The termination of electricity self-supply permits in the country, which according to the Federal Electricity Commission (CFE) are almost 240 (of which around 110 would be “fraudulent”), should not be negotiated between the companies and the federal executive because It is not up to him to suspend or enable them, since it is the Judicial Power that determines whether or not they are legal, in a process that, in principle, is obstructed by the pronouncements of President Andrés Manuel López Obrador, who has prejudged without there being sentences in this regard.
“Legacy permits work through current regulations, they were granted by an authority whose principle is the framework for action within the law, that’s how it works,” Héctor Herrera Ordoñez, former president of the Mexican Bar Association, told El Economista.
According to the expert, the chief federal officer has probably been erroneously advised, because he has ruled without having carried out a trial that there is illegality in these permits. In the statements, the president gives a criminal connotation to the actions of these permit holders, as if they were committing a crime, which appears to be misunderstanding of the Mexican judicial system.
As a public servant, he would have the obligation to report them to the Public Prosecutor’s Office if the possible existence of a crime to be prosecuted in the criminal sphere is considered, otherwise the official is in administrative fault “
Héctor Herrera Ordoñez, former president of the Mexican Bar Association
Therefore, it will be necessary to wait for the courts where the amparo proceedings against the reformed Electricity Industry Law are followed to also unburden the new theses about the legal status of these permits.
On the other hand, Herrera Ordoñez clarified that regarding the Electricity Industry Law (LIE) the Court did not rule on its coincidence with the Magna Carta but simply declared the action and controversies of unconstitutionality inadmissible. Therefore, it is going back to court while today the effects of the reform are suspended by the courts that granted those definitive suspensions, they will undoubtedly end this year.
The importance that it had been declared unconstitutional implied effects for all the participants in the activity, because with the protections there will be no effects for all the companies but only for those that took protection, which will lead to a universe of electricity permit holders working with two Different regimens: with and without LIE.
The design of the Amparo Law says that it protects whoever files it and although there are assumptions that could be generalized, it is very rare in Mexico. In fact, the general suspensions that occurred with respect to this Law are unprecedented and generated a new dynamic in this stuff.
Causes of revocation
For his part, the sector analyst, Ramsés Pech, explained that companies that have a self-supply permit are not obliged to negotiate with the Executive Branch because there is a contract between private generators and private energy marketers in their activity, which, Although it uses the transmission and distribution of the CFE by contracting its interconnection, it is governed by commercial law in which the federal government has no interference.
“It is not a contract between the government and a private party, it is a commercial agreement between private parties,” said Pech.
Therefore, the Energy Regulatory Commission (CRE) that granted the self-supply permits in 2014, legacies of the legal framework of 1992 because they were still in force, is the authority that has the power to cancel or modify only what corresponds to the permit, not to the contract neither from the CFE nor between private parties, and the CRE has very specific specifications as dictated by the Public Service Law that governs these legacy permits.
The grounds for revocation by the CRE are: when the permit holder has been sanctioned repeatedly for selling, reselling or transferring capacity or electricity; for transmitting the rights of a permit or generating electrical energy in conditions other than those established in the permit, without the prior authorization of the Commission, and when for any reason any of the provisions of the Law are breached in a serious and repeated or continuous manner. , of the Regulations, the conditions of the permit, the official Mexican standards or the applicable technical and operational specifications.
The grounds for permit revocation by the CRE are:
- When the permit holder has been sanctioned repeatedly for selling, reselling or alienating capacity or electrical energy.
- For transmitting the rights derived from a permit or generating electricity under conditions other than those established in the permit, without the prior authorization of the Commission.
- When, for any reason, any of the provisions of the Law, the Regulations, the conditions of the permit, the official Mexican standards or the applicable technical and operational specifications are breached in a serious and repeated or continuous manner.