On August 29, 2025, case law 1a./J. 218/2025 (11a.) was published, issued by the First Chamber of the Supreme Court of Justice of Mexico, wherein it was recognized that the Fifth Transitory Article of the Decree amending the Mining Law does not violate the constitutional principle of non-retroactivity of laws.
It must first be recalled that said Transitory Article authorizes the mining authorities to consider as dismissed any application for a mining concession that may have been submitted to the competent authority prior to the publication of the amending Decree (May 8, 2023), without the requirement of any further formality.
Case Law 1a./J. 218/2025 (11a.) provides as follows:
“Digital Registration: 2031094 Chamber: First Chamber Era: Eleventh Period Subject Matter(s): Administrative, Constitutional Thesis: 1a./J. 218/2025 (11a.) Source: Federal Judicial Weekly Type: Case law
NON-RETROACTIVITY OF LAWS. THE FIFTH TRANSITORY ARTICLE OF THE DECREE AMENDING THE LEGAL REGIME ON MINING AND WATER CONCESSIONS, PUBLISHED IN THE OFFICIAL GAZETTE OF THE FEDERATION, DOES NOT VIOLATE SAID PRINCIPLE.
Facts: Various companies holding concessions for the exploration and exploitation of mineral resources filed constitutional challenge proceedings challenging the Decree amending the legal framework governing mining and water concessions, published in the Official Gazette of the Federation on May 8, 2023. Challenge was initially granted on the grounds of legislative process violations. Against such ruling, multiple appeals for review were filed, over which the Supreme Court of Justice of the Nation assumed original jurisdiction. The Court revoked the challenged judgment and proceeded to analyze the constitutional claims that had not been addressed.
Legal Criterion: The First Chamber of the Supreme Court of Justice of the Nation determined that the Fifth Transitory Article of the Decree amending the legal framework on mining and water concessions, published in the Official Gazette of the Federation on May 8, 2023—which authorizes the dismissal of concession applications—does not infringe the constitutional principle prohibiting retroactive laws.
Reasoning: The mere fact that, during the pendency of a mining concession application, the applicable legal framework was amended so as to eliminate the recognition of free land and to grant authority to the State entity to dismiss pending applications, does not amount to a violation of the constitutional guarantee of non-retroactivity established under Article 14 of the Mexican Constitution. This is because the rule allowing pending concession applications to be dismissed does not affect any vested right. On the contrary, under both the theory of vested rights and the theory of normative components, the applicant merely acquires an expectation interest—that, if all legally prescribed requirements are met, a concession could eventually be granted. A true right arises only once the concession has in fact been issued. Moreover, the mere filing of an application does not entail the unavoidable consequence that the requested concession must be granted. Furthermore, a concession constitutes an administrative act by which the State grants a private party authorization to manage and exploit a public service or the exploration and use of property belonging to the public domain. Thus, a concession cannot be construed as a mere contractual act; rather, it is a mixed administrative act, incorporating both regulatory and contractual elements. In consequence, the conditions that govern its granting are regulatory in nature and do not generate vested rights. Lastly, the Fifth Transitory Article does not violate the rights to legal certainty or to petition. It does not abolish procedure nor deny access to a resolution. Instead, it merely modifies the terms under which the procedure must be carried out. Importantly, it does not exempt the administrative authority from its constitutional duty to issue a formal, reasoned, and legally-grounded response to petitions submitted by private parties.”
From the cited case law criteria, the following key points decided by the Supreme Court can be identified:
- That the fact that, during the processing of a mining concession application, the mining authority is empowered to dismiss such pending application does not entail a violation of the constitutional guarantee of non-retroactivity of laws.
- This is because such dismissal does not impair or disregard any vested right acquired through the mere filing of such application.
- That the Fifth Transitory Article likewise does not infringe upon the rights to legal certainty and to petition, insofar as the authority’s power to dismiss does not exempt the mining authority from issuing a formal response that is proper, reasoned, and duly grounded in law.
Accordingly, the Supreme Court has upheld the constitutionality of the Fifth Transitory Article of the Decree amending the Mining Law, confirming that mining authorities may dismiss concession applications filed prior to the publication of said Decree. However, the Court was also precise in establishing that such dismissal does not relieve the authority of its constitutional obligation to issue a formal and duly substantiated response to those pending concession applications.
It must be underscored that this Case law, having been issued by the Supreme Court of Justice of Mexico, is binding upon the Circuit Plenary Sessions, the Collegiate and Unitary Circuit Courts, the District Courts, the Military Tribunals, the Judicial bodies of the common law jurisdiction of the States, as well as federal and local Administrative and Labor Courts.
Application in Matters of Constitutional Challenge (Amparo)
On this point, it is worth recalling that those mining companies that filed a constitutional challenge against the Decree amending the Mining Law (particularly the aforementioned Fifth Transitory Article), and which are currently in a procedural stage in which the mining authority (the responsible authority in terms of the constitutional challenge) has filed an appeal for review against the ruling issued in such proceeding, may be particularly affected by the Case law under analysis.
This is because the Collegiate Circuit Courts currently hearing the review appeals filed by the mining authorities are bound to consider and apply the content of such case law criteria when resolving said appeals, thereby possibly upholding the constitutionality of the authority’s dismissal of the mining concession applications filed by the companies.
