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Priego Brito & Guzmán Juárez Attorneys at Law
The new Mexican energy model regarding surface use and occupation: an attack against legality. Necessary adjustments and the cause of untimeliness.
An ineffective standard is like a coffee without caffeine.
The issue of land contracting is possibly one of the least valued and most neglected in the energy sector because it is considered complex, sensitive and risky. However, it is important to point out that it must be dealt with diligently, technically and ethically, since it is the basis of energy infrastructure projects. The negotiation, contracting and payment of considerations must be carried out in accordance with the best industry practices, conventionality and constitutionality, observing customs and the principles of equity, legality and equality, since most of the projects are of long duration, and their development and permanence depend significantly on good relations between the related parties.
The rule may be in force but not comply with its purpose (teleology), i.e., it may not be effective; the legislator would not be obtaining the expected effects or results that led to the creation of the provision. From the above, the following can be inferred: if society does not observe the rule, or the authority does not sanction it, it is a dead letter; however, that is not what is really serious, because the background is much more complex.
The normative purpose is to avoid or achieve an effect in behavior, in conditions or circumstances; it intends that a thought, an idea or the will manifested in the norm transcends into reality; if it is not achieved, if the results are not obtained, the environment decomposes, it becomes foul.
Such is the case of Article 75 of the Regulation of the Hydrocarbons Law (LH), which is transitorily applicable to the Hydrocarbons Sector Law (LSH). Therefore, this article intends, by identifying the problem, to improve the aforementioned provision, building a precept that is effective, functional, compliant and applicable, avoiding, with the wording ad hoc, continue to harm the regulated.
Prevention and regulatory improvement is possible, and in this case, we dare to qualify it as indispensable, since the Regulation of the Hydrocarbons Law is the cause of the setbacks, and its Article 75 is the obstacle that must be overcome to achieve order.
The reference to the HL Regulation is relevant, since it serves as a reference for the drafting of the HL Regulation, which is currently in process. In addition, many of the figures, processes, procedures, sanctions, deadlines and terms continue to be implemented today.
We reiterate that a great option, if not the solution, lies in modifying or eliminating the impeditive provision, since the risks, costs and consequences generate severe impacts in the social, public and economic spheres. The wording should consider, in the event of establishing a time limit, the exceptions, exceptions, as well as the penalty for non-compliance.
Oil and land occupation
A regulatory standard of this magnitude, involving oil, which has come to represent up to 13 % of the national gross domestic product (GDP), and more than 40 % of ordinary and fiscal revenues, is a major challenge for the company.[1], The law is regulated by a special law on special hydrocarbon matters, which regulates the hydrocarbon sector, and which is essential for the daily operation of the company's operations.[2] of the Mexican Constitution.
In this sense, the Mexican State, in order to ensure the fulfillment of its purposes, identifies, reserves and develops, by constitutional mandate, in an exclusive manner, activities that it classifies as strategic for economic development, growth, general interest, security and public utility. To this end, it prepares a National Development Plan.[3], The plan, which establishes the commitments, objectives and mechanisms to achieve them in each government administration. Delimiting it to the subject that concerns us, we observe in said plan the fundamental objective of oil production with Petróleos Mexicanos (Pemex), is set at 1.8 million barrels per day, which possibly implies contracting more land and higher payment of considerations.
Fulfilling this objective implies operational efficiency, but also regulatory effectiveness. In order to achieve this goal, the State is obliged to carry out strategic activities; this requires a rule of law with security, certainty and legality, as well as the occupation of land to carry out the activities of exploration, extraction, refining and transportation of hydrocarbons, which for their development require the soil and subsoil where the oil is found.
Civil law is fundamental in the contracting process; it is supplementary in hydrocarbons and agrarian law; likewise, the guidelines and contract models[4] The same is true in the case of real estate and real rights, including property, and it has already been determined that the competent authority that must validate the contract is the district judge in civil matters. The comment is made in order to point out that the Regulation must consider these aspects for its elaboration.
