The Second Chamber of the Supreme Court of Justice recently changed a number of judgements that established that the Federal Electricity Commission (CFE) could not to be considered as an authority for the purposes of the amparo trial, when the subject of the procedure was the notice issued by the Commission, in relation, to the adjustment, collection, or suspension of the power supply.
Until recently, the Second Chamber had held the opinion that the Electricity Commission, could not be assimilated to an authority, when determining or charging the electrical supply, as in the opinion of the High Court, such relationship was regulated by private law, since it was considered as a mere act of commerce.
Before this important new criterion, the cutting of the power supply, had to be litigated in the ordinary courts of law, without possibility of initiating an amparo trial; thus being unable to suspend the cutting of the power service while the conflict was resolved.
Now, the Second Chamber considered that it was clear that the contract for the supply of electricity, was a relationship of subordination, as the user is subjected to the conditions dictated by the Secretariat of Economy, with approval of the Secretariat of Energy and derived from the law, without possibility of any negotiation.
Therefore, this High Authority of Justice ruled that if the country's Federal Electricity Commission is the only agency that provides the service of electricity and, therefore, the user must submit completely to the regulations issued by the authorities (otherwise can not obtain electricity service) it must necessarily be considered as authority for the purposes of the amparo trial.
Thus, in the current context, contracts for electricity supply can not be regarded as contracts between individuals, but as true administrative contracts, which shows that they could not be considered as an act of commerce, mainly because the Federal Electricity Commission does not pursue profit or commercial speculation in the supply of electrical energy, since it acts by constitutional mandate in the obligation to create, distribute and supply electricity to the entire Nation, thus ensuring the economic and social development.
In conclusion, the Second Chamber determined that against acts that the Federal Electricity Commisssion issues in the provision of public electricity service, comes the possibility to initiate the Administrative Procedure provided in Article 83 of the Federal Administrative Procedure Act or the Invalidity Trial provided for in the different item 14, section XI, of the Organic Law of the Federal Court of Fiscal and Administrative Justice, without prejudice of initiating the amparo trial when general rules are claimed. All this to permit the suspension of the cutting of the power supply, while the competent authority solves the procedure.
Source: www.scjn.gob.mx
