2022 – 1 Strategic Administrative
Litigation
Mexican Supreme Court discusses
constitutionality
of the Energy Industry Law
On April 7th, 2022, the Mexican Supreme Court discussed a ruling draft
that proposed to declare the constitutionally of the Amendments to the Energy
Industry Law published on the Federal Official Gazette on March 9th, 2021.
The draft discussed by the Supreme Court, was meant to rule a constitutional
claim filed by Senators, arguing mainly that such Amendments restricted the
access to the electric market for private power generators, affecting anti-trust
principles enshrined in the Mexican Constitution, and creating conditions that favor
the state-owned power company (Electricity Federal Commission – CFE), as well
as affecting human rights to a healthy environment.
Take into consideration that these kind of constitutional control
procedures require of a qualified majority of 8 votes from the Justices, out of
11, in order to declare the unconstitutionality of a law with general effects.
The latter, in contrast with rulings of amparo claims, in which they only need
a simple majority.
In this regard, on April 7th, 2022, only 7 Justices argued that the
amendments to the Law are unconstitutional, and 4 Justices voted in favor of
the ruling draft that declares the validity of the reform. In such terms, the constitutional challenge
filed by the Senators was dismissed, since the 8 votes were not obtained.
It is important to consider that among the argumentations disclosed by
the 7 Justices against the amendments to the Law, such Justices agree that some
portions of the amendments are valid.
It is our consideration that said ruling of the Supreme Court will not
trigger any direct adverse legal effect on the amparo claims filed by
individuals or legal entities affected by the Amendments to the Energy Industry
Law. Such assumption is based on the
fact that 7 Justices have already disclosed that they consider unconstitutional
the majority of the Amendments to the Energy Industry Law.
Therefore, if these 7 Justices maintain their positions, when the amparo
claims are referred to the Supreme Court, a majority of Justices could rule the
amendments are unconstitutional. Nevertheless, we recommend addressing each
case particularly.
Be advised that also the Antitrust Commission and the State of Colima,
filed constitutional controversies, which would be ruled in the following days
by the Supreme Court; however, a similar outcome, to the one ruled on April
7th, would be expected for such procedures.
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Mexico City
April 2022
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