Consequently, in order to use, exploit or enjoy the surface or subsoil of such real estate, it is necessary to negotiate and contract with the owners or holders of the respective real rights, since in addition to containing the hydrocarbons, the activities of the value chain of the same, contained in Article 3 of the LSH, are carried out there, as well as the facilities, equipment and machinery.
For this reason, hydrocarbons are a matter of public order and social interest, and the use and occupation of surfaces is preferential over any other form of property. The foregoing reflects their importance: they are vital for Mexico's society and economy; therefore, for no reason should the activities of the oil sector be interrupted, impeded, hindered and much less made impossible by a regulatory assumption that, as evidenced, presents deficiencies.[5].
In addition, this leads to wasting time, delaying projects and unnecessary expenses, incongruously, instead of helping to speed up, promptly and expeditiously, it goes against, even knowing the lack of personnel and further overloads the Judiciary, giving it more work; the same happens to the government as regulated and to the companies, since in addition to remaining in uncertainty and in a state of non-compliance, they must file legal appeals fighting the resolutions contrary to the purpose.
It has become a practice in the Judiciary to apply the aforementioned jurisprudence from the outset when receiving an untimely request, becoming a vicious circle, loss of resources and non-compliance, since the prevailing criterion is to determine that if it is not filed within the term of 30 calendar days, the jurisdictional body cannot validate it and, consequently, cannot give it the character of res judicata, arguing that, according to the Federal Code of Civil Procedures, such term becomes a ground of inadmissibility; Therefore, the District Courts and the Unitary Agrarian Courts, in accordance with the procedural rules, proceed to dismiss the validation requests. The above has worsened, since, in the current practice, it turns out that the authority overlooks the ground of inadmissibility, being until the judgment stage that determines the impossibility of validating the contract because the agreement has been filed out of time, causing the regulated parties to spend more money and lose more time.
Responsibilities of private parties in mixed contracts
Now, this document intends to place us in the new reality, according to the new model, trying to improve the previous one, and for this purpose it is necessary to expose the reality experienced by the subjects regulated by the LH before and how the LSH is now.[6], We are referring to the assignees, contractors, permit holders[7] and I believe that it may get worse with the issue of participants, although the aforementioned Law does not expressly or, at least, clearly consider them to be directly regulated. It is clear that they can act as operators, who are responsible for the obligations inherent to them.[8] The Company is also required to pay hydrocarbon considerations for the use and occupation of the surface and rights of way over the land.
In the new energy model, the figure of participants plays an important role, under the mixed contract modality.[9], The new oilfields, derived from a Mixed Allocation, will involve numerous negotiations and contracts for surface rights. So much so that the director of Pemex foresaw that, by the end of 2025, it is estimated that they will contribute 66 thousand barrels per day (mbd) to production.[10] through the first 17 mixed contracts, pointing out several national private companies.
It is evident from published legislation and current energy policy, de jure y de facto, which recognizes the need for collaboration with the private sector. Based on the reformed Political Constitution,[11] The Secondary Legislation also offers other contracting modalities, among them, the figure of the participants.
In order to contextualize, it is important to point out the national contribution of the private sector to hydrocarbon production. For the above, we will take as a reference a recent official public data. By January 2025, they represented 5 % of the national production, with 88 mbd[12]. It is relevant to take the above percentage as a starting point, since the new mixed modality contemplates the probable production of the participants, which would result in approximately 154 mbd from the private sector and a production of 1,739,000 barrels per day, which would be equivalent to 8.86 %. Even with this contribution, there would be a 61 mbd differential with respect to the expected six-year average production target of 1.8 million barrels of liquid hydrocarbons per day.[13].
New contracts and considerations
The above offers areas of opportunity, but also challenges and challenges; it entails serious risks in terms of contracting surface areas and rights of way, both for public companies of the State and for private initiative, because it must be considered that the related contracts will be validated with a new Judiciary.
The regulated parties must continually contract surfaces, now also the assignees-permittees will do so, although it is not clear how they will implement Chapter IV. Use and Surface Occupation; meanwhile, the Guidelines for Mixed Development Schemes[14] were already published in the Official Journal of the Federation.
At this point, knowing the current legal reality and needs, it is necessary to go into depth, starting in an analytical way, from the general until we get to the particular subject, we will address the origin, forms, causes and consequences of the phenomenon in question.
