Our client is a legal entity authorized to sell fuel and diesel to the final consumer, a commercial activity that must carry out and comply with the regulatory provisions applicable to the matter, such as the Federal Consumer Protection Law, the Quality Infrastructure Law, as well as the applicable Mexican official standards, in favor of the consumer society of such fuels.
In order to verify due compliance with the reference regulations, the General Directorate of Verification and Defense of Fuel Confidence, of the Deputy Attorney General’s Office for Verification and Defense of Trust of the Federal Consumer Attorney’s Office, ordered an extraordinary verification at the expense of our client.
It is the case that, by means of a detailed report of May 18, 2023, the verifying authority observed that the instruments, products and/or services verified did not comply with: i) the Federal Consumer Protection Law; ii) the Quality Infrastructure Law; iii) with NOM-005-SCFI-2017 and NOM-185-SCFI-2017 and iv) with the list of measuring instruments whose initial, periodic or extraordinary verification is mandatory, since two instruments had discharge hoses with cracks and in six instruments the event log did not show the record of price change, therefore, the precautionary measure of immobilization of the instruments was applied.
In this sense, the process of requesting the lifting of the precautionary measure and the request for the demobilization of assets subject to compliance with the Official Mexican Standard was carried out, for which, on August 8, 2023, the verifying authority proceeded to draw up the demobilization act.
However, the verifying authority proceeded to open the administrative procedure for infractions, in which, after the corresponding procedural stages -offering evidence and formulation of allegations-, it issued the administrative resolution of August 30, 2023, issued within the procedure for violations of the Law with file number PFC. C.B.*******, in which it determined an economic penalty in the amount of $4 ́***,****.00 (figures in millions, expressed with *** for confidentiality of information).
OUR APPROACH
Considering the administrative resolution illegal, the legal area of St Stratego, on behalf of our client, filed a Contentious Administrative Trial before the Federal Court of Administrative Justice, against the decisive resolution.
The concepts of challenge that were formulated dealt with the merits of the matter, that is, with respect to the improper application of the fine, as well as form, competence of the authority issuing the challenged resolution, expiration, among others. Likewise, the official Mexican standards NOM-005-SCFI-2017 and NOM-185-SCFI-2017 were contested, considering that they were not created in accordance with the law and, therefore, should not be valid.
OUTCOME
The Federal Court of Administrative Justice, after the corresponding procedural stages, declared the nullity of the contested resolution, in view of the merits of the arguments of grievance that were asserted.
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