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INFORMATIVE NOTE ON THE NEW LAW FOR TRANSPARENCY, PREVENTION AND COMBAT OF IMPROPER PRACTICES IN THE CONTRACTING OF ADVERTISING.

On June 3, 2003, the Law for the Transparency, Prevention and Combating of Unfair Practices in Advertising Contracts (the “Advertising Law”) was enacted. The purpose of this new law is to regulate advertising broadcasting relations in order to seek a healthier commercial competition and avoid practices that generate undue advantages that affect advertisers and consumers.

The Advertising Law focuses mainly on establishing prohibitions to advertising agencies and the media in order to make advertising space more accessible to advertisers. Among the prohibitions established are, among others, (i) that the advertising agency may not acquire advertising space for its own account and then resell it to the advertiser, but now the agency will act as an intermediary between the media and the advertiser; (ii) that an agency may not provide services to an advertiser and a media outlet simultaneously; and (iii) that advertising agencies may not receive any consideration from the media. The listed prohibitions reflect a clear limitation to the contractual relationship that may exist between a media outlet and an advertising agency, resulting in advertising agencies acting passively in the contracting of advertising space.

It also establishes the need for a written mandate contract between the advertiser and the advertising agency. The purpose of this contract is that the advertising company acts only as an intermediary between the advertiser and the media, establishing in it the remuneration of the advertising company and the services to be rendered in favor of the advertiser. This is intended to ensure that the advertiser is clear about the advertising space it acquires and the price thereof; something that is pursued more clearly with the obligation of the media to deliver the invoices directly to the advertiser.

Finally, the Advertising Law contains a series of fines in case of non-compliance with its provisions, such as not entering into a mandate contract, not delivering invoices to the advertiser, or not complying with any of the prohibitions imposed on advertising agencies. It is evident that the purpose of this law is to protect the advertiser by preventing the media and advertising companies from entering into agreements that are advantageous for them and unfair for advertisers and consumers.

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ADOPTION OF LAWS AND REFORMS CONCERNING THE FEDERAL JUDICIARY

As part of the implementation of the Constitutional Reform related to judicial matters, published in the Federal Official Gazette on March 11, 2021, the Mexican Congress approved the laws and reforms to reorganize the structure and functioning of the Federal Judiciary.

The draft law approved by the Congress provides the expedition of a new Federal Judiciary Organic Law and the Federal Judiciary Career Law. It also amends, supplements, and repeals several provisions of the Injunction Law (or Amparo as it is known in México), the Federal Public Defender’s Office Law, the Federal Code of Civil Procedure, the Federal Law on Workers in State Service, Regulatory of paragraph b) of Section 123 of the Constitution, and the Regulation Law of paragraphs I and II of Section 105 of the Constitution.

The amendments approved by the Congress include (i) the incorporation of the Judicial Disputes Commission of the Federation related to labor conflicts, (ii) the establishment of the Institute of the Public Defender’s Office and the training of its staff by the Federal Judicial Training School, (iii) adjustments to focus the jurisdiction of the Supreme Court of Justice of the Nation in exceptional constitutional matters and fundamental rights, as well as to transit from a system of jurisprudence of reiteration of criteria to one of obligatory precedents, and (iv) the replacement of Unitary Circuit Courts for Collegiate Courts of Appeal.

According to its authors, the new laws and reforms intend to strengthen actions to address nepotism, conflicts of interest, sexual harassment, and corruption within the Federal Judiciary, to guarantee independence, impartiality, suitability, stability, professionalization, and specialization of public servants, and provide the mechanisms to achieve an adequate administration of justice.

One of the most controversial points in the legislative process was the incorporation of a transitory provision for implementing the constitutional reform of the Federation Judiciary and the corresponding regulatory Acts, which establishes that the current president of the Supreme Court of Justice of the Nation and the Council of the Federal Judiciary extends the duration of his assignment until November 30, 2024, on the understanding that the period for which Minister Arturo Zaldivar was elected runs from January 2, 2019, to December 31, 2022. Several sectors of society have expressed their opposition to this extension of the mandate as unconstitutional. It is foreseen that the Supreme Court of Justice of the Nation will carry out the analysis corresponding to this transitory provision through the action of unconstitutionality that may be filed once the laws and reforms mentioned herein be published by the Executive in the Official Gazette of the Federation.

