make up the respective normative subsystems, as well as the stability of the system, in what corresponds to them according to their scope of competence. Along with the superintendencias, through the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores), a body called the Consejo Nacional de Supervisión del Sistema Financiero was also created. This body is assigned, mainly, the task of regulating the system and at the same time acts as an improper monophasic superior of the superintendencias for purposes of challenge (Article 171 of Law 7732).” In that same judgment, the First Chamber also develops what concerns the regulatory power of the supervisory bodies, by providing: “**IV.- On the regulatory power.** (…) In this regard, it is essential to briefly refer to the content of the regulatory power and the different types of regulations that the Public Administration may issue. Traditionally, it has been indicated that these can be classified into two large groups, for which, the ruling of this Chamber No. 749-F-04 of 9 hours 30 minutes on September 10, 2004, and of the Constitutional Chamber, among others, rulings No. 2005-14286 of 14 hours 45 minutes on October 19, 2005, and 2007-02063 of 14 hours 45 minutes on February 14, 2007, can be consulted. (…) The second typology of regulations is that of autonomous ones, which aim to regulate the organization of administrative dependencies (in which case they are called “autonomous of organization”), or the functioning of the public services they provide (generically referred to as “autonomous of service”). These can emanate from both the Central Administration and the decentralized one. In the case of the former, by virtue of the express text contained in subsection 18) of Article 140 of the Constitution, and for the latter, as a logical and necessary derivation of the power of self-organization implicit in the degree of administrative or first-degree autonomy granted to them at the time of their creation (considerations noted in greater detail, through resolution of this Chamber No. 001000-F-S1-2010 of 9 hours 35 minutes on August 26, 2010).” To delve into the powers of SUGEF, judgment 2507-2010 of the Sixth Section of this Court has stated: “Given the allegations set forth in the present case, it is essential to briefly refer to the oversight (fiscalización) and verification powers that the legal system grants to SUGEF in matters of financial intermediation and banking financial activity. Financial intermediation activity, despite being a private activity, susceptible to private exploitation, given the incidence and effects it may cause in the national economy and in the legal-patrimonial sphere of individuals, is an area of commercial endeavor that must be subject to intense regulation, in order to establish the health of the system in its generality and integrity. It therefore consists of a private activity, of marked public relevance or public interest. This allows, as a basic thesis, regulation through legal and regulatory rules, which establish prior requirements for obtaining authorization to carry out this type of business, as well as the creation of specialized public authorities, based on criteria of technical expertise, empowered to exercise oversight (fiscalización) powers in order to compare the performance of financial supply economic agents, in accordance with the postulates that make up the legal regime to which they are exposed. The support for this verification power stems from the competencies and purposes legally assigned for the fulfillment of the public purpose concretized in safeguarding the correct functioning of the supervised subjects, for which the power of ordering and controlling an activity of public significance is non-deferrable, in protection and safeguarding of the rights of savers and the solvency of the system. To this end, conduct is imposed on the regulated or supervised entities, which are those with whom it maintains a particular and special legal regime, close to a special relationship of subjection by virtue of the oversight (fiscalización) link originating from the authorizing act for the exercise of commercial activity, by legal imperative and the control framework conferred upon the administrative authority. Such relevance of this financial intermediation activity is observed in numeral 115 of the Organic Law of the Central Bank, Law No. 7558, as it states: \"*The supervision of the country's financial entities is of public interest, for which the Superintendencia General de Entidades Financieras, also referred to in this law as the Superintendencia, is created as a maximum deconcentrated body of the Banco Central de Costa Rica. The Superintendencia shall govern its activities by the provisions of this law, its regulations, and other applicable laws.*\" *In this norm, not only is the marked relevance of financial intermediation established, but also the oversight (fiscalización) of the authorized entities, for which, the competent administrative authority is created for such purposes. The subjective scope of coverage of this oversight power is detailed in canon 117 ibidem, subjecting public and private banks, non-bank financial companies, mutual savings and loan associations, credit unions, and solidarista associations to this control. Furthermore, any other entity authorized by law to carry out financial intermediation. At this point, clarity must be had regarding the concept of financial intermediation, a concept that the aforementioned law, in precept 116, defines as: \"... the habitual capture of financial resources from the public, for the purpose of allocating them, on the account and risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other similar means in which the transactions are formalized.\" The same norm excludes from that term the capture of resources for working capital or for the financing of non-financial investment projects of the issuing company itself or its subsidiaries, provided that the issuances are registered with the Comisión Nacional de Valores. Now then, that same previously cited mandate indicates that financial intermediation can only be carried out by public or private subjects who have been previously expressly authorized by SUGEF, after fulfilling the requirements of the respective law. This once again demonstrates the relevance of the activity, which is not within a framework of service liberality, but rather, due to the public interest it entails, even if it is a private activity, the legal system imposes the figure of administrative authorization (as a mechanism for removing a legal obstacle to the exercise of conduct, in principle, inherent or not prohibited), to establish compliance with the legal requirements for that activity, which also allows for a preventive control filter through the verification of requirements, and also the establishment of registers of authorized subjects, which simplifies the oversight (fiscalización) process. Now, it is clear that the creation of SUGEF as a technical oversight body implies or requires the conferral of intense powers that allow it to properly and substantively fulfill those competencies. Thus, for the purpose of protecting the stability, soundness, and efficiency of the national financial system, SUGEF exercises its oversight framework over all authorized entities, with the power, even, to issue general rules, of mandatory compliance, to regulate the own operations of the supervised entities and the recording of their transactions, without invading, of course, the field of administrative autonomy of each company, and with the purpose of establishing and promoting sound banking practices. With everything, it is clear to this Chamber that SUGEF's powers in financial intermediation occur in a direct framework regarding authorized entities (and eventually indirectly concerning entities that form part of a local financial conglomerate), but also allow ensuring that unauthorized financial intermediation is not carried out*.”.- From the analysis of the legal and jurisprudential citations cited above, this Chamber considers that the jurisdictional framework of SUGEF as a technical oversight body implies or requires the conferral of intense powers that allow it to properly and substantively fulfill those competencies, therefore, for the purpose of protecting the stability, soundness, and efficiency of the national financial system, SUGEF exercises its oversight framework over all authorized entities, with the power, even, to issue general rules, of mandatory compliance, as has been evidenced in the case file with the request for information and implementation of risk management mechanisms both operational, tax-related, and legal contingencies, in addition to regulating the own operations of the supervised entities and the recording of their transactions, without invading, of course, the field of administrative autonomy of each company, and with the purpose of establishing and promoting sound banking practices. On the competencies of the Consejo Nacional de Supervisión del Sistema Financiero. Law No. 7732, the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores), establishes the competencies of the Consejo Nacional de Supervisión del Sistema Financiero, in the \"*Article 171.- Functions of the Consejo Nacional de Supervisión del Sistema Financiero. The functions of the Consejo Nacional de Supervisión del Sistema Financiero are: a) Appoint and remove the Superintendente General de Entidades Financieras, the Superintendente General de Valores, and the Superintendente de Pensiones; likewise, the respective intendants, auditors, and the internal sub-auditor of the Superintendencia de Entidades Financieras. b) Approve the rules pertaining to the authorization, regulation, supervision, oversight (fiscalización), and monitoring that, according to the law, the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones must execute. Requirements may not be set that unduly restrict the access of economic agents to the financial market, limit free competition, or include discriminatory conditions. c) Order the suspension of operations and the intervention of the subjects regulated by the Superintendencias, in addition, decree intervention and request liquidation before the competent authorities. d) Suspend or revoke the authorization granted to the subjects regulated by the different Superintendencias or the authorization to carry out a public offering, when the respective subject fails to comply with the legal requirements or the regulations issued by the Consejo Nacional, or when the continuity of the authorization may affect the interests of savers, investors, members, or the integrity of the market. e) Approve the rules applicable to the procedures, requirements, and deadlines for the merger or transformation of financial entities. f) Approve the rules pertaining to the constitution, transfer, registration, and operation of financial groups, in accordance with the Organic Law of the Banco Central de Costa Rica. g) Hear and resolve on appeal the appeals filed against the resolutions issued by the Superintendencias. The resolutions of the Consejo shall exhaust the administrative channel. h) Hear, on appeal, the resolutions issued by the stock exchanges regarding the authorization of stock exchange positions and the imposition of sanctions on stock exchange positions and agents, according to the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores). Any person with a legitimate interest shall be empowered to appeal. i) Regulate the exchange of information that the different Superintendencias may carry out among themselves, for the strict fulfillment of their prudential supervision functions. The Superintendencia that receives information by virtue of this subsection must maintain the confidentiality obligations to which the initial recipient of said information is subject. j) Approve the general organizational rules of the Superintendencias and the internal audits. k) Approve the annual operational plan, budgets, their modifications, and the budgetary liquidation of the Superintendencias, within the global limit set by the Board of Directors of the Banco Central de Costa Rica and remit them to the Contraloría General de la República for final approval. l) Approve the annual report of each Superintendencia, as well as the annual reports that the Superintendents must render on the performance of the subjects supervised by the respective Superintendencia. m) Designate, at the appropriate time and for the periods it deems convenient, consultative committees comprised of representatives of the supervised subjects, investors, or other economic sectors, to examine specific topics and issue non-binding recommendations. n) Approve the rules defining which natural or legal persons, related by ownership or management to the supervised subjects, shall be considered part of the same economic interest group, to ensure adequate diversification of portfolios and to resolve and prevent conflicts of interest. ñ) Approve the provisions relating to accounting and auditing standards, according to generally accepted accounting principles, as well as the frequency and disclosure of external audits to which the supervised subjects must compulsorily submit. In case of conflict, these standards shall prevail over those issued by the Colegio de Contadores Públicos de Costa Rica. o) Approve the rules regarding the periodicity, scope, procedures, and publication of the reports rendered by the external audits of the supervised entities, in order to achieve the greatest reliability of these audits. p) Approve the rules applicable to the internal audits of the entities supervised by the Superintendencias, so that they duly execute the functions inherent to their activity and ensure that such entities comply with legal standards. q) Approve the rules guaranteeing the supervision and safeguarding of the financial soundness of the pension regimes of the Judicial Branch and any others created by law or collective bargaining agreements. r) Resolve jurisdictional conflicts that arise between the Superintendencias. s) Exercise the other powers conferred in the respective laws, over the subjects supervised by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. The Consejo Nacional may entrust the knowledge of certain matters to commissions comprised of some of its members, in accordance with the rules it establishes.*\" *(Thus amended by Article 81 of Law No. 7983 of February 16, 2000)*”. (article taken from SINALEVI)*.* In judgment 20-2012-VI, the Sixth Section of this Court addressed the competencies of CONASSIF, by indicating: “**IV. On the analysis of the regulatory power set forth in ruling no. 1000-F-S1-2010 of the First Chamber.** In view that both the plaintiff and the defendant base much of their theory of the case (when answering the lawsuit, in the reply hearing, and in their conclusions) on ruling no. 1000-F-S1-2010 issued by the First Chamber of the Supreme Court of Justice at 9 hours 35 minutes on August 26, 2010, -from which each party mentions its interpretation of said ruling-; it is appropriate to fundamentally outline what is actually analyzed in that ruling regarding the regulatory power. The Chamber heard an appeal for cassation filed against resolution no. 66-2009-VI issued by the Sixth Section of this Court at 16 hours 20 minutes on January 20, 2009.\n\nIn this ruling, the regulatory authority of CONASSIF is analyzed in detail, along with the traditional classification of regulations, noting since then that the challenged regulation stemmed from the content of a provision of the Securities Market Regulatory Law (Ley Reguladora del Mercado de Valores), that is, as a derivation of the normative ordering powers granted by law, which denoted that it was neither an executive regulation (reglamento ejecutivo) nor an autonomous regulation (reglamento autónomo). As stated, the First Chamber (Sala Primera), upon hearing the extraordinary appeal filed, enters into the debate then raised and expands on what this Tribunal indicated, as set forth below. As a starting point, the Chamber notes the existence of a traditional division of regulations, where it has been established that these are classified into two large groups, namely, executive regulations through which the Executive Branch develops the contents of a legal norm, where the regulatory authority is granted by the Political Constitution, in its numeral 140, subsections 3) and 18), from which it concludes that it is an autonomous power, but also generic, insofar as it can encompass the entirety of the regulation contained in the law and does not require a specific enabling provision therein, since it is already granted by the Magna Carta. On the other hand, the First Chamber points out in the cited ruling, there are autonomous regulations, which can emanate from the Central or Decentralized Administration and whose purpose will be to regulate the organization of administrative agencies (if they are autonomous organizational regulations) or the operation of the services it provides (in the case of service regulations), as a derivation of the power of administrative self-organization. Within this framework of the traditional division of regulatory bodies, the First Chamber points out the need to reconsider this view, given that it is clear and frequent that the legislator assigns to a decentralized entity the obligation to regulate a law. If in the preceding lines it was noted that executive regulations only empower the Executive Branch to regulate a law, then the question the Cassation Body asks is precisely: how are those regulations dictated by decentralized public entities classified, where there is no autonomous power and where they are also not autonomous regulations, since the legislator itself establishes that concepts from a preceding law must be specified? In this regard, ruling 1000-F-S1-2010 maintains that the analysis of regulations acquires its own contours, as one is dealing with regulations whose main characteristic is that their exercise depends on the legal precept in which their enabling is provided, which at the same time constitutes the jurisdictional limit for issuing the regulations. It involves, then, according to the Chamber, a derived and specific power and, as a consequence of the principle of legality, in those regulatory norms only what the legislator expressly authorized through the assignment of a specific competence can be developed. Finally, it was noted in the ruling that \"as can be inferred from the general framework set forth, it is necessary to determine, in each specific case, whether the material content of the norm pertains or not to the service provided by the superintendencies, or if, on the contrary, it constitutes legal norms intended to regulate the activity of a third party outside the legal service relationship that binds them, in order to determine the type of regulation involved and, therefore, its legal regime.\"\n\n- According to the legal and jurisprudential references mentioned above, this Chamber agrees, as the Chamber held, that CONASSIF's powers are derived and specific, and as a consequence of the principle of legality, in those regulatory norms only what the legislator expressly authorized through the assignment of a specific competence can be developed, such that in each specific case, one must address whether the material content of the norm pertains to the service provided by the superintendencies, or if, on the contrary, it constitutes legal norms intended to regulate the activity of a third party outside the legal service relationship that binds them, in order to determine the type of regulation involved and, therefore, its legal regime. In accordance with the foregoing, the following considerandos will address matters relating to the scope of freedom of commerce (libertad de comercio), and the commercial contract (contrato mercantil) as part of the proper field of autonomy of the administration of each entity that carries out financial intermediation (intermediación financiera), and whether or not that sphere falls within the supervisory powers of SUGEF, as well as whether within that framework, and in the specific case, regarding floor and ceiling rates (tasas piso y techo) and the non-contractual inclusion of abusive clauses, a specific competence was assigned by the legislator to CONASSIF.-\n\nX.- ON FINANCIAL INTERMEDIATION: The co-defendant banking entities argued in their theory of the case that only state banks and the Banco Popular y Desarrollo Comunal were sued, representing only one sector within the wide range of financial entities. In this regard, it is pertinent to address matters concerning financial intermediation and the entities that carry out said activity. Law No. 7558, Organic Law of the Central Bank of Costa Rica (Ley Orgánica del Banco Central de Costa Rica), also regulates matters concerning financial intermediation, by providing: \"Article 116.