A consequence derived from these constitutional provisions is the Administration's obligation to duly communicate, without omissions, the electronic means indicated in the resolutions to access the input forms (ingresadores) and annexes thereof, as they affect the interests of the parties.
In accordance with subsection 1) of article 247 of the LGAP, communication that is omitted with respect to any part of the act is sanctioned with absolute nullity and shall be deemed effective at the moment the party or interested person acts, acknowledging it, expressly or implicitly, before the competent body.
In this context, it is considered that in this case, the notification procedure suffers from absolute nullity, given that a resolution was notified that cited the link to access its input forms (ingresadores) and annexes incompletely, thus there was an injury to the right of petition, which must be corrected in this case in accordance with the provisions of the cited article 247.1, meaning that notification to AyA will be deemed effective at the moment it acknowledges the content of the input forms (ingresadores) and annexes of resolution RE-0016-IA-2021.
By virtue of the foregoing, it is recommended to accept this argument and correct it in the terms indicated in subsection 1 of article 247 of the LGAP. Therefore, what is appropriate is to declare the partial absolute nullity of resolution RE-0016-IA-2021, solely regarding the Por Tanto number 2, subsection IV of this resolution, in which the link to access the input forms (ingresadores) and annexes was indicated as: https://aresep.go.cr/agua/informacion-regulatoria, whereas the correct one is: https://aresep.go.cr/agua-potable/informacion-regulatoria.
- 2)Regarding the reasonableness of the deadlines established by the Water Intendancy In another vein, AyA argues that in relation to the deadline granted in resolution RE-0016-IA-2021, due to the complexity and volume of the information requested, the deadline is insufficient, and it is therefore important that a reasonable deadline longer than that indicated in the resolution be granted, based on the arguments and the principle of reasonableness developed by the Constitutional Chamber in various rulings.
On this matter, it should be noted that the improvement of regulatory instruments is part of a process of continuous improvement and adoption of sound practices and transparency that Aresep has been developing. This is duly grounded in the objectives set forth in article 4 of Law No. 7593, with the purpose of harmonizing and seeking a balance of the interests of users and providers of public services, as well as ensuring provision in accordance with the principle of service-at-cost and the provisions of article 31 of the same law.
Law No. 7593, in articles 14, subsections a) and c), and 24, establish, respectively:
"(.) Article 14.- Obligations of providers. The obligations of providers are:
- a)To comply with the provisions dictated by the Regulatory Authority regarding service provision, in accordance with the provisions of the respective laws and regulations.
(.)
- c)To timely provide the Regulatory Authority with the information it requests, related to the provision of the service (.)".
"(.) Article 24.- Provision of information. At the request of the Regulatory Authority, the regulated entities shall provide reports, accounts, data, file copies, and any other electronic or written medium where financial, accounting, economic, statistical, and technical information related to the provision of the public service they provide is stored. For the exclusive fulfillment of its functions, the Regulatory Authority shall have the power to inspect and record the legal and accounting books, vouchers, reports, equipment, and facilities of the providers (.)." From the foregoing derives the legal basis for the Water Intendancy to request from providers of public services in the water sector, including the appellant, the specific regulatory information requirements regarding investments in the formats and deadlines established in the appealed resolution; and with respect to the deadlines, it is up to the provider to make and present justifications demonstrating the advisability of shorter deadlines for their technical assessment, which will be evaluated in the technical opinion that follows.
- 3)Regarding the holding of a public hearing Another point raised by AyA is that "the Regulatory Improvement proposal of the Water Intendancy through report IN-0034-IA-2021, establishes a substantial change in the current methodology oriented towards regulating operators based on the value chain. It is clear that the regulatory improvement proposal must be submitted for public knowledge, as dictated by article 36 of Law No. 7593.
In this sense, resolution RE-0016-IA-2021 corresponds to a decision of the Water Intendancy that cannot be applied to regulated operators until the established Public Hearing procedure is complied with, as it refers to information from a regulatory framework that is NOT yet in effect, called: "Stages of the value chain of the respective service"." Regarding this argument that resolution RE-0016-IA-2021 has not followed the due process of being previously submitted to a public hearing, it is necessary to point out that public hearings, as a mechanism for citizen participation representing the space for the exercise of the constitutional right established in article 9 of the Political Constitution, are an essential part of the processing of various procedures conducted in Aresep.
Law No. 7593 and its regulations have established a special procedure for making various decisions, where the holding of a public hearing has the special characteristic of providing transparency to those decisions and offering the space for participation that corresponds to interested parties.
Thus, article 36 of the aforementioned Law, exhaustively lists the matters that must be submitted to a public hearing, in the following manner:
"(.) Article 36.- Matters that shall be submitted to a public hearing:
For the matters indicated in this article, the Regulatory Authority shall convene a hearing, in which persons having a legitimate interest may participate to express themselves. To this end, the Regulatory Authority shall order the publication, in the official gazette La Gaceta and in two nationally circulated newspapers, of the matters listed below:
- a)Applications for the ordinary setting of rates and prices for public services.