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Modifications to tax legislation regarding outsourcing

On April 23rd, 2021, a Decree was published in the Official Gazette of the Federation (“DOF”) amending, adding and repealing several provisions of the Federal Labor Law; the Social Security Law; the Law of the National Workers Housing Fund Institute; the Federal Fiscal Code (“CFF”); the Income Tax Law (“LISR”); the Value Added Tax Law (“LIVA”); the Federal Law of Workers in Service of the State, Regulatory of Section B) of Article 123 of the Constitution; and, of the Regulatory Law of Section XIII Bis, Section B of Article 123 of the Mexican Constitution (the “Decree”).

 

Such Decree states that the amendments to the mentioned laws will become effective until August 1st, 2021.  Among the main changes to the tax laws are the following:

 

  1. Federal Tax Law

 

1.-       Deduction and crediting.  The provisions of the CFF establish several limitations so that invoices arising from the payment of subcontracting services may not be deducted or credited.

 

Payments for services in which personnel is placed at the disposal of the contractor may not be deducted or credited.  This, only in the case that: (i) the workers made available to the hiring party, were originally its employee, and (ii) when the workers made available perform the same predominant economic activities, according to the bylaws and business object of the hiring party.

 

The exception to the general rules applies only if the outsourced service consists on specialized services or, for the execution of specialized works, different from the predominant economic activity of the hiring party.  However, the application of such exception is subject to the condition that the person rendering the outsourcing services complies with the following: (i) is registered before the Ministry of Labor and Social Welfare (“STPS”), and (ii) it complies with the provisions of Articles 27, Section V of LISR and article 5, section II second paragraph of the LIVA.

 

2.-       Penalties.  If any of the aforementioned points are not complied with, the CFF establishes the following penalties:

 

  1. a) Deducting or crediting the payment for outsourcing services without complying with the provisions of articles 27, section V of the LISR and article 5, section II, second paragraph of the LIVA, will be considered as an aggravating circumstance in the commission of infractions. In addition, a fine of MXN$150,000.00 to MXN$300,000.00 will be applied for each failure to comply with the provisions of the articles.

 

  1. b) In the event that a taxpayer simulates schemes for the rendering of specialized services, the execution of specialized works or keeps its personnel outsourced, it will be equivalent to the crime of qualified tax fraud.

 

  1. Income Tax Law

 

1.-       Deduction requirements.  Regarding payments for the provision of specialized services or execution of specialized works, the hiring party must comply with the following: (i) verify that, at the time of the payment, the service provider is registered before the STPS, and (ii) request from the service provider a copy of the following:

 

  • The invoices covering the payment of worker’s salaries.

 

  • The receipt of payment of the withholding taxes made to the workers.

 

  • Payment of labor-management contributions.

 

  • Payment of INFONAVIT contributions.

 

III.     Value Added Tax Law

 

  1. A) Withholding of 6%. Pursuant to the Decree, the six percent (6%) withholding that was established in article 1-A, section IV of the LIVA, for cases in which a person benefits from outsourcing services, was repealed, and therefore, as of August 1st, 2021, it will no longer have to be withheld.

 

  1. B) Requirements for crediting. Now, in order for the value added tax to be creditable, in the case of subcontracting activities of specialized services or the execution of specialized works, when paying for those services, the hiring party must comply with the following: (i) verify that the service provider is registered before the STPS, and (ii) request from the service provider a copy of the value added tax return and acknowledgment of receipt of payment, corresponding to the period in which the payment was made.

 

In the event that such information is not collected, the hiring party must file a supplementary return in which it will have to reduce the amounts credited for those services.

 

We hope you find this information useful.  The complete publication of the Decree can be found through the following link:

 

https://www.dof.gob.mx/nota_detalle.php?codigo=5616745&fecha=23/04/2021

 

If you have any questions or comments, please contact us at the following e-mail addresses:

 

Rafael Tena Castro rtena@acsan.mx

Luis Kanchi Gómez lkanchi@acsan.mx

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INAI will file an action of unconstitutionality against the cell phone registry

On April 26th, the plenary of the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI by its initials in Spanish) approved to promote an action of unconstitutionality before the Supreme Court of Justice of the Nation, in connection with the amendment to the Federal Law of Telecommunications and Broadcasting approved on April 16th of this year, which implies the creation of a National Registry of Mobile Telephone Users, which will contain biometric, fingerprint and personal data of mobile telephone users.

INAI will file the aforementioned recourse since, among other issues, the reform allegedly violates the rights of mobile telephone users regarding personal data and affects their freedom of access to telecommunications.