- Financial intermediation. Only public or private entities, expressly authorized by law to do so, may carry out financial intermediation in the country, after fulfilling the requirements established by the respective law and after authorization from the Superintendency. The Superintendency's authorization must be granted when the legal requirements are met. For the purposes of this law, financial intermediation is understood as the habitual raising of financial resources from the public, with the purpose of allocating them, on behalf of and at the risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogous means in which the transactions are formalized (…)\". In judgment 39-2011-VI, the Sixth Section of the Contentious-Administrative Tribunal has developed the concept and scope of the financial intermediation activity, by resolving that: \"2) Concept and scope of the financial intermediation activity: In accordance with the provisions of paragraph 2 of article 116, paragraph 2 of the Organic Law of the Central Bank, it states: …financial intermediation is understood as the habitual raising of financial resources from the public, with the purpose of allocating them, on behalf of and at the risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogous means in which the transactions are formalized…\". Now, given the public interest involved in the supervision of financial entities, only public or private entities, expressly authorized by law to do so, may carry out financial intermediation in the country, after fulfilling the requirements established by the respective law and after authorization from the Superintendency (articles 115 and 116, paragraph 1 of the Organic Law of the Central Bank of Costa Rica). It should be noted that among the requirements that financial entities must meet are: maintaining in the Central Bank, in the form of current account deposits, a reserve proportional to the total amount of their deposits and captions, which will constitute the minimum legal reserve (encaje mínimo legal) (article 62 of the Organic Law of the BCCR); respecting the limits established by the Board of Directors of the Superintendency of Financial Entities, for active operations, direct or indirect, that financial intermediaries may carry out with each natural or legal person, in each of the modalities of their operations and in the aggregate of all of them (article 135 of the Organic Law of the BCCR), among others.\" (In the same sense, judgment 3918-2010, from the Sixth Section of this same Tribunal). A corollary of the foregoing, Law No. 7558, Organic Law of the Central Bank of Costa Rica, also regulates the supervised bodies (organismos fiscalizados), by indicating where relevant that: \"Article 117.- Supervised bodies. Subject to the supervision of the Superintendency and the monetary control powers of the Central Bank are public and private banks, non-bank financial companies, mutual savings and loan associations, credit unions (cooperativas de ahorro y crédito), and solidarity associations (asociaciones solidaristas). Also, any other entity authorized by law to carry out financial intermediation. (…)\". - It is clear to this Chamber that although the plaintiff defines the scope of its claims and the entities against which it can bring action, pursuant to the legal and jurisprudential citations transcribed, financial intermediation involves the habitual raising of financial resources from the public, with the purpose of allocating them, on behalf of and at the risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, and that this activity is carried out not only by the state banks and the Banco Popular sued here, but also by private banks, non-bank financial companies, mutual savings and loan associations, credit unions, and solidarity associations, such that in view of the plaintiff's claim, which seeks to establish a regulation for one part of the supervised sector, not only the principle of equality is violated, but also that of technical reasonableness, given that no sufficient cause was proven to discriminate against some in relation to others, an action that would entail breaking the principle of equality among the regulated entities. The presence of said subjects in the financial intermediation operation is notably absent from the complaint, so the effects of a judgment only for the first sector could generate serious distortions in the soundness of the national financial system as a whole, and consequently, weakens one of the aspects that supports the plaintiff's theory of the case. In addition to the fact that it should not be overlooked that granting what the plaintiff petitions would imply a transgression by the judges into the scope of powers of the supervised bodies, which would produce a situation of co-administration.-\n\nXI.- ON FREEDOM OF COMMERCE: The defendant party, mainly the state banks and the BPDC, alleged in their defense that the setting of interest rates (tasas de interés) responds to free commercial activity and is a matter of commercial contracts, thus we proceed to analyze the scope of freedom of commerce. In this regard, the Commercial Code (Código de Comercio) regulates matters related to freedom of commerce, and in particular, regarding commercial loan (préstamo mercantil), and conventional interest (intereses convencionales), by prescribing: \"Article 496.- Unless otherwise agreed, the commercial loan shall always be with compensation. The compensation shall consist, in the absence of an agreement, of legal interest calculated on the sum of money or the value of the thing loaned. Current interest shall begin to run from the date of the contract, and default interest from the due date of the obligation.\", and for its part, in \"Article 497.- Conventional interest is what is agreed upon by the parties, which may be fixed or variable. If it concerns variable interest, to determine the variation, national or international reference rates or indices may be agreed upon, provided they are objective and of public knowledge. Legal interest is that which is applied supplementarily in the absence of an agreement, and it is equal to the basic passive rate (tasa básica pasiva) of the Banco Central de Costa Rica for operations in national currency and to the 'prime rate' for operations in US dollars. The interest rates provided for in this article may be used in all types of commercial obligations, including those documented in negotiable instruments.\" In this sense, the Constitutional Chamber (Sala Constitucional), in ruling 3495-92, recognizes the freedom of contracting (libertad de contratación): \"XIII- Starting from the constitutional recognition of the principle and system of freedom, in general (art. 28), of the right to private property (art. 45) and of the freedom of enterprise (libertad de empresa) (art. 46), the principle of free contracting is inscribed as a constitutional principle, a conditio sine qua non for the exercise of both, the essential content of which the Chamber summarizes in four elements, namely: a) The freedom to choose the co-contractor; b) The freedom in choosing the object of the contract itself and, therefore, of the main provision that concretizes it; c) The freedom in determining the price, content, or economic value of the contract stipulated as consideration; d) The balance of the positions of both parties and between their mutual provisions; a balance that demands, in turn, respect for the fundamental principles of equality, reasonableness, and proportionality, according to which the positions of the parties and the content and scope of their reciprocal obligations must be reasonably equivalent to each other and, furthermore, proportionate to the nature, object, and purposes of the contract.\" In greater depth, in judgment 74-2013, the Fourth Section of the Contentious-Administrative Tribunal, has pronounced on freedom of commerce, by stating: \"II) ON THE MERITS: I.1) REGARDING THE EFFECTS, REQUIREMENTS, AND LEGAL ASSUMPTIONS THAT MUST BE TAKEN INTO CONSIDERATION FOR THE PURPOSES OF LOAN CONTRACTS ENTERED INTO BETWEEN SUBJECTS GOVERNED BY PRIVATE CIVIL AND COMMERCIAL LAW: In matters of the general theory of private contracts, we have that the contract is defined as a meeting of minds whose purpose is to create an obligation, by which one or several persons oblige themselves to give, do, or not do something in favor of another or others, such that legal situations are created, extinguished, and modified, all pursuant to ordinals 629 and following of the Civil Code. The principle of freedom of contracting and autonomy of will (autonomía de la voluntad) are essential principles governing the freedom and power to agree, but subject to the limitations that public order and public interest demand, as expressed in constitutional numeral 28, according to which \"Private actions that do not harm morals or public order, or that do not harm a third party, are outside the action of the law.\" So that all persons may freely contract on matters of private interest, which is also related to freedom of commerce and to the constitutional norm that protects private property. (…) Regarding the commercial loan contract, regulated in ordinals 495 to 508 of the Commercial Code, it has been stipulated that the \"loan contract shall be deemed commercial when it is granted for a valuable consideration, even if it is in favor of non-merchants\". It has also been provided, in these contracts, article 496 ibid, that unless \"(…) otherwise agreed, the commercial loan shall always be with compensation. The compensation shall consist, in the absence of an agreement, of legal interest calculated on the sum of money or the value of the thing loaned. Current interest shall begin to run from the date of the contract, and default interest from the due date of the obligation.\". Furthermore, article 497 has defined the various types of interest, stating that \"Conventional interest is what is agreed upon by the parties, which may be fixed or variable. If it concerns variable interest, to determine the variation, national or international reference rates or indices may be agreed upon, provided they are objective and of public knowledge. Legal interest is that which is applied supplementarily in the absence of an agreement, and it is equal to the basic passive rate of the Banco Central de Costa Rica for operations in national currency and to the 'prime rate' for operations in US dollars. The interest rates provided for in this article may be used in all types of commercial obligations, including those documented in negotiable instruments.\".- For its part, in judgment 107-2014-VI, the Sixth Section of this Tribunal, regarding interest agreed upon in commercial contracts, has indicated that: \"Interest (intereses) are the gradual increases that money debts experience, due to their amount and the time elapsed. Interest, it can be stated, is the price that credit entities charge for granting a loan. That is, in a monetary or pecuniary obligation, interest is the price of money. Its setting can occur conventionally or legally and, in any of these cases, it is possible – and, in fact, frequent – to refer its amount to some kind of financial parameter, objectively verifiable, that reflects the flows of the national and/or international market, which determines that the interest is not fixed but fluctuating. The fluctuation of interest in a commercial obligation finds its reason for being in the adaptation to the current state of the economy; for this purpose, economic reference indices are used, which must have calculated the market cost, be immune to the influence of the entity itself, and have as a backing bases or indices calculated according to a mathematical procedure. By means of Law No. 7107 of November 4, 1998, article 70 of the Organic Law of the National Banking System was reformed, and from that point on, state commercial banks and private banks supplementarily governed by said law were granted the power to establish variable and adjustable interest rates. The Commercial Code provides in its article 497 that 'Conventional interest is what is agreed upon by the parties, which may be fixed or variable. If it concerns variable interest, to determine the variation, national or international reference rates or indices may be agreed upon, provided they are objective and of public knowledge.' In our environment, the Basic Passive Rate (Tasa Básica Pasiva, TBP), mentioned in that same norm, constitutes an important and well-known economic indicator applicable to obligations in national currency.\n\nIt is set by the Central Bank of Costa Rica (not by the defendant bank, thus discarding any kind of possible fraudulent manipulation to the detriment of the plaintiff's interests), an entity that makes this information public, enabling its objective and independent verification. The TBP, used as a reference for interest on bank loans, seeks to reflect the cost that banks incur when raising funds. For its calculation, the Central Bank considers the rates on deposits with terms between five and seven months from this entity, the Ministry of Finance, private public banks, and other financial intermediaries. As noted, the plaintiff is a merchant, which makes her an educated and informed consumer in this area; therefore, the thesis that she was unaware of the fact that, when a rate referenced to a basic rate is agreed upon, interest may vary according to the fluctuations of the internal market, which is subject to the market and the global economy, is not acceptable.\" In accordance with the legal and jurisprudential citations above, this Chamber recognizes that freedom of commerce comprises, as fundamental elements, the freedom to choose the co-contracting party; the freedom to choose the very object of the contract and, therefore, the main performance that materializes it; the freedom to determine the price, content, or economic value of the contract stipulated as consideration; and the balance of the positions of both parties and between their mutual performances, and in the case file, the plaintiff has failed to prove that any of these essential elements have been violated in the relationships between the defendant banking entities and the consumers of financial services. Furthermore, concerning the determination of interest rates, they operate in accordance with the provisions of the Commerce Code, which, as has been indicated, may be fixed or variable, without it having been proven in the case file that variable rates, referenced to the basic passive rate, have caused harm to consumers of banking services, as the plaintiff maintained in her thesis.\n\nXII.- SPECIFIC CASE: FIRST CLAIM: The plaintiff, in the adjustment of the first claim, requests that: \"1.- SUGEF and the National Council for Supervision of the Financial System, CONASIF (sic) of the Central Bank of Costa Rica, be compelled to regulate consumer economic interest protection tools, such as the rate ceiling and the non-inclusion of the abusive clause (Article 42 of the Consumer Law)\". In her arguments, the representation of SUGEF, on behalf of the Central Bank, stated that regarding floor and ceiling rates, as well as variations in interest rates that may have caused any harm to consumer rights, the First Section of the Contentious-Administrative Tribunal has already indicated in its judgment number 16-2013-I, that it is not possible to deduce that SUGEF has a duty to supervise the operation of purely operational aspects of financial entities, but rather that its supervisory work is aimed at ensuring that the entire national financial system as a whole functions in a stable, sound, and efficient manner, given its importance and impact on national economic activity. In this sense, Chapter IV, Section I of the Organic Law of the Central Bank establishes the powers that the legal system has granted to SUGEF; it provides in Article 119: \"Supervision and oversight of the Superintendency. For the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendency shall carry out its supervision and oversight activities over all entities engaged in financial intermediation, in strict compliance with legal and regulatory provisions, ensuring that they comply with the applicable precepts. In relation to the operations of the supervised entities and the recording of their transactions, the Superintendency shall be empowered to issue the general rules necessary for the establishment of sound banking practices, all in safeguarding the interest of the community. For purposes of issuing and applying the rules within its competence, the Superintendency may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries. The general rules and guidelines issued by the Superintendency shall be mandatory for the supervised entities. CONASSIF shall issue prudential regulation on the Development Banking System, based on criteria and parameters that take into account the particular characteristics of credit activity originating from the Development Banking System and that are in accordance with international provisions. (Thus reformed by Article 58 of the Development Banking System Law, No. 8634 of April 23, 2014)\" (underlining is not from the original). It argues that the definition of the interest rate in a credit contract is a matter of a private nature, and that it is not for SUGEF to resolve conflicts arising from them; it adds that it corresponds to a commercial and contractual relationship established by the Commerce Code in accordance with ordinals 495, 496, and 497 of said legal body; ordinal 497 provides: \"The interest agreed upon by the parties is called conventional interest, which may be fixed or variable. If it is variable interest, national or international reference rates or indexes may be agreed upon to determine the variation, provided they are objective and of public knowledge. Legal interest is that which is applied supplementarily in the absence of agreement, and is equal to the basic rate of the Central Bank of Costa Rica for operations in national currency and the 'prime rate' for operations in United States dollars. The interest rates provided for in this article may be used in all kinds of commercial obligations, including those documented in negotiable instruments.\" In this order of things, the representation of the defendant party, regarding the regulatory powers of the national financial system, pointed out that Article 171, subsection b) of the Securities Market Regulatory Law, in relation to the National Council for Supervision of the Financial System (CONASSIF), indicates that: \"Article 171.- Functions of the National Council for Supervision of the Financial System. The functions of the National Council for Supervision of the Financial System are: (...) b) To approve the rules concerning the authorization, regulation, supervision, oversight, and surveillance that, in accordance with the law, must be carried out by the General Superintendency of Financial Entities, the General Superintendency of Securities, and the Superintendency of Pensions. Requirements may not be set that unduly restrict the access of economic agents to the financial market, limit free competition, or include discriminatory conditions. (...)\" (underlining is not from the original). It is noted that the regulatory body of the financial system is CONASSIF, which has the function of approving the rules that SUGEF must enforce. In greater depth, the First Chamber of the Supreme Court of Justice, in judgment 1000-F-S1-2010, indicated: \"XIII. On the competence of CONASSIF. (...) It must be recognized, on the contrary, that the legislation has delegated to CONASSIF the regulation of financial activity, granting it the specific competence to issue regulations that impose the creation, modification, or suppression of legal situations of the supervised subjects, or the development of a legal text. In these cases, it is a specific legal authorization in the terms set forth in the preceding recital, which constitutes the competence limit of CONASSIF, being that, as stated, it is not an autonomous and generic power, but a derived and specific one. In summary, as inferred from the general framework set forth, it is necessary to determine, in each specific case, whether the material content of the rule concerns or does not concern the service provided by the superintendencies (...)