On April 7, 2022, Justices of the Supreme Court resolved the Constitutional Trial 64/2021 filed by the Minority of the Senators against the reform passed by the Mexican Congress to the provisions of the Electric Industry Law (the “Reform to the EIL”). For Foley’s comments to the Reform to the EIL, please read here.

Justice Loretta Ortiz Ahlf oversaw drafting the resolution. Justices Zaldívar, Gutiérrez Ortiz Mena, and Esquivel considered that the Reform to the EIL is consistent with the provisions of the Mexican Constitution, and therefore the Constitutional Trial should be dismissed. For context, the target of the Constitutional Trial is that the Supreme Court resolves and declares the unconstitutionality of the law, in this case the Reform to the EIL. In order to reach the declaration of unconstitutionality, a super majority of eight of the 11 Justices is required. In this case, the votes were seven to four; therefore, the Reform to the EIL was not declared unconstitutional and the Reform to the EIL will be applicable.

Next steps

1. On February 22, 2022, the Supreme Court ordered the First and Second Circuit Courts Specialized on Antitrust Matters to suspend the resolution of the Amparos filed against the Reform to the EIL, until the Constitutional Trial were resolved by the Supreme Court.

2. The Supreme Court shall either assume jurisdiction to resolve the Amparos or order the First and Second Circuit Courts to continue with the resolution.

3. The Supreme Court may resolve the Amparos by 11 Justices if the Supreme Court considers that the Amparos should be resolved by the full court or by five Justices in each of the two courtrooms of the Supreme Court. A simple majority is required, in either case, to resolve the Amparos.

4. If the Supreme Court orders the First and Second Circuit Courts to resolve the Amparos, a simple majority of two of the three Judges is required to resolve the Amparo in each Courtroom.

Implications of the Supreme Court’s resolution for the Energy industry

1. The injunctions already granted by the District Courts suspending the effects of the Reform to the EIL in favor of claimants, and for those that are in the same situation as of the claimants, will remain in effect until the remedies of appeal filed by the Mexican government against such injunction are resolved by the Circuit Courts, either confirming or revoking the injunction or regulating the effects of the same.

2. Considering that, the Supreme Court’s resolution did not reach the votes required to consider the Reform to the EIL as unconstitutional, the Amparo trials will continue.

3. The Amparos shall be resolved by the Courts, without being required, to follow or adopt a specific criteria of the Supreme Court, although, it is worth mentioning that seven of the 11 Justices considered that the provisions of the Reform to the EIL are unconstitutional. This could be a guide for the Courts to resolve the Amparos, however not mandatory.

The companies that did not file for an Amparo against the provisions of the Reform to the EIL, and that were resting on the injunctions granted by the District Courts and waiting for the resolution of the Supreme Court on the Constitutional Trial, have to consider the possibility to file for an Amparo. These companies will be required to wait until the first application of the Reform to the EIL to file for the Amparo.