The Administrative Court of Antioquia annuls resolutions of the Ministry of Mines for lack of competence and abuse of power by displacing the CREG

The Administrative Court of Antioquia declared the nullity of resolutions 40307, 40359 and 40409 of 2024, issued by the Ministry of Mines and Energy, concluding that they were issued without competence and with abuse of power.

The case was brought by Interconexión Eléctrica SAESP (ISA), ISA Intercolombia SAESP and Transelca SAESP against the Nation – Ministry of Mines and Energy and the Superintendency of Public Utilities (SSPD), with the company AIR-E SAS, which was taken over by the National Government, also being involved.

The plaintiff companies argued that the Ministry improperly intervened in the powers of the Energy and Gas Regulatory Commission (CREG), by suspending the supply limitation mechanism, a technical mechanism designed to guarantee the financial balance of the electricity market in the face of non-compliance with financial commitments by public energy service providers towards other market agents, especially generating companies.

According to the plaintiffs' argument, the decision to suspend the supply limitation mechanism, adopted by the National Government with the purpose of ensuring the continuity of service in "special areas", ended up directly benefiting a marketing company (AIR-E), affecting the other agents of the system.

After analyzing the charges, the Court noted that the Resolutions did not require exhausting the concept of competition advocacy nor did they fail to comply with the requirements for publishing the respective drafts for comments, and dismissed the claim for restoration of the right (and the subsidiary claim for direct compensation) against the alleged damages that were alleged under the title of imputation of special damage.

Despite the foregoing, the Court concluded that the Ministry lacked the regulatory authority to modify mechanisms created by the CREG, and that the challenged resolutions constituted an abuse of power, as they were used for purposes other than those ostensibly intended for their issuance. According to the Court, the measure did not reflect a general public policy, but rather sought to protect a specific market participant, to the detriment of the principles of technical independence, equality, and legality of regulation.

Furthermore, the Court confirmed the legality of the actions of the Superintendency of Public Utilities in relation to the takeover of AIR-E, determining that it was framed within the legal powers of the entity and responded to the grounds for intervention provided for in Law 142 of 1994.

Finally, the Court denied the claims for restoration of rights and direct compensation, as no unlawful damage attributable to the defendant public entities was proven.

The ruling of the Administrative Court of Antioquia reaffirms an essential principle of the Colombian administrative system: regulatory powers must be exercised within the limits expressly set by law: the distinction between the power to formulate policies and the function of technical regulation is not merely formal, but a structural element of the public services model, as has been reiterated in various pronouncements by the Constitutional Court and the Council of State.

By emphasizing the technical independence of the CREG and the need to preserve legality in the exercise of regulatory power in the electricity sector, this decision becomes an important benchmark for legal certainty, institutional confidence and the sustainability of the Colombian energy market.

(Judgment 170 of 2025 – Administrative Court of Antioquia, Fifth Decision Chamber

Judge Rapporteur: Liliana Patricia Navarro Giraldo

Date: October 14, 2025)

Download the decision here

71_Sentencia_ActosMinMinasySuperA_0_20251014150956530.pdf

Download PDF • 2.04MB