\". In the judgment of this Tribunal, the purpose indicated by law is the stability, soundness, and efficient functioning of the national banking system, and SUGEF is the supervisory and oversight body related to technical and procedural aspects that involve the financial health of the financial intermediaries, as the expert witness stated in his testimony. This Chamber considers that what is requested in this claim is inadmissible, not for lack of competence in the regulation of the matter, but because it does not correspond to a regulation of all regulated entities, nor has sufficient cause been proven to discriminate against some in relation to others, thus generating a breach of the principle of equality, an infringement upon the jurisdictional sphere of the supervised bodies, and the obvious avoidance of judges participating in co-administration. The jurisdictional activity of the Superintendency of Financial Entities is delimited to technical and procedural aspects and not to the definition of the interest rate in a credit contract, and according to the line of the First Chamber, CONASSIF has its competence limit in the material content of the rule concerning the superintendency in question, namely SUGEF, so the first claim of the lawsuit must be rejected for lack of right and must be so declared. SECOND CLAIM. The main object of the present lawsuit is to compel the supervisory and oversight bodies, and the operators of the state and public national banking system; in that sense, the second claim of the lawsuit requests that: \"2. Each defendant bank be compelled to implement the rate ceiling in current and future credit operations, as a tool to protect the consumer's economic interest, with the same difference between the initial current interest rate and the floor rate.\" The plaintiff alleges that floor rates only benefit the banking entities and that the absence of ceiling rates harms the protection of banking consumers, consequently generating a violation of the principles of reasonableness and proportionality, contained in numeral 10 of the Political Constitution, as well as the consumer rights of constitutional ordinal 46, which are fundamental and inalienable, in accordance with the protection of the consumer's economic interests, enshrined in Article 32, subsection b, of Law No. 7472, Law on Promotion of Competition and Effective Defense of the Consumer, as well as the right to safety and a fair and equitable consumer relationship, and the non-inclusion of abusive clauses. For their part, the defendant state and public banking entities center their defense on the fact that it was not proven in the case file that floor rates and ceiling rates are abusive and distort the contractual relationship between their represented entities and the clients of banking services. That in this specific case, a loan contract relationship is observed, whose interpretation and nature correspond to civil law, according to the rules of ordinal 1022 of said code, and also that the definition of credit conditions respond to regulations of the Commerce Code in its Article 497 on fluctuating rates, which have their legal basis, adding the existence of votes 6515-93, 2784-94, both from the Constitutional Chamber on this aspect, and that it was not proven by the plaintiff's representation that said rates cause serious harm to banking consumers; they rely on the fact that only 2% of current operations present delinquency problems, and that said situation is multifactorial, involving aspects of inflation, unemployment, fiscal deficit, and not only interest rate variables. They also warn that the plaintiff should have resorted to the National Consumer Commission as the entity with the legal powers to ensure consumer rights and not to the jurisdictional route, since this denotes her procedural bad faith. They argue that the setting of floor rates has as a reference, in the banking entities that use this modality, with the exception of BCR, the use of the basic passive rate (tasa básica pasiva), and that said instrument is not set or defined by the banking entities but by the Central Bank of Costa Rica, using various variables as was proven by the explanation offered by the expert witness Javier Cascante, General Superintendent of Financial Entities. In this regard, this same Tribunal, in the Eighth Section, with a different panel, resolved what relates to the credit contract, the basic passive rate, and the floor rate, in judgment 108-2012-VIII of 9.00 on December 20, 2012, which in the relevant part states: \"Regarding this topic, the Tribunal is of the opinion that interest rates correspond to a market phenomenon of supply and demand, whose variation cannot be controlled by the credit entity through the deployment of administrative conduct; therefore, it cannot be held responsible for a situation it cannot control. When a consumer takes on a credit, they incur a risk; therefore, they must be clear about their payment capacity, in an uncertain market full of vicissitudes; it is a responsibility they must assume personally, and not transfer to the bank that is unaware of the total dynamics of their finances; the lack of this exercise on the part of the plaintiff can only bring about damages that translate into insolvency situations. While it is true that in a contract there are variables over which the bank has interference and control and can be held responsible, there are other aspects among which interest rates can be cited, which respond to macroeconomic reasons, which, as indicated, the bank cannot control. In relation to the nullity that is petitioned, for not including a ceiling rate clause, although a floor rate is recorded that only protects the defendant Bank, it is necessary to point out that even if the bank could make a consideration in favor of the client, through the insertion of a ceiling rate, which decreases the asymmetry of the relationship, the truth is that such omission does not generate nullity in the clause, nor does it imply an abuse; the variation of rates are uncertain facts that depend on market phenomena, since even with the establishment of this type of rate, the variation in them could cause serious harm to a consumer, who, even if it did not exceed the ceiling, could not cope with the payment of that obligation.\" In this process, the plaintiff does not specify or question specific or particular clauses in the contracts of the co-defendant banking entities that are configured as abusive, but rather limits herself to listing clauses with floor interest. For their part, the banking entities indicate that regarding the fair and equitable consumer relationship and the non-inclusion of abusive clauses, these are not established, so they estimate that, of the constitutive elements that guarantee the credits, the balance does not tip towards one of the contracting parties, but rather it is the market that sets the pattern. This Chamber considers that, not finding elements of fact or law that would cause it to change its position, it is concluded that the basic passive rate (TBP) is used as a reference for interest on bank loans, that interest rates correspond to a phenomenon of supply and demand, in application of the principle of party autonomy (autonomía de la voluntad), whose variation cannot be controlled by the credit entity through the deployment of administrative conduct; therefore, it cannot be held responsible for a situation it cannot control. Concerning floor or ceiling rates, the criterion is maintained that even if the banking entity could make a consideration in favor of the client, through the insertion of a ceiling rate, which decreases the asymmetry of the relationship, the truth is that such omission does not generate nullity in the clause, nor does it imply abuse, and therefore, the variation of the rates are uncertain facts that depend on market phenomena, coupled with the fact that no elements of judgment were provided to determine, in specific and particular cases, the alleged use of abusive clauses.\n\nBased on the foregoing, the second claim likewise lacks factual and legal basis and must therefore be dismissed, and it is so declared.\n\n**DISSENTING VOTE OF JUDGE CORTÉS MORALES:**\nAlthough the undersigned agrees with the operative part of the judgment, in that the defense of lack of right filed by the co-defendant parties is upheld and the lawsuit is declared without merit, she respectfully departs from the majority vote by differing from the legal basis set forth therein, considering that the lawsuit must be dismissed based on the following:\n\n**I. REGULATORY POWERS WITHIN THE FINANCIAL MARKET AND THEIR CONTROL BY THIS JURISDICTION:**\nOne of the most recent fields in which administrative law has become involved is the regulation of economic sectors operating in a given market, which is understood within the changing relationship the State has had with the economy, in which private companies are expected to behave correctly when carrying out public utility activities. From this perspective, the function of regulation is understood not only as the power to issue rules concerning the correct development of the actors in that field, but \"*the use of all instruments, normative and executive, necessary to guide the functioning of markets towards competition and to impose public service obligations on operators so that their natural desire for profit is compatible with the demands of the general interest*.\" (Muñoz Machado, Santiago. *Treatise on Administrative Law and General Public Law*. Volume IV, p. 499. First Edition. Iustel. Portal Derecho, S.A., Madrid, España, 2011). In general terms, the so-called regulatory agencies are endowed with sufficient powers in order to ensure that the markets in which services of general interest are provided or which carry out activities of public interest behave appropriately so that they are not distorted and those who participate in them are not harmed. In the Costa Rican legal system, regulatory law has been developing with the insertion of our markets into the world economy, with the consequent opening of monopolies, as well as in markets of public interest. Within the first case, one can cite the more recently created superintendencies, with the opening of the telecommunications and insurance markets following the laws enacted after the signing of the Free Trade Agreement with the United States of America, namely the Superintendencia de Telecomunicaciones (SUTEL), as a deconcentrated body with instrumental legal personality of the Autoridad Reguladora de los Servicios Públicos (Article 59 of Law 7593 and its amendments) and the Superintendencia de Seguros (SUGESE), with the same legal nature as the former, but attached to the Banco Central de Costa Rica (Article 28 of Law 8653). In the second scenario is the Superintendencia de Pensiones (SUPEN), whose origin lies in Article 33 of the Worker Protection Law, when mandatory supplementary pensions were established and, due to their public interest, it was created to regulate the market of pension operators, as a deconcentrated body with instrumental legal personality of the Banco de Costa Rica. In the case of the financial market, specifically in the area of financial intermediation (in which an institution captures resources from investors and places them in the market, mainly through credit), without intending to go into greater detail, it originated in the abuses that occurred in the 1980s, in which intermediation occurred without much control, very high interest rates were offered to investors, who deposited their money attracted by the prospect of a large profit and then lost their resources because the capturers could not honor their commitments. The Banco Central, as the primary competent entity to regulate the country's financial sector, established a series of controls through its bodies for that sector, as well as ensuring compliance with those provisions it had been establishing and still remain regarding the establishment of reserve requirements for banks. Finally, SUGEF was created, as a deconcentrated body of the same Bank, with the purpose of ensuring the financial stability and transparency of this market, in which not only public and private banks participate, but also financial institutions, such as savings and loan cooperatives, solidarity associations, and others that provide financial intermediation (Article 117 of the Ley Orgánica del Banco Central de Costa Rica), as well as those carrying out the cases set forth in Article 15 of the same law, but taking into account that the market operates under the rules of free trade, without the Superintendencia being able to impose specific conduct on the actors, other than that necessary to achieve the purposes pursued by the legal system. Financial intermediation is understood in the terms established in the second paragraph of Article 116 of the aforementioned Law, which states:\n\n\"*For the purposes of this law, financial intermediation is understood as the habitual capture of financial resources from the public, with the aim of allocating them, at the account and risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogous means in which the transactions are formalized*\"\n\nThe creation of SUGEF is established in Article 115 of the same cited norm in the following terms:\n\n\"*It is of public interest to supervise the country's financial entities, for which purpose the Superintendencia General de Entidades Financieras is created, also referred to in this law as the Superintendencia, as a body of maximum deconcentration of the Banco Central de Costa Rica. The Superintendencia shall govern its activities by the provisions of this law, its regulations, and other applicable laws*.\"\n\nRegarding the powers of the Superintendencia, Article 119 of the norm provides:\n\n\"*With the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendencia shall exercise its supervision and oversight activities over all entities that carry out financial intermediation, in strict compliance with legal and regulatory provisions, ensuring that they comply with the precepts applicable to them.*\n\n*In relation to the operations of the supervised entities and the recording of their transactions, the Superintendencia shall be empowered to issue the general rules necessary for the establishment of sound banking practices, all in safeguarding the interest of the community.*\n\n*For the purposes of issuing and applying the rules within its competence, the Superintendencia may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries.*\n\n*The general rules and guidelines issued by the Superintendencia shall be of mandatory observance for the supervised entities.*\n\n*The CONASSIF shall issue prudential regulation on the Development Banking System, based on criteria and parameters that take into account the particular characteristics of the credit activity originating from the Development Banking System and that are in accordance with international provisions*.\"\n\nWithin the supervision of the financial market, the Consejo Nacional de Supervisión del Sistema Financiero (CONASSIF) also acts, whose most important power, for the purposes of resolving the present case, is the approval \"*of the rules concerning the authorization, regulation, supervision, oversight, and surveillance that, according to the law, must be executed by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. Requirements that unduly restrict the access of economic agents to the financial market, limit free competition, or include discriminatory conditions may not be set*.\" (Article 171 b) of the Ley Reguladora del Mercado de Valores). Having made the foregoing preamble, it is considered that the regulatory bodies, with the powers granted by the legal system, in general terms ensure that the market behaves appropriately to safeguard not only the investors, for which purposes a series of obligations are established to guarantee the solvency of market participants, but also the other side of the market, namely those who acquire the products (which are mostly of a credit nature) offered by financial institutions, because a regulation that looks after only one of the possible affected parties in the market is not understood. The exercise of the powers of supervision and oversight (which include the authorization of the provision of the financial intermediation activity and the exercise thereof), is in turn an expression of the discretionary powers of the regulatory bodies, in this case SUGEF and CONASSIF, whose exercise and limits are established in Articles 15, 16, and 17 of the Ley General de la Administración Pública. From this perspective, the regulators, within the supervision of the market, shall establish the rules in a broad sense that they deem appropriate for the protection of the public interest immersed in this market. The discretionary power exercised within the framework of their competence is the hard core of these public administrations, who, in principle, possess all the specialized criteria in the activity. According to the cited articles of the LGAP, there is control over the exercise of the actions of the Administrations in the exercise of discretionary powers by this Court, in the terms provided in the articles of the LGAP just mentioned. Analyzing the plaintiff's claim, it is noted that it consists of the imposition of conduct so that SUGEF and CONASSIF regulate the tools for protecting the economic interest of the consumer, such as the interest rate ceiling and the non-inclusion of abusive clauses. In this regard, it would be necessary to elucidate first whether this type of conduct can be imposed by this Court on the bodies in question. It is the criterion of this judge that it is not possible, as it would be overstepping the limits of discretionary control imposed by substantive law, because it would be entering into a kind of co-administration with the public administration that exceeds the jurisdictional function. A court of justice cannot tell a regulatory body what decisions it must make in a given market. Jurisdictional control is limited to deciding, when it has already acted, whether that action is within the limits established by law, or to order conduct when it is proven that there is an omission, a situation that does not occur in this case. The foregoing is also based on procedural law, which provides that what the Court can do is to control the exercise of administrative power (Article 36 b) of the CPCA). Specifically in a judgment, what this Body can do is to set the limits and rules imposed by the Legal System for the exercise of discretionary power (Article 122.f) of the CPCA). It is concluded, therefore, that conduct could not be imposed on SUGEF (except in relation to omissions as just indicated), as it exceeds the constitutional competence established in Article 49 of the Constitución Política, which would make the plaintiff's claim unfeasible. However, the following assessments should be made: in the event that there were a market disturbance due to abusive clauses or the imposition of arbitrary rates affecting credit subjects in broad terms, causing distortions and harm to consumers of currency exchange products (regardless of the destination that may be given to the resources from the credits), SUGEF could indeed intervene, because as previously stated, it must ensure the health of the market in general and not only that of investors, beyond what is established in Law 7472 regarding consumer protection, as the law authorizes it to do so. Moreover, the imposition by SUGEF of specific conditions on contracts a priori could violate the exercise of commerce and the principle of autonomy of will of the parties established in Articles 46 and 28 of the Constitución Política. For the reasons stated, the first claim is rejected.\n\n**II. THE IMPOSITION OF INTEREST RATE CEILINGS ON THE DEFENDANT BANKS IN CREDIT OPERATIONS:**\nAccording to Article 1 of the LGAP, public administrations have capacity under public law and private law. State banks, despite their status as autonomous institutions, according to Article 189 of the Constitución Política, as well as with each of their laws of creation, are governed in their activity vis-à-vis third parties in their capacity as subjects of private law, as public enterprises. When this Court reviews the actions of the banks, which are mostly contractual, as has happened in the case of the contracts that the plaintiff association has been submitting to its knowledge, it acts as a civil judge does, applying commercial law and Law 7472, in the case of the liability regime established therein for consumer protection. The decision was legislative, by providing in Article 2.f) of the CPCA that judicial proceedings in which a public enterprise participates shall be heard by this jurisdiction. As a matter of principle, in contractual private law, what prevails is the principle of autonomy of will of the parties, who contract freely and submit to what the contracts provide. This is so, even in the case of adhesion contracts, in which a party cannot negotiate any of the contract clauses, to which they simply adhere. What has been regulated is consumer protection, as the weaker party in the relationship, so that they have an effective defense of their rights, regarding access to information and the prohibition of abusive clauses, among others (Article 32 of the Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor). Taking the foregoing into consideration, the contentious-administrative judge, acting as a civil judge, could not establish a priori conditions on private parties, as this would violate the party presentation principle inherent in the autonomy of will between the parties, which would also exceed the competence of the civil jurisdiction. The same reasoning must be applied with respect to the Banco Popular y de Desarrollo Comunal, which possesses a different legal nature, being a non-state public entity.