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AMENDMENT TO THE FEDERAL LAW OF TELECOMMUNICATIONS AND BROADCASTING REGARDING MOBILE TELEPHONE USERS.

On April 13, 2021, the Senate approved, an amendment to the Federal Telecommunications and Broadcasting Law which implies the creation of a National Registry of Mobile Telephone Users (the “Registry”). With a very even voting, it was decided to approve the creation of a Registry that will contain biometric, fingerprint and personal data of mobile telephone users. It is also intended that the Registry contains the serial number of the user’s SIM card. The above, with the purpose of reducing crimes committed through the use of cell phones, such as extortion. In this sense, mobile telephone users shall provide the data required by the Registry in order to be able to contract and use a telephone line.

The discussion that took place in the Senate of the Republic raised concerns in Mexican society, derived from the opinion of some Senators who condemned the reform as unconstitutional for being an attempt against human rights. Even, there were opinions that described the reform as a characteristic of a totalitarian regime that hinders people’s freedom and strengthens the State’s control over the population. Likewise, the cost of the infrastructure and operation of this new Registry was discussed, which caused a stir among the Senators and resulted in opposing opinions in the understanding that some consider the implementation of the same to be a very burdensome economic expense.

Now the Plenary will discuss in particular the reserves to the opinion that reforms several provisions of the Federal Telecommunications and Broadcasting Law.

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PROVISIONAL SUSPENSION TO THE ENTRY INTO FORCE OF THE ELECTRICITY INDUSTRY LAW

Following up on our latest note related to the recent reform to the Electricity Industry Law that came into effect on March 10th, 2021, we hereby inform you that today, March 11th, 2021, the Second Judge in administrative matters specialized in Economic Competition, Broadcasting and Telecommunications, granted a provisional suspension to the entry into force of the decree to reform the aforementioned Law.

Although this suspension was granted to the complainant, the company “Parque Solar Orejana”, the court ruling established that in order to avoid distortions in the electricity market, the provisional suspension will be applicable to all participants of the “Wholesale Electricity Market”.

We will continue to inform you about the evolution of this and other legal consequences that derive from the decree to reform the Electricity Industry Law.

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Amendment to the Electricity Industry Law.

On March 10th, 2021, the “Decree amending and adding various provisions of the Electricity Industry Law” came into force (hereinafter the “Decree“), which was published in the Federal Official Gazette a day before, and that seeks to strengthen the Federal Electricity Commission (hereinafter “CFE“, as per its Spanish abbreviation).

The relevant aspects of the Decree focus on introducing new figures that will have direct consequences for the energy sector and the Mexican economy, which are: (i) Vested Electric Power Plant[1]; (ii) Electricity coverage contract and its modality with a physical delivery commitment; and (iii) Vesting contract for basic supply.

In general terms, these figures give preference to the consumption of electrical energy generated (hydroelectric and fuels) by the CFE and secondly, the energy generated by private investment (wind, solar, and combined cycle). Likewise, this Decree eliminates the obligation to carry out energy auctions that allowed individuals greater competitiveness to supply energy to the CFE.

On the other hand, the approval of the new electricity generation permits will be subject to the criteria of the Ministry of Energy (hereinafter “SENER” as per its Spanish abbreviation) and the National Electric System, as well as there will be greater freedom for the granting of Green-Energy Certificates (“CELs” as per its Spanish abbreviation), a situation that could cause a loss in its market value.

To materialize these changes, the Decree, within 6 months after the entry into force, orders SENER, the Energy Regulatory Commission (hereinafter “CRE“, as per its Spanish abbreviation) and the National Center of Energy Control, to modify and align with the Decree the provisions of electrical energy contained in the agreements, resolutions, guidelines, policies, criteria, manuals and other instruments that they have issued.

Likewise, it gives the CRE the power to (i) revoke the current self-supply permits that have been granted or processed fraudulently and under the Electric Energy Public Service Law; and to (ii) review the profitability and legality of the generation contracts of private producers.

It is relevant to distinguish that the electrical industry plays an important role in the climate change that we are experiencing. It seems that the consequences of the Decree will not allow a complete proactive collaboration between the public and private sectors that could mitigate price volatility and reduce CO2 emissions to the environment. We will follow up on the reactions and legal consequences that derive from this reform and will inform you promptly. In Acedo Santamarina we remain at your service for any query in relation to the Decree.

[1] Which is defined as a power plant that is not included in a permit to generate electricity, which is owned by the State and whose construction and delivery is independent of its financing modality.

Daniela Cervantes Escamilla

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