CCN MEXICO REPORT

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Issue #
29
 – 
May 2006

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Case XXXIX/2006. Expropriation. Concept of Public Benefit.

May 24, 2006

The Supreme Court of Justice of the Nation, in regards to the public benefitconcept, has sustained diverse criteria in which it initially signaled that the causes that justify it could not be based on granting a private partythe ownership of the expropriated property, but that it should be the State, in any of its three levels, that should be substitute as the owner of theproperty for the purpose of obtaining a collective benefit through the provision of services or the realization of public works. Later, it broadenedthe concept to include the cases in which private parties, based on the State’s authorization, would be ones in charge of achieving the objectivesfor the collective public benefit. Accordingly,, this Supreme Court reiterates the criteria that the concept of public benefit is broader, byincluding not only the cases in which the State (Federation, States, Federal District or Municipalities) is substituted to the use of the expropriatedproperty for the purpose of benefiting the public, but also those cases in which it authorizes a private party to achieve such end. Given such, thenotion of public benefit is no longer only limited to the State having to construct a public work or render a public service, but it also includesthose economic, social, sanitary, as well as esthetic necessities, that may be required in a certain community, such as collective welfare entities,hospitals, schools, housing developments, parks, ecological zones, among others, given that the right to private property is delineated in theFederal Constitution given its social function. Due to this, attending to that function and to the social economic necessities that arise, it is evidentthat the State itself will not always be able to satisfy them , but that it will have to turn to other means, such as authorizing private parties torender a public service or carry out a task for the immediate benefit of a social sector and society at large. Accordingly, the concept of publicbenefit must not be restrictive, but broad, so that the State can satisfy the social and economic necessities and, for this reason, it is reiterated that,in a generic manner, it covers three causes: a) The public cause itself, or rather when the expropriated property is destined directly to a publicservice or work; b) The social cause, which satisfies in an immediate and direct manner a specific social class, and the public at large; and c)The national cause, which satisfies the necessity of a country to adopt measures to confront political or international situations that might affectit. Unconstitutional action 18/2004. Deputies composing the Fifty Fourth Legislature of the Congress of the State of Colima. November 24,2005. Majority of nine votes. Dissidents: José Ramón Cossío Díaz and José de Jesús Gudiño Pelayo. Issued by: Juan N. Silva Meza. Secretary:Laura Garcia Velasco. Full Court, on February Sixteen of the year in question, approved, with number 39/2006, the jurisprudential thesis thatantecedes. Mexico, Federal District, on February Sixteen of Two Thousand and Six.In this case, the Mexican Supreme Court of Justice reiterates the broad public benefit concept as an essential element forproceeding with a governmental expropriation. Accordingly, an expropriation occurs not only when the state substitutes itself as owner of theexpropriated property, but also in cases when the state authorizes transfer of the property to a private party, so long as, in both cases, theexpropriated property is used for the public's benefit, whether for the provision of a service or to satisfy needs, including aesthetic needs, of apopulace or select social group, or the nation as a whole.

Trademark Law Treaty Still Pending Ratification

May 24, 2006

The Trademark Law Treaty (TLT), which was signed by Mexico in 1994, has still not beenratified by the Mexican Senate. The TLT is designed to facilitate the use of national and international systems regarding trademark registrationsand, harmonizing trademark registration procedures in different countries, so that a more secure and transparent process for trademarks may betaken advantage by trademark owners and their representatives. The TLT covers, in general, the following issues: trademark registrationprocedures, amendments to registered trademarks and renewals of such trademarks. To harmonize the trademark registration process withinternational standards, it is necessary that the Mexican Senate ratify the TLT and that the Mexican Congress acts to amend the MexicanIndustrial Property Law (Ley de Propiedad Industrial) and its Regulations.

Mexico Publishes Reforms to Amparo Law

May 24, 2006

On April 24, 2006 Mexico published in the Official Journal of the Federation (DOF) amendmentsto the Amparo Law that were issued for the purpose of broadening the grounds justifying that denial of injunctive relief based on damages orprejudice to the public interest. This reform establishes that when an amparo is filed against the government’s collection of taxes or fees, adiscretionary suspension of such taxes or fees may be granted only after the party allegedly owing such taxes or fees has deposited in a separateaccount the total amount of taxes, fees, fines and interest that could be generated, thus guaranteeing that the government could recover theseamounts. Consequently, the new law establishes that in case such an amparo is denied, overruled or a suspension is cancelled, the authoritiesmay take possession of the amounts deposited.