Executive Summary:
- On November 13, a Decree was published with reforms and additions to the Federal Rights Law that modify the rates to calculate the rights to be paid for the use, enjoyment or exploitation of federal airports, establishing a distinction between the holders of assignments and concessions.
- According to the reforms and additions, for exactly the same use, enjoyment or exploitation of federal airports, concessionaires will have to pay 9% of their gross income for airport, complementary and commercial services, while parastatal entities will only pay 5%.
- These reforms create an even bigger gap that not only discourages investment in the aeronautical industry, but also imposes new burdens and obstacles on those who are already in the industry and, of course, creates barriers to free competition.
On November 13, 2023, a Decree of reforms and additions to the Federal Rights Law was published in the Official Gazette of the Federation, among which the modification to the rates to calculate the rights to be paid for the use, enjoyment or exploitation of federal airports stands out, establishing a distinction between the holders of assignments and concessions.
It should be noted that, in accordance with the Airports Law, private individuals may only use, enjoy and operate federal airports if they obtain the corresponding concession title; while, for their part, parastatal entities must obtain an allocation to carry out such activities. In both cases, payment of fees is required, which are calculated from gross income from airport, complementary and commercial services.
Now, the difference between assignments and concessions is relevant for the purposes of the possible challenge to the reforms and additions to the Federal Rights Law, since it is common knowledge that the Executive has involved the Ministry of National Defense in the construction, operation, administration and maintenance of airports, and that, under the protection of an assignment title, it intends to begin operations with an airline through a majority state-owned company grouped with the sector coordinated by the Ministry of National Defense itself with the brands and commercial names of the defunct Mexicana de Aviación.
According to the reforms and additions, since they have exactly the same use, enjoyment or exploitation of federal airports, the concessionaires must pay 9% of their gross income for airport, complementary and commercial services, while the parastatal entities, through the allocation figure, will only pay 5% of the same. The above allows us to observe a clear inequality in the face of an analogous situation that, in our opinion, is unconstitutional and, therefore, can be challenged before the District Judges through an amparo trial.
In this regard, it is important to note that the Airports Law includes the principles of equity and non-discrimination in the provision of airport, complementary and commercial services and, in turn, the aeronautical authority has the mandate under this same law to safeguard the efficiency, competitiveness and non-discrimination of services, as well as the profitability of projects and investments in airport matters.
It should be noted that, from the outset, in order to obtain a concession, private individuals must comply with different requirements than those that government entities must comply with; which, while not illegal in itself, is a determining point in distinguishing that the reforms generate an even larger gap that not only discourages investment in the aeronautical industry, but also imposes new burdens and obstacles on those who are already in the industry and, of course, creates barriers to free competition, since the government must act as another participant in the market for airport, complementary and commercial services.
In recent years, the Federal Government has shown a clear intention to benefit government entities over private individuals, as has already happened with the Federal Electricity Commission (CFE) with the reforms to the Electricity Industry Law regarding the change in rates for electricity transmission and the modification of the reliability policies in renewable energies. On those occasions, private individuals have filed amparo lawsuits for the inequality created to their detriment, which have even reached the Supreme Court of Justice of the Nation, with favorable results.
Another point of interest is that only the income obtained from the payment of fees by individuals will be allocated to “to the Secretariats of National Defense and the Navy for the strengthening of the airport system under their coordination, through the federal public trusts without structure that are established for this purpose"That is, the assignees will pay a lower amount and, in addition, will receive all the resources obtained from the concessionaires, strengthening the participation of the government vis-à-vis private parties in the airport sector.
On the other hand, the amendments and additions to the Federal Law of Rights did not comply with the legislative process provided for in the Regulations of the Chamber of Deputies, since said additions and amendments were not part of the initiatives analyzed and ruled on by the Finance and Public Credit Commission of the Chamber. Much less were they included in the Opinion issued by the Commission itself, but were introduced, apparently, through a reservation, exceeding the specific purpose of the draft Decree by which various provisions of the Federal Law of Rights are amended, added to and repealed.
The draft Decree only provided for specific content modifications regarding the specific destination of the rights (article 18-A); establish the payment of fees in customs operations (article 49, section IV); ensure payment upon receipt of services in matters of economic competition (article 77); transfer of powers in favor of the Secretariat of Infrastructure, Communications and Transportation (articles 162 to 171-B); reduction of fees for registration of title or issuance of professional licenses (article 185); repeal of fees related to the authorization of commercial forest plantation on preferably forest lands (article 194-N); reform to the concept of transfer in matters of use, enjoyment or exploitation of national waters (article 223-Bis); replacement of terminology regarding the payment of fees for the use of the electric spectrum (article 239); adjustments regarding the concepts of wastewater discharges (articles 276 to 282-C); exemption from payment of fees for cultural assets owned by the Nation (article 288), and transitional provisions. In other words, the initiative did not include anything related to fees for the provision of airport, complementary and commercial services.
Thus, the reservation proposed and approved by the Chamber of Deputies, which resulted in the modification of articles 219, 220 and 221, and the addition of article 220-A and the Fourth Transitory Article of the Federal Rights Law, clearly exceeds the draft Decree presented by the Finance and Public Credit Committee, violating the legal nature of the reservation figure and, consequently, posing a probable violation of the legislative procedure that could be challenged by means of an amparo trial before a District Court on Administrative Matters.
