By a majority of 9 votes, the plenary session of the Supreme Court of Justice of the Nation (SCJN) declared constitutional that the government of President Andrés Manuel López Obrador may review, renegotiate or terminate in advance the Commitment Contracts for Electric Power Generation Capacity and the Purchase and Sale of Electric Power signed with independent energy producers.
This was one of the main motivations for the preferential initiative that President López Obrador presented to the Congress of the Union in February 2021, since in his opinion they were “leonine contracts” that benefited individuals and harmed the community. Federal electricity commission (CFE).
In this framework, the plenary session of the Court declared this Thursday the validity and constitutionality of the transitory fifth article of the reforms to the Law of the Electricity Industry.
Said transitory establishes: “the Contracts for the Commitment of Electric Power Generation Capacity and the Purchase and Sale of Electric Power signed with independent power producers under the Law of the Public Service of Electric Power, must be reviewed in order to guarantee their legality and the compliance with the profitability requirement for the federal government established in articles 74, section IV, of the Political Constitution of the United Mexican States, 32 of the Federal Budget and Treasury Responsibility Law and 18 of the Federal Public Debt Law. Where appropriate, said contracts must be renegotiated or terminated in advance.
In the opinion of the high court, it is not contrary to the principle of retroactivity, because “it is not possible to indicate that acquired rights have been created.” It established that the review “is part of the planning and control of the National Electric System as a strategic area reserved for the Nation, in accordance with articles 25, 27 and 28 of the Constitution”.
Minister Yasmín Esquivel Mossa defended the revision of the contracts, as she said that “it led to the violation of the purposes inherent in the law of the public electricity service, as well as to distort the contractual legal essence and cause serious damage to the assets of the company. CFE”.
Regarding the issue of self-supply permits, the ministers did not achieve a qualified majority in the transitory fourth article of the reform to the Electricity Industry Law. With six votes in favor of validity, the norm subsists.
“Self-supply permits, with their respective modifications, granted or processed under the Electricity Public Service Law, which continue to have their legal effects, obtained in fraud of the law, must be revoked by the Energy Regulatory Commission through the corresponding administrative procedure. Where appropriate, permit holders may process a generation permit, in accordance with the provisions of the Electricity Industry Law”, mentions the current norm.
The self-sufficiency of electrical energy is the generation of it to be used to satisfy the needs of the person who produces it, whether it is a natural or legal person.
In the debate this Thursday in the plenary session of the Supreme Court of Justice of the Nation on the reforms to the Electricity Industry Lawthe minister Jorge Pardo Rebolledo He ruled for the invalidity of the fourth transitory article, “because it considers something that is not specified, is not specified, as fraud of the law.”
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