Amparo en contra de la Secretaría de Energía, México

Verfassungsbeschwerde gegen das Energieministerium, Mexiko

Berdeja y Butler Consultores, S.C. (“the Firm”) has achieved a significant legal victory securing an Amparo against  Mexico’s Ministry of Energy, challenging its Decree imposing maximum tariffs on ‘UVIEs’ -verifiers for conformity in electrical installations to the Mexican Official Standards (“NOMs”), “the Decree”, dated September 5, 2022.

The Amparo was granted in October 2023 and ratified on 4th July 2024 by the First Collegiate Circuit Court in Administrative Matters Specialising in Economic Competition, Broadcasting & Telecommunications.

The illegal imposition of maximum rates discouraged the work of the UVIEs, promoted simulation, and generated uncertainty for customers, who, due to the improper actions of the authorities, believed that below-market rates were valid; that is, below the rates formally registered by each UVIE with the Ministry of Economy. In other words, the Ministry of Energy was distorting the market and services provided by the UVIEs, and their economics because they had to judicially defend themselves from the now judged illegal Decree.

The Decree violates the principles of statement of reasons, foundation -constitutional, conventional, and legal–, legal certainty, free competition, job freedom, efficient economy, and the supremacy of the rule of law by prioritising a public interest artificially constructed by the Decree.

The granting of the definitive Amparo will generate the following benefits: 1. Recover legal and economic certainty in the UVIE-clients relationship; 2. Remove the distortion of UVIE rates in the relevant market; 3. Eliminate the constraint on the UVIE’s job freedom; 4. Reconfirm that the powers of the Ministry of Energy and the Ministry of Economy are limited; it constrained their arbitrariness; 5. Clarify the difference between the regulated electricity industry and the electricity sector; 6. Enforce the international treaties to which Mexico is a party, as well as Mexico’s Constitution and laws; in summary, the rule of law in Mexico.

There are key industries that need to be properly defended against legislative changes or acts of authority. These include energy: oil & gas, and clean energies; mining for lithium & open-pit mines; and water, particularly pre-existing or granting of future concessions. When acts or ommisions of public authorities violate human rights, the Constitution is the best defense; however, if it is also violated, Conventional mechanisms for the defense and protection of international investments can be activated.

The Firm trusts that the next President of Mexico will promote the energy sector and the rule of law, and hopes that the administration of justice will not be adversely affected by any reform to the Judiciary Power. Likewise the Firm will continue working towards legal certainty and regulatory compliance to effectively and efficiently protect its clients’ interests, and the investment attraction of Mexico; otherwise, the Firm is ready to help defending business interests in Mexico.

Please do not hesitate to contact Carlos Berdeja Prieto, Berdeja y Butler Consultores, S.C., [email protected]; (+52)5554362055, in case any business plan related to Mexico needed to be implemented or defended.

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