The Constitutional Court, through Judgment No. 112-21-IN/25, dated December 11, 2025, declared the unconstitutionality of Article 25, paragraph 1, of the Organic Law of the Public Electric Energy Service (LOSPEE), which established the following:
“Art. 25.- Private companies, foreign state-owned companies and popular and solidarity economy companies.- In order to comply with the sectoral planning framed in the Electrification Master Plan, the State, through the Ministry of Electrification, may delegate to mixed companies in which the State has a majority stake and, exceptionally, to private capital companies, foreign state-owned companies and companies of popular and solidarity economy, participation in the activities of the public electricity service and the public lighting service, through public selection processes, in any of the following cases:
1.When necessary to satisfy the public, collective or general interest.”
It is important to note that, although subsection 1 referred to above was declared unconstitutional, subsection 2 of Article 25 of the LOSPEE and the third paragraph of the same article remain in force. These provisions establish additional grounds under which the State may, on an exceptional basis, delegate to private‑capital companies the participation in activities related to the public electricity service:
“2. When the service cannot be provided by public or mixed enterprises in accordance with the needs required by the electricity system.
Additionally, the State, through the Ministry in charge, may delegate to private‑capital companies, foreign state‑owned companies, and popular and solidarity‑economy enterprises the development of projects that use non‑conventional renewable energies that are not included in the Master Electricity Plan, subject to compliance with the requirements set forth in the relevant regulations issued by the Ministry in charge.”
Main reasons for the declaration of unconstitutionality
The Court concluded that the first ground did not meet the standard of exceptionality required by Article 316 of the Constitution, for the following fundamental reasons:
- Indeterminate concept:
The phrase “public, collective or general interest” is too broad and abstract, and does not identify specific situations that justify exceptional delegation.
- Lack of verifiable assumptions:
The regulation did not delimit technical, material or factual criteria, such as energy emergencies, serious system failures or real limitations of the State.
- It normalized what used to be exceptional:
By allowing almost any delegation to justify itself under “public interest”, the numeral turned the exception into the rule, contravening the constitutional design that reserves to the State the priority management of the electricity sector.
Legal effects of the decision
- Effect towards the future (non-retroactive):
The decision does not affect delegations made prior to its publication. Governs only for the future.
- Expulsion from the legal system:
Numeral 1 is eliminated from article 25 LOSPEE.
Recommendation of the Court to the legislator
The Court clarifies that the legislator can once again regulate grounds for exceptional delegation, provided that:
- Are formulated with precision and clarity
- Identify specific circumstances that justify private intervention
- Include verifiable criteria
- Respect the strictly exceptional nature of Article 316 of the Constitution
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This information is a summary of legal developments of interest, and therefore cannot be considered as provided advice. If you have any questions, please contact the AVL team.