New legal regulations on non-state economic actors (4th and final part).

In its Ordinary Edition of August 19th, 2024, the Official Gazette No. 78 of the Republic of Cuba has published Decree Law No. 90 of July 13th, 2024 regarding the exercise of self-employment.

This activity, seen within the forms or types of property established in Article 22 of the Cuban Constitution of 2019 institutes: «The following are recognized as forms of property: d) private: that which is exercised over certain means of production by Cuban or foreign natural or juridical persons; with a complementary role in the economy».

Undoubtedly, it must be reiterated that this complementarity referred to in the aforementioned precept is clarified a posteriori at the end of Article 22 itself, when it is endorsed: «All forms of ownership over the means of production interact under similar conditions; the State regulates and controls the way in which they contribute to economic and social development».

For such reasons, if the constitutional norm states that private property has a complementary role in the economy and a little further on it clearly subscribes that all forms of property act under similar conditions and similar means analogous, even, equivalent, akin, related and so many other synonyms that do not amount to supremacy of one form of property over another, why mention complementarity and further on subscribe that all forms of property act under similar conditions?

In the same way, this legal norm, when formulated, is based on an exposition of motives. In the case of Cuba, the statement of reasons is narrated in the WHY and WHEREAS explaining the need for the legal norm put into effect.

And it is that the previous Decree-Law No. 44 «On the Exercise of Self-Employment», dated August 6th, 2021, although it updated the general provisions for the development of this activity, two years after the approval of the improvement of the economic actors and the experience in its application, it is necessary to modify it in correspondence with the development achieved, in order to homologate the treatments with the rest of the economic actors of the non-state sector, as appropriate, as well as to improve the control mechanisms.

Analogous to the provisions of Article 7 regarding Non-Agricultural Cooperatives (CNA), in the activity of self-employment, Article number 2 of Decree-Law 90 establishes that the National Institute of Non-State Economic Actors is the national entity subordinate to the Council of Ministers in charge of directing and controlling the State’s policy for the development and operation of self-employed workers.

Self-employment is defined as the economic activity or activities authorized by the specific regulatory provision, which are carried out in a habitual, personal and direct manner by a natural person for profit with his own assets.

Article number 4, similar to what is regulated in Article number 33 of Decree-Law 89, establishes among the incompatibilities of the condition of member of a non-agricultural cooperative: losing the condition of effective resident in Cuba for Cubans, in Decree-Law 90, Cuban citizens with effective residence in the national territory can engage in self-employment, without any right for permanent residents abroad, according to current immigration regulations, despite having by law effective Cuban citizenship when they enter the national territory of the Republic of Cuba. Why then maintain this difference if every Cuban, upon entering the national territory, holds effective citizenship while in the country?

And when Article 7. 1 of the Decree Law-90 regulates that the self-employed worker can receive help for the realization of the activities of his work project, from the spouse or relatives up to the second degree of consanguinity or affinity, then in the second Paragraph it is stated that the help of the relative is understood as the punctual collaboration in the work project, which cannot be habitual, frequent or continuous, without anything else being explained, then? What reason indicates that this punctual help from the family cannot be permanent, if this is a way in which the so-called family businesses accepted in the world as family property act?

None of this is explained, it is not even mentioned in Decree-Law 90 and it is not even regulated and no reason is given as to why this would be counterproductive. Thousands of family businesses in the world operate in this way. However, in a sense not very understandable with respect to the above, self-employed workers may be members of micro, small and medium-sized enterprises and non-agricultural cooperatives in activities other than those approved in their Work Projects.

Written by  Dr. Osvaldo Manuel Álvarez Torres.