Administrative Alert – October 2024

Measures are established to promote the progress of public, private and public-private investment drafts

By means of Legislative Decree No. 1668, published on Saturday, September 28, 2024, the Government has issued several measures to speed up the progress of public, private and public-private investment drafts. Among them, the following stand out:

1. Authorizations and/or permits granted by municipal authorities for the execution of works in areas of public domain are subject to positive administrative silence. Authorizations, permits or other enabling titles may be processed prior to or parallel to the environmental certification, with the exception of those titles that approve or authorize the start of draft execution.
2. The authorization of the Ministry of Culture will not be required to execute works in public spaces linked to monumental urban environments, monumental zones or historic battle sites declared as part of the Cultural Heritage of the Nation, to the extent that they only involve channeling for installation, maintenance and/or expansion of household electricity supply networks, drinking water and sewage, telecommunications, health, natural gas, subway chambers or installation of other public services; provided that it does not involve pre-Hispanic real estate.
3. The terms for the entities to issue observations or technical opinions regarding the environmental management instruments are specified. Some measures are also provided with the purpose of reducing the terms of the environmental certification procedure.
4. Various provisions of Legislative Decree No. 1192, approving the Framework Law on Acquisition and Expropriation of real estate, transfer of State-owned real estate, release of interferences are amended. Among others:

• It is clarified that interferences not only cover existing installations, but also those in the process of reception in charge of the companies or entities providing public services.
• It is forbidden that, once the polygon of the infrastructure work to be removed has been notified, public service providers and individuals who are the owners of interferences may not install new infrastructure or carry out activities that entail the placement of additional infrastructure, under risk of sanctions and corrective measures.
• It is provided that if the public utilities do not comply with the deadlines of the interference release procedure, for example, for sending information, the initiation of the mandate procedure will be required and the competent regulatory agency will be informed for the initiation of the sanctioning procedures and the imposition of complementary and/or corrective measures, in accordance with the applicable administrative sanctioning framework.
• In the case of areas or infrastructure for public use such as roads, avenues, streets, parks, highways, railroads, paths, sidewalks, public squares, among others, it is provided that the entities in charge of the investment drafts will take immediate possession and, if applicable, will deliver them to the concessionaire, contractor and/or executor of the infrastructure work.

5. Likewise, several provisions of Legislative Decree No. 1192 have been amended in relation to the procedures for the acquisition, expropriation and transfer of State-owned real estate, for example:

• It is specified that the procedures for the acquisition, expropriation or transfer of real estate owned by the State must be initiated: (i) in the cases of infrastructure works to be executed through co-financed PPPs, with the declaration of feasibility within the framework of the National System of Multiannual Programming and Investment Management, considering the nature and characteristics of the draft; (ii) in the case of self-financed PPPs, from the Formulation Phase, considering the nature and characteristics of the draft; and (iii) for the public works modality, special State-to-State contracting mechanism and works for taxes, with the declaration of feasibility within the framework of the National System of Multiannual Programming and Investment Management.
• It is provided that in those cases in which: (i) there is a dispute between a private party and the State and, therefore, it is not possible to define the taxpayer of the acquisition or expropriation, and (ii) the total value of the appraisal has been consigned (whether in case of acquisition or expropriation), if it is resolved in favor of the private party, the consignment will be endorsed in favor of the private party. However, if it is resolved in favor of the State, the Judge or Arbitrator shall order the return of the consignment to the Subject Asset.
• It is specified that the request for acquisition or total expropriation submitted by the taxpayers may be processed in the same file, if this does not cause a delay in the acquisition procedure.

For further information, please contact Carlos Carpio (ccarpio@estudiorodrigo.com), Soleil Castro (scastro@estudiorodrigo.com), and/or Perla Sanchez (psanchez@estudiorodrigo.com).