Regulation of the arbitral administrative function of the Superintendence of Electricity is urgently needed in the face of reciprocal billings that converge between electricity distribution companies and municipalities.
Since its enactment, Law 107-13 on the Rights of Persons in their Relations with the Administration and Administrative Procedure. G. O. No. 10722 of August 8, 2013 (Law 107-13) has occupied a leading space in the legal community and justice actors in general. This is evidenced by the simple reading of administrative acts, resolutions, regulations, decrees and laws relating to the actions of the Public Administration, in all of which in one order or another is invoked and applied. The same applies to the judgments of the Superior Administrative Court in its respective attributions of administrative litigation, tax litigation, monetary and financial litigation, precautionary measures and amparo actions when exercising ex post control of these acts.
In the course of these activities of an administrative nature, the legal community and justice actors in general often refer to this Law 107-13 when addressing issues related to the nature of administrative acts, the administrative procedure for their enactment, the regulation and its phases, the deadlines, the administrative sanctioning procedure, the responsibility of the Administration, its officials and employees, and the general and special repeals of other laws. Topics addressed, for example, by Namphi Rodríguez in: https://acento.com.do/opinion/una-decada-de-la-ley-107-13-9152736.html. However, one less addressed is that relating to the arbitral administrative function that Law 107-13 grants to certain Public Administrations.
When we speak of the arbitral administrative function, we refer to that power that the legislator grants to a certain Public Administration to resolve conflicts between administrators or citizens in administrative headquarters, because the cause of that conflict is a legal right that it is obliged to protect and usually possesses regulatory powers. This action derives a unilateral manifestation of the Administration to determine which of the administrators in the conflict is right and which of them should be recognized the questioned right.
Ricardo Rivero Ortega and Francisco Ortega Polanco, in Manual de Derecho Administrativo (2016), give a robust dimension to this legal provision when they state: “the syntagma arbitral function potentially defines a true administrative power, with the characteristics of the functional powers that the Order attributes to the Administration in order to ensure the public interest. There is an inspection function (administrative power of inspection), as there is also the attribution of this arbitral function, which will be with all the consequences in the case of being designated mandatory”.
Underlying this precept is also the general principle of arbitration in the private sphere. The opportunity to resolve disputes by a less tortuous route, and ultimately more expeditious and effective so that claims maintain a level lower than the litigious one, in addition to the self-protection recognized to the Administration. It was the recommendation of the Conseil D Etat when, within the scope of its advisory function in 1993, it produced a report in which it raised the convenience of adopting some alternative extrajudicial mechanisms for conflict resolution of the North American system. Available at: https://juricaf.org/arret/FRANCE-CONSEILDETAT-19930212-128372.
Those elements contained in that recommendation of the French Council of State had effects for more than a decade in our country. For example, they are those that to date are contained in Law 20-00 on Industrial Property dated May 8, 2000, G.O.10044, when in its article 92 it provides: “1) At the request of any interested person, the National Office of Industrial Property shall declare the nullity of the registration of the mark if it was made in contravention of any of the prohibitions provided for in Articles 73 and 74”.
It is a general framework that can manifest itself with differences depending on each case and the nature of the activity that is regulated. That is why Namphi Rodríguez states that in some cases —such as the conciliation procedure before Proconsumidor— in which this function is exercised “it is not entirely a conventional arbitral process nor the arbitral function of the Administration itself, in the terms of Law 107-13, but rather a hybrid in which an arbitral award issued by independent bodies of arbitrators, but supervised by Pro-Consumidor” intervenes, available at:https://acento.com.do/opinion/una-decada-de-la-ley-107-13-9152736.html. It is in effect an arbitral administrative function with one of its particularities, as stated in the second paragraph of that same article 32 of Law 107-13 which provides: “Sectoral legislation may establish the peculiarities of a procedural nature that are necessary, without violating the contents of this law”.
In the electricity sector, this influence is also manifested. Article 24 of the General Electricity Law No. 125-01 of July 26, 2001, G.O. 10095 grants its functions and attributions to the Superintendence of Electricity by providing that it shall: “Resolve, hearing those affected, claims by, between or against individuals, consumers, concessionaires and owners and operators of electrical installations that refer to situations subject to its supervision[1]; through certain organizational units.
Another of these influences is the Office of Consumer Protection of Electricity (Protecom), with the function of attending and resolving in the second instance the claims of consumers of public service against the Distribution Companies (Article 37 of Law 125-01), and whose decisions can also be reviewed by the Council of the Superintendence of Electricity, in accordance with the Regulations for the application of the law. This is precisely the instance in which the Superintendence of Electricity addresses the conflicts, disagreements and controversies that arise between users of the electricity supply service and the electricity distribution companies.
Similarly, that function of resolving claims between individuals of the Superintendence of Electricity through Protecom is extrapolated to a very particular procedure in attention to the quality of the user that makes it a special administrator that before the electricity distribution companies possess the municipalities. Between the electricity distribution companies and the municipalities there is a reciprocal relationship of consumer or user. One is a service provider with respect to the other.
For their part, the electricity distribution companies use the public space owned by the municipalities to place their electricity distribution networks, which generates a tribute in favor of the former; while, on the other hand, the municipalities acquire public lighting through the provision of the energy supply service for which the distribution companies invoice.
