Express competence, substantive advertising and competition advocacy: three lessons from the Council of State for the regulation of the energy sector

Legal Alert | Guerrero Ruiz | Legal

On February 13, 2026, the Council of State issued a decision of profound significance for the energy sector and for regulatory administrative law in Colombia: through a ruling issued within the process filed under number 11001-03-26-000-2023-00193-00, the First Section of that Corporation declared the nullity of several administrative acts issued by the Ministry of Mines and Energy (MME) and by the Energy and Gas Regulatory Commission (CREG) between the years 2019 and 2023, within the framework of the regulatory turbulence that arose after the annulment of Decree 570 of 2018, which constituted the backbone of the scheme of auctions of non-conventional renewable energies.

The ruling is not only relevant because of its direct effects on the regulatory framework of the sector, but, in our opinion, because of the precise lessons in administrative law that it consolidates and that every company, regulator and investor with a presence in the sector should keep in mind.

The first of these lessons concerns the MME's authority to issue Resolution 40611 of 2023, through which the Ministry suspended the energy supply limitation procedures established in the existing regulations. The Council of State was categorical: the power to define the rules applicable to the electricity sector—including the authority to suspend or modify operating procedures—belongs exclusively to the CREG by virtue of Article 25 of Law 143 of 1994. Notwithstanding what might be inferred from the MME's general functions of sectoral management and policy, technical regulatory authority cannot be deduced or implicitly transferred: it must be express, positive, and based on an unequivocal legal mandate.

This reasoning confirms that in the Rule of Law, the principle of legality is not simply a programmatic aspiration but the concrete limit of all public action, so that the absence of express legal authorization cannot be replaced by extensive interpretations of generic management functions, however reasonable they may seem in the context of a sectoral emergency.

The second lesson concerns the prior publication requirements in the regulatory process of the CREG (Energy and Gas Regulatory Commission), and it has particular relevance for the regulatory governance of the sector. CREG Resolutions 101.016 and 101.024 of 2023 were declared null and void because the corresponding draft regulations were only available for public comment for two days, when the general rule requires thirty days of prior publication. The CREG attempted to invoke the exception established for draft regulations with fewer than five articles, but the Council of State rejected this interpretation with reasoning that we share: the exception applies only when the draft has fewer than five articles, not when it has exactly five, as occurred in this case.

Beyond the arithmetic discussion, the ruling reinforces a fundamental principle: the prior publication of regulatory projects is not a mere formality that can be minimized or circumvented through restrictive interpretations. It is a substantial guarantee of due administrative process, ensuring the participation of stakeholders in the sector, the technical quality of the regulation, and ultimately, the democratic legitimacy of the exercise of regulatory power.

The third lesson is perhaps the one that demands the most reflection in terms of regulatory technique. Resolutions 107 of 2019 and 186 of 2021 of the CREG (Energy and Gas Regulatory Commission) were declared null and void because, in responding to the competition advocacy questionnaire required by the Superintendency of Industry and Commerce (SIC) under Article 7 of Law 1340 of 2009, the CREG answered the relevant questions negatively—that is, it indicated that the regulatory measures would not affect free competition—but left blank the spaces provided to explain that conclusion. The Council of State considered that such a response, lacking analysis, was equivalent to failing to meet the requirement.

In our view, this ruling has greater educational value: competition advocacy is not a bureaucratic formality but a substantive control mechanism over the exercise of regulatory power; responses to the SIC's questionnaires must be based on an explicit, documented, and verifiable analysis of the effects of proposed measures on free competition, not on conclusive assertions lacking justification. The CREG—and any regulator in general—cannot simply certify that its decisions are favorable to free competition: it must demonstrate it.

In contrast to the above, the Council of State stated that Circular 40025 of 2023 from the Ministry of Mines and Energy (MME) could not be subject to its judicial review. The argument was clear: circulars that merely interpret or clarify the scope of existing regulations, without creating new obligations or modifying the legal framework, do not constitute administrative acts in the strict sense and, therefore, are not subject to the remedy of annulment. This clarification is equally relevant for the sector, as it defines the scope of what is subject to judicial review, differentiating between regulatory acts with binding force and guidance documents that lack it.

Finally, it is worth noting the effects of the declared nullity. Unlike civil nullity, which generally has retroactive effect, in the area of public utility services, Article 38 of Law 142 of 1994 establishes that the nullity of the acts of the entities that provide or regulate them has prospective effect ( ex nunc ), not retroactive effect ( ex tunc ). Consequently, legal situations established under the annulled acts are not automatically dissolved, which introduces a significant degree of stability into the sector's contractual and regulatory relationships, although it does not eliminate all uncertainties regarding transactions and commitments entered into under the now-nulled regulations.

This ruling comes at a particularly delicate time for the Colombian energy sector, which has yet to definitively resolve the effects of the annulment of Decree 570 of 2018 on renewable energy projects awarded under that framework, despite the issuance of Decree 1091 of 2025, which addressed the matter going forward. The State Council's decision adds further layers of complexity to this situation, but at the same time provides a clear picture of the requirements that the legal system imposes on the exercise of regulatory power: express competence, prior publicity as a substantive guarantee, and a well-founded and reasoned analysis of competence.

Ultimately, what the jurisprudence is consolidating is a regulatory quality standard whose compliance is not optional, and whose non-observance —as this decision demonstrates— has legal consequences of great magnitude for the sector and for the legal certainty of those who operate and invest in it.

Download the State Council's ruling here

Energía ce 2026 Limitación Suministro.pdf

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This review does not constitute a legal opinion. If you have a specific question regarding the effects of this ruling, please do not hesitate to contact us.