Let us begin by considering the hierarchy, the normative subordination; let us start from the origin and the teleology of such mandate. To this end, it must be specified that the legislation (both the repealed Hydrocarbons Law and the current Hydrocarbons Sector Law) imposes very specific obligations to the regulated parties for the purpose of using or occupying the land surfaces, an indispensable element to develop several of the activities included in the value chain of the hydrocarbons industry, specifically those contained in article 3 of the Hydrocarbons Sector Law[15], These require equipment, strategic facilities, roads, and even safeguarding rights over the spaces or security strips determined, temporarily or permanently, on the properties where communication routes or hydrocarbon transportation lines are planned.
The origin of the considerations in accordance with the general terms and conditions, currently prevailing in terms of occupation or surface affectation and indemnities, derive directly from the Energy Reform Decree of the Political Constitution of the United Mexican States of 2013.[16], specifically in its eighth transitory article[17]:
Derived from the strategic nature[18], The activities of exploration and extraction of oil and other hydrocarbons, as well as the public service of transmission and distribution of electric power, are considered to be of social interest and public order, for which reason they will have preference over any other activity that implies the use of the surface and subsoil of the land affected by such activities.
The law shall provide the terms and general conditions of the consideration to be paid for the occupation or surface affectation or, as the case may be, the respective indemnification.
The temporal precept could not have been clearer. It fulfilled its function by regulating at that time the transition process between the expropriation and appropriation regimes.[19] The second paragraph of the aforementioned transitory provision states: «The Law shall provide the terms and general conditions of the consideration».
The constitutional precept established the guidelines, magnitude and hierarchy of the provision: social interest, i.e., collective, well above the individual; it also decrees it to be of public order, thus limiting the freedom of individuals, subjecting the validity of their acts, being subject to nullity in case of affecting the fundamental interests of society, establishing the position of primacy of the common welfare, the public interest, over private interests, granting it the category of preferential.
In a secondary manner, the Legislative Branch processed the respective Law on hydrocarbons, in compliance with the second paragraph of the aforementioned constitutional transitory provision: «The law shall establish the terms and general conditions of the consideration to be paid for the occupation or surface affectation or, as the case may be, the respective indemnification». Thus, Chapter IV. Surface Use and Occupation, contained in Title Four. Provisions Applicable to the Hydrocarbons Industry, comprised of 17 precepts, numbered from 100 to 117, which established the concepts, processes, procedures, forms and times to occupy the territorial surfaces included within the areas where the Mexican State awards rights to carry out specific activities of the hydrocarbons value chain.
From a current perspective, with the energy reform of 2024 substantial changes were introduced, starting with the repeal of the Hydrocarbons Law, and the publication on March 18, 2025 of the new Hydrocarbons Sector Law, which retained several of the figures, rights and obligations of its predecessor, including Chapter IV. Of the Surface Use and Occupation, with some variations, but in essence the negotiation, contracting, valuation and judicial validation processes are similar.[20], The Company must adhere to the bases, which contain the same nine points, to the Guidelines and to the model contracts issued by the Ministry of Energy (Sener), currently in force in 2016, and to the provisions of the LSH.
Legal aberration
While the Sener prepares the regulations and the Guidelines, those still in force under the HL continue to apply, so that Article 75 is still in force, but there is also case law on the subject.[21] The lack of regulatory technique has reached the point of contradiction of thesis, as we pointed out. As can be seen in the transcription, article 75 of the Regulations of the Hydrocarbons Law establishes a mandatory term for the presentation of the contract to the competent judicial authority, by means of the respective request through the voluntary jurisdiction procedure[22], The presentational act shall be limited to a period of 30 calendar days after the signing of the contract:
For the purposes of Article 105 of the Law, the Assignee or Contractor shall submit in writing to the competent jurisdictional body and to the Ministry of Agrarian, Territorial and Urban Development, the agreement reached as referred to in said provision, within thirty calendar days following the execution thereof.
