On the occasion of the reform of the Decree with the rank, value and force of the Organic Law of Reorganization of the Electricity Sector (2007, 2010) it is necessary to update the publication of the subscriber on the subject long ago.
In the first place, the National Assembly approved a law to reform the aforementioned Decree Law by way of the popularly called Enabling Law; This means that the legislative body assumed its full competence to prepare and approve normative texts on this matter.
In this regard, the Organic Law for the Reorganization of the Electricity Sector (LORSE, 2010) was issued which “… aims to reorganize the national electricity sector, in order to improve the quality of service throughout the country, maximize efficiency in the use of of the primary sources of energy production and in the operation of the system, as well as redistributing the loads and functions of the current operators in the sector. "
It is conceived with a centralized character at the head of the National Power, by the Executive body, since the programs, projects, goals and objectives are set by it within a planning framework of the country's energy agenda, leaving little margin for the other levels of Public Power, such as the municipal one in this case.
Creates the National Electric Corporation (CORPOELEC) as the entity for everything related to the one in charge of "… carrying out the activities of generation, transmission, distribution and commercialization of power and electric energy."; in fact, all the companies that provide the electricity service that were subsidiaries of the defunct Compañía Anónima Nacional de Administración y Fomento Eléctrico (CADAFE) must pass into the hands of CORPOELEC for the unification (merger) into a single entity before December 31, year 2012.
It is noteworthy that the legislator pointed out that the provisions of the LORSE that its provisions will be applied with prevalence to those of the Organic Law of Municipal Public Power (LOPPM, 2010) which states in its article 56 that “… following:
- The government and administration of the interests of local life The management that the Constitution of the Republic and national laws confer on them in everything related to local life, especially, the management and promotion of economic and social development, endowment and provision of home public services,… (my emphasis)
Later, the same rule of the LOPPM:
"Article 56.-…
f.- Drinking water, electricity and domestic gas services… ”(My emphasis)
On the other hand, following the constitutional postulate in its article 203, about what an organic law is, the Municipality fits into the factual assumptions because it is immersed within the so-called public powers, since - on the political organization of Venezuela - it is makes mention of the municipalities (Article 16), which are conceived by the Constituent Assembly as “… the primary political unit of the national organization…” (Article 168)
It would be convenient to review the jurisprudence of the Highest Court in relation to the words "regime" and "endowment and provision" in relation to services; It could be analyzed if the maxims derived from cases such as telecommunications and local taxation are similar, for example, where the former refers to the organization or regulatory framework of a certain activity.
The Constitution of the Bolivarian Republic of Venezuela alludes to "regime" in articles such as the powers of the National Public Power; The interpretation that has been given is that - for example - when something is reserved to the National Power, in terms of the regime or regulatory framework, it is that the states and municipalities cannot dictate norms that invade the powers of the former, as it would be in the example provided that of empowering an individual in telecommunications matters; However, the municipality can and should exercise its powers in areas such as urban planning, taxation, urban land transit, among others.
Taking this to the electricity sector, it is enough to remember that public lighting is a typically local matter, to cite one case; When a standard indicates the expressions "endowment" and "provision" of a public service, from which electricity does not escape, it does not have to do with the generation or transmission of electricity service, but rather the execution of activities to carry it to communities for final consumption, for example.
