On the occasion of what is popularly known as the Enabling Law of 2010 granted to the President of the Republic, the Decree with the rank, value and force of the Organic Law for Community Management of Transfer of Competences, Services and other attributions was approved (LOGCTSCS, 2012).
It was initially carried out on June 15, 2012 but was reprinted a few days later due to a material error, remaining - definitively - in force as of June 28, 2012 after its new publication in the Official Gazette of the Bolivarian Republic from Venezuela.
This normative instrument, with the rank of organic law, aims to develop the principles, norms, procedures and mechanisms of transfer of the management and administration of services, activities, goods and resources from the territorial political entities (Republic, states and municipalities) to the organized people.
As a spatial scope it is national, that is, throughout the territory of Venezuela; The national, state and municipal bodies and entities are subject to the public sector while, by the private sector, are the organizational forms of the so-called popular power: communal councils, communes, among others.
The LOGCTSCS seeks to establish community and community management mechanisms for health, education, housing, sports, culture, social programs, maintenance and conservation of urban areas, prevention and neighborhood protection, construction of works and provision of public services; likewise, strengthen community planning as a mechanism for participation. Promote the creation of communal companies and other associative forms aimed at social production.
Para la ejecución de este texto normativo el Consejo Federal de Gobierno juega un papel preponderante, puesto que en el ejercicio de su competencia que le atribuye la Ley Orgánica del Consejo Federal de Gobierno (2010), por ser el órgano encargado de la planificación y coordinación de políticas y acciones para el desarrollo del proceso de descentralización y transferencia de competencias del Poder Nacional hacia los estados y municipios; ya que está previsto en la LOGCTSCS que ha de actuar como el resolutor de conflictos entre los sujetos actores de ésta.
The transfer to the forms of popular power also entails that of a financial nature, so public entities must make budgetary provisions such as those for goods, since - in some cases - they are directed towards activities that are not susceptible to interruption, being able to mention the case of public services, such as urban and home cleaning, health, production and distribution of food or other goods classified as basic necessities.
The transferring entity must also guarantee permanent training programs to improve the activity that has passed into the hands of the community.
For its part, the Organic Law of Municipal Public Power (LOPPM, 2010) establishes participation mechanisms called management means, where the local level can choose the way in which it is to be carried out, taking as examples municipal companies, whether they are mixed or exclusive, savings funds, cooperatives, among others.
However, the LOGCTSCS leans towards the so-called communal companies, taking as a referential legal framework the Organic Law of the Communal Economic System (2010), where the members of these do not have the right or participation on the economic surpluses (profit) reported by the company, Rather, they must be done through social reinvestment mechanisms, as well as associating or merging with civil or commercial corporate forms that modify the nature of the former: anonymous companies, civil associations, among others.
In such case of reaching the liquidation, the members of the community company will not be able to appropriate, not even by purchase, the goods that comprise it since it is established in the LOGCTSCS that they will retain their qualification as social or community.
Even though it is a general principle of the Organic Law for Community Management of Transfer of Competences, Services and other powers (LOGCTSCS, 2012) that the transfer of public activities towards the organizational forms of the so-called popular power should be sought, it is no less true that These will be obliged to meet requirements given the public interests at stake.
LOGCTSCS notes the following:
1.- Possess sufficient honesty and responsibility to manage public resources effectively and efficiently.
2.- Demonstrate a good level of organization in the development of plans and programs in the area of the service or activity to be transferred.
3.- Have the disposition and capacity to assume or undergo the training process in the area related to the chosen service or activity.
4.- Have technical support from the transferring entity or any competent public body in the matter.
5.- Have short, medium and long term plans that determine the steps for the transfer and subsequent assumption of responsibilities.
On this same point, the Organic Law of Municipal Public Power (LOPPM, 2010), indicates as another way for the exercise of citizen participation, through decentralization or transfer, having to demonstrate - at least - the legal capacity, training professional or technical in the related area, previous experience in management of public services or in areas related to the one requested, certification issued by the Municipality of citizen training plans, proving certification of academic training in the area, legitimacy before the community, presentation of the project, any other determined by the respective law or ordinance.
Likewise, it must submit to the execution of agreements, management orders, among others, reserving the Municipality the possibility of intervention or resumption of competence directly or through the so-called management means.
