As of the publication of the reform to the Mining Law, on April 20, 2022, by which the exploration, exploitation, benefit and use of the litho, are defined as a strategic activity; The relevance of strategic activities, which are exclusively in charge of the State, has been put into the public conversation.
What is relevant when considering whether or not an activity is declared strategic? What elements are taken into consideration to determine that an activity is reserved exclusively for the State?
The State, in addition to the multiple tasks that it carries out, within the administrative function, such as police activities, promotion or provision of public services, carries out economic activities, actively participating in the country’s economy.
This participation of the State finds reason in the increase of the economic problems of the country. At present, the exorbitant growth of the field of public services, coupled with their complexity, dimension and scope, forces the State to intervene in activities previously reserved for individuals, thus assuming a leading role in the national economy. .
The intensity of state activity has been variable over time. Beginning with the abstentionist State where it carried out its object, reduced almost exclusively to the maintenance of public order through administrative police measures. Subsequently, once public services were sufficiently extended, the authoritarian aspect of state intervention was reduced, in the face of an Administration that, to a large extent, was characterized by offering benefits to those administered. Finally, the assistance State, which is not limited to the traditional type of public service provision, but bursts in, almost without limits, as a subject of economic, industrial, commercial activity, even submitting to the legal forms of private law.
The expansion in quantity of the purposes of the State has had a decisive influence on its activity and on the means it uses to achieve it.
Since 1917, our Constitution laid the foundations of the Mexican economic regime, where the constitutional principle of State Rectory and the mixed economy have characterized a national market where the public sector, the social sector and the private sector converge.
Throughout our history, there are various reforms that have given the Mexican State the power to direct the national economy from the control of certain activities, namely: The nationalization of oil in 1940; the incorporation of the concept of integral democracy as a reform to article 3 of 1946; the authorizations by the Congress of the Union based on article 131 of the Constitution to grant extraordinary powers in matters of foreign trade to the President of the Republic; the powers to restrict and prohibit imports, exports and transit of products in order to regulate the stability of national production, the country’s economy; the nationalization of electric and nuclear power in the 1960s and 1970s; the constitutional reform of 1982 that nationalized the provision of banking and credit services, and the reforms of February 1983 in economic matters, among the most relevant.
In the case of Mexico, the Constitution provides, in its article 25, the state stewardship in national development, conferring the power to plan, conduct, coordinate and guide economic activity, as well as the regulation and promotion of activities considered of general interest. . Likewise, it provides for the coexistence of a public sector, a social sector and a private sector, which is why it is considered a mixed economy. In said article, the purposes of the rectory of the State are established and the aforementioned sectors are subject to the principle of legality.
However, the mixed economy in Mexico at no time has the objective of monopolizing economic activity in favor of the State, but rather, on the contrary, it seeks for the Mexican State to promote the free participation of individuals in the economic life of the country. Our mixed economy system respects the economic activity of individuals as an individual guarantee mandated by the Constitution. The business activity of the Mexican State obeys a constitutional imperative of the social State of law and contributes to the general strengthening of the country, strictly respecting the specific fields of activity of individuals.
Hence the relevance of the fact that the strategic activity of exploration, exploitation, benefit and use of lithium is now at the center of public discussion. The reform to the Mining Law clearly establishes that “The lithium economic value chains will be managed and controlled by the State …”. It will therefore be relevant to determine the extent to which the State will meet its objective of social welfare and economic stewardship through this activity. Likewise, it will be of fundamental importance to understand if this new state company will have sufficient financial, human and technological resources to make it a productive and profitable activity for Mexicans.
Valeria Vázquez Maulén, Lead Partner of the Energy and Resources Industry at Deloitte Spanish Latin America.
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