\n\nSimilar to what was indicated regarding the first claim, the only thing this jurisdiction can do is review a specific and concrete legal relationship to determine if there is unlawfulness (antijuridicidad) in accordance with the rules that apply to the case. The opposite would imply a violation of Article 46 of the Political Constitution, since it would be an attack against freedom of commerce. For this sole reason, this claim is rejected. Notwithstanding the above, it draws the attention of the undersigned that the lawsuit is directed solely against the four defendant banks, leaving out the rest of the financial intermediation sector, which is arbitrary. In the event that it were possible to impose general conditions on credits, an odious and unlawful inequality would be created, which would be a reason that, on its own, would lead to the rejection of the lawsuit.\" \n\nThat this loan shall accrue interest payable monthly in arrears, on the outstanding principal balances at an interest rate composed as follows: **First-year interest**: During the first year of the loan, the interest rate shall be composed of a variable factor which is the BASIC PASSIVE RATE (TASA BÁSICA PASIVA) at a six-month term calculated and published by the Banco Central de Costa Rica, and which is in effect at any given time. - **Second-year interest**: During the second year of the loan, the interest rate shall be composed of the BASIC PASSIVE RATE referred to and in effect at any given time, plus a fixed factor of ONE percentage point per annum for commercial risk. **Third-year interest**: During the third year of the loan, the interest rate shall be composed of the BASIC PASSIVE RATE referred to and in effect at any given time, plus a fixed factor of TWO percentage points per annum for commercial risk. **From the fourth year until the maturity of the loan**: From the fourth year and until the maturity of the loan, the interest rate shall be composed of the BASIC PASSIVE RATE referred to and in effect at any given time, plus a fixed factor of THREE percentage points per annum for commercial risk, with the interest rate of this loan being adjustable and variable according to the variations experienced by the Basic Passive Rate. For informational purposes, the interest rate under current conditions as of today is SEVEN POINT TWENTY-FIVE percent per annum. B) FLOOR RATE. Notwithstanding the composition indicated above, it has been agreed to establish a minimum interest rate that shall govern during the entire term of the loan, which shall be SEVEN POINT TWENTY-FIVE percent per annum, payable in monthly arrears, so that the fluctuation and sum of the factors—fixed and variable—may at no time cause a rate to be applied that is lower than the floor rate indicated above.\" (images 58 to 74 of the virtual case file).-\n\n**6.-** That by Affiliations dated November 11, 2011, November 17, 2011, July 16, 2012, November 14, 2012, November 16, 2012, January 10, 2013, January 25, 2013, February 11, 2013, March 8, 2013, April 1, 2013, April 2, 2013, April 22, 2013, and May 20, 2013, Messrs. Emilio Soto Riggioni, Justo German López Brenes, José Luis Rodríguez Alpizar, Fernando Cortés Cantillo, Gil Esteban Monge Valenciano, Nombre147755, Nombre147756, Nombre110781, Damaris Porras Jiménez, Nombre147757, Nombre147758, Nombre134653, and Nombre147759, respectively, authorize the Asociación Nacional de Consumidores Libres to represent their rights as consumers before judicial and/or administrative bodies. (Images 25 to 39 of the virtual case file).-\n\n**7.-** That on June 15, 2012, Nombre40674 and Banco Crédito Agrícola de Cartago entered into a loan contract, with the use of a floor rate, which, in its relevant part in clause eight, states: \"EIGHTH: OF THE FLOOR RATE: The agreed interest shall have a floor rate or minimum rate, this being the Basic Passive Rate equivalent today to NINE POINT SEVENTY-FIVE plus three percentage points, and it shall not be possible to charge a rate lower than that established herein during the entire term of the credit relationship.\" (Images 377 to 381 of the virtual case file).-\n\n**8.-** That according to the Analysis and proposal for the establishment of floor and ceiling rates for loans in colones and dollars, official communication DRM-26-2012, dated February 28, 2013, prepared by Nombre147760, Market Risk Directorate, of the Corporate Risk Directorate of Banco Nacional de Costa Rica, it states: \"I. Justification. The purpose of this work is to conduct an analysis of the current methodology for determining lending rates and a proposal to establish floor rates (fluctuating) and ceiling rates for loans in colones and dollars, offering minimum rates and ceiling rates. (...) V. Final comments. For the purposes of floor rates, the methodological change of the basic rate by the BCCR in December 2012 implied that there may be short-term increases in the BN's funding cost that are not perceived in the indicator, whereby the profitability margin of floating-rate loans could be reduced. In this regard, it is considered relevant to incorporate an adjustment factor that approximates that difference in the cost of structure, in line with the above. In the case of floating-rate loans, we currently operate with a ceiling rate level in colones so high that it is inapplicable at the contractual level, while in the case of dollars, they do not exist as such, so it is recommended to analyze this methodology and results on the determination of ceiling rates, so that they are established in accordance with the current macroeconomic environment and taking into account risk scenarios such as those proposed in this document. It should be noted that for some activities, the ceiling rate was calculated at a consolidated level (for example, consumer, housing, and construction), so that, if deemed insufficient, the analysis could subsequently be expanded to contemplate greater detail at the level of the subdivision of the activities themselves, especially for those that present greater credit risk.\" (Images 140 to 152 of the virtual case file).-\n\n**9.-** That on June 25, 2013, the General Board of Directors of Banco Nacional de Costa Rica, in article 7, session No. 11842, approved a comprehensive scheme of floor and ceiling rates for loans in colones and dollars. (Images 165 to 169 of the judicial case file).-\n\n**10.-** That on November 1, 2013, by official communication SUGEF 2711-14-2013, signed by Nombre60826, General Superintendent of the Superintendencia General de Entidades Financieras, a request is made to Nombre143351, General Manager of Coopeamistad R.L., in the relevant part, as follows: \"This Superintendency has been informed through various means of the resolution by the Chamber of Commerce in the arbitration process whose award was issued on March 13, 2013, in relation to the provisions of subsection e), of article 42, of Law No. 7472 'Ley para promover la competencia y defensa efectiva del consumidor.' In view of the foregoing, you are respectfully requested to, within a maximum period of twenty business days from the receipt of this communication, remit to this Superintendency: a) The actions, from a risk management perspective, that the entity you represent has determined to manage the legal risk indicated above b) A technical study that determines the possible economic impact of the materialization of this risk, obviously under the worst possible scenario. (...)\" (Image 99 of the virtual case file).-\n\n**11.-** That on November 20, 2013, by official communication DRM-143-2013, prepared by Nombre147760, of the Market Risk Directorate, of the General Risk Directorate, of Banco Nacional, a response is given to note SUGEF-2711-1-2013 regarding the actions to manage the legal risk of establishing caps on lending rates, which in its relevant part states: \"1.3. Benefits of the new floor and ceiling rate scheme. Legal risk in contracts is minimized. The new implemented scheme generates greater transparency with the client, greater reciprocity and proportionality, by weighing the probability of reaching the floor and the ceiling, and greater reasonableness insofar as it is based on a technical methodology that considers the BN's own conditions and the environment. It provides the client with the option to choose between a scheme with floor and ceiling rates or one without a floor and ceiling, according to their risk aversion or appetite. This follows the international trend of reducing, eliminating, or at least being increasingly transparent about these types of contractual clauses. It offers clients a greater possibility to benefit in contexts of falling interest rates, given the separation of floor rates to minimum protection levels or even if the scheme without a floor and ceiling is chosen. This also allows for greater competitiveness in the market. It generates greater protection for clients in the event of rising rates, compared to the caps established in the past, which would positively impact even credit risk. The quarterly updating of the floor and ceiling rates provides flexibility to adjust to the conditions of the economic environment and at the micro-level of the bank, under a technical methodology approved by the Investment Committee, as authorized by the Board of Directors.\" (Images 154 to 158 of the virtual case file).-\n\n**12.-** That on December 16, 2013, by official communication DRM-163-2013, prepared by Nombre147760, of the Market Risk Directorate, of the General Risk Directorate, of Banco Nacional, an Analysis of the variability of the basic passive rate and the current scheme of floor and ceiling rates was conducted, which in its relevant part states: \"II. Current scheme of floor and ceiling rates. The General Board of Directors of Banco Nacional has approved a comprehensive scheme of floor and ceiling rates for loans in colones and dollars, as recorded in article 7, session No. 11,842, held on June 25, 2013.\" (Images 160 to 170 of the virtual case file).-\n\n**13.-** That it is established in the case file that the nominal basic passive rate, due to its variations in recent years, has not produced a serious impact on the rights of banking consumers. That financial entities cannot predict the behavior of the basic passive rate. That the basic passive rate is set by the Banco Central de Costa Rica based on the calculation of the average of the capture of resources from investors and other factors. That interest rates can be fixed or variable and are part of the business of financial intermediation entities as a result of capturing and placing resources through loans, under the protection of the autonomy of will. That SUGEF, as part of its supervisory competence, consulted financial entities on risk management and develops a model for adequate management of operational, tax, and legal contingency risks. (Proven in the testimony of the witness-expert; the audio of the oral and public trial may be heard).-\n\n**III.- UNPROVEN FACTS:** Those of relevance for this process are the following:\n\n**1.-** That the banking entities, being aware of the fluctuations in the basic passive rate, have placed the users of banking services at an unnecessary risk of losing their guarantees.-\n\n**2.-** That floor rates or ceiling rates violate contractual good faith, and conform to the principles of justice and equity in banking consumer relations.-\n\n**3.-** That floor rates and ceiling rates have caused a 70% increase in foreclosures (remates) in the country.-\n\n**IV.- OBJECT OF THE PROCESS.-** According to the claims determined in the aforementioned preliminary hearing, this process fundamentally seeks to compel SUGEF and CONASSIF of the Banco Central de Costa Rica to regulate the tools for protecting the economic interest of the consumer, such as the ceiling rate and the non-inclusion of abusive clauses, and to compel the co-defendant banks to implement the ceiling rate in current and future credit operations; no annulment is requested, nor is the specific recognition of damages and losses.-\n\n**V.- ARGUMENT OF THE PLAINTIFF PARTY:** The purpose of this lawsuit is the soundness of the National Financial System, in the face of abusive practices and clauses in banking contracts, as well as the omission of the BCCR towards a more active participation, which has worsened the conditions of financial service consumers. The claims are directed against SUGEF and CONASSIF so that they regulate the tools for protecting the economic interest of the consumer, such as the ceiling rate and the non-inclusion of abusive clauses, as well as to compel the defendant banks to implement the ceiling rate in current and future credit operations, as a tool for protecting the consumer's economic interest, with the same difference between the initial current interest rate and the floor rate, and the costs of the process. Regarding standing (legitimación activa), they base it on Article 46 of the Constitution, as well as Articles 10, 20, 21, and 22 of the Civil Code referring to abuse of right and pacta sunt servanda, and Article 42 of Law No. 7472, the Ley de Defensa Efectiva del Consumidor, which grants standing to consumer associations. They argue that according to contract theory, the relationship must benefit both parties, and that under the Ley General de Administración Pública in its Articles 8, 10, and 11, the aim is to equate and protect weaker parties against violations and lack of protection due to unequal conditions and risks. It requires no proof that the defendant entities have experts of all kinds, and the power of knowledge, and this empowerment gives them the obligation to foresee the future and protect users and to safeguard the soundness of the national financial system. That while it is true that SUGEF and CONASSIF are regulatory bodies, they must ensure the soundness of the national financial system within the limits of society, mainly regarding floor rates, and rates without a ceiling or with a very high ceiling. They point out that an Award issued by the Chamber of Commerce already exists as a precedent, which compelled the return of abusively charged funds. Furthermore, regarding floor rates, there is already jurisprudence in Spain that has reviewed them, and they indicate that in this process, they are not claiming damages and losses. In the conclusions phase, they state that the exception of lack of standing (legitimación activa) must be rejected, since they are vested with standing under Articles 46 of the Constitution, 10 of the CPCA, 74 of Law No. 7472, as well as the provisions of ruling 1321-S1-2013 of the First Chamber of the Court. They insist that the constitutional precept speaks of consumers and users and does not refer to two types of recipients of special protection, since when it speaks of users, it refers to public services of the State. In addition to the fact that Article 72 of Law No. 7472, which is a law of public order and recognizes inalienable rights for balance and social peace. In this regard, Article 42 of the same law, which addresses adhesion contracts, makes no distinction regarding sectors of society. They maintain that Article 1023 of the Commercial Code enshrines the principle of \"rebus sic stantibus\" and \"pacta sunt servanda,\" which is a guarantee for the community when there is an imbalance for one of the parties. The claim goes to the existence of conditions of reasonableness and proportionality of protection for both parties. They maintain that the standing of the defendants (legitimación pasiva) is based on Article 131.6 of the Ley Orgánica del Banco Central, which grants it the supervision of the interests not only of those depositing resources but also of persons applying for loans, and in that sense, they can issue directives to protect consumers. They indicate that the standing of the other defendants is established in the case file, since in image 44 of the file, Banco Popular has used the floor rate in deed 206 of the year 2007, Banco de Costa Rica in image 67 has also used the floor rate in its contracts, Banco Crédito Agrícola de Cartago in image 381 records a commercial loan contract and the use of these rates in the eighth clause, and Banco Nacional de Costa Rica, in images 140 to 152, offers minimum rates and ceiling rates, in images 146 and 147, acknowledges the need for greater transparency as well as for implementing floor and ceiling rates, and in image 157—all from the judicial case file—the use of said rates is recorded in the minutes of the Board of Directors and the great problem of temporary assets is mentioned. They insist that it is public and notorious that in recent years banks have assumed many properties, which attests to the volatility of the rates, in the face of which banks must have foreseeable scenarios.\n\nFinally, it argues that CONASSIF and SUGEF may issue criteria and guidelines for this sector, in accordance with the Law of the National Banking System, to protect the weaker party in the contractual relationship.\n\n**VI.- ARGUMENT OF THE DEFENDANT PARTY**: The representation of the Central Bank states that the first claim regarding the regulatory and supervisory bodies lacks support within the legal system, since section 42 of Law No. 7472 on consumer rights consists of specific rules that refer neither to the Central Bank, SUGEF, nor CONASSIF, but rather that the defense of said rights must be pursued before the National Consumer Commission (Comisión Nacional del Consumidor). It insists that CONASSIF does not have consumer defense powers attributed by the legislature, that SUGEF lacks legal possibilities to suggest or ensure those rights, since there is no express legal mandate. It indicated that, in the case of conventional interest, this is freely defined by the parties, without SUGEF supervising or CONASSIF regulating said contractual provisions. It warns that in the complaint, the plaintiff accuses its represented parties of an act of omission, which in its view does not exist, since the legal system does not attribute any competence to them. Regarding the Arbitration Award (Laudo) in the Chamber of Commerce, SUGEF limits itself, as part of its supervisory work, to requesting reports and asking financial system entities to take mitigation measures in the face of a legal risk, such as the one produced by said resolution, but it reaffirms that SUGEF is not competent to delimit the commercial activity of banks. In the concluding phase, it notes that the complaint is reckless, that SUGEF is not the avenue to regulate this type of circumstance, neither the Central Bank nor CONASSIF have legal powers to implement what the plaintiff requests, since they are not competent. That in its view, this is not a legal gap that admits some type of interpretation, but rather that the legislature has expressly provided that this is a matter for the National Consumer Commission. In addition to the fact that any type of limitation on commercial activity, understood as a public freedom, must be carried out through a law duly issued by the Legislative Assembly. Furthermore, it reiterates that the plaintiff accuses its represented party of an act of omission, but it does not exist since they lack competence for what is sought in the complaint. That only a single concrete administrative act has been cited in the case file in which SUGEF requested information from financial entities so that they take the necessary measures in the face of legal risks. It was not proven that the rates are disproportionate; rather, the powers of its represented party are based on the principle of legality, in sections 119 and 139 of the Organic Law of the National Banking System relating to SUGEF and Article 171 of the Securities Market Regulatory Law relating to CONASSIF, which do not impose or mention the regulation or supervision of interest rates; rather, Article 497 of the Commercial Code authorizes variable rates and does not contradict Law 7472. Case law, such as decision 16-2013 of the First Section of this Court, recognizes that its represented party should not intervene in the administration of banks, and therefore it reiterates the defenses raised in the response to the complaint.