In January 2012 the Constitutional Court heard (File 2926-2011) the appeal of a March 2011 decision of the Supreme Court of Justice regarding an action brought by the attorney for human rights against the ministers of economy and energy and mines. The action accused the authorities of inaction and non-compliance with their obligation to safeguard consumer and user rights by failing to protect consumers against the National Energy Commission's approval of adjustments to electricity rates.

The claimant alleged that the contested authorities are legally obliged to protect consumers by designing and implementing policies to enforce the law in matters within their competence, such as the supply of electricity (the General Electricity Act provides that the minister of energy and mines is responsible for the National Commission of Electricity, a technical body of the Ministry of Energy and Mines which, among other functions, sets transmission and distribution tariffs). On the contrary, the minister of finance held that he lacked jurisdiction to intervene in the pricing of electricity, adding that his competence is regulated by the Consumer and User Protection Act, Article 2 of which states:

"[A]ll acts that take place between suppliers and consumers or users within the national territory, are subject to its provisions, except for public services regulated in specific legislation, whose performance must be controlled by the bodies that contemplated on such specific regulation."

Thus, in practice, the Directorate of Attention and Assistance to the Consumer (DIACO) has informed users of public services such as electricity that it cannot address their complaints because of the specific legislation mandating that such complaints be submitted to the National Energy Commission. The Ministry of Energy and Mines also noted that the commission – which, in accordance with Article 4 of the General Electricity Act, is functionally independent – is responsible for the performance of specific duties under the act, including the following:

"b) To ensure compliance with the obligations of the providers of the services, protect the rights of users and prevent conducts against free competition and unfair or discriminatory practices; c) Define the transmission and distribution rates."

Acting as a court of protection at first instance, the Supreme Court of Justice held that under Article 152 of the Constitution, government is defined according to the principle of legality, which implies that while the general public has the freedom to take all actions not prohibited by law, public officials can do only what the law expressly permits them to do, thus subordinating their actions to the law. Consequently, the Supreme Court of Justice denied the constitutional protection claimed, holding that the lack of action alleged by the claimant was supported in the applicable law, since the commission's activities are framed in accordance with the functions and powers granted to it by law.

The Constitutional Court upheld the decision of the Supreme Court of Justice regarding the action for protection and denied the appeal.

For further information on this topic please contact María Concepción Villeda at Mayora & Mayora by telephone (+502 222 368 68), fax (+502 236 625 40) or email ([email protected]).