Issue #
March 2012

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Recent Jurisprudence – Federal Electricity Commission: Issued Payment Notices Are Not Acts of Authority

March 1, 2012

On October 5, 2011, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN, for its acronymin Spanish) approved court opinion 2a./J. 167/2011 (9a.), titled; “Federal Electricity Commission: The paymentnotice issued for the provision of electricity does not constitute an act of authority for purposes of theadministrative appeal or an administrative lawsuit before the Federal Tax and Administrative Justice Tribunal.”In the previously mentioned opinion, published in the Weekly Federal Court Report in January 2012, the SecondChamber deviates from the criteria established in opinions 2a. CXXX/2010 and 2a. CXXXI/2010, whichdetermine that an administrative appeal provided for by the Federal Law of Administrative Procedure shouldproceed in accordance with the payment notices issued for electricity services provided by the Federal ElectricityCommission (CFE, for its acronym in Spanish). According to the Second Chamber, the previous is true, giventhat the legal relationship existing between the individual user of electricity services and the CFE does notconstitute one of authority or subordination but rather a relationship of cooperation between such entity and theindividual, deriving from the voluntary agreement where both parties acquire reciprocal rights and obligations,without the nature of such relationship being changed by any defense asserted against acts by the CFE, such asthe payment notice issued for the provision of electricity services. The result of this opinion is that individualsand entities may no longer appeal the payment notices from the CFE by administrative appeals or lawsuits. As aresult of this new court opinion and given previous opinion number 2a./J.112/2010 titled “Federal ElectricityCommission. The payment notices for electricity services, including those with a disconnection of serviceswarning, is not an act of authority for purposes of an amparo lawsuit,” it will be extremely complicated andcostly for users of electricity services to challenge such acts.

Amendment to Article 4 of the Constitution Regarding Water Access Rights

March 1, 2012

On February 8, 2012, the decree amending Article 4 of the Constitution was published in the Official Journal ofthe Federation, amending the fifth paragraph and adding a sixth paragraph to said Article and establishing thefollowing:All persons have a right to access, usage and sanitation of water for personal and domestic consumption ina sufficient, safe, acceptable and affordable manner. The State shall guarantee this right and the law shalldefine the bases, support and arrangements for the access and equitable and sustainable use of waterresources, establishing the participation of the Federation, the state and municipalities, as well as theparticipation of the citizens, to achieve those ends.The amendment elevates the individual right of access to water in a sufficient capacity and quality for personalconsumption to a constitutional level and further requires the authorities to make efficient and sustainable use ofwater resources. The Transitional Third article of the referenced decree establishes that Congress shall issue anew General Water Law within a term not greater than 360 days, pursuant to which we should expect a draft ofthis new law and its subsequent promulgation, which will need to be carefully reviewed to see how the new rightto potable water for human consumption and its efficient and sustainable use will be regulated with respect toindividuals and the three levels of the government. The municipal water operating organisms have alreadymanifested their concern with respect to the amendment given that they wish for clarification indicating that the right to water will not be gratuitous, because in order to guarantee such a right, it is necessary to carry out costlywater works, which may on occasion lead to high costs for such municipal organisms. The prior concerns resultfrom the theory that as a result of the new right, an individual may demand that authorities provide potable waterutility services and, if such service is denied, request the protection of the Federal Courts by means of an amparoaction, alleging that such individual is willing to pay for the service once connected (with nothing being said as tothe infrastructure work to achieve the connection). It will be interesting to see how this new right to water accessby individuals develops and its interpretation and application by the Courts.