Municipality and comprehensive waste management
Within the legislative amendments at the end of 2010, the National Assembly approved the Comprehensive Garbage Management Law (LGIB, 2010), which aims to establish the regulatory provisions in order to reduce generation, guarantee the use and final disposal of garbage.
This led me to the need to update what was written under the title "Municipality, waste and solid waste."
This instrument repeals the Law on Residues and Solid Waste (2004).
This activity has been declared by law as of public utility and social interest, in addition to constituting a public service.
When the LGIB indicates specific competences to the three territorial levels of public power, it must be included as concurrent jurisdiction, so that each one has a defined quota of responsibility.
The national sphere is in charge of formulating policies on the integral management of solid waste and waste, setting criteria for the establishment of taxes, approving technologies for treatment or use. It should not be forgotten that environmental and health matters are of a national nature, since it is closely related to this issue, hence it is pertinent to review the Organic Law of the Environment (LOAmb, 2006), the Organic Law of Health (1998) and the Law of Local Planning Councils (2010).
To the states and the Capital District, the provision of solid waste transfer and final disposal services, either directly or through third parties, such as cooperative associations, private companies, for example; also participate in the use of waste through the creation of collectively owned companies with organized communities.
While, to the municipality, the management of the urban and home cleaning service. The Organic Law of Municipal Public Power (LOPPM, 2010) indicates it within the list of its own and mandatory competences, including cleaning, collection and waste treatment services; for the realization they can do it with any means of management as stated in this Law. Another competence is regulation via ordinances, including rates, fees or any other economic aspect derived from the provision of the service. One of the most outstanding elements is environmental education applied to this field, so it will ensure that it is promoted in each area of its action, since this will cause changes in the population, not only in complying with the collection hours or in keeping public spaces less polluted,Rather, it is the indispensable tool in recycling, which will improve the quality of life, not counting savings in economic, material and human resources that can be used for other local level skills.
In the exercise of urban control and urban planning, it must propose places for the location of facilities in the integral management of waste and solid waste.
To carry out comprehensive waste management, municipalities must have a sanitary landfill, for which the LGIB has regulations to adapt open-air facilities and transform them into sanitary landfills. These can be through any of the management means, such as mancomunidades, which offer greater scope, since the association with several local entities makes the economic aspect more bearable and could place it within or outside the jurisdiction of a municipality or the members of the commonwealth, in accordance with the respective contract.
Given that this implies large sums of money for local areas, the legal system has understood that the so-called economic regime is established, consisting of fees, subsidies, fees, donations and others; hence, citizens must pay for the service in a timely manner.
The LGIB has established citizen participation as a key element in achieving its objectives. In this sense, the LOPPM has several ways to carry it out, as well as the social comptroller. It is necessary to remember the approval of the Organic Law of the Social Comptroller's Office (2010).
As a source of employment and participation, the LGIB establishes that the participation of organized communities in the handling of materials recovered in their own geographic space and their transport to collection centers or recycling plants should be preferred. For these cases, mechanisms must be developed between the municipal authority and the communities.
It is important to highlight that the LGIB offers mechanisms aimed at fiscal, economic, technological, social and educational incentives; Therefore, the State must promote them, because only in this way can there be co-responsibility or action by individuals, especially at the business level, with a view to a less or uncontaminated environment and a better quality of life for its inhabitants.
These incentives can be from access to preferential credits, total or partial exemptions from taxes, rates or contributions, as provided by the Organic Tax Code (2001) and the LOPPM or the LOAmb.; for example.
In the export field, the LGIB includes it as an exploitation system, giving it the same preferences and incentives as the use of recoverable materials.
In recent days, when I was in front of an auditorium where notions were taught to people interested in the municipal issue, a discussion arose on the issue of garbage.
In this regard, I pointed to an article of my authorship with the same name, which was commented; this leads me to continue with elements not considered in the previous installment.
One of them was the difference between rate, rate or price.
The tax doctrine has not been unanimous in consolidating the precision of these words; The Organic Law of Municipal Public Power (LOPPM, 2010) includes the rates within the ordinary income of the municipality, using the expression "… The rates for the use of its goods and services…". Later, this same normative text refers to the rates in the following terms: "… Municipalities may create on the occasion of the exclusive use of public domain goods, as well as for their public services or activities within their competence,…"
However, the LOPPM does not define what a rate is, nor does the Organic Tax Code (COT, 2001).
Following Héctor Belisario Villegas in his well-known book "Course on Finance, Financial Law and Tax Law", Ninth Edition, Editorial Astrea, Buenos Aires, Argentina, 2005; indicates that it is the tax whose taxable event is made up of an event or circumstance related to the taxpayer and by a state activity that refers to or affects said taxpayer to a greater or lesser extent.
