The plenary of the Supreme Court of Justice of the Nation (SCJN) endorsed that the Secretary of Energy (Sener) can coordinate with the Energy Regulatory Commission (CRE) the determination of the regulated rates of the services established in the Electricity Industry Law.
The full of supreme court analyzed this Tuesday various actions of unconstitutionality promoted by opposition senators and deputies, against the reforms approved by the Congress of the Union in 2018 to the Organic Law of the Federal Public Administration, which eliminated, created and reconfigured various secretariats and public bodies, at the request of President López Obrador at the beginning of his six-year term.
The plenary session of the Court analyzed and endorsed by a majority of seven votes the addition of section XXI of article 33 of the Federal Public Administration Law. The ministers Alberto Pérez Dayán, Juan Luis González Alcántara Carrancá and Javier Laynez Potisek voted against.
It should be noted that the Mexican Energy Council (eat) criticized at the time that the Ministry of Energy intervenes in the determination of regulated electricity rates. “The modification to this article violates the autonomy of the CRE to independently determine electricity rates in the country,” he argued.
When presenting to the plenary session the endorsement project for section XXI of article 33 of the Federal Public Administration Law, the minister Luis Maria Aguilar Morales argued that it is not an invasion of powers, but a collaboration between agencies of the same Federal Public Administration, “in order to achieve better energy development in the country.”
He argued that article 139 of the Electricity Industry Law authorizes the federal Executive to set a rate mechanism other than the final rates determined by the Energy Regulatory Commission to determine the energy groups of the basic supply.
“In addition, the concept of invalidity is considered unfounded, in which it is argued that political decisions can generate distortions in the markets and directly affect competitiveness and the right of economic competition and the free concurrence of all participants in the electricity market” , raised.
In contrast, the minister Juan Luis Gonzalez Alcantara Carranca said that the transitory tenth article of the decree of constitutional reforms in energy matters, published on December 20, 2013, “was clear in ordering the Congress of the Union to make adjustments to the legal framework in order to establish within the powers of the Energy Regulatory Commission, in matters of electricity, the regulation of porter fees for transmission and distribution”.
For this reason, he said that the aforementioned decree generates exclusive regulatory competence by establishing the Energy regulatory commission powers to issue and apply the tariff regulation, therefore Sener cannot coordinate the determination of the regulated tariffs in the services established in the Law of the Electricity Industry.
Minister Javier Laynez indicated that it is the Coordination Council of the energy sector as a coordination mechanism between the coordinated regulatory bodies in energy matters, which is chaired by the Secretary of Energy, responsible for informing the coordinated regulatory bodies of the energy policy established by the Ministry of Energy; “It is through this mechanism that it transmits the policy of the Federal Executive; it issues, of course it also recommends, on the aspects of the policy of the programs that the coordinated regulatory bodies must include in their Annual Work Programs”, he said.
For his part, the minister Alberto Perez Dayan it held that the addition of a fraction to article 33 “is contrary to the content and philosophy of the constitutional norm”, which ordered the CRE to be in charge of the main function of determining the rates that correspond to the electricity service.
“This conclusion is compatible with the decisions made regarding the reliability, security and continuity agreement issued by the Ministry of Energy, questioned before this Supreme Court and resolved in constitutional controversy 89/2020 due to its invalidity by the Second Chamber of the Supreme Court. of Justice of the Nation, among many other reasons for which they have already been expressed here, in order not to be repetitive and considering that this invades the already faculties of an autonomous constitutional body whose main attribution is the distance that exists between it and the Secretariat of Energy, it is because I consider it invalid”, he explained.
Finally, with a majority of votes from the ministers Arturo Zaldívar; Yasmin Esquivel Mossa; Ana Margarita Ríos Farjat; Luis Maria Aguilar Morales; Javier Laynez Potisek; Norma Lucia Piña and Alfredo Gutiérrez Ortiz Mena, the plenary session of the Court endorsed the addition of section XXI of article 33 of the Federal Public Administration Law.
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