This error was extended to the Guidelines and Model Contracts for the use, enjoyment, affectation or, as the case may be, acquisition of land, goods or rights to carry out the activities of exploration and extraction of hydrocarbons and transportation through pipelines, which obviously should be considered prior publication of the next ones. Currently they state:
THIRTY EIGHTH - Presentation of the contract before the authority. -It will be established that the Promoter will submit to the Unitary Agrarian Court or District Judge in civil matters, as the case may be, the contract for its validation and will deliver a copy thereof to the SEDATU, the National Hydrocarbons Commission or the Energy Regulatory Commission, according to their competence.
...Annex B
TWENTY-SIXTH. PRESENTATION OF THE CONTRACT BEFORE THE AUTHORITY. The (PROMOVENTE) undertakes to submit a copy of this Contract within thirty calendar days following the date of its execution to the Ministry of Agrarian, Territorial and Urban Development.
The (PROMOVENTE) undertakes to submit this Contract within thirty calendar days following the date of its execution before the Unitary Agrarian Court or District Judge in civil matters, whichever is competent, as the case may be, in order to validate it and grant it the character of res judicata.
As can be seen, Article 75 is an effect, because the cause is Article 105, therefore, if the purpose of what is stated in the main article, the basis of the mandate, continent of the Secondary Law, derived from the constitutional mandate, is not achieved, we are faced with a legal aberration, a legal nonsense and contradiction that goes against the essence of the norm, prevents it from being complied with, going much further, affecting and attacking an entire strategic sector of the Mexican State, pillar of the economy, guarantor of the primordial human rights because, to conclude soon, without energy the State would be destined to chaos.
Therefore, neither the secondary law in Article 105 of the LH, nor the current LSH, establish limits or times, since the same dynamics and nature of the sector, its related parties and interested parties set the guidelines, since by logic, legality and finally for safety and ethics, no one enters a property without contracting, since it would be a crime; the actions or omissions, as well as the forms, are monitored, supervised and inspected by the competent authority, they have the powers to do so, in addition to responsibility.
Penalties for noncompliance
As mentioned above, the use and occupation of land is part of a whole project, of a whole process; land cannot be occupied without contracts, much less without payment of considerations, because Articles 85 and 114 of the previous Law, as well as the current one, provide for sanctions against the disregard of such orders, which are substantial and extreme in some cases.
Section 105 of the LH and 137 of the LSH, without substantive changes, expressly state:
Article 137.- The agreement reached at any time between the parties must be presented by the assignee, contractor or pipeline transportation licensee before the competent District Judge in civil matters or Unitary Agrarian Court, so that it may be validated, giving it the character of res judicata.
For the above, the Agrarian Unitary Judge or Tribunal must proceed to:
- Verify whether the formalities required by this Law and, as the case may be, by the Agrarian Law and other applicable provisions have been complied with, and
- Order the publication of an extract of the agreement reached, at the expense of the Assignee, Contractor or Permit Holder of Transportation by pipeline, in a newspaper of local circulation and, if applicable, in the most visible places of the respective ejido.
The District Judge or Unitary Agrarian Court must issue its decision, which has the character of a judgment, within fifteen days following the first publication referred to in Section II above, provided that it is not aware of the existence of a pending lawsuit involving the land, property or rights in question.
Only an amparo proceeding may be filed against the resolution issued.
As can be seen, the agreement can be presented at any time, since strategic activities should not be interrupted or stopped for any reason, except for security reasons. In addition, as mentioned above, there are penalties for non-compliance, as in any other procedure, process or authorization, but there are also programs, reports and systems to inform, monitor and control, even as can happen with any provision, whether permissive or prohibitive. It could be disregarded, as would be the case of building without a permit, stealing, driving without a license, hunting endangered animals, among thousands of assumptions, but therefore there are consequences for non-compliance, including sanctions, which may consist of: fines, infractions, penalties, disqualifications, being in this case economic and can reach up to the revocation of permits or termination of contracts. This is how the law works.
