Responsabilidad Fiscal y Daño Antijuridico Derivado de la Suspensión de Proyectos de Exploración y Explotación de Recursos Naturales No Renovables

Abstract

This research document aims to analyze the guidelines established by the Colombian Government for the implementation of the Energy Transition policy, revealing the State’s responsibility regarding the country’s fiscal situation and macroeconomic stability derived from the institutional strategies adopted, as well as the consequent obligation to compensate private parties if the existence of unlawful damage resulting from the suspension of hydrocarbon and mining-energy exploration and exploitation projects is proven. Such damage may arise from scenarios that affect legal certainty, create contractual imbalance, or undermine states of trust and legitimate expectations. The aforementioned Fiscal Responsibility is configured based on the principle of fiscal sustainability (Congress of Colombia, 2011), according to which the actions of the State, as well as the strategies and general orientations of economic, social, and environmental policy, must operate within a framework that guarantees fiscal sustainability. Therefore, if, as a consequence of the implementation of a public policy, a fiscal impact incident is evidenced—translated into a fiscal deficit and macroeconomic instability—the State infringes this framework through its fiscal management, which serves as an instrument for progressively achieving the objectives of the Social State governed by the rule of law. On the other hand, the State’s Patrimonial Liability arises when unlawful damages resulting from the suspension of projects for the exploration and exploitation of non-renewable natural resources are verified. These damages translate into harm caused to natural or legal persons—such as private contractors, investors, concessionaires, among others—which must be compensated. As explicitly stated by the Constitutional Court, “the patrimonial liability of the State in our legal system is grounded in the principle of the comprehensive guarantee of citizens’ patrimony” (Constitutional Court of Colombia, 2001). Accordingly, this research will present a set of reasoned arguments supported by legal science and legal hermeneutics that will help clarify the conflicts and tensions between the legitimate exercise of state power and the interests of natural and legal persons affected by the State’s regulatory and rule-making authority. Likewise, the study will analyze the impact of implementing the Energy Transition policy on macroeconomic variables, the fiscal deficit, upward pressures on the exchange rate, the risk premium, and interest rates, all of which may have negative effects on economic growth. It will also examine historical data (2000–2024) on fiscal revenues derived from the hydrocarbon sector, including: dividends and income taxes paid by companies that make up the Ecopetrol Group; royalties corresponding to crude oil production; the global tax on gasoline and diesel (ACPM); VAT on gasoline and diesel; the diesel surcharge; withholding tax; and fees collected by the National Hydrocarbons Agency (economic rights due to high prices; economic rights for participation in production; contractor contributions for economic rights related to the use of the subsoil; and revenues from the granting of exploration rights). Taken together, these elements will allow for a comprehensive evaluation of the economic and fiscal impact derived from the State’s actions in implementing the Energy Transition policy and the decisions to suspend and prohibit new exploration and exploitation projects for non-renewable natural resources, thereby generating a risk scenario for the country’s energy security and macroeconomic stability.