Parties: CRE and others v. Ministry of Energy and another without collective protection
Court: Federal Court of Caleta Olivia
Chamber / Court / Constituency / Nomination:
Date: May 31, 2024
Collection: Failures
Quote: MJ-JU-M-151762-AR|MJJ151762|MJJ151762
As a precautionary measure, gas distribution or sub-distribution companies must refrain from applying increases of more than 300% compared to the same billing period of the previous year.
Summary:
1.-It is appropriate to order the suspension for a period of six months, of the effects of Resolutions No. 41/2024 of the Ministry of Energy of the Nation and 122/2024 and 224/2024 of Enargas and order the latter to communicate in immediately apply the precautionary measure to the distribution or sub-distribution companies so that, during the six-month period of its validity: a) they refrain from applying increases of more than 300% compared to the same billing period of the previous year, and b) that if sums lower than that limit have already been applied and received, they compensate for the surplus in the billing of the immediate and subsequent periods, since the elements provided allow us to infer that the new gas rates are, prima facie, in violation of the principles of reasonableness, predictability and graduality in tariff matters.
2.-When art. 4°, inc 3°, of Law 26854 describes what is related to the ‘prior report’, it allows (but does not impose) to dispense with it when the precautionary measure is intended to protect socially vulnerable sectors or a dignified life is compromised, health or a right of a food nature; This is what happens when a disproportionate increase in the price of gas rates has been invoked in a geographical area that enters the winter period, when consumption is necessarily increased.
3.- Since art. 19 of Law 26854 provides that its text is inapplicable to amparo actions (except in arts. 4 inc. 2, 5, 7 and 20), the precautionary claim must be examined as a ‘request for the issuance of an innovative measure’ (based on art. 232 of the CPCCN)
Failed:
NR: Please note that this ruling is not final.
Caleta Olivia, electronically signed on the date listed at the bottom of the page.
The plaintiff is hereby deemed to have filed an appeal against the order issued on page 77.
Without prejudice to the grounds put forward by the appellant and entering into a new analysis of the issue to be resolved, I must emphasize that when art. 4° inc 3° of Law 26,854 describes what is related to the ‘prior report’, it allows (but does not impose) to dispense with it when the precautionary measure is intended to protect socially vulnerable sectors or when decent life, health is compromised. or a right of a food nature. This is what happens in the case under analysis, where a disproportionate increase in the price of gas rates has been invoked in a geographical area that is entering the winter period, when consumption is necessarily increased.
Hence, the declaration of unconstitutionality of art is unnecessary. 4 of Law 26,854, being able to simply enter into the analysis and decision of the precautionary claim, omitting the prior report. For these purposes, the ruling of pages will be partially revoked and on the contrary imperative. 77 in point 3, and the proposal relating to point 4 will be rejected as abstract.
Having clarified the above and since art. 19 of Law 26,854 provides that its text is inapplicable to amparo actions (except in articles 4 inc. 2, 5, 7 and 20), the precautionary claim will be examined as a ‘request for the issuance of an innovative measure’ (with based on article 232 of the CPCCN).
I find the requirements of any precautionary measure met, as explained below.
Both the National and Provincial States have sanctioned regulations through which the emergency has been declared with regard to the transportation and distribution of natural gas.
Decree 55/2023 states:
‘. Article 1.- The emergency of the National Energy Sector is declared with respect to the segments of transportation and distribution of natural gas. Article 3.- The start of the tariff review is determined. Corresponding to public service providers. Transportation and distribution of natural gas.’.
And expresses the art. 1 of Provincial Law No. 3849:
‘. The energy emergency is declared throughout the territory of the Province of Santa Cruz, effective from the publication of this document and until December 31, 2024, understanding that gas and electricity are essential services due to the low temperatures and extreme climatic conditions of our Province.’.
In addition, from reading the initial document and the service invoices accompanied by the amparistas, it is noted that there have been increases of more than 450% for the month of June, estimating an average increase of 802% for the month of July. All of this in relation to the residential users of the ‘Chubut Sur’ area, which includes the Departments Deseado, Lago Buenos Aires, Magallanes and Río Chico (where important towns such as Caleta Olivia, Cañadón Seco, Pico Truncado, Koluel Kaike, Las Heras, Perito Moreno, Los Antiguos, Lago Posadas, Fitz Roy, Jaramillo and Puerto Deseado, among others).
As an example, it is noted that one of the litigation partners recorded an increase in the fixed charge from $1,204.30 to $16,006 and in the price of a cubic meter of gas from $22.99 to $79.25 (fs.73/75).
The extremes indicated in the previous paragraphs allow us to infer in this incipient procedural state that the new gas rates are, prima facie, in violation of the principles of reasonableness, predictability and gradualness in tariff matters.
Regarding the danger in the delay, the weather conditions and the time of year in which it is entered, added to the consequent need for a greater consumption of cubic meters of the element, are situations of public and well-known knowledge that relieve me of greater need. evidentiary From this and analyzing this particularity with the excessive increase to which I alluded in previous paragraphs, I conclude that there is a high probability of situations of financial impotence of users to face the cost of the essential service that allows them to maintain a standard of living. minimal and basic.
Given the urgent need to adopt a decision in this regard, I will give rise to the precautionary claim, considering it sufficient that the counter-caution is established by means of a ‘sworn caution’, which I consider provided through the signatures already inserted in the initial writings.
Furthermore, I understand that since there is a ‘collective’ represented, their situation is comparable to the benefit of free justice that art provides for consumer associations. 55 of law 24,240.
For all the above, I have:
1) REVOLVE partially and on the contrary – although for different reasons – point 3 of the ruling on pages. 77 (regarding the prior report requirement); 2) MAKE PLACE for the innovative measure interested by the plaintiff in relation to the group represented – residential users of the gas service residing in the localities located in the Departments Deseado, Lago Buenos Aires, Magallanes and Río Chico of the Province of Santa Cruz and, consequently: a) order the suspension from April 2, 2024 and for a period of 6 months, of the effects of Resolutions No. 41/2024 of the Ministry of Energy of the Nation and 122/2024 and 224 /2024 of Enargas (art. 232 CPCCN); b) order Enargas to immediately communicate this precautionary measure to the distributor or sub-distributor companies of the element so that, during the 6-month period of its validity: a) they refrain from applying increases greater than 300% compared to the same billing period of the previous year, a percentage that I consider prudently reasonable to provisionally balance the competing interests and taking into account the existing inflationary indices, which are public and well-known; b) if they have already applied and received amounts lower than that limit, they must compensate the surplus in the billing of the immediate and subsequent periods (art. 232 CPCCN).
BE NOTIFIED.
MARTA ISABEL YAÑEZ
FEDERAL JUDGE