But what cannot be is that a norm of lower rank attempts or makes impossible the teleology of a superior norm, since the purpose of the norm in this case is to validate and elevate the act to the category of res judicata, so the judge must always validate, as long as the forms and bases are complied with. Therefore, the law empowers him for such purpose by means of two very precise acts of authority: 1) to verify the compliance; and 2) to publish for the protection of third parties, registering such act before the corresponding organ in charge of giving publicity, such as the Public Registry of Property, the National Agrarian Registry or the Federal Public Registry of Property, including the time of 15 days to issue the sentence. The foregoing is very delicate because, in addition to the State, it is also an attempt against society and the rights of third parties are seriously violated.
Finally, the article foresees and indicates which is the only cause for which it cannot be validated, understanding that the act is conditioned to the fulfillment of the cause, but it would never prevent the end of the validation, because being a voluntary jurisdiction, there is no litis, there is no lawsuit, the principle does not apply Non bis in idem, and it can occur as many times as necessary until the end is achieved. For the sake of emphasis, the purpose of the rule is that it is validated, that it is complied with, not that it is not complied with, nor that it is invalidated; therefore, just consider the following assumption: «provided that it is not aware of the existence of a pending lawsuit involving the land, property or rights in question.».
Opportunity to correct
For all of the above, it is in this transitory period when this phenomenon should be observed and remedied, either as we pointed out with its elimination, or with an adequate wording that considers the existing possibilities in reality, so that a contract after being signed can be presented after the 30 days before the judicial authority for its validation. Many of them are quite logical and simple, but unfortunately they were not considered, leaving to arbitrariness the application of the provision and finally, almost as a matter of course, the Judiciary, without going into depth, discards it as soon as it realizes that it is outside the 30 days.
This generally happens without assessing the causes, which may be multiple, but can always be remedied, because it is a voluntary compliance procedure, subject to verification, like the many others that exist in the legislation and in different matters. For example, it can be a lack of form, from a document, the power of attorney, an identification, doubts or disagreements in the formats, for which many times they reject, without warning; it can also result from a new presentation of the application, as a consequence of a rejection, for any lack in the bases, which can be corrected, but when it is presented again, by logic the famous 30 days will have passed. In the worst case, it could be simply because the regulated party missed the deadline for any circumstance; this reason cannot and should not be an impediment to validate and even less to comply with the Law.
In any case, such action or omission is deserving of a sanction, but it is absolutely no reason to fail to comply with the norm, to undermine the effectiveness and nullify the essence of the validation process, which is the certainty, legality, protection and above all the control of the strategic sector. It is totally disconcerting that something like this should happen.
The foregoing paragraphs require reflection and analysis, in order to find a solution to the impeditive provision, without entering into issues of antinomy, normative subordination, reservation of law, supremacy and hierarchy, which have been discussed by the highest authority, ending in judicial controversies.
The point is that the provision in question generates a state of illegality, overpricing, unnecessary expenses, complications in logistics, payment of fees, consumables, and even opens a window to extortion and corruption, since the obligor remains in the hands of the owner of the land or the authority.[23], It has no legal way to comply with the law, but it must also comply with the object and obligations of its contract, permit or assignment title. It is a vicious circle.
We are in time and in shape to build a better hydrocarbon sector, starting from the base: regulations. Let's put in the caffeine!
Author: Erik Manuel Priego Birto
Notes:
[1] We refer to the years 1983 and 2008.
[2] Article 1.- This Law regulates Articles 25, paragraph five; 27, paragraph seven and 28, paragraph four of the Political Constitution of the United Mexican States with respect to Hydrocarbons.
[3] National Development Plan 2025-2030. Presentation. «...The fundamental objective of oil production with PEMEX, which will be set at 1.8 million barrels per day, will continue to be domestic consumption.». p. 18.
[4] We refer to those issued by the Ministry of Energy, published in 2016: AGREEMENT issuing the Guidelines and Model Contracts for the use, enjoyment, affectation or, as the case may be, acquisition of land, goods or rights to carry out the activities of exploration and extraction of hydrocarbons and transportation through pipelines.
