On June 22, 2020, the Federal Economic Competition Commission (“COFECE”) issued a statement informing that it filed before the Supreme Court of Justice of the Nation (“SCJN”), a constitutional controversy against the Agreement issuing the Reliability, Safety, Continuity and Quality Policy in the National Electric System, issued by the Ministry of Energy, published in the Official Gazette of the Federation on May 15, 2020 (“SENER Agreement”).
The above, considering that it violates the fundamental principles of competition and free concurrence established in the Political Constitution of the United Mexican States, thus affecting its constitutional mandate and invading its sphere of competence.
COFECE considers that the aforementioned policy is contrary to the content of Articles 16, 28 and 133 of the Mexican Constitution, as well as the applicable electricity laws, which together establish a competition regime in the generation and supply of electricity. Likewise, COFECE expressly states:
“The instrument published in the DOF seriously affects the economic structure of the electricity sector, since it eliminates the possibility for it to operate under conditions of competition and efficiency, as well as under the terms set forth in the country’s current regulatory framework for this sector. This is because the challenged Policy compromises both the open and non-discriminatory access to the transmission and distribution networks (an indispensable input in this industry), as well as the economic dispatch criterion that governs the operation of the wholesale electricity market; it also grants advantages in favor of certain participants and diminishes the ability of others to compete, sacrifices efficiency and establishes barriers to entry in electricity generation.”
It remains to wait for the SCJN to rule on the constitutional controversy filed by COFECE. Particularly, regarding the scope of the SENER AGREEMENT, issued by this governmental agency, apparently in excess of its powers and invading the powers of COFECE itself, to the detriment of consumers.
It is clarified that, from a legal point of view, a constitutional controversy is a mechanism for the control of constitutionality, in the form of a trial, to settle controversies. In this case, between an autonomous constitutional body and the Executive Branch of the Union, with the resolution issued by the SCJN taking effect only between the SENER and the COFECE.