- For its part, the representation of Banco Popular y Desarrollo Comunal stated that the existence of abusive clauses is not proven in the case file. It also affirms that the plaintiff confuses consumer credit relationships, since for said condition one must be dealing with the final recipient and not a commercial loan, where there is no consumer, as the Attorney General's Office (Procuraduría) differentiates in its opinion 180-2000, and refers to the existence of several decisions from this same jurisdiction in that regard. In the concluding phase, it stated that in the case file there is no specific indication regarding abusive clauses, but rather an abstract one, that it is evident that BPDC, in image 41 of the judicial file, has implemented the floor rate (tasa piso), on the basic passive rate (tasa básica pasiva) plus four points, therefore the second claim lacks foundation, it insists that in foreign legislation the problem is not the floor rate but the absence or deficiency in the right to information for the banking consumer. Finally, it warns that in the present proceeding, the annulment of the floor rates is not being requested, and it reiterates the exception of lack of right.- The representation of Banco Crédito Agrícola de Cartago expressed that regarding the reference to the first fact of the complaint where the plaintiff states that the behavior of the basic passive rate is highly varied, said assertion is indeterminate and lacks technical support. Regarding the assertion of the second fact, about the abuse of this type of rates to the detriment of the consumer, it denotes that 98% of bank debtors are current with their operations and only 2% are in arrears, so said assertion is also unfounded. In the sixth fact, it is indicated that clauses are granted with rates exceeding 30% per annum, and in the specific case of its represented party, it notes that this is not true. It points out that the plaintiff cites Spanish case law without indicating which decision(s), and in any event, the social and financial reality is different from that of our country. That the plaintiff breaks the aphorism that \"he who asserts must prove\" (\"quién dice lo demuestra\"), since its arguments are not proven in the case file. It reiterates the exception of lack of active standing (legitimación activa) since, according to Article 5 of the Bylaws of the Asociación Consumidores Libres, it does not have the power to sue, and additionally, in the case against its represented party, it presents a contract that is not a consumer contract, therefore, in its view, a lack of passive standing (legitimación pasiva) is evident. In the concluding phase, it denotes that as case law has reiterated, citing decision 290-F-S1-2009 of March 20, 2009, of the First Chamber of the Supreme Court, it establishes that the burden of proof corresponds to the party invoking it, and that in the case file, the plaintiff does not demonstrate the abuse or the harm to banking consumers, and rather, the level of delinquency of 2% of the total credit operations proves the contrary, with the plaintiff lacking technical support for what it argues. Finally, in the specific case of its represented party, it warns that in the statement of facts, there is no specific mention of BCAC, which demonstrates the lack of standing, and that rather, in the contract provided by the plaintiff on folio 369 of the judicial file, if the bank client is dissatisfied with the interest rate, they can request a renegotiation of the debt from the bank or turn to the competition to buy the credit.- The representation of Banco de Costa Rica warns that its represented party has already eliminated the floor rate and cap rate (tasa techo) from its contracts, and that in cases where the contracting party was affected, alternatives such as loan arrangements have been offered. It insists that said clauses are in accordance with the law, there is no abuse by the Bank, and clients are not harmed, just as the credit portfolios are not in crisis. It indicates that the contracts are adhesion contracts due to the difficulty of negotiating in each particular case; however, they conform to international standards. Regarding the basic passive rate as a reference for calculating variable rates, the definition thereof is unrelated to BCR, which neither calculates nor sets it. It emphasizes that the bank is duly supervised and operates within risk standards, and that the plaintiff's claims are not supported by financial studies proving the facts of the complaint. In the concluding phase, it stated that the harm to users and debtors was not demonstrated in the case file, indicating that the Court, in cases similar to the one before us, has considered that the bank's contracts are in accordance with the law. It emphasizes that Articles 495, 496, and 497 of the Commercial Code speak of fluctuating interest and that there has not been a situation in which its represented party has been sanctioned. It points out that the plaintiff lacks standing, since Article 54 of Law No. 7472 assigns the defense of the rights of its members, but the concurrence of a member-bank debtor is not present in the case file. It indicates that regarding the second claim, its represented party, although it had the floor rate system, has already changed it and offered its clients the possibility of making arrangements on their loans. Finally, it states that this complaint was filed generically and requests that it be dismissed in all its aspects, and that the defenses be upheld and the plaintiff be ordered to pay costs for the abuse of the administration of justice.- The representation of Banco Nacional notes that there is a lack of congruence between the facts and the claims. That the complaint lacks good faith, since it is only filed against public banks, leaving out private banking entities, as well as solidarity associations (asociaciones solidaristas) and cooperatives, and in general, other financial intermediation agents. Section 42 of Law No. 7472 establishes specific requirements, which are not met in the complaint; there is no relationship or evidence to support the plaintiff's assertions. Regarding the first fact, it insists that banks cannot predict fluctuations in credit operations; regarding the third fact, which asserts that banks placed consumers at risk, it is a frivolous assessment and is not demonstrated; with respect to the fourth fact, which indicates that this practice is a dangerous modality, it is not demonstrated nor supported by evidence; and regarding the thirteenth fact concerning the Arbitration Award, it does not constitute case law but rather a mere ruling. In the concluding phase, it warns that the plaintiff has not acted in good faith, since out of a total of 52 financial intermediation entities, it has only sued the state banks and Banco Popular. That the possibility alleged by the plaintiff that banks can predict the basic passive rate has not been demonstrated, nor has the allegation that users of banking services have been put at risk been proven. It reiterates that, as the expert witness (testigo-perito) stated, the basic passive rate is neither defined nor set by the banks as a tool for using an indicator in floor rates. That the existence of abusive clauses was not proven, and that, on the contrary, section 495 of the Commercial Code regulates conventional interest and the use of reference rates. It emphasizes that this Court, in a decision of December 20, 2012, has already addressed this aspect, since it is not an administrative conduct but rather an economic phenomenon. Finally, it reiterates the request that the complaint be declared without merit in all its aspects and that the plaintiff be ordered to pay both sets of costs.-\n\n**VII.- OF THE STATEMENT OF THE EXPERT WITNESS:** The expert witness Nombre60826, in his capacity as Superintendent of Financial Entities (Superintendente de Entidades Financieras), stated that the basic passive rate (tasa básica pasiva) is an economic indicator, calculated by the average of the collection of resources from investors, among other factors, which are set by the BCCR. For its part, the interest rate is what the financial entity charges for its intermediation risk activity, and that its volatility is not limited only to the basic passive rate, but has other variables such as unemployment, which is one of the main generators of delinquency. He indicated that SUGEF does not issue regulatory norms within its competencies, but rather formulates them to CONASSIF, and that regarding floor and cap rates, it has not proposed such regulation. He addressed that the regulation of floor and cap rates varies globally, in some countries through special laws. Regarding the work carried out by SUGEF, he indicated that in the face of an Arbitration Award from the Chamber of Commerce, and within the framework of its competencies to ensure the risk management of the resources of savers and depositors, it requested information from all the financial entities it supervises. He insisted that SUGEF ensures the adequate management of operational, tax risks, and legal contingencies. He answered that he does not have details of cases where the increase in interest rates reaches double the originally agreed-upon installment. He emphasized that the financial intermediation activity is a business of collecting resources from investors and placing resources through loans, that interest rates are the costs associated with risk, and that their definition responds to the supply and demand conditions of the financial market. He indicated that SUGEF supervises the work of 52 financial intermediation agents, including state banks, as well as private banks, savings and loan cooperatives, and finance companies. He emphasized that said financial intermediation entities cannot predict variations in the basic passive rate, but they can predict the financial costs that are inherent to the market. Regarding the risks of losing the guarantees granted by financial consumers on their loans, he pointed out that SUGEF does not have powers, but rather this corresponds to the private relations of commercial activity, and that the Superintendency does not carry out that type of supervision since it is not its area. Regarding whether referencing loans to the basic passive rate constitutes a danger, he answered that the responsibility of each banking entity is to analyze the payment capacity of the financial consumer, and that according to the Commercial Code, the use of variable rates, referenced to the basic passive rate, is indeed common. Regarding the setting of floor and cap rates, he stated that it is not a competence of SUGEF, and he insisted that the variable rate cannot be considered a violation of equity in the relationship between the bank and its clients; he emphasized that the bank's obligation is the analysis of payment capacity. He illustrated that he is aware of Spanish court rulings on floor rates, but insisted that they correspond to the specific legislation of other countries. He finished by noting that SUGEF is developing a risk supervision model to serve the fulfillment of its competencies in the supervision of financial entities.-\n\n**VIII.- OF THE EXCEPTIONS OF LACK OF CURRENT INTEREST AND LACK OF STANDING:** The co-defendants raised the exceptions of lack of interest, lack of standing (legitimación), and lack of right. Regarding the exception of lack of current interest. The representation of Banco Nacional raises the exception of lack of current interest, and stated that it admits as true and with variations the use of the variable rate, pursuant to section 497 of the Commercial Code, also accepting that the credit products it offers to financial service consumers are structured for different terms, whose fluctuating rates over time are faced by both parties to the contractual relationship, therefore its represented party applies this model, approved by the General Board of Directors in Article 7, session No. 11842, held on June 25, 2013, with a comprehensive scheme of floor and cap rates for loans in colones and dollars, appreciating consequently that there is a lack of current interest in the plaintiff's claim. It must be specified that for the intervening parties, by reason of the complaint's claim, there is neither a conciliatory settlement nor a motion to dismiss the action, so the current interest in the matter in question persists, and consequently, this exception must be rejected, and it is so declared. Regarding the exception of lack of active standing. The representation of Banco de Costa Rica, Banco Popular y Desarrollo Comunal, Banco Crédito Agrícola de Cartago raised the exception of lack of standing. It must be remembered that active standing relates to the person or persons appearing as plaintiffs, duly referring to the supposed ownership of the subjective right or legitimate interest alleged to be infringed, which is conceived as the suitability to carry out acts of exercising the power of action that empowers them to demand the satisfaction of a certain provision or object; therefore, this Court reaches the conclusion that the plaintiff has sufficient active standing to participate in this proceeding pursuant to Article 46 of the Political Constitution, sections 32 and 72 of Law No. 7472, Law for the Promotion of Competition and Effective Defense of the Consumer, in accordance with Article 10, subsection a) of the Contentious-Administrative Procedure Code, as they protect consumer interests. Regarding the exception of lack of passive standing: the representation of the Central Bank through SUGEF, and Banco Crédito Agrícola de Cartago raised said exception. It is worth recalling, in relation to the defendant party, that it manifests as the aptitude to bear the exercise of power. A subjective right or legitimate interest is thus confronted against public powers or competencies. Since the claims are directed at imposing conduct on both co-defendants, passive standing consequently exists; therefore, no elements are found to uphold said exception, so it must be rejected, and it is so declared.-\n\n**IX.- OF THE COMPETENCIES OF SUGEF AND CONASSIF:** In the first claim, the plaintiff petitions that SUGEF and CONASSIF of the Central Bank of Costa Rica be obliged to regulate the tools for protecting the economic interest of the consumer, such as the cap rate (tasa techo) and the non-inclusion of the abusive clause (Article 42 of the Consumer Law). In its defense argument, the BCCR, through the representation of SUGEF, argued that said claim lacks legal-competential, functional, and technical support. Consequently, it is appropriate to address the scope of the competencies of SUGEF and CONASSIF. Of the competencies of the Superintendencia General de Entidades Financieras. Law No. 7558, Organic Law of the Central Bank, which creates SUGEF as a body of maximum deconcentration (desconcentración máxima) of the BCCR, recognizes the power to establish the organizational structure and functions in said banking entity, and provides: \"*Article 115.- Creation. The oversight of the country's financial entities is of public interest, for which purpose the Superintendencia General de Entidades Financieras, also referred to in this law as the Superintendency, is created as a body of maximum deconcentration of the Central Bank of Costa Rica. The Superintendency shall govern its activities by what is provided in this law, its regulations, and other applicable laws*.\" and the \"*Article 119.- Supervision and oversight of the Superintendency. For the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendency shall exercise its supervision and oversight activities over all entities that carry out financial intermediation, strictly adhering to legal and regulatory provisions, ensuring that they comply with the precepts applicable to them.* *In relation to the operation of the supervised entities and the recording of their transactions, the Superintendency shall be empowered to issue the general rules necessary for the establishment of sound banking practices, all in safeguarding the interest of the community.* *For the purposes of issuing and applying the rules within its competence, the Superintendency may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries.* *The general rules and guidelines issued by the Superintendency shall be mandatory for the supervised entities.* *The CONASSIF shall issue prudential regulation on the Development Banking System, based on criteria and parameters that take into account the particular characteristics of the credit activity originating from the Development Banking System and that are in accordance with international provisions.* *(Thus amended by Article 58 of the Development Banking System Law, No. 8634 of April 23, 2014)*\" (articles taken from SINALEVI). In resolution 001247-F-S1-2011, at thirteen hours fifty-five minutes on September 26, 2011, the First Chamber of the Supreme Court of Justice addresses the matter concerning the scope of competence of the supervisory bodies, stating: “*III.- On the scope of competence of the supervisory bodies. Before entering into the analysis of the regulatory power and its exercise in the specific case, it is appropriate to refer, in general terms, to the competence structure established in the legal system regarding supervision, a concept that encompasses oversight and regulation. In the development that central banking has undergone, it is undisputed that an important part of that directive, supervisory, and vigilance power has passed to other public bodies. In this way, the legislature opted to distribute the different competencies that make up these powers among a series of bodies attached to the Central Bank of Costa Rica.* *For the purpose of overseeing certain activities, due to their importance in society, it created four superintendencies, in the form of maximum deconcentration bodies, namely, the Superintendencia General de Entidades Financieras (Sugef), the Superintendencia General de Valores (Sugeval), the Superintendencia de Pensiones (Supen) and, recently, the Superintendencia General de Seguros (Sugese). Of these, the latter two have instrumental legal personality. From an organic point of view, each of them has a superintendent, who acts as the head in administrative matters. They are responsible, according to their subject matter, for verifying compliance, by the supervised entities, with the provisions that make up the respective regulatory subsystems, as well as the stability of the system, in what corresponds to them according to their scope of competence. Along with the superintendencies, through the Securities Market Regulatory Law, a body called the Consejo Nacional de Supervisión del Sistema Financiero was also created. This body is mainly assigned the task of regulating the system and at the same time acts as the improper monophasic head of the superintendencies for challenge purposes (Article 171 of Law 7732).*” In that same ruling, the First Chamber also develops what concerns the regulatory power of the supervisory bodies, by providing: “*IV.- On the regulatory power. (…) In this respect, it is essential to briefly refer to the content of the regulatory power and the different types of regulations that the Public Administration can issue. Traditionally, it has been indicated that these can be classified into two large groups, for which one may consult decision no. 749-F-04 of this Chamber at 9:30 a.m. on September 10, 2004, and of the Constitutional Chamber, among others, decisions no. 2005-14286 at 2:45 p.m. on October 19, 2005, and 2007-02063 at 2:45 p.m. on February 14, 2007. (…) The second typology of regulations is that of autonomous regulations (reglamentos autónomos), which have the purpose of regulating the organization of administrative units (in which case they are called \"autonomous of organization\"), or the functioning of the public services they provide (generically referred to as \"autonomous of service\"). These can* *emanate from both the Central Administration and the decentralized one. In the case of the former, by virtue of the express text contained in subsection 18) of Article 140 of the Constitution, and for the latter, as a logical and necessary derivation of the power of self-organization implicit in the degree of administrative autonomy or first-degree autonomy granted to them at the time of their creation (considerations noted in greater detail, through the resolution of this Chamber no.*\n\n001000-F-S1-2010 of 9:35 a.m. on August 26, 2010).