The CRE Imposes Restrictions on the Modification of Self-Supply and Cogeneration Permits

The Resolution seeks to establish various restrictions on the holders of electricity generation project permits under the self-supply and cogeneration modality, primarily for the purpose of restricting the inclusion of new beneficiaries (self-supplied partners) and load centers under such schemes. In general terms, the changes consist of the following: • A section IV is added and the final paragraph of the Sixth provision of the Provisions is amended to establish that no modification may be made to generation permits when the purpose is to register load centers that have entered into a basic supply contract under the Electricity Industry Law (“LIE”). • In turn, the Ninth provision of the Provisions, concerning requests to modify permits granted under the Public Electricity Service Law (“LSPEE”), is amended with respect to the following: > The possibility of modifying the self-supply or cogeneration permit to include new persons, different from those previously authorized in the permit, who were not included within the expansion plans of the generation permits, is eliminated. > The obligation is stipulated for load centers to provide the information requested by the CRE to demonstrate that they have not entered into an electricity supply contract under the LIE. > Load centers that have entered into a supply contract under the LIE, as well as those load centers that have already been required to be in the Registry of Qualified Users (“RUC”), may not be included in self-supply or cogeneration permits granted under the terms of the LSPEE. > Finally, it is established that in the case of partners already approved or included in the expansion plans, that have merged or split off, they must prove their status as partner or beneficiary of the electricity, provided that no new load centers are included under the terms of the Provisions. As a result of the foregoing, we consider that there are arguments that allow the conclusion that the Resolution was issued in contravention of the applicable regulatory framework, among which the following stand out: > The provisions of the Second, Tenth, and Twelfth transitory articles of the LIE are infringed, in relation to the rights held by the holders of generation permits granted under the terms of the LSPEE, particularly regarding the obligation to respect the terms and conditions under which such permits were granted. > The provisions of the LIE and LSPEE are infringed, since, through administrative provisions, it is sought to impose limitations on rights not contemplated in such legislation. > Article 66 of the General Law on Regulatory Improvement is contravened, since a regulatory impact analysis was not previously carried out. In addition to the foregoing, an exemption from the regulatory impact analysis was submitted that is contradictory to the provisions of the General Law on Regulatory Improvement. > Likewise, a violation of the constitutional principles of legal certainty, in its facet of interdiction of arbitrariness; equality and non-discrimination; freedom of commerce; due grounding and justification; and free competition could be considered. In view of the foregoing, depending on the particular case, the admissibility of various means of challenge could be analyzed, in order to suspend or restrict the effects of the Resolution or to seek compensation for the damages and losses caused. Considering the type of measures and their potential consequences, legal actions may be admissible before the CRE, the Federal Court of Administrative Justice, district courts, investment arbitration tribunals, and the Federal Economic Competition Commission. For additional information, please contact our experts: Edmond Grieger, Partner: +52 (55) 5258 1048 | egrieger@vwys.com.mx Adrián Magallanes, Partner: +52 (55) 5258 1077 | amagallanes@vwys.com.mx