To determine and harmonize the method of billing each of these services, Law 125-01 established, in its article 134, the following mechanism:Article 134.- The Distribution Companies shall have the obligation to supply the design, materials, installation and maintenance of public lighting of each municipality and its municipal districts, reserving the municipalities the power, if they so decide, to serve either by their own means or contracting with third parties the provision of such services. The Distribution Companies shall pay monthly to each municipality three percent (3%) of the current billing collected within the jurisdiction of each municipality and its municipal districts. This payment shall be made monthly. For their part, the municipalities and their municipal districts shall pay the monthly electricity consumption of public lighting and other installations. Paragraph I.- The removal of public lighting installations may only be done in coordination with the municipal authorities and the Dominican Corporation of State Electricity Company (CDEEE)21. Paragraph II.- To these ends, the Superintendence of Electricity shall prepare a Regulation by which the procedures and penalties shall be governed.
Based on the mandate contained in article 42 of the Regulations for the application of Law 125-01, SIE Resolution 63-04 of August 9, 2004, established a technical mechanism to establish a procedure for verifying billings, as well as for resolving when one of the parties does not agree with the result.
Subsequently, this modality of dispute resolution was discovered and recognized within already existing functions of the Administration, settled and increased its scope of application. It is in this way that this mechanism was incorporated into the Dominican legal system based on the principles of the Public Administration in the Constitution of 2010, and reconfigured in Law 107-13. It is in this law that this other function of the Administration is clarified when it has in its hands conflicts between the administered around legal rights protected by the Administration in question.
In this way, those varied functions that the Administration already performed, adopted a common physiognomy based on what is established in article 32 of Law 107-13 by establishing these actions within the framework of the arbitral administrative function and the applicable procedure. For the fulfillment of this function, this article establishes that the Administration decides the legal controversies between the administered, applying the law, which will be substantiated in accordance with the common guarantees of procedure by means of an administrative act in which it identifies with due motivation, the application of the principle of legality and the administrative procedure.
Despite being a pre-constitutional law, and without using the terminology of the new principles of the Public Administration, Law 125-01 contemplated a technique for conflict resolution in administrative headquarters by establishing the intervention of the Superintendence of Electricity before disagreements between the municipalities and the electricity distribution companies to reconcile the reciprocal billings, based on those orientations of the Council of State that were applied at that time. As Namphi Rodríguez expresses, with Law 107-13 “the rights of citizens against the public administration were made compatible with the Constitution, as well as the procedure for the enactment of administrative acts and regulations”.
Although it is not the only example, in the electricity sector the arbitral function evidences that affinity between the precepts of a pre-constitutional law with that of an applicable post-constitutional procedure, due to the abundance of arbitral functions that the Superintendence of Electricity possesses and regulatory role before generators, distributors and users of the electricity service, so it also evidences the amount of variations of arbitral procedures that can exist in the same sector.
The procedure that is applied between regular users is different from what happens with the arbitral administrative function that underlies the functions of the Superintendence of Electricity between the electricity distribution companies and the municipalities, with respect to their relationship of reciprocal provision of services, activities accepted and welcomed subsequently, according to the second paragraph of article 32 of Law 107-13.
When the Administration decides a controversy placed in its charge by means of an administrative act, this produces all the effects that are proper to it, among them, its impugnable character. However, the second paragraph of article 32 provides: “Sectoral legislation may establish the peculiarities of a procedural nature that are necessary, without violating the contents of this law”; and therefore the procedures of an administrative appeal from this decision can be varied, according to the applicable law and the nature of the activity of the sector in question.
Here is precisely the particularity of the arbitral administrative function when the parties involved in a controversy are institutions that, as in this case, render services and benefits of general interest and belong to statutes different from those of general Administrators. On the one hand, although in its beginnings the electricity distribution companies were conceived as private law companies, at present its majority shareholding is of the State and renders an essential public service. On the other hand, the municipalities are local administrations that in another sense render basic services and benefits of general interest in their respective territorial demarcations, as is the case of the provision of lighting on public roads.
Despite the harmonization that in general terms Law 107-13 offers in what refers to the arbitral function of the Superintendence of Electricity, there are elements in this law related to this activity since then absent and gray that still remain. An example is precisely the procedure before controversies related to the compensation established in article 134 of Law 125-01 between the municipalities and electricity distribution companies. The common regime established in Law 107-13 is not sufficient.
A powerful argument in this regard is usually that, in any case, before any nonconformity, the parties can go to request control of actions or unlawful activity to the administrative litigation. The detail is that Law 125-01 grants competence to the SIE to perform this function, given its role as a regulatory agent. Requesting in the first place a judge to intervene because he does not agree with the way in which a billing was made, means that the judge must perform the technical function of the SIE, which escapes from his competence, given his attribution to exercise the control of an administrative act or action.
It may intervene if the SIE incurs in an administrative activity contrary to law, when, apropos of a request for intervention, it does not process it nor manifests its will in this respect within the corresponding term.
The absence of clear norms, of a law, or in its defect, a regulation that details the phases, the terms, and the technical mechanisms to determine the amounts in one and another case, has already generated conflicts between the electricity distribution companies and the municipalities, and have given rise to claims for this concept by inadequate routes, as for example, compulsory collections before the courts of peace for municipal matters and retention embargoes, among others, which provokes a distortion in the system and evidences that in effect the adequate procedures must be regulated with clarity.