In Venezuela, the work of Ada Ramos on “Municipal Taxes, Guide for local authorities”, Fundacomun Publications, Caracas, 1998; Regarding the characteristics of the rates, it is pronounced as follows: “… a.- It is a category of Tribute derived from the power of the Municipality created by Law (Ordinance). b.- It is mandatory, so it is not a voluntary or optional provision of the person obligated to pay it. c.- The de facto budget is the development of a state activity that concerns the obligor. d.- It has its origin in the Ordinances. e.- It constitutes the part fee paid by the taxpayer for the consideration of a public service. f.- The rate must be adjusted to the cost of the service… ”(Parenthesis mine)
It is appropriate to introduce the notion of price in this matter, since this word will be found related to that of fees, which refers to the provision of services by individuals in favor of the municipality, for example, in concessions.
The doctrine has not been univocal regarding public prices and rates; However, in the case of rates, they must be governed like the rest of the taxes, that is, they must come from ordinances, existence of active and passive subjects within the tax relationship; among others. In the case of prices, the tax rules would not be applicable, since they usually have a contractual origin.
This has been indicated by different judgments of the Supreme Court of Justice as well as of the Courts in Administrative Litigation.
This differentiation is necessary inasmuch as it would allow the municipalities to manage the management from a less complex operational perspective, because - once the element of the choice of the contractor has been sorted according to the Law on Public Procurement (2010) - the setting of the rates It would result from the product of the studies carried out by the Municipal Administration, which is its responsibility; This is not the case when it comes to rates, and must have the municipal council for that of the legal reserve.
The reader is suggested to take a look at other articles of my authorship called "Municipality and Budget", "Municipality and Planning", "Municipality and Taxation", "The Municipal Public Finance", "The Attorney General as Prosecutor of the Municipal Public Finance "," Taxes "," Municipal Management Means "," Municipal Autonomy "," Municipal Cadastre "," Landscaping as an integrating element of urban space ", The Venezuelan Tax System", "Municipal Legal Instruments", " The CLPPs in the law of 2010 ”,“ The Community Councils in their law of 2009 ”,“ The Planning Function in the Municipality ”,“ The Control Function in the Municipality ”,“ The Public Spaces ”,“ Municipality, Conservation and Maintenance of Public Assets ”, among others; which are published at www.eduardolarasalazarabogado.blogspot.com where you can obtain more information about the topics covered.
On the controversy between rates, rates and prices, some elements were pending in the previous installment.
One of the most relevant has to do with the service provider. If it is a question of the Municipality directly, for example, what is charged is a fee, since it is a matter of obligations according to the Ordinance or national law; when it is a private individual, as in concessions, on the understanding that a public service not reserved to the State is satisfied, then it is facing a public price.
Regarding the notion of public service, the work of authors such as Eloy Lares Martínez, Allan Brewer Carías, José Araujo Juárez or José Peña Solís can be consulted in the Venezuelan doctrine, just to mention a few.
It should be noted that - as the Political-Administrative Chamber of the Supreme Court of Justice has held in ruling No. 0129, of June 26, 2001 - when the activity is carried out through a concessionaire, this takes place in exchange for a Remuneration that you will receive from users of the service (rate, price).
This should not be confused with the divisibility of rates, which is not applicable to prices.
If an analysis of the Comprehensive Garbage Management Law (LGIB, 2010) is made on this point, it will be concluded that the terms rate, rate and price were not used in a strict or technical sense, since they were considered as synonyms.
Since the rate is a tribute, it is contradictory - to say the least - that the Executive is charged with setting them, since the Constitution of the Bolivarian Republic of Venezuela (CRBV, 1999) and the Organic Tax Code (COT, 2001) establish the legal reserve tributary. This is complemented by what could not be established by decree or resolution, which is possible in prices or rates because it corresponds to the Executive, having to comply with the consultative processes referred to in the Organic Law of Public Administration (2008).
It should not be overlooked that in the rates there is no profit motive, which happens in the price, since in that it only seeks to cover the cost of the service.
In the prices, the non-gratuity implies that it is the remuneration for the work to be performed by the individual, which must be paid by the user or beneficiary of the urban and home cleaning service.
The control over the provision is in charge - in the case of the Municipality - by the municipal council and the municipal comptroller in accordance with the powers indicated by the Organic Law of Municipal Public Power (2010) and the Organic Law of the Comptroller General of the Republic and the National System of Fiscal Control (2010), without prejudice to the competences of the contentious-administrative jurisdiction.
An example of this would be the one concerning the granting of the service concession or the ordinance rates, in the terms set forth.
