Recent Jurisprudence – Federal Electricity Commission: Issued Payment Notices Are Not Acts of Authority

On October 5, 2011, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN, for its acronymin Spanish) approved court opinion 2a./J. 167/2011 (9a.), titled; “Federal Electricity Commission: The paymentnotice issued for the provision of electricity does not constitute an act of authority for purposes of theadministrative appeal or an administrative lawsuit before the Federal Tax and Administrative Justice Tribunal.”In the previously mentioned opinion, published in the Weekly Federal Court Report in January 2012, the SecondChamber deviates from the criteria established in opinions 2a. CXXX/2010 and 2a. CXXXI/2010, whichdetermine that an administrative appeal provided for by the Federal Law of Administrative Procedure shouldproceed in accordance with the payment notices issued for electricity services provided by the Federal ElectricityCommission (CFE, for its acronym in Spanish). According to the Second Chamber, the previous is true, giventhat the legal relationship existing between the individual user of electricity services and the CFE does notconstitute one of authority or subordination but rather a relationship of cooperation between such entity and theindividual, deriving from the voluntary agreement where both parties acquire reciprocal rights and obligations,without the nature of such relationship being changed by any defense asserted against acts by the CFE, such asthe payment notice issued for the provision of electricity services. The result of this opinion is that individualsand entities may no longer appeal the payment notices from the CFE by administrative appeals or lawsuits. As aresult of this new court opinion and given previous opinion number 2a./J.112/2010 titled “Federal ElectricityCommission. The payment notices for electricity services, including those with a disconnection of serviceswarning, is not an act of authority for purposes of an amparo lawsuit,” it will be extremely complicated andcostly for users of electricity services to challenge such acts.