[5] This article does not intend to justify or expose the causes for which the regulation, or in this case the Hydrocarbons Law Regulation, presented deficiencies, however, to contextualize an opinion is presented in this regard: During the drafting of the regulation, the Executive Power in Mexico was under extreme pressure, there were moments of political, social and economic tension, which even exceeded the national scope, great commitments had been acquired internationally, with real powers. The above, tinged by the system's own causes, which did not allow the development of suitable hypotheses and foresee some adverse assumptions, influencing the generation of several vague, ambiguous, confusing and contradictory articles, opening the door to a broad interpretation. Even, in cases, precepts of impossible compliance, when certain situations arose, such as article 75 of the RLH, in which they did not optimally dimension its scope and consequences, since its purpose was to ensure compliance, pretending the contract to be presented before the corresponding authority, It ended up being an impediment to comply with the purpose of the Law, which is to validate the contract and provide it with the force of res judicata, which becomes impossible when the request and the jurisprudence are rejected, as a consequence of the precept, which also turns out to be an imperfect norm, since it does not consider a specific sanction to the act provided. It is possible that such normative insufficiency responds to the prevailing conditions at that historical moment, for this, it is worth recalling some events that allow us such conjectures. The 2013 reform was part of several structural reforms, eleven to be exact, in several matters, which had to be addressed in express time by the legislators in office, considering that at that time there were several parties in power, with diverse ideologies and interests, so the partisan struggle was a considerable factor. The consequence of having limited resources, both in terms of knowledge and empirical knowledge, indispensable in this matter; in addition to methodology, observation and analysis in the field; human talent; recently created entities, structures and organizations; limited budget according to the dimension and objectives; absurd time; incompatible referential models from other countries, with structures, capacities and culture different from ours. All this accumulation of factors and adverse conditions generated cases of error, many of them related to regulations. To put the above into perspective, it is enough to cite as an example the initial phase of implementation of the reform, from that moment on, fragility in the implementation, the possible risks, the lack of analysis and foresight on the part of the authorities. The Constitutional Energy Reform Decree, published on December 20, 2013, ordered in its fourth transitory article the Congress of the Union to issue the regulatory framework, in this case, the required secondary laws, within 120 calendar days, which ended on April 20, 2014, however, However, the Hydrocarbons Law was published until August 11, 2014. Few mention this small detail, which was repeated with all the legislation, but the reality is that the constitutionally mandated time to transit was not complied with, not for a few days, but for almost four months after the deadline expired.
[6] According to Article 132.- The consideration, terms and conditions for the use, enjoyment or affectation of the land, goods or rights necessary to carry out the activities of Exploration and Extraction of Hydrocarbons, as well as for the Transportation by pipeline, must be negotiated and agreed between the owners or holders of such land, goods or rights, including real, ejido or communal rights, and the Assignees, Contractors or Permisionaires of Transportation by pipeline. It does not seem serious, but in practice, already in the operation, it can be extremely complex. We do not know clearly the rights and obligations, scopes or application in relation to several titles and chapters that contain specific figures and procedures, such as the one mentioned in the example, since they are not clearly enabled, questions of interest or legitimization could arise. The foregoing is appreciable upon reviewing Article 5 of the LSH, as well as various procedural provisions, such as the aforementioned Article 132.
[7] As a curious fact, it can be seen that, within the general changes in the entire LSH, the great majority of figures and subjects changed from masculine to feminine gender, for example: from assignee to assignatary; authorized, authorized; permit holder, permit holder, etc.
[8] There are many, mainly those contained in the Hydrocarbons Law, the Hydrocarbons Sector Law, the Law of Petróleos Mexicanos, regulations, administrative provisions, the contract, permit or assignment title, among others: They must obtain and maintain the authorizations, permits and registrations required to operate, including issues related to land contracting.
[9] This figure or its origin should not be confused with the one implemented in civil and commercial matters, for example, in the case of the sales contract, which may be civil, commercial or mixed, i.e., the contract may be civil for one of the parties and commercial for the other.