- b)Applications for authorization for electric power generation in accordance with Law No. 7200, of September 28, 1990, amended by Law No. 7508, of May 9, 1995.
- c)The formulation and review of the norms indicated in article 25.
- d)The formulation or review of price- and rate-setting models, in accordance with article 31 of this Law (.)." In this way, it is clearly observed that the information requirements made by the Water Intendancy, through the appealed resolution, regarding investments for regulated services in the stages of the value chain of the respective service in the water sector, are not included within the exhaustive matters that must be submitted to a public hearing according to article 36 of Law No. 7593, as the appellant claims; therefore, it is without merit regarding this argument.
Within this argument, AyA states that "the Regulatory Improvement proposal of the Water Intendancy through report IN-0034-IA-2021 must be submitted to a public hearing." On this matter, it should be noted that the cited report was the basis for the issuance of resolution RE-0009-IA-2021 of May 25, 2021, published on May 28, 2021, in Supplement 106 to La Gaceta 102, whereby the Water Intendant, exercising their powers, formalized the "Separation of the value chain of the aqueduct, sewerage, hydrant, and irrigation and drainage systems"; which was notified to the parties, who had the opportunity to challenge it, and which is accessible in file OT-203-2021.
II. Arguments of a technical nature
Regarding the technical aspects, we proceed to respond to each of the arguments presented by the company.
1. Regarding what was stated by AyA on the Por Tanto I, subsection 2 concerning the established deadline for submitting the settlement of additions and withdrawals, it is considered reasonable to establish an extension of the deadline for the delivery of the required information, in order to cover the deadlines for accounting closings and information processing, so that the maximum delivery dates for semi-annual information are: the last business day of February for the second half of each year and the last business day of August for the first half of each year. The proposal by AyA requesting delivery of information by the end of March and September is not accepted, as it is considered excessive. For the case of the annual report of the investment plan (Por Tanto I, subsection 1), the maximum deadline remains the last business day of February of each year, since the investment plan is not a task dependent on accounting but rather on the company's management.
2. Regarding the Por Tanto, Number 1 annex 1 and annex 5, Number 2, annex 2, and subsection IV, AyA indicates that it does not have the level of detail in which project investment information is required, and therefore requests an extension of the deadlines to the months of March and September, provided that the working sessions have been carried out and a work plan must be established to gauge the deadline required to address these new provisions. In this regard, AyA is informed that the Regulatory Authority is willing to clarify any doubts arising from the information requested in the resolution in question, including that corresponding to the Risk Matrix; however, it is considered that the company has sufficient time to adapt the information to the requested conditions, and therefore the deadline indicated in the preceding point is reiterated.
V. CONCLUSIONS
Based on the foregoing, the following conclusions can be reached:
1. From a procedural standpoint, the request for clarification and the appeal for revocation filed by the Costa Rican Institute of Aqueducts and Sewers (AyA) against resolution RE-0016-IA-2021 are admissible, having been filed in a timely and proper manner.
2. The information requirements made by the Water Intendancy, through resolution RE-0016-IA-2021, regarding investments for regulated services in the stages of the value chain of the respective service in the water sector, are not included within the exhaustive matters that must be submitted to a public hearing according to article 36 of Law No. 7593.
3. The improvement of regulatory instruments is part of a process of continuous improvement and adoption of sound practices and transparency that Aresep has been developing. This is duly grounded in the objectives set forth in article 4 of Law No. 7593, with the purpose of harmonizing and seeking a balance of the interests of users and providers of public services, as well as ensuring provision in accordance with the principle of service-at-cost and the provisions of article 31 of the same law. Likewise, Law No. 7593, in articles 14, subsections a) and c), and 24, establish the obligation of providers to comply with the provisions dictated by Aresep, and to timely provide the information it requires; from this derives the legal basis for the Water Intendancy to request from providers of public services in the water sector the specific regulatory information requirements regarding investments in the formats and deadlines established in the appealed resolution.
4. In accordance with subsection 1) of article 247 of the LGAP, communication that is omitted with respect to any part of the act is sanctioned with absolute nullity and shall be deemed effective at the moment the party or interested person acts, acknowledging it, expressly or implicitly, before the competent body.
5. Resolution RE-0016-IA-2021 of August 30, 2021, erroneously indicates the electronic link to access the input forms (ingresadores) and annexes as: https://aresep.go.cr/agua/informacion- regulatoria, whereas the correct one is: https://aresep.go.cr/agua-potable/informacion-regulatoria, thus there was an injury to the right of petition.
6. It is considered reasonable to establish an extension of the deadline for the delivery of the information required in the resolution, in order to cover the deadlines for accounting closings and information processing, so that the maximum delivery dates for semi-annual information are the last business day of February for the second half of each year and the last business day of August for the first half of each year. AyA's arguments for extending the delivery of information to the end of March and September are not accepted, as these deadlines are considered excessive.
