Executive Summary:
- The Second Chamber of the Supreme Court of Justice of the Nation (“SCJN”) decided to exercise its power to reassume jurisdiction to review certain appeals filed against the reforms to the Electricity Industry Law (“LIE”).
- The requests for resumption were submitted to the SCJN by 18 companies.
- The SCJN will have the possibility of declaring invalid certain elements of the reforms to the LIE.
Background
In March 2021, the Legislative Branch approved the reforms to the LIE sent by the Federal Executive with the aim of favoring the Federal Electricity Commission over the participation of the private sector in the electricity sector.
In April 2022, the Plenary of the SCJN resolved the unconstitutionality action 64/2021 and the constitutional controversies 44/2021 and 45/2021, promoted by 48 members of the Senate of the Republic, the Federal Economic Competition Commission and the government of the state of Colima, respectively. In all three cases, the plaintiffs demanded that the reforms to the LIE be declared unconstitutional.
In these proceedings, the SCJN analyzed, among other things, the imbalance that the reforms to the LIE generate in the electric sector to the detriment of private companies and end users, and the violation of the right to the environment and international treaties. However, the SCJN did not gather the qualified majority votes necessary to invalidate even a single article of the reforms to the LIE and expel said norms from the national legal order.
For this reason, the analysis of the constitutionality of certain articles of the reforms to the LIE was left open through the numerous amparo trials against them pending resolution and the new amparo trials that arise against the application of the LIE. In this regard, it should be noted that various federal courts have resolved amparos in favor of various companies against some articles of the reforms to the LIE.
Relevant Aspects
Thus, on January 25, 2023, the Second Chamber of the SCJN discussed and decided to exercise its power to reassume jurisdiction to review two amparo trials filed against the reforms to the LIE in which federal judges declared the reforms to the LIE unconstitutional in order to definitively resolve the merits of the cases. The requests for reassumption were submitted to the SCJN by two groups of 18 companies, most of them private producers of solar and wind energy.
Thus, the SCJN will have the possibility of declaring invalid the following elements of the reforms to the LIE:
- Article 3:
- Section V, referring to legacy power plants;
- Section XII, referring to electricity coverage contracts;
- Section XII bis, referring to electricity coverage contracts with a commitment to physical delivery;
- Section XIV, referring to legacy contracts for basic supply.
- Article 53, regarding electricity coverage contracts through auctions.
- Article 108, Section VI regarding the powers of the National Energy Control Center.
In principle, the Second Chamber of the SCJN would be in charge of reviewing the appeals, but given the relevance of the issue, the appeals could be discussed in the Plenary Session of the SCJN.
There are no set deadlines for the SCJN to definitively resolve these matters and no minister has yet been assigned the task of preparing draft resolutions.