[10] Data obtained from the web page of The Economist: https://www.eleconomista.com.mx/empresas/pemex-inicia-primeros-contratos-mixtos-privados-julio-20250324-751738.html
[11] Political Constitution of the United Mexican States. Regulatory. In the case of oil and solid, liquid or gaseous hydrocarbons in the subsoil, the property of the Nation is inalienable and imprescriptible and no concessions will be granted. With the purpose of obtaining income for the State that will contribute to the long-term development of the Nation, the latter will carry out the activities of exploration and extraction of oil and other hydrocarbons by means of assignments to public companies of the State or through contracts with them or with private parties, under the terms of the Law.
[12] According to data from the National Hydrocarbons Commission (CNIH), in its January 2025 report: The national production of liquid hydrocarbons, up to that date, was 1,673,000; of which 1,585,000 correspond to allocations, corresponding to 95 % of the total production. The IP produced 88,000 barrels per day, of which 62,000 corresponded to Rounds; 7,000 to Farmouts; and 19,000 to migrations. Source available at:
[13] Data obtained from Pemex's 2025-2030 Work Plan. Second strategic action:
[14] Approved in session 1035 of April 22, 2025, by the Board of Directors of Petróleos Mexicanos (Capemex), Agreement CA-025/2025. Guidelines for the Mixed Development Schemes of the State Public Company, Petróleos Mexicanos.
[15] Law of the Hydrocarbons Sector. Article 3.- The purpose of this Law is to regulate the following activities in the national territory: I. The Reconnaissance and Surface Exploration, and the Exploration and Extraction of Hydrocarbons; II. The Treatment, refining, import, export, commercialization, transportation and storage of petroleum; III. The processing, compression, liquefaction, decompression and regasification, as well as the import, export, transportation, storage, distribution, marketing and sale to the public of natural gas; IV. The formulation, transportation, storage, distribution, import, export, marketing, sale to the public and dispatch for self-consumption of petroleum products, and V. The import, export, commercialization, transportation and storage of petrochemicals.
[16] DECREE reforming and adding various provisions of the Political Constitution of the United Mexican States, in Energy Matters: Eighth.
The mining concession titles in force at the date of entry into force of this Decree and those granted thereafter will not confer rights for the exploration and extraction of oil and other solid, liquid or gaseous hydrocarbons, without prejudice to the rights provided for in their own concessions. The concessionaires must allow the performance of these activities. The law will provide, when technically possible, mechanisms to facilitate the coexistence of the activities mentioned in this transitory provision with others carried out by the State or private parties. Consulted in DOF: 20/12/2013.
[17] It is important to know the genesis of the considerations, however, it should be clarified that by DECREE amending the fifth paragraph of article 25, the sixth and seventh paragraphs of article 27 and the fourth paragraph of article 28 of the Political Constitution of the United Mexican States, in matters of strategic areas and companies, which states in the Third Transitory Article: "The Transitory Articles of the Decree amending and adding various provisions of the Political Constitution of the United Mexican States, in matters of energy, published in the Official Gazette of the Federation on the twentieth day of December of the year 2000, are repealed. The transitory articles of the Decree by which various provisions of the Political Constitution of the United Mexican States are reformed and added, in matters of Energy published in the Official Gazette of the Federation on December twentieth, two thousand thirteen, that oppose the provisions of this Decree are repealed. It should be noted that only that which opposes said Decree is repealed.
[18] Note: Bold or underlined text is used to highlight the importance of the concept. It is also important to point out that the strategic nature, which derives from the CPEUM: The public sector will be exclusively in charge of the strategic areas indicated in Article 28, fourth paragraph of the Constitution, with the Federal Government always maintaining ownership and control over the State productive agencies and companies that may be established, as the case may be. With respect to the planning and control of the national electric system, and the public service of transmission and distribution of electric energy, as well as the exploration and extraction of oil and other hydrocarbons, the Nation will carry out such activities in terms of the provisions of the sixth and seventh paragraphs of Article 27 of this Constitution. In the aforementioned activities, the law will establish the rules relating to the administration, organization, operation, contracting procedures and other legal acts entered into by the State productive companies, as well as the compensation regime for their personnel, in order to guarantee their effectiveness, efficiency, honesty, productivity, transparency and accountability, based on best practices, and will determine the other activities they may carry out.
... Under criteria of social equity, productivity and sustainability, we will support and promote social and private sector enterprises of productive resources, taking care of their conservation and the environment.