\" To delve deeper into the powers of SUGEF, judgment 2507-2010 of the Sixth Chamber of this Court has stated: \"Given the allegations made in the present case, it is essential to briefly refer to the oversight and verification powers that the legal system grants to SUGEF in matters of financial intermediation and banking financial activity. The activity of financial intermediation, despite being a private activity, capable of private exploitation, given the incidence and effects it can cause on the national economy and on the patrimonial legal sphere of individuals, is an area of commercial endeavor that must be subject to intense regulation, in order to establish the soundness of the system in its generality and integrity. It therefore consists of a private activity of marked public relevance or public interest. This allows, as a basic thesis, regulation through legal and regulatory norms, which set prior requirements to obtain authorization to conduct that type of business, as well as the creation of specialized public authorities, based on technical expertise criteria, empowered to exercise oversight powers in order to verify the performance of economic agents of financial supply, in adherence to the postulates that make up the legal regime to which they are exposed. The basis of this verifying power stems from the competences and fines legally assigned for the fulfillment of the public purpose concretized in safeguarding the correct functioning of the supervised subjects, for which the power of ordering and controlling an activity of public transcendence is essential, in protection and safeguarding of the rights of savers and the solvency of the system. To this end, behaviors are imposed on the regulated or supervised entities, which are those with whom it maintains a particular and special legal regime, close to a special relationship of subjection by virtue of the oversight bond originating in the authorizing act for the exercise of the commercial activity, by legal imperative and the control framework conferred to the administrative authority. Such relevance of this financial intermediation activity is observed in numeral 115 of the Ley Orgánica del Banco Central, Law No. 7558, as it states: \"It is of public interest the oversight of the country's financial entities, for which the Superintendencia General de Entidades Financieras is created, also referred to in this law as the Superintendencia, as an organ of maximum deconcentration of the Banco Central de Costa Rica. The Superintendencia will govern its activities by the provisions of this law, its regulations, and other applicable laws.\" In said norm, not only is the marked relevance of financial intermediation provided for, but also the oversight of authorized entities, for which the competent administrative authority is created for such purposes. The subjective coverage scope of this oversight power is detailed in canon 117 ibidem, subjecting public and private banks, non-bank financial companies, mutual savings and loan associations, savings and credit cooperatives, and solidarist associations to that control. Furthermore, any other entity authorized by law to conduct financial intermediation. At this point, clarity must be had regarding the concept of financial intermediation, a concept that the aforementioned law, in precept 116, defines as: \"... the capture of financial resources from the public, on a regular basis, for the purpose of allocating them, on the account and risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogue in which the transactions are formalized.\" The same norm excludes from that term the capture of resources for working capital or for the financing of non-financial investment projects of the issuing company itself or its subsidiaries, provided that the issuances are registered with the National Securities Commission. Now, that same previously cited mandate states that financial intermediation can only be conducted by public or private subjects that have been previously expressly authorized by SUGEF, after complying with the requirements that the respective law. This once again highlights the relevance of the activity, which is not within a framework of service liberality, but rather, due to the public interest it entails, even being a private activity, the system imposes the figure of administrative authorization (as a mechanism for the removal of a legal obstacle for the exercise of conduct, in principle, one's own or not prohibited), to establish compliance with the legal requirements for that activity, which also allows a preventive control filter by verifying requirements, but also the establishment of registries of authorized subjects, which simplifies the oversight process. Now, it is clear that the creation of SUGEF as a technical oversight body presupposes or demands the conferral of intense powers that allow it due and substantive fulfillment of those competencies. Thus, for the purpose of protecting the stability, soundness, and efficiency of the national financial system, SUGEF exercises its oversight framework over every authorized entity, with the power, even, to dictate general norms, of mandatory compliance, to regulate the proper operation of the supervised entities and the recording of their transactions, without invading, of course, the proper field of each company's administrative autonomy, and with the purpose of establishing and promoting sound banking practices. With everything, it is clear to this chamber that SUGEF's powers in financial intermediation occur in a direct framework regarding authorized entities (and eventually indirectly regarding entities that form part of a local financial conglomerate), but also allow ensuring that unauthorized financial intermediation is not conducted.\".- From the analysis of the aforementioned legal and jurisprudential citations, this Chamber considers that the framework of competencies of SUGEF as a technical oversight body presupposes or demands the conferral of intense powers that allow it due and substantive fulfillment of those competencies, therefore, for the purpose of protecting the stability, soundness, and efficiency of the national financial system, SUGEF exercises its oversight framework over every authorized entity, with the power, even, to dictate general norms, of mandatory compliance, as has been evidenced in the case file with the request for information and implementation of risk management mechanisms, both operational, tax, and legal contingencies, besides regulating the proper operation of the supervised entities and the recording of their transactions, without invading, of course, the proper field of each company's administrative autonomy, and with the purpose of establishing and promoting sound banking practices. On the competencies of the Consejo Nacional de Supervisión del Sistema Financiero. Law No. 7732, Ley Reguladora del Mercado de Valores, provides the competencies of the Consejo Nacional de Supervisión del Sistema Financiero, in \"Article 171.- Functions of the Consejo Nacional de Supervisión del Sistema Financiero. The functions of the Consejo Nacional de Supervisión del Sistema Financiero are: a) To appoint and remove the Superintendente General de Entidades Financieras, the Superintendente General de Valores, and the Superintendente de Pensiones; likewise, the respective intendants, auditors, and internal sub-auditor of the Superintendencia de Entidades Financieras. b) To approve the rules regarding authorization, regulation, supervision, oversight, and vigilance that, according to law, the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones must execute. Requirements that unduly restrict the access of economic agents to the financial market, limit free competition, or include discriminatory conditions may not be set. c) To order the suspension of operations and the intervention of the subjects regulated by the Superintendencias, in addition, to decree intervention and request liquidation before the competent authorities. d) To suspend or revoke the authorization granted to the subjects regulated by the different Superintendencias or the authorization to conduct a public offering, when the respective subject fails to comply with the legal requirements or the regulations issued by the National Council, or when the continuity of the authorization may affect the interests of savers, investors, affiliates, or the integrity of the market. e) To approve the rules applicable to the procedures, requirements, and deadlines for the merger or transformation of financial entities. f) To approve the rules regarding the constitution, transfer, registration, and operation of financial groups, in accordance with the Ley Orgánica del Banco Central de Costa Rica. g) To hear and resolve on appeal the resources filed against the resolutions issued by the Superintendencias. The resolutions of the Council shall exhaust the administrative channel. h) To hear, on appeal, the resolutions issued by stock exchanges regarding the authorization of brokerage positions and the imposition of sanctions on brokerage positions and agents, according to the Ley Reguladora del Mercado de Valores. Any person with legitimate interest shall be empowered to appeal. i) To regulate the exchange of information that the different Superintendencias may conduct among themselves, for the strict fulfillment of their prudential supervision functions. The Superintendencia that receives information by virtue of this subsection must maintain the confidentiality obligations to which the initial receiver of said information is bound. j) To approve the general norms of organization of the Superintendencias and internal audits. k) To approve the annual operational plan, budgets, their modifications, and the budgetary liquidation of the Superintendencias, within the global limit set by the Board of Directors of the Banco Central de Costa Rica and submit them to the Contraloría General de la República for final approval. l) To approve the annual report of each Superintendencia, as well as the annual reports that the Superintendentes must render on the performance of the subjects supervised by the respective Superintendencia. m) To appoint, at the opportune time and during the periods it deems appropriate, consultative committees composed of representatives of the supervised subjects, investors, or other economic sectors, to examine certain topics and issue non-binding recommendations. n) To approve the rules that define which individuals or legal entities, related by ownership or management to the supervised subjects, shall be considered part of the same economic interest group, to ensure adequate diversification of portfolios and to resolve and prevent conflicts of interest. ñ) To approve the provisions relating to accounting and auditing standards, according to generally accepted accounting principles, as well as the frequency and disclosure of the external audits to which the supervised subjects must be mandatorily submitted. In case of conflict, these norms shall prevail over those issued by the Colegio de Contadores Públicos de Costa Rica. o) To approve the norms referring to the periodicity, scope, procedures, and publication of the reports rendered by the external audits of the supervised entities, in order to achieve the greatest reliability of these audits. p) To approve the norms applicable to the internal audits of the entities supervised by the Superintendencias, so that they duly carry out the functions proper to their activity and ensure that such entities comply with legal norms. q) To approve the norms guaranteeing the supervision and safeguarding of the financial soundness of the pension regimes of the Judicial Branch and any others created by law or collective bargaining agreements. r) To resolve conflicts of competence that arise between the Superintendencias. s) To exercise the other attributions conferred in the respective laws, over the subjects supervised by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. The National Council may entrust the knowledge of certain matters to commissions composed of some of its members, in accordance with the rules it establishes.\" (Thus amended by article 81 of Law No. 7983 of February 16, 2000)\". (article taken from SINALEVI). In judgment 20-2012-VI, the Sixth Chamber of this Court, addressed the competencies of CONASSIF, stating: \"IV. On the analysis of the regulatory power set forth in vote no. 1000-F-S1-2010 of the First Chamber. In view that both the plaintiff and the defendant party rely heavily on their theory of the case (upon answering the complaint, in the hearing on the reply, and in their conclusions) on vote no. 1000-F-S1-2010 issued by the First Chamber of the Supreme Court of Justice at 9:35 a.m. on August 26, 2010, -from which each party mentions their interpretation of said ruling-; it is advisable to outline fundamentally what is actually analyzed in that vote regarding the regulatory power. The Chamber heard a cassation appeal filed against resolution no. 66-2009-VI issued by the Sixth Chamber of this Court at 4:20 p.m. on January 20, 2009. In this vote, the regulatory power of CONASSIF is analyzed in detail and, at the same time, the traditional classification of regulations, noting since then that the challenged regulation stemmed from the content of a norm of the Ley Reguladora del Mercado de Valores, that is, as a derivation of the normative ordering powers given by law, which denoted that it was neither an executive regulation nor an autonomous one. The First Chamber, as stated, upon hearing the extraordinary appeal filed, enters into the debate then posed and expands on what was pointed out by this Court as indicated below. As a starting point, the Chamber notes the existence of a traditional division of regulations, where it has been established that these are classified into two large groups, namely, executive regulations through which the Executive Branch develops the contents of a legal norm, where the regulatory power is given by the Political Constitution, in its numeral 140 subsections 3) and 18), from which it concludes, it is an autonomous power, but also generic, insofar as it can encompass the entirety of the regulation contained in the law and does not require a specific habilitation in it, since it is already given by the Magna Carta. On the other hand, points out the First Chamber in the cited vote, there are autonomous regulations, which can emanate from the Central or Decentralized Administration and whose purpose will be to regulate the organization of administrative dependencies (if they are autonomous organizational regulations) or, the functioning of the services it provides (in the case of service regulations), as a derivation of the power of administrative self-organization. It is in this framework of the traditional division of regulatory bodies, the First Chamber indicates the need to rethink said vision, since it is clear and frequent that the legislator assigns to a decentralized entity the obligation to regulate a law. If in preceding lines it was pointed out that executive regulations empower only the Executive Branch to regulate a law, then the question posed by the Cassation Body is precisely: how are those regulations issued by decentralized public entities classified, where there is no autonomous power and where they are also not autonomous regulations, since the legislator himself establishes that concepts of a preceding law must be specified? In this sense, vote 1000-F-S1-2010 maintains that the analysis of regulations acquires its own contours, since they are regulations whose principal characteristic is that their exercise depends on the legal precept in which their habilitation is provided, which at the same time constitutes the competency limit for issuing the regulations. It then concerns, according to the Chamber, a derived and specific power and, as a consequence of the principle of legality, in those regulatory norms, only what the legislator expressly empowered through the assignment of a specific competence can be developed. Finally, it was pointed out in the vote that \"as follows from the general framework set forth, it is necessary to determine, in each specific case, whether the material content of the norm pertains or not to the service provided by the superintendencias, or if, on the contrary, they constitute legal norms intended to regulate the activity of a third party outside the legal service relationship that binds them, in order to determine the type of regulation involved and, therefore, its legal regime\".- According to the legal and jurisprudential references mentioned previously, this Chamber agrees, as the Chamber provided, that the powers of CONASSIF are derived and specific and, as a consequence of the principle of legality, in those regulatory norms, only what the legislator expressly empowered through the assignment of a specific competence can be developed, so that in each specific case, the material content must be addressed regarding whether the norm pertains or not to the service provided by the superintendencias, or if, on the contrary, they constitute legal norms intended to regulate the activity of a third party outside the legal service relationship that binds them, in order to determine the type of regulation involved and, therefore, its legal regime. In accordance with the foregoing, in the following recitals, what relates to the scope of freedom of commerce, and to the commercial contract as part of the proper field of autonomy of the administration of each entity that conducts financial intermediation, and whether that sphere is or is not within the supervision competencies of SUGEF, as well as whether, in said framework, and in the specific case, of floor and ceiling rates and the contractual non-inclusion of abusive clauses, a specific competence was assigned by the legislator to CONASSIF, will be addressed.-\n\nX.- ON FINANCIAL INTERMEDIATION: The co-defendant banking entities posited in their theory of the case that only state banks and Banco Popular y Desarrollo Comunal were sued, which represent only one sector within the wide range of financial entities. In this regard, it is pertinent to address what relates to financial intermediation and the entities that conduct said activity. Law No. 7558, Ley Orgánica del Banco Central de Costa Rica, also regulates what refers to financial intermediation, by providing: \"Article 116.- Financial intermediation. Only public or private entities, expressly authorized by law to do so, may conduct financial intermediation in the country, after prior compliance with the requirements that the respective law establishes and prior authorization from the Superintendencia. The authorization from the Superintendencia must be granted when the legal requirements are met. For the purposes of this law, financial intermediation is understood as the capture of financial resources from the public, on a regular basis, for the purpose of allocating them, on the account and risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogue in which the transactions are formalized (…)\". In judgment 39-2011-VI, the Sixth Chamber of the Administrative Litigation Tribunal has developed the concept and scope of the activity of financial intermediation, by resolving that: \"2) Concept and scope of the activity of financial intermediation: In accordance with what is established in paragraph 2 of article 116, paragraph 2 of the Ley Orgánica del Banco Central, it is indicated: …financial intermediation is understood as the capture of financial resources from the public, on a regular basis, for the purpose of allocating them, on the account and risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogue in which the transactions are formalized…”. Now, given the public interest involved in the oversight of financial entities, only public or private entities, expressly authorized by law to do so, may conduct financial intermediation in the country, after prior compliance with the requirements that the respective law establishes and prior authorization from the Superintendencia (articles 115 and 116 paragraph 1 of the Ley Orgánica del Banco Central de Costa Rica). It is worth highlighting that among the requirements that financial entities must meet are: maintaining in the Central Bank, in the form of current account deposits, a reserve proportional to the total amount of their deposits and captations, which shall constitute the minimum legal reserve requirement (encaje mínimo legal) (article 62 of the Ley Orgánica del BCCR); respecting the limits established by the Board of Directors of the Superintendencia de Entidades Financieras, for active operations, direct or indirect, that financial intermediaries may conduct with each individual or legal entity, in each of their operational modalities and in the aggregate of all of them (article 135 of the Ley Orgánica del BCCR), among others.\" (in the same sense, judgment 3918-2010, from the Sixth Chamber of this same Court). Corollary to the above, Law No. 7558, Ley Orgánica del Banco Central de Costa Rica, also regulates the supervised organisms, by indicating in the relevant part that: \"Article 117.- Supervised organisms. The oversight of the Superintendencia and the monetary control powers of the Central Bank are subject to public and private banks, non-bank financial companies, mutual savings and loan associations, savings and credit cooperatives, and solidarist associations. Furthermore, any other entity authorized by law to conduct financial intermediation. (…)\".