7. It is estimated that the company has sufficient time to adapt the existing information to the conditions requested in the resolution to meet the deadlines indicated in the preceding point. Furthermore, it must be stated that the Regulatory Authority is willing to clarify any doubts arising from the information requested in the resolution in question, including the risk matrix (.)".
II.In accordance with the preceding whereas and considering clauses and the merits of the record, what is appropriate is to partially grant the appeal for revocation filed by AyA against resolution RE-0016-IA-2021 of August 30, 2021; to declare the partial absolute nullity of resolution RE-0016-IA-2021, solely regarding the Por Tanto number 2, subsection IV of resolution RE-0016-IA-2021 of August 30, 2021, in which the electronic link to access the input forms (ingresadores) and annexes was erroneously indicated as: https://aresep.go.cr/agua/informacion- regulatoria, whereas the correct one is: https://aresep.go.cr/agua-potable/informacion-regulatoria; to clarify the observations made by AyA, as ordered;
Based on the powers conferred in Law No. 7593 and its amendments, in the General Public Administration Law No. 6227, in Executive Decree No. 29732-MP, which is the Regulation to Law No. 7593, and in the Internal Organization and Functions Regulation of the Public Services Regulatory Authority and its Deconcentrated Body.
The WATER INTENDANT
I.To partially grant the appeal for revocation filed by AyA against resolution RE-0016-IA-2021 of August 30, 2021, solely regarding the fact that:
- a)In the Por Tanto number 2, subsection IV of resolution RE-0016-IA-2021 of August 30, 2021, the electronic link to access the input forms (ingresadores) and annexes was erroneously indicated as: https://aresep.go.cr/agua/informacionregulatoria, whereas the correct one is: https://aresep.go.cr/aguapotable/informacion-regulatoria.
- b)The deadline for the delivery of the information required in resolution RE-0016-IA-2021 of August 30, 2021, in Por Tanto I. 2: Investment Monitoring, regarding the submission deadlines for the information required in Annex 2: Investment Monitoring, is extended. Leaving it as follows:
Maximum date for submission of information: It must be delivered on the last business day of February for the second half of each year and the last business day of August for the first half of each year.
II.To declare the partial absolute nullity of resolution RE-0016-IA-2021 of August 30, 2021, issued by the Water Intendancy on April 30, 2021, solely regarding the fact that: In the Por Tanto number 2, subsection IV of resolution RE-0016-IA-2021 of August 30, 2021, the electronic link to access the input forms (ingresadores) and annexes was erroneously indicated as: https://aresep.go.cr/agua/informacion-regulatoria, whereas the correct one is: https://aresep.go.cr/agua- potable/informacion-regulatoria
Therefore, there was an injury to the right of petition, which is hereby corrected in accordance with the provisions of article 247.1 of the General Public Administration Law, and notification to AyA is deemed effective with this present resolution, by which it is made aware of the correct link for accessing the content of the input forms (ingresadores) and annexes of resolution RE-0016-IA-2021.
III.To provide the following response and clarification to the observations filed by the Costa Rican Institute of Aqueducts and Sewers, AyA:
1. Regarding the deadline established by the Regulatory Body to submit the settlement of additions and withdrawals, from Por Tanto I, subsection 2.
Response: Regarding what was stated by AyA, it is considered reasonable to establish an extension of the deadline for delivering the required information, as is indeed done, in order to cover the deadlines for accounting closings and information processing, so that the maximum delivery dates for semi-annual information are the last business day of February for the second half of each year and the last business day of August for the first half of each year. The proposal by AyA requesting delivery of information by the end of March and September is not accepted, as it is considered excessive. For the case of the annual report (Por Tanto I, subsection 1) of the investment plan, the maximum deadline remains the last business day of February of each year.
2. AyA states that it does not have the detailed information at the requested level and that it needs to hold working sessions to clarify concepts and methodologies for completing the information.
Response: In this regard, AyA is informed that the Regulatory Authority is willing to clarify any doubts arising from the information requested in the resolution in question, including that corresponding to the Risk Matrix; however, it is considered that the company has sufficient time to adapt the information to the requested conditions, and therefore the deadline indicated in the preceding point is reiterated.
IV.To notify the parties of the resolution to be issued, at the place or medium indicated in the record, or that known to the Regulatory Authority.
V.To elevate the subsidiary appeal to the Board of Directors and to warn the appellant that it has three business days, starting from the day following the notification of this resolution, to assert its rights before said appellate body.
In compliance with the provisions of articles 245 and 345 of the General Public Administration Law (LGAP), it is hereby informed that against this resolution, the ordinary appeals of revocation and appeal and the extraordinary appeal of review may be filed. The appeal for revocation may be filed before the Water Intendant, who is responsible for resolving it, and the appeals for appeal and review may be filed before the Board of Directors, which is responsible for resolving them.
In accordance with article 346 of the LGAP, the appeals for revocation and appeal must be filed within a period of three business days counted from the business day following notification, and the extraordinary appeal of review, within the periods indicated in article 354 of said law.
NOTIFY AND PUBLISH