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COFECE files constitutional controversy

On June 22, 2020, the Federal Economic Competition Commission (“COFECE” as per initials in Spanish) issued a statement informing that COFECE filed before the Supreme Court of Justice of the Nation (“SCJN” as per initials in Spanish), a constitutional controversy against the Agreement the Policy of Reliability, Security, Continuity and Quality in the National Electric System, issued by the Ministry of Energy, which was published in the Federal Official Gazette on May 15, 2020 (“SENER Agreement“).

The foregoing, for considering that it undermines the fundamental principles of competition and free market access ordered in the Political Constitution of the United Mexican States, affecting its constitutional mandate and braching its sphere of competence.

COFECE considers that the aforementioned policy is contrary to the content of articles 16, 28 and 133 of the Constitution, as well as to the applicable laws on electricity, which together establish a competition regime in the generation and supply of electricity. Likewise, COFECE expressly states:

The instrument published in the DOF seriously affects the economic structure of the electricity sector, as it eliminates any possibility of its operating in conditions of competition and efficiency, as well as under the terms set forth in the current national regulatory framework for this sector. Hence, the contested Policy compromises both the open and non-discriminatory access to transmission and distribution networks (an essential input in this industry), as well as the economic dispatch criterion that governs the operation of the wholesale electricity market; furthermore, it grants advantages in favor of certain participants while reducing the ability of others to compete, forefits efficiency and establishes barriers to entry in electricity generation.”

It remains to wait for the SCJN to rule on the constitutional controversy filed by COFECE. Particularly, regarding the scope of the SENER AGREEMENT, issued by such government agency, apparently in excess of its powers and invading the powers of COFECE itself, to the detriment of consumers.

It should be clarified that, from the legal point of view, a constitutional dispute is a constitutional control mechanism, in the form of a trial, to settle disputes. In this case, between an autonomous constitutional body and the Executive Branch, having effects the resolution issued by the SCJN only between SENER and COFECE.

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Measures announced by the SCJN for its activities from june 1 to 30

In accordance with General Agreements 3/2020, 6/2020 and 7/2020 issued during March and April 2020, the Plenary of the Supreme Court of Justice (“SCJN”), decided to announce certain measures for mitigating risks related to the COVID-19 disease, including the declaration as non-working days from March 18 to May 31, 2020.

On May 26, 2020, the Plenary of the SCJN issued General Agreement 10/2020, which extends the suspension of jurisdictional activities until June 30, 2020, in the understanding that during such period terms will not elapse, however, the days and hours that may be necessary for the development of the activities with the purposes mentioned below, will be enabled electronically or remotely:

a) Provide on the suspensions requested in urgent constitutional controversies and the judicial actions necessary for the effectiveness of such measures.

b) To present the initial writs within the competence of the SCJN only electronically, using the FIREL or e.firma, and to generate the corresponding electronic files.

c) Continue with the electronic processing of matters regulated in the Amparo Act, constitutional controversies, unconstitutional actions in which laws of annual validity or, electoral regulations, have been challenged, and the appeals filed in those means of constitutional control settled before the SCJN, or the appeals filed against urgent constitutional controversies presented since March 18, 2020, that go beyond the matter of suspension, through the use of FIREL or e.firma.

d) To digitize the documentation and to integrate the electronic files for the matters mentioned in subsection c) above, to continue its processing electronically.

e) Provide through electronic means the matters mentioned in sub-sections b) to d), and for notifications to be effected by writing or electronic list, as appropriate, as well as electronically.

f) To effect the service of process ordered in the proceedings initiated electronically since June 1st, 2020, and by writing to the respective authorities the orders that admit “amparo under review” remedies filed before or after the date herein mentioned.

g) To hold remote hearings and appearances.

h) To provide on the matters listed or that may be listed for the sessions the Plenary or Chambers of the SCJN may hold remotely; to announce the decisions taken in those sessions by writing or electronic means; to sign electronically the relevant additions and votes; and to make available the drafts of the resolutions through electronic means.

i) To notify the legislative bodies, the judgments issued by the Plenary of the SCJN, in unconstitutional actions or constitutional controversies, should the effects of the declaration of invalidity are subject to such notification.

j) To conclude the completion of the matters decided before March 18, 2020, by the Plenary and Chambers of the SCJN, to sign them electronically and to notify them by writing or through electronic sign.

The deadlines for submission of requirements ordered during the month of June 2020, and for filling appeals electronically against such requirements, will restart or begin only for the party that files his submission electronically. In the case of orders admitting “amparo under review” remedies, the period for its challenge will start from the date of the effectiveness of the notification made by writing or electronic list.

The measures above mentioned intend that the SCJN carry out its activities during June with the necessary precautions to face the SARS CoV-2 (COVID-19) pandemic.

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Suspension of jurisdictional activities is extended

As a result of the Resolutions reached in the meetings held on April 13, 2020, the Supreme Court of Justice of the Nation, the Council of the Federal Judiciary, the Federal Court of Administrative Justice and the Council of the Judiciary of Mexico City, decided to extend the suspension of jurisdictional activities that were originally set up until April 19, 2020, declaring as non-working the days from April 20 to May 5, 2020.

This extension was made with the purpose to be consistent with the “Resolution declaring the epidemic disease caused by SARS-CoV (COVID19) virus, as a health emergency due to force majeure”, and the  “Resolution establishing extraordinary actions to attend the health emergency caused by the SARS-CoV-2 virus”, both published in the Official Gazette of the Federation on March 30 and 31, 2020, respectively, where the suspension of non-essential activities was ordered to take place from March 30 to April 30, 2020, for reducing the dispersion, transmission, disease burden, complications, and deaths, that may be caused by the COVID-19 virus in the national territory.

Considering that the public service for the administration of justice is an essential function, the authorities adopted the necessary measures to maintain the operation of the courts giving priority only to urgent cases. For example, in the Resolution of the Federal Judicial Council, are considered as urgent cases, the execution of arrest warrants or freezing of bank accounts and matters in which people health or physical integrity is endangered.

Finally, the Resolutions of the Supreme Court of Justice of the Nation and the Federal Court of Administrative Justice refers to the possibility of holding the sessions that may be necessary, remotely, through the use of technological tools.

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