- It is clear to this Chamber that although the plaintiff defines the scope of their claims and the entities against which they can take action, according to the transcribed legal and jurisprudential citations, financial intermediation involves the capture of financial resources from the public, on a regular basis, for the purpose of allocating them, on the account and risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, and that this activity is conducted not only by the state banks and Banco Popular sued herein, but also by private banks, non-bank financial companies, mutual savings and loan associations, savings and credit cooperatives, and solidarist associations, so that in light of the plaintiff's claim, which seeks to establish a regulation for a part of the supervised sector, not only is the principle of equality violated, but also that of technical reasonableness, since no sufficient cause was accredited to discriminate against some in relation to the others, an action that would entail breaking the principle of equality among the regulated entities.\n\nThe presence of those subjects in the financial intermediation operation is missing from the complaint, and therefore the scope of a judgment only for the first sector could generate serious distortions in the soundness of the national financial system as a whole, and consequently one of the aspects supporting the plaintiff's theory of the case is weakened. Coupled with the fact that it must not be overlooked that granting what the plaintiff requests would imply a transgression by the judges into the sphere of competence of the oversight bodies, which would produce co-administration.-\n\n**XI.- ON FREEDOM OF COMMERCE:** The defendant, mainly the state banks and BPDC, alleged in their defense that the setting of interest rates responds to free commercial activity and is a matter of commercial contracts; we therefore proceed to analyze the scope of freedom of commerce. In this regard, the Code of Commerce regulates matters relating to freedom of commerce, and in particular, concerning commercial loans and conventional interest, by prescribing: \"*Article 496.- Unless otherwise agreed, a commercial loan shall always be with consideration. The consideration shall consist, in the absence of an agreement, of legal interest calculated on the sum of money or the value of the thing lent. Ordinary interest shall begin to run from the date of the contract, and default interest from the maturity of the obligation*,\" and for its part, in \"*Article 497.- Conventional interest is that agreed upon by the parties, which may be fixed or variable. In the case of variable interest, national or international reference rates or indices may be agreed upon to determine the variation, provided they are objective and of public knowledge. Legal interest is that applied supplementarily in the absence of an agreement, and is equal to the basic passive rate of the Central Bank of Costa Rica for operations in national currency and the 'prime rate' for operations in United States dollars. The interest rates provided for in this article may be used in all types of commercial obligations, including those documented in negotiable instruments*.\" In this sense, the Constitutional Chamber in vote 3495-92, recognizes freedom of contract \"*XIII- Starting from the constitutional recognition of the principle and system of freedom, in general (art. 28), of the right to private property (art. 45) and of freedom of enterprise (art. 46), the principle of free contracting is inscribed as a constitutional principle, a* conditio sine qua non *for the exercise of both, whose essential content the Chamber summarizes in four elements, namely: a) The freedom to choose the co-contractor; b) The freedom in choosing the very object of the contract and, therefore, the main obligation that materializes it; c) The freedom in determining the price, content, or economic value of the contract stipulated as consideration; d) The balance of positions of both parties and between their mutual obligations; a balance that demands, in turn, respect for the fundamental principles of equality, reasonableness, and proportionality, according to which the position of the parties and the content and scope of their reciprocal obligations must be reasonably equivalent to each other and, furthermore, proportionate to the nature, object, and purposes of the contract*.\" In greater depth, in judgment 74-2013, the Fourth Section of the Contentious Administrative Tribunal has ruled on freedom of commerce, stating: \"*II) ON THE MERITS: I.1) REGARDING THE EFFECTS, REQUIREMENTS, AND LEGAL ASSUMPTIONS THAT MUST BE TAKEN INTO CONSIDERATION FOR THE PURPOSES OF LOAN CONTRACTS ENTERED INTO BETWEEN SUBJECTS GOVERNED BY PRIVATE CIVIL AND COMMERCIAL LAW: Under the general theory of private contracts, a contract is defined as a meeting of the minds whose object is to create an obligation, by which one or several persons bind themselves to give, do, or not do something in favor of another or others, such that legal situations are created, extinguished, and modified, all in accordance with articles 629 and following of the Civil Code. The principle of freedom of contract and autonomy of will are essential principles governing the freedom and power to contract, but subject to the limitations demanded by public order and public interest, as expressed in constitutional article 28, according to which 'Private actions that do not harm morals or public order, or that do not harm a third party, are beyond the reach of the law.' Thus, all persons may freely contract on matters of private interest, which is also related to freedom of commerce and the constitutional norm protecting private property. (…) Regarding the commercial loan contract, regulated in articles 495 to 508 of the Code of Commerce, it has been stipulated that the 'loan contract shall be considered commercial when it is granted for consideration, even if in favor of non-merchants.' It has also been provided, in these contracts, article 496 ibid, that unless '(…) there is an agreement to the contrary, the commercial loan shall always be with consideration. The consideration shall consist, in the absence of an agreement, of legal interest calculated on the sum of money or the value of the thing lent. Ordinary interest shall begin to run from the date of the contract, and default interest from the maturity of the obligation.' Furthermore, article 497 has defined the various types of interest, stating that 'Conventional interest is that agreed upon by the parties, which may be fixed or variable. In the case of variable interest, national or international reference rates or indices may be agreed upon to determine the variation, provided they are objective and of public knowledge. Legal interest is that applied supplementarily in the absence of an agreement, and is equal to the basic passive rate of the Central Bank of Costa Rica for operations in national currency and the 'prime rate' for operations in United States dollars. The interest rates provided for in this article may be used in all types of commercial obligations, including those documented in negotiable instruments.'*.\" **-** For its part, in judgment 107-2014-VI, the Sixth Section of this Tribunal, regarding interest agreed upon in commercial contracts, has indicated that: \"*Interest represents the gradual increases experienced by monetary debts due to their amount and the time elapsed. Interest, it can be stated, is the price charged by credit institutions for granting a loan. That is, in a monetary or pecuniary obligation, interest is the price of money. Its setting can occur conventionally or legally, and in either of those cases it is possible –and, in fact, frequent– to refer its amount to some kind of financial parameter, objectively verifiable, which reflects the flows of the national and/or international market, which determines that the interest is not fixed but fluctuating. The fluctuation of interest in a commercial obligation finds its reason for being in adaptation to the current state of the economy; for this purpose, economic reference indices are used, which must have calculated the market cost, be immune to the influence of the entity itself, and have backing based on rates or indices calculated according to a mathematical procedure. Through Law No. 7107 of November 4, 1998, article 70 of the Organic Law of the National Banking System was reformed, and from then on, state commercial banks and private banks supplementarily governed by said law were granted the power to establish variable and adjustable interest rates. The Code of Commerce provides in its article 497 that 'Conventional interest is that agreed upon by the parties, which may be fixed or variable. In the case of variable interest, national or international reference rates or indices may be agreed upon to determine the variation, provided they are objective and of public knowledge.' In our environment, the Basic Passive Rate (BPR), mentioned in that same norm, constitutes an important and well-known economic indicator applicable to obligations in national currency. It is set by the Central Bank of Costa Rica (not by the defendant bank, thus ruling out any kind of possible fraudulent manipulation to the detriment of the plaintiff's interests), an entity that makes that information public, enabling its objective and independent verification. The BPR, used as a reference for interest on bank loans, seeks to reflect the cost banks incur when raising funds. For its calculation, the Central Bank considers the rates of deposits with terms between five and seven months from this entity, the Ministry of Finance, public and private banks, and other financial intermediaries. As noted, the plaintiff is a merchant, which makes her an educated and informed consumer in this field; therefore, the thesis that she was unaware of the fact that, when a rate referenced to a basic rate is agreed, interest can vary according to the fluctuations of the internal market, which is subject to the market and the world economy, is not acceptable*.\".**-** In accordance with the foregoing legal and jurisprudential citations, this Chamber recognizes that freedom of commerce includes, as fundamental elements, the freedom to choose the co-contractor; the freedom in choosing the very object of the contract and, therefore, the main obligation that materializes it; the freedom in determining the price, content, or economic value of the contract stipulated as consideration; and the balance of positions of both parties and between their mutual obligations, and in the case file the plaintiff has not managed to prove that any of these essential elements has been violated in the relationships between the banking entities sued here and the consumers of financial services. Furthermore, regarding the determination of interest rates, they operate in accordance with the provisions of the Code of Commerce, which, as indicated, may be fixed or variable, without it having been proven in the case file that the variable rates, referenced to the basic passive rate, have caused harm to consumers of banking services, as the plaintiff maintained in its thesis.-\n\n**XII.- ON THE SPECIFIC CASE: ON THE FIRST CLAIM**: The plaintiff, in the adjustment of the first claim, requests that: \"*1.- SUGEF and the National Council for Supervision of the Financial System CONASIF (sic) of the Central Bank of Costa Rica be compelled to regulate the tools for the protection of the consumer's economic interest, such as the cap rate and the non-inclusion of the abusive clause (article 42 of the Consumer Law)*\". - In its arguments, the representation of SUGEF, on behalf of the Central Bank, stated that regarding floor rates and cap rates, as well as the variations in interest rates that may have caused any injury to consumer rights, the First Section of the Contentious Administrative Tribunal has already indicated in its judgment number 16-2013-I, that it is not possible to deduce that SUGEF has the duty to oversee the functioning of purely operational aspects of financial entities, but rather that its oversight work is aimed at ensuring that the entire national financial system, as a whole, operates in a stable, sound, and efficient manner, given its importance and impact on national economic activity. In this sense, Chapter IV, Section I of the Organic Law of the Central Bank establishes the powers that the legal system has granted to SUGEF, as provided in Article 119: \"*Supervision and oversight by the Superintendency.* *For the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendency shall carry out its supervision and oversight activities over all entities conducting financial intermediation, strictly adhering to the legal and regulatory provisions, ensuring that they comply with the precepts applicable to them.* *In relation to the operation of the supervised entities and the recording of their transactions, the Superintendency is empowered to issue the general rules necessary for the establishment of sound banking practices, all in safeguarding the interest of the community.* *For the purposes of issuing and applying the rules within its competence, the Superintendency may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries.* *The general rules and guidelines issued by the Superintendency shall be of mandatory observance for the supervised entities.* *Conassif shall issue prudential regulation for the Development Banking System, based on criteria and parameters that take into account the particular characteristics of the credit activity coming from the Development Banking System and that are in accordance with international provisions.* *(Thus amended by article 58 of the Law of the Development Banking System, No. 8634 of April 23, 2014)*\" (underlining is not from the original). It argues that the definition of the interest rate in a credit contract is a matter of a private nature, and that it is not for SUGEF to resolve the conflicts arising from them; it adds that it corresponds to a commercial and contractual relationship established by the Code of Commerce in accordance with articles 495, 496, and 497 of that legal body, and article 497 provides: \"*Conventional interest is that agreed upon by the parties, which may be fixed or variable. In the case of variable interest, national or international reference rates or indices may be agreed upon to determine the variation, provided they are objective and of public knowledge. Legal interest is that applied supplementarily in the absence of an agreement, and is equal to the basic rate of the Central Bank of Costa Rica for operations in national currency and the 'prime rate' for operations in United States dollars. The interest rates provided for in this article may be used in all types of commercial obligations, including those documented in negotiable instruments*.\" In this order of things, the representation of the defendant, regarding the regulatory powers of the national financial system, pointed out that article 171, subsection b) of the Securities Market Regulatory Law, in relation to the National Council for Supervision of the Financial System (CONASSIF), states that: \"*Article 171.- Functions of the National Council for Supervision of the Financial System. The functions of the National Council for Supervision of the Financial System are: (...) b)* *To approve the rules regarding* *authorization,* *regulation, supervision, oversight, and monitoring that,* *by law, must be executed by the General Superintendency of* *Financial Entities,* *the* *General Superintendency of Securities, and* *the Superintendency of Pensions. Requirements may not be set* *that unduly restrict the access of economic agents* *to the* *financial market, limit free competition, or include* *discriminatory conditions.* (...)\" (underlining is not from the original). It is evident that the regulatory body of the financial system is CONASSIF, whose function is to approve the rules that SUGEF must execute. In greater depth, the First Chamber of the Supreme Court of Justice, in judgment 1000-F-S1-2010, indicated: \"*XIII. On the competence of CONASSIF. (...) It must be recognized, on the contrary, that the legislation has delegated to CONASSIF the regulation of financial activity, granting it the specific competence to issue regulations that impose the creation, modification, or suppression of legal situations of the supervised subjects, or the development of a legal text. In these cases, it is a matter of a specific legal authorization in the terms set forth in the preceding recital, which constitutes the jurisdictional limit of CONASSIF, it being understood that, as stated, it is not an autonomous and generic power, but rather a derived and specific one. In sum, as deduced from the general framework presented, it is necessary to determine, in each specific case, whether the material content of the rule pertains or not to the service provided by the superintendencies* (...)\".**-** In the judgment of this Tribunal, the purpose indicated by law is the stability, soundness, and efficient functioning of the national banking system, and SUGEF is the supervisory and oversight body regarding technical and procedural aspects that involve the financial health of financial intermediaries, as the expert witness referred to in his testimony. This Chamber considers that what is requested in this claim is inadmissible, not for lack of competence in regulating the matter, but because it does not correspond to a regulation for all the regulated entities, and because sufficient cause has not been proven to discriminate against some in relation to others, consequently generating a breach of the principle of equality, a transgression of the jurisdictional sphere of the oversight bodies, and the obvious avoidance of judges participating in co-administration. The competence-related activity of the Superintendency of Financial Entities is limited to technical and procedural aspects and not to the definition of the interest rate in a credit contract, and in accordance with the line of the First Chamber, CONASSIF's jurisdictional limit lies in the material content of the rule pertaining to the superintendency in question, i.e., SUGEF, so the first claim of the complaint must be rejected for lack of right, and it must be so declared. - **ON THE SECOND CLAIM**. The main object of the present complaint is to compel the supervisory and oversight bodies, and state and public operators of the national banking system; in this sense, the second claim of the complaint requests that: \"*2. Each defendant bank be compelled to implement the* *cap rate* *in current and future credit operations, as a* *tool for the protection of the consumer's economic interest* *, with the* *same difference between the initial ordinary interest rate and the floor rate*.\" The plaintiff alleges that floor rates only benefit banking entities and that the absence of cap rates is detrimental to the protection of banking consumers, consequently generating a violation of the principles of reasonableness and proportionality, contained in article 10 of the Political Constitution, as well as the consumer rights of constitutional article 46, which are fundamental and non-waivable, in accordance with the protection of the economic interests of the consumer, enshrined in article 32, subsection b, of Law No. 7472, Law for the Promotion of Competition and Effective Consumer Defense, as well as the right to safety and a fair and equitable consumer relationship, and the non-inclusion of abusive clauses.- For their part, the defendant state and public banking entities center their defense on the fact that it was not proven in the case file that floor rates and cap rates are abusive and distort the contractual relationship between their represented entities and the clients of banking services. That in this specific case, a loan contract relationship is observed, whose interpretation and nature correspond to civil law, in accordance with the rules of article 1022 of that code, and also that the definition of credit conditions responds to regulations of the Code of Commerce in its article 497 on fluctuating rates, which have their legal basis, adding the existence of votes 6515-93, 2784-94, both from the Constitutional Chamber on this aspect, and that it was not proven by the plaintiff's representation that such rates produce serious harm to banking consumers; they rely on the fact that only 2% of current operations present delinquency problems, and that this situation is multifactorial, involving aspects of inflation, unemployment, fiscal deficit, and not only the variables of interest rates. They also warn that the plaintiff should have resorted to the National Consumer Commission as the entity with the legal powers to safeguard consumer rights and not to the jurisdictional route since this denotes procedural bad faith. They argue that the setting of floor rates has as a reference, in the banking entities that use this modality, except for BCR, the use of the basic passive rate, and that this instrument is neither set nor defined by the banking entities but by the Central Bank of Costa Rica, using various variables as was proven by the explanation offered by the expert witness Nombre60826, General Superintendent of Financial Entities.