... The law shall encourage and protect the economic activity carried out by individuals and shall provide the conditions for the development of the private sector to contribute to national economic development, promoting competitiveness and implementing a national policy for sustainable industrial development that includes sectorial and regional aspects, under the terms established in this Constitution.
[19] The terms refer to the ownership of hydrocarbons, because although it is true, it was clarified that the oil belonged to the nation, it was added that such assumption applied while it was in the subsoil, because in reality, the private initiative could participate and carry out all the activities of the value chain, because after the extraction it was possible even the commercialization. The 2013 Reform Decree, in Article 25, stated: In any case, the hydrocarbons in the subsoil are property of the Nation and it must be so stated in the assignments or contracts.
[20] Commercial extraction is eliminated, a confusing paragraph is inserted, which refers to hydrocarbon extraction projects and then points to paragraphs a and b: «In the case of hydrocarbon extraction projects, the consideration referred to in paragraphs a) and b) above must be evaluated over time, in accordance with the methodology established for such purposes by the Ministry of Energy».
[21] The issue has been so controversial and harmful that it reached the highest interpretative level; it was debated and resolved by the Supreme Court of Justice of the Nation, through resolution by Contradiction of Thesis 49/2017. Jurisprudential Thesis with Digital Registry 2014807:Suprema Corte de Justicia de la Nación. Digital Record: 2014807. Instance: Second Chamber. Tenth Epoch. Subject Matter(s): Administrative. Thesis: 2a./J. 85/2017 (10th.). Source: Gazette of the Judicial Weekly of the Federation. Book 45, August 2017, Volume II, page 920. Type: Jurisprudence. HYDROCARBONS. THE AGREEMENT OF USE AND SURFACE OCCUPATION FOR ITS EXPLORATION AND EXTRACTION, MUST BE FILED WITHIN 30 CALENDAR DAYS AFTER ITS EXECUTION, SO THAT THE JURISDICTIONAL BODY CAN ENDOW IT WITH THE CHARACTER OF RES JUDICATA. Pursuant to article 105 of the Hydrocarbons Law, the agreement reached in the matter of use and occupation of the surface for the exploration and extraction of hydrocarbons must be filed before the District Judge in Civil Matters or the competent Agrarian Unitary Court, which is not a mere formality, since the article is categorical in stating that the jurisdictional body will validate it, that is, the authority is empowered to analyze the particularities of the matter and the compliance with the applicable regulatory requirements; Therefore, only in the event that the jurisdictional body has validated the agreement reached, it may acquire the character of res judicata. For such purpose, the law itself empowers the judge to analyze the rest of the applicable normative provisions in the matter, among which is Article 75 of the Regulations of the indicated law, which requires the presentation of the agreement within 30 calendar days after its execution. Thus, the requirement of a term responds to the idea of having the highest degree of legal certainty possible due to the importance of the matter, as well as to the purpose of having the jurisdictional body analyze the agreement reached within a term close to its execution, which presupposes the subsistence of the circumstances that gave rise to it. Likewise, the presentation of the agreement within the aforementioned term allows the publication of an extract in a newspaper of local circulation or, if applicable, in the most visible places of the respective ejido, so that third parties that may be harmed may go before the jurisdictional body and allege what is convenient to their rights; that is, the law intends that the validation study be carried out close to the date in which the agreement was reached, in order to avoid a potential affectation to third parties in a prolonged manner. Therefore, if the agreement reached within the aforementioned term is not presented, the court will not be able to validate it and, consequently, will not be able to give it the character of res judicata.
[22] The issue of jurisdiction and the means of action, as well as the forms of action included in the legislation and related provisions, are not the subject of the present study. As in the case of Article 75, the failure gave rise to numerous interpretations, which ended up in injunctions, revisions and finally in jurisprudence, precisely because of the lack of legislative technique. Such errors cost millions of pesos to the governed and to the State.
[23] There were cases of audits by the CNH for non-compliance with Articles 100, 101 and 105 of the Hydrocarbons Law. The problem is that Articles 85 and 114 of the Hydrocarbons Law allowed broad interpretations.