It is important to note that, pursuant to the final paragraph of Article 217 of the Ley de Amparo: “Case law shall, in no case, have retroactive effect to the detriment of any person”, this provision means that cases which have already been decided by a Judge or Appeal Judge under a different criterion cannot subsequently be “affected” by new jurisprudential holdings, should such holdings be unfavorable to the party concerned. In other words, changes in precedent are valid exclusively for the resolution of cases that have not yet been decided. However, cases still pending before a judicial body must be adjudicated in accordance with the current binding Case law.
It follows, therefore, that the jurisprudential criterion under consideration must be applied by the Courts in all proceedings that have not yet been fully resolved, which requires that all appeals filed within the corresponding constitutional challenge proceeding be adjudicated.
Importantly, the application of this Case law cannot be deemed to constitute a violation of the constitutional guarantee of non-retroactivity of law, since the Supreme Court itself has consistently held that Case law is merely the interpretation of the law by the Court and other Tribunals, and thus does not constitute a new legal norm equivalent to statutory law. Accordingly, its application cannot, under any circumstance, be considered as violating the principle of non-retroactivity.
The foregoing is set forth in the following jurisprudential precedent:
Digital Registration: 190663 Chamber: Full Court Era: Ninth Period Subject Matter(s): Constitutional, General Thesis: P./J. 145/2000 Source: Federal Judicial Weekly and its Gazette, Volume XII, December 2000, page 16 Type: Case law
CASE LAW. ITS APPLICATION DOES NOT VIOLATE THE CONSTITUTIONAL GUARANTEE OF NON-RETROACTIVITY OF LAW. The Supreme Court of Justice of the Nation and the Collegiate Circuit Courts, when establishing Case law, not only interpret the law and analyze those aspects that the legislature did not define, but also integrate into the norm certain implications which—though not expressly provided therein—arise in a given situation. However, this “judicial integration or conformation” does not constitute a new legal norm of a general nature, even though it may at times fill legal gaps. Such integration is not grounded in the discretion of the judge, but rather in the spirit of other statutory provisions which, taken as a whole, structure legal situations, thereby creating—only in exceptional cases—individualized legal norms, in accordance with the general principles of law and as provided in the final paragraph of Article 14 of the Mexican Constitution. This understanding is expressly recognized in Article 94, sixth paragraph, of the Federal Constitution, as well as in Articles 192 and 197 of the Ley de Amparo, which explicitly establish the interpretation of statutory provisions as the subject matter of Case law. Therefore, considering that Case law is nothing more than the interpretation of law made by such courts, and that such interpretation does not constitute a new legal norm equivalent to statutory law—since it lacks the defining characteristics of generality, obligatoriness, and abstraction—it is indisputable that its application does not violate the constitutional principle of non-retroactivity, as enshrined in Article 14 of the Constitution.
Contradiction of Precedents 5/97. Between those maintained by the Third Collegiate Tribunal in Administrative Matters of the First Circuit and the Fourth Collegiate Tribunal of the Sixth Circuit. October 10, 2000. Decided unanimously with ten votes. Absent: José de Jesús Gudiño Pelayo. Opinion by: Olga Sánchez Cordero de García Villegas. Clerk: Carlos Mena Adame.
Application in Administrative Matters
It must also be noted that there are scenarios in which mining companies have challenged, before a Federal Administrative Court, the omission of the mining authority in failing to rule upon their pending mining concession applications.
In this regard, such Court has recognized in various judgments that, indeed, there has been an omission by the mining authority in not resolving the mining concession applications submitted before it, and that consequently, the authority must issue a resolution on such applications in accordance with the mining legislation in force at the time they were filed.
Nevertheless, although in these types of cases the mining authority has also filed the corresponding appeal for review against such judgments, the reality is that in these matters the Collegiate Circuit Court that will decide said appeals must take into consideration various topics prior to applying the case law criteria 1a./J. 218/2025 currently under study.
Specifically, in this type of proceeding, the Collegiate Circuit Court must determine, among other matters, whether the following conditions are met before attempting to apply the referenced Case law:
a) That the mining authority has raised arguments regarding the principle of non-retroactivity of laws under the aforementioned Fifth Transitory Article; and
b) That the review appeal filed by the mining authority is procedurally admissible.
Accordingly, if such conditions are not met—in other words, if the authority failed to raise non-retroactivity arguments, or if its review appeal proves inadmissible—then the Collegiate Circuit Court hearing the case would not be compelled to apply, in this type of matter, the binding Case law 1a./J. 218/2025.
Therefore, in such case, the judgment issued by the Federal Administrative Court shall remain unaffected with respect to the effects expressly set forth therein, specifically regarding the obligation of the authority to resolve the mining concession applications in accordance with the legislation in force at the time such applications were filed.
Conclusions
To properly determine whether Case law 1a./J. 218/2025 is applicable to a specific case, it is essential, as a preliminary matter, to examine several issues, including the following:
a) Whether the company filed a claim for constitutional challenge against the Fifth Transitory Article of the aforementioned Decree.
b) Whether, in such case, the responsible authority in the constitutional challenge proceeding filed an appeal for review against the judgment rendered, and whether it advanced arguments relating to the non-retroactivity of law.
c) Whether the company pursued any other means of defense in administrative matters and whether it obtained a favorable judgment.
d) Whether, in such case, the mining authority filed an appeal for review against that judgment, and whether it advanced arguments relating to the non-retroactivity of law.
e) Whether, in such case, the review appeal filed by the authority was procedurally admissible.
Once these issues have been determined, it becomes possible to gain a clearer understanding of the potential impact on the company and on the mining concession applications it may have submitted.
Associate