However, it does not seem such an easy matter - at first glance - since the fields of application of - at least - four instruments of organic rank must be taken into account; They are: the People's Power LOPP, 2010), the Decentralization, Delimitation and Transfer of Competences of the Public Power (LODDTCPP, 2009), the Municipal Public Power (LOPPM, 2010) and the Federal Government Council (LOCFG, 2010).
See the reader what regulates each of them.
The LOPP governs the process of transfer and decentralization of powers and attributions, management functions, administration, control of services and execution of works attributed to the municipalities.
The purpose of the LODDTCPP is to develop constitutional principles to promote administrative decentralization and facilitate the transfer of the provision of services from the National Power to the states.
The LOCFG indicates that its objective is to regulate the organization and operation of the Federal Council of Government and, among others, the regime for the transfer of the competences of the territorial bodies to the organizations that hold State sovereignty.
It is responsible for promoting the balanced development of the regions, cooperation and complementation of the development policies and initiatives of the different territorial public entities, and especially supporting the provision of essential works and services in the regions and communities.
Finally, the LOPPM aims to develop the constitutional principles related to the Municipal Public Power, its autonomy, organization and operation, government, administration and control, for the effective exercise of the protagonist participation of the people in the affairs of local life, as to the values of participatory democracy, social co-responsibility, planning, decentralization and transfer to organized communities and communes in their special condition of local entity, as well as to other organizations of People's Power.
In order to carry out a process of transfer from the territorial political entities (Republic, States and Municipalities) to the organizations of popular power, should a petition mediate? Or, what is the same, can it be ex officio or is it at the request of the interested party?
The Decree with rank, value and force of Organic Law for Community Management of Transfer of Competences, Services and other attributions (LOGCTSCS, 2012), establishes that it is feasible to do so through the request made by community organizations or directly by the public administration.
The LOGCTSCS indicates that the public entities subject to its application must carry out an annual planning called the Transfer Plan and Management of Services, Activities, Assets and Resources to the Subjects of Transfer, which must be sent to the Federal Government Council for review and approval.
However, the Law does not contemplate the mechanisms, lapses and other elements, leaving them in the hands of a Regulation of the Law in charge of the Federal Council of Government.
The modality for the materialization of the transfers is through agreements, where the object, scope, schedule, delimitation of the transfer, goods and resources to be transferred, as well as the obligations and responsibilities will be reflected.
The transfer process is developed through the following phases:
1.- Diagnosis.
2.- Transfer plan.
3.- Budget.
4.- Execution.
5.- Social Comptroller.
As we are dealing with the management of public affairs and, obviously, with public resources or funds, it is imperative that there are forms of control.
The LOGCTSCS stipulates two: an internal type and an external one. The first is in charge of the inhabitants, the citizens' assemblies, the socio-productive organizations and the social comptroller. The second, by means of the fiscal control bodies, which may include - necessarily - the parliamentary type, which involves the National Assembly, the Legislative Councils and the Municipal Councils.
It is also expected that accounts will be sent to the Federal Council of Government with a minimum semester frequency, indicating the progress and developments obtained, as well as the use and investment of the assigned resources.
Just as the transfer exists, it should not be conceived that it is permanent, since the LOGCTSCS has regulated in its articles the opposite figure, that is, the reversion; it operates when irregularities or uncorrected deficiencies are observed. It does not stipulate causes or time for this, leaving it in the hands of the Regulation of the Law.
On this matter, the Organic Law of Decentralization, Delimitation and Transfer of Public Power Competencies (LODDTCPP, 2009) can also be consulted.
It is important to note that the LOGCTSCS contemplates the possibility of fiscal incentives, so that the national, state or municipal levels could agree in their areas and in accordance with the norms that regulate the matter - for example - exemptions to enrichments obtained by the carrying out tasks related to the transfer matter.
The Organic Law of Municipal Public Power (LOPPM, 2010), for the sake of tax authority and autonomy, indicates that - by ordinance - it will regulate what is related to exemptions, exonerations and other tax incentives, so that each municipality where they have their These communal or other companies must comply with local regulations, so a national or state standard could not interfere with their exercise, as well as the opposite.
