Publication of relevant energy judicial criteria (Jurisdiction for COS validation and challenge of CRE and CNH acts)
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The Federal Judicial Branch published on August 14, 2020, on the Weekly Federal Judiciary, certain jurisprudence criteria related to the energy sector. In particular, the criteria relates to the jurisdiction of the District Courts to validate contracts for surface use or occupation (contratos para el uso u ocupación superficial “COS”) provided in article 105 of the Hydrocarbons Law (Ley de Hidrocarburos “LH”), as well as to the challenge of general provisions, acts or omissions of the Energy Regulatory Commission (Comisión Reguladora de Energía “CRE”) anand the National Hydrocarbons Commission (Comisión Nacional de Hidrocarburos “CNH”).
1. Competent District Courts for the validation of the COS
Chapter IV, Title 4 of LH, provides that those interested in undertaking hydrocarbon exploration and extraction activities, as well as pipeline transportation and surface recognition and exploration, must negotiate and agree on the terms and conditions for the use, enjoyment or assignment of land, goods or rights necessary to carry out such activities, in accordance with the procedure and with the requirements laid down in that chapter.
This procedure includes the presentation of the agreement reached before the District Judge or the competent Agrarian Unit Court, in order to validate that such agreement fulfills with the applicable regulations, which is carried out through a procedure of voluntary jurisdiction. Given the exceptional nature of the validation procedure, there was contradicting criteria as to whether the competent judge for such validation was a District Court with mixed competence when specialization in civil matters was not given or, on the contrary, the District Court in commercial matters.
Through the jurisprudence entitled “HIDROCARBUROS. COMPETENCIA PARA CONOCER LAS DILIGENCIAS DE JURISDICCIÓN VOLUNTARIA RELACIONADAS CON LA VALIDACIÓN DEL ACUERDO DE USO U OCUPACIÓN PARA SU EXPLORACIÓN, EXTRACCIÓN Y TRANSPORTE, SE SURTE A FAVOR DEL JUEZ DE DISTRITO EN MATERIA CIVIL O, EN SU CASO, CON COMPETENCIA MIXTA”,i is resolved that the competence belongs to the District Court on civil matters (when it has such specialization) or otherwise to the District Court with mixed competence.
2. Challenge of general provisions, acts or omissions issued by the CRE and the CNH
Article 27 of the Energy Coordinated Regulatory Bodies Law (Ley de los Órganos Reguladores Coordinados en Materia Energética) provides that the general provisions, acts or omissions of such bodies (CRE and CNH) may be challenged only through an indirect Amparo trial and will not be object of suspension.
By means of the obligatory jurisprudence entitled: “ÓRGANOS REGULADORES COORDINADOS EN MATERIA ENERGÉTICA. EL ARTÍCULO 27 DE LA LEY QUE LOS REGULA, AL ESTABLECER UNA EXCEPCIÓN ADICIONAL AL PRINCIPIO DE DEFINITIVIDAD QUE RIGE AL JUICIO DE AMPARO, VULNERA EL PRINCIPIO DE SUPREMACÍA CONSTITUCIONAL”,ii the Second Chamber of the Supreme Court of Justice of the Nation (Suprema Corte de Justicia de la Nación) determined that it is unconstitutional that such provision contemplates an additional exception to the principle of exhaustion of all legal remedies (principio de definitividad) governing the Amparo trial, because it is not provided in the Federal Constitution or in the Amparo Law (Ley de Amparo), resulting in a violation to the principle of constitutional supremacy (principio de Supremacía Constitucional).
This, implies that for the challenge of general provisions, acts or omissions that are issued by the CRE and CNH, it will be necessary to exhaust the ordinary defense mechanisms or means that may revoke, void, invalidate or modify such acts, as is the appeal for review at administrative headquarters or the federal administrative litigation before the Federal Court of Administrative Justice (Tribunal Federal de Justicia Administrativa), prior to the promotion of the Amparo trial, unless any exceptions are updated to the principle of exhaustion of all legal remedies expressly provided for in the Federal Constitution, the Amparo Law or judicial criteria.
It is important to highlight that the above judicial criteria is mandatory for Plenary Courts of Circuit, Collegiate and Unitary Courts, District Courts and the Federal Court of Administrative Justice in terms of the provisions of article 217 of the Amparo Law.
However, it should be borne in mind that the criteria in question could not be applied retroactively on Amparo trials promoted prior to the date on which it initiated its mandatory application (August 14th, 2020), because the last paragraph of article 217 of the Amparo Law expressly states that jurisprudence in no case shall have a retroactive effect to the detriment of any person.
Furthermore, in case of trials that are promoted after the date on which the mandatory observance of the criteria was initiated, the configuration of some of the exceptions to the principle of exhaustion of all legal remedies established on the applicable legal framework or on the jurisprudence of the Federal Judicial Branch could be argued, and both should be analyzed in each particular case.
i Available in the following link.
ii Available in the following link.
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