More rights for consumers in their disputes with the CFE

More rights for consumers in their disputes with the CFE

In the recent changes in the Amparo laws there were provisions to nullify acts or private parties but this had never been applied against the Comision Federal de Electricidad (CFE). Article 5 of the new Amparo law states that private parties can be considered as a responsible authority when they do acts equivalent to a governmental authority and whose functions are subject to general norms.

This is the actual case of the CFE when it charges consumers excessively as it is the only provider of electricity services and consumers are forced to comply with their decisions which are dictated by the Secretary of Economy, dismissing the principle of freedom to enter into contracts that governs dealings between private parties. Moreover the contractual relationship between the CFE and users of its service cannot be considered the same as contracts between private parties but as administrative contracts that are not commercial in nature, nor are for profit or commercial speculation. Consequently administrative remedies would be the appropriate action to take against them.

For this reason, the Mexican Supreme Court took away the barrier that has protected the CFE from nullity lawsuits to fight electricity shut offs, adjustments or excessive service charges.

The second chamber of the high court determined yesterday that lawsuits against the CFE are proper in the Federal Tax and Administrative Tribunal (TFJFA), which indicates a change in their position that had been in place since 2009.

Although a suit in the TFJFA is not an Amparo, it may include a restraining order against acts of authority which implies that a private party may sue and avoid having their electricity cut off, for example.

In its decision, the second chamber of the Court pointed out that against acts of the CFE in their capacity as an exclusive provider of public electricity services, a review appeal as provided for in Article 83 of the Federal Law of Administrative Procedure or a Nullity suit as provided for in Article 14, section XI of the Organic Law of the Federal Tax and Administrative Tribunal; without prejudice to the consumer's right to file an amparo when it would be normally appropriate.