\n\nIn this regard, this same Tribunal, in Section Eight, with a different composition, resolved the matter concerning the credit contract, the basic passive rate (tasa básica pasiva), and the floor rate (tasa piso), in judgment 108-2012-VIII of 9:00 a.m. on December 20, 2012, which states as relevant: \"Regarding this topic, the Tribunal is of the opinion that interest rates correspond to a market phenomenon of supply and demand, the variation of which cannot be controlled by the lending institution through administrative conduct; hence, no liability can be attributed to it for a situation it cannot control. When a consumer assumes a loan, they undertake a risk; therefore, they must be clear about their payment capacity in an uncertain market full of vicissitudes. This is a responsibility they must assume personally and not transfer to the bank, which is unaware of the total dynamics of their finances. The failure of the plaintiff to exercise this diligence can only result in damages translating into situations of insolvency. While it is true that in a contract there are variables over which the bank has influence and control and for which it can be held responsible, there are other aspects, among which interest rates can be cited, that respond to macroeconomic factors which, as stated, the bank cannot control. Regarding the nullity requested, for not including a ceiling rate (tasa techo) in the clause, although a floor rate is stated that only protects the defendant Bank, it is necessary to point out that even though the bank could make a consideration in favor of the client by inserting a ceiling rate that reduces the asymmetry of the relationship, the truth is that such omission does not generate nullity of the clause, nor does it imply abuse. The variation of rates are uncertain events that depend on market phenomena, since even with the establishment of this type of rate, their variation could cause serious harm to a consumer who, even if the rate did not exceed the ceiling, could not meet the payment of that obligation.\" In this proceeding, the plaintiff neither specifies nor challenges specific or particular clauses in the contracts of the co-defendant banking entities as being abusive, but merely limits itself to listing clauses with a floor interest rate (interés piso). For their part, the banking entities indicate that regarding a fair, equitable consumer relationship and the non-inclusion of abusive clauses, such clauses are not established, so they consider that, of the constituent elements guaranteeing the loans, the balance does not tip toward one of the contracting parties, but rather the market sets the standard. This Chamber considers that, since no factual or legal elements are found to change its position, it is concluded that the basic passive rate is used as a reference for interest on bank loans, that interest rates correspond to a market phenomenon of supply and demand, in application of the principle of party autonomy, the variation of which cannot be controlled by the lending institution through administrative conduct; hence, no liability can be attributed to it for a situation it cannot control. Concerning floor or ceiling rates, the criterion is maintained that even though the banking entity could make a consideration in favor of the client by inserting a ceiling rate, which reduces the asymmetry of the relationship, the truth is that such omission does not generate nullity of the clause, nor does it imply abuse, and therefore, the variation of rates are uncertain events that depend on market phenomena, in addition to the fact that no evidentiary elements were provided to determine, in specific and particular cases, the alleged use of abusive clauses. Based on the foregoing, the second claim also lacks factual and legal support and, consequently, must be rejected, and it is so declared.\n\n**XIII.- COROLLARY. ANALYSIS OF THE LACK OF RIGHT DEFENSE:** On the lack of right defense (excepción de falta de derecho). The representation of Banco Nacional de Costa Rica, Banco de Costa Rica, Banco Popular y Desarrollo Comunal, Banco Central through SUGEF, Banco Crédito Agrícola de Cartago, filed the lack of right defense, which must be granted, having established substantial conformity with the legal system, and which in the opinion of this Chamber is appropriate. It is sufficient to refer the parties to the analysis performed on the merits within this judgment; suffice it to say that, it not having been proven that the plaintiffs have a right to access what was petitioned, accepting the lack of right defense is required. Consequently, the appropriate course is to order the rejection in all its aspects of the claim subject to this proceeding.\n\n**XIV.- COSTS.** In accordance with Article 193 of the Contentious Administrative Procedure Code (Código Procesal Contencioso Administrativo), procedural and personal costs constitute a burden imposed on the losing party by virtue of being so. Dispensation from this condemnation is only viable when, in the Tribunal's judgment, there was sufficient cause to litigate, or when the judgment is issued by virtue of evidence whose existence was unknown to the opposing party. In this case, this Tribunal does not observe any reason to exempt the application of this maxim; therefore, what is due is to impose them on the losing plaintiff.\n\n**POR TANTO**\n\nThe defenses of lack of current interest, lack of active standing, and lack of passive standing, raised by the co-defendants, are rejected. The lack of right defense is granted; consequently, the claim filed by **ASOCIACIÓN DE CONSUMIDORES LIBRES** against **BANCO CENTRAL DE COSTA RICA**, **BANCO NACIONAL DE COSTA RICA, BANCO DE COSTA RICA, BANCO POPULAR Y DESARROLLO COMUNAL**, and **BANCO CRÉDITO AGRÍCOLA DE CARTAGO** is declared without merit in all its aspects. The procedural and personal costs arising from this proceeding are charged to the plaintiff, in favor of the defendants. The determination of the corresponding costs is reserved for the judgment execution stage. **NOTIFÍQUESE**.- Carlos Humberto Góngora Fuentes // Paulo André Alonso Soto // Rosa María Cortés Morales.\n\n**DISSENTING VOTE OF JUDGE CORTÉS MORALES:**\n\nAlthough the undersigned agrees with the operative part of the judgment, in that the lack of right defense raised by the co-defendant parties is granted and the claim is declared without merit, she respectfully departs from the majority vote by differing from the legal basis set forth therein, considering that the claim must be rejected based on the following:\n\n**I. REGULATORY POWERS WITHIN THE FINANCIAL MARKET AND THEIR CONTROL BY THIS JURISDICTION:** One of the most recent fields in which administrative law has ventured is the regulation of economic sectors operating in a specific market, understood within the changing relationship the State has had with the economy, in which private companies are expected to behave correctly when carrying out public utility activities. From this perspective, the function of regulation is understood not only as the power to issue rules concerning the proper conduct of actors in that field, but also \"to use all instruments, normative and executive, necessary to guide the functioning of markets toward competition and to impose public service obligations on operators so that their natural pursuit of profit is compatible with the demands of the general interest.\" (Nombre147761, . Tratado de Derecho Administrativo y Derecho Público General. Volume IV, page 499. First Edition. Iustel. Portal Derecho, S.A., Madrid, Spain, 2011). In general terms, so-called regulatory agencies are endowed with sufficient powers to ensure that markets providing services of general interest or carrying out public interest activities behave properly, so they are not distorted and those participating in them are not harmed. In the Costa Rican legal system, regulatory law has been developing with the insertion of our markets into the global economy, with the consequent opening of monopolies, as well as in markets of public interest. Within the first case, mention may be made of the more recently created superintendencies, with the opening of the telecommunications and insurance market following the laws enacted after the signing of the Free Trade Agreement with the United States of America, namely the Superintendencia de Telecomunicaciones (SUTEL), as a deconcentrated body with instrumental legal personality of the Autoridad Reguladora de los Servicios Públicos (Article 59 of Ley 7593 and its amendments) and the Superintendencia de Seguros (SUGESE), with the same legal nature as the former but attached to the Banco Central de Costa Rica (Article 28 of Ley 8653). In the second case is the Superintendencia de Pensiones (SUPEN), whose origin lies in Article 33 of the Ley de Protección al Trabajador, when mandatory supplementary pensions were established and, due to the public interest thereof, it was created to regulate the market of pension operators, as a deconcentrated body with instrumental legal personality of the Banco de Costa Rica. In the case of the financial market, specifically that of financial intermediation (where an institution captures resources from investors and places them in the market, mainly through loans), without intending to go into greater detail, it originated in the abuses that occurred in the 1980s, in which intermediation occurred without much control. Very high interest rates were offered to investors, who deposited their money attracted by the prospect of substantial profit and later lost their resources because the captors could not honor their commitments. The Banco Central, as the primary entity competent to regulate the country's financial sector, established a series of controls through its bodies for that sector, as well as ensuring compliance with those provisions it had been establishing and which still remain regarding the establishment of reserve requirements (encajes financieros) for banks. Finally, SUGEF was created as a deconcentrated body of the same Bank, with the aim of ensuring the financial stability and transparency of this market, in which not only public and private banks participate, but also financial institutions such as savings and loan cooperatives, solidarista associations, and others providing financial intermediation (Article 117 of the Ley Orgánica del Banco Central de Costa Rica), as well as those performing under the assumptions of Article 15 of the same law, but considering that the market operates under free trade rules, without the Superintendency being able to impose specific conduct on the actors beyond that necessary to achieve the aims pursued by the legal system. Financial intermediation is understood in the terms established in the second paragraph of Article 116 of the cited Law, which states:\n\n\"For the purposes of this law, financial intermediation is understood as the habitual capture of financial resources from the public, with the aim of allocating them, for the account and risk of the intermediary, to any form of credit or investment in securities, regardless of the contractual or legal figure used and the type of document, electronic record, or other analogous means in which the transactions are formalized.\"\n\nThe creation of SUGEF is established in Article 115 of the same cited standard in the following terms:\n\n\"It is of public interest to supervise the financial entities of the country, for which purpose the Superintendencia General de Entidades Financieras, also referred to in this law as the Superintendency, is created as an organ of maximum deconcentration of the Banco Central de Costa Rica. The Superintendency shall govern its activities in accordance with the provisions of this law, its regulations, and other applicable laws.\"\n\nRegarding the powers of the Superintendency, Article 119 of the standard provides:\n\n\"For the purpose of ensuring the stability, soundness, and efficient functioning of the National Financial System, the Superintendency shall exercise its surveillance and supervision (fiscalización) activities over all entities conducting financial intermediation, in strict compliance with legal and regulatory provisions, ensuring they comply with applicable precepts.\n\nIn relation to the operations of the supervised entities and the recording of their transactions, the Superintendency is empowered to issue general rules necessary for establishing sound banking practices, all in safeguarding the interest of the community.\n\nFor purposes of issuing and applying the rules within its competence, the Superintendency may establish categories of financial intermediaries, based on the type, size, and degree of risk of those intermediaries.\n\nThe general rules and guidelines issued by the Superintendency shall be mandatory for the supervised entities.\n\nConassif shall issue prudential regulation on the Development Banking System, based on criteria and parameters that consider the particular characteristics of credit activity originating from the Development Banking System and that are in accordance with international provisions.\"\n\nAlso acting within the supervision of the financial market is the Consejo Nacional de Supervisión del Sistema Financiero (CONASSIF), whose most important power, for purposes of resolving this case, is the approval \"of the rules concerning the authorization, regulation, supervision, surveillance, and oversight that, in accordance with the law, must be implemented by the Superintendencia General de Entidades Financieras, the Superintendencia General de Valores, and the Superintendencia de Pensiones. No requirements may be established that unduly restrict the access of economic agents to the financial market, limit free competition, or include discriminatory conditions.\" (Article 171 b) of the Ley Reguladora del Mercado de Valores). Having made the preceding preamble, it is considered that the regulatory bodies, with the powers granted by the legal system, in general terms, ensure that the market behaves appropriately in safeguarding not only investors—for whose purposes a series of obligations are established to guarantee the solvency of market participants—but also the other face of the market, namely those who acquire the products (which are mostly of a credit nature) offered by financial institutions, since a regulation that watches over only one of the potentially affected market participants is not conceivable. The exercise of supervision and oversight powers (which include authorizing the provision of financial intermediation activity and the exercise thereof) is, in turn, an expression of the discretionary powers of the regulatory bodies, in this case SUGEF and CONASSIF, the exercise and limits of which are established in Articles 15, 16, and 17 of the Ley General de la Administración Pública. From this perspective, regulators, within market supervision, shall establish the rules, in a broad sense, they deem appropriate for protecting the public interest inherent in this market. Discretion exercised within the framework of their competence is the core of these public administrations, which in principle possess all the specialized criteria in the activity. In accordance with the cited articles of the LGAP, there exists control over the exercise of the actions of the Administrations in exercising discretionary powers by this Tribunal, under the terms provided for in the recently mentioned articles of the LGAP. Analyzing the pretension of the plaintiff, it is noted that it consists of imposing conduct so that SUGEF and CONASSIF regulate the tools for protecting the economic interest of the consumer, such as the ceiling rate and the non-inclusion of abusive clauses. In this regard, one would first have to elucidate whether this type of conduct can be imposed by this Tribunal on the bodies in question. It is this judge's opinion that it is not possible, as this would overstep the limits of control of discretion imposed by substantive law, as it would be entering into a kind of co-administration with the public administration that exceeds the jurisdictional function. A court of justice cannot tell a regulatory body the decisions it must make in a given market. Jurisdictional control is limited to deciding, once the body has acted, whether its action lies within the limits established by law, or to ordering conduct when a proven omission exists, a situation that does not occur in this case. The foregoing is also grounded in procedural law, which provides that what the Tribunal can do is control the exercise of administrative power (Article 36 b) of the CPCA). Specifically, in a judgment, this Organ can set the limits and rules imposed by the Law for the exercise of discretionary power (Article 122.f) of the CPCA). It is concluded, then, that a conduct could not be imposed on SUGEF (except regarding omissions, as just indicated), as it exceeds the constitutional competence established in Article 49 of the Political Constitution, which would render the plaintiff's pretension unfeasible. However, the following assessments are pertinent: if there were market disruption due to abusive clauses or the imposition of arbitrary rates affecting credit subjects in broad terms, causing distortions and damages to consumers of financial products (regardless of the destination of the resources from the credits), SUGEF could indeed intervene, since, as stated earlier, it must watch over the health of the market in general and not only that of investors, beyond what is established in Ley 7472 regarding consumer protection, since the law authorizes it to do so. On the other hand, the imposition by SUGEF of specific conditions on contracts a priori could undermine the exercise of commerce and the principle of party autonomy established in Articles 46 and 28 of the Political Constitution. For the reasons stated, the first claim is rejected.\n\n**II. THE IMPOSITION OF CEILING RATES ON CREDIT OPERATIONS OF THE DEFENDANT BANKS:** According to Article 1 of the LGAP, public administrations have capacity under public law and private law. State banks, despite their status as autonomous institutions according to Article 189 of the Political Constitution, as well as their respective organic laws, are governed in their activity toward third parties by their capacity as subjects of private law, as public enterprises. When this Tribunal reviews the actions of banks, which are mostly contractual, as has occurred in the case of the contracts that the plaintiff association has brought to its knowledge, it acts as the civil judge would, applying commercial law and Ley 7472, in the case of the liability regime established therein for consumer protection. The decision was legislative, regarding the Contentious Administrative Jurisdiction, by stating in Article 2.f) of the CPCA that proceedings for claims in which a public enterprise participates shall be heard by this jurisdiction. In principle, in contractual private law, what prevails is the principle of party autonomy, where parties contract freely and submit to what the contracts provide. This is so even in the case of standard form contracts (contratos de adhesión), in which the party cannot negotiate any of the contract clauses, to which it simply adheres. What has been regulated is consumer protection, as the weaker party in the relationship, so they have an effective defense of their rights, regarding access to information and the prohibition of abusive clauses, among others (Article 32 of the Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor). Taking the foregoing into consideration, the contentious-administrative judge, acting as a civil judge, could not establish a priori conditions on private subjects, as this would undermine the investigative and party-disposition principle stemming from the autonomy of will between the parties, which would also exceed the competence of the civil jurisdiction.\n\nThe same reasoning must be applied with respect to the Banco Popular y de Desarrollo Comunal, which possesses a different legal nature, being a non-state public entity. Similar to what was indicated regarding the first claim, all this jurisdiction can do is review a specific and concrete legal relationship, to determine whether there is unlawfulness according to the rules that apply to the case. The contrary would imply a violation of article 46 of the Constitución Política, as it would constitute an attack on freedom of commerce. For this reason alone, this claim is rejected.\n\nNotwithstanding the foregoing, the undersigned notes with concern that the lawsuit is directed solely against the four defendant banks, leaving out the rest of the financial intermediation sector, which is arbitrary. In the event that imposing general conditions on loans were possible, it would create an odious and unlawful inequality, which would be a reason that, by itself, would lead to the rejection of the lawsuit.\n\n**Rosa Cortés Morales**" }