On January 12, 2016, the Federal Act to Prevent and Punish Crimes on Hydrocarbons matter was published in the Official Gazette of the Federation (hereinafter the Act) as well as various amendments to the Federal Criminal Code, Federal Criminal Proceedings Code, National Criminal Proceedings Code, Tax Code of the Federation, the Federal Forfeiture Act and the Federal Law Against Organized Crime.
Provisions in regard to new crimes and sanctions associated with hydrocarbons, petroleum or petrochemical and other assets of companies pertaining to the oil industry, are contained in this Act. In general terms, the sanctions are severe for behaviors associated with the illegal disposal, storage, transportation, sale, supply and distribution of hydrocarbons and other behaviors connected with those activities. Particularly, the crimes included seek to protect society and individuals taking part on the oil industry, from risky consequences derived from intrinsic activities of such industry.
It is worth mentioning that most of the crimes provided in this Act will be prosecuted ex officio with the exception of those for which the procedural requirement is a particular formality established for filing the lawsuit by the injured party or regulatory body. For the proceedings arising from crimes set forth in it, the Public Prosecutor will have the obligation to require from the judicial authority in question, the preventive custody for the defendants as a precautionary measure.
The Act specially regulates mechanisms for evidencing the legal ownership or possession of hydrocarbons, petroleum or petrochemicals and assets associated with it. It also states that the presence of markers in hydrocarbons, petroleum or petrochemicals, would presume the ownership or legal possession of such compounds by contractors, licensees and distributors. Likewise, the obligation that the Public prosecutor has to return without delay the hydrocarbons and other assets seized to contractors, licensees or distributors who prove the ownership or possession they have on such compounds.
Measures to prevent and detect illegal acts by means of the coordination of the Federation with different institutions and authorities as well as with assignees, licensees, contractors or distributors, are set forth in this Act. All information or data on the performance of the activities associated with hydrocarbons (operations, facilities, activities, personnel and vehicles) shall be considered as national security information.
Furthermore, the Act contains provisions for cases when the seizure of business facilities or company that provides services is admissible as a result of the commission of a crime contemplated in it, circumstance in which such real property will be placed in custody of the Property Management and Disposal Service, who will be in charge of its management as much as the seizing is effective.
In the event that the business or service provider facilities belong to a franchisee or licensee, the seizure of property will constitute a just cause for the franchisor to terminate the agreements connected to it pursuant to the Industrial Property Law and in regard to the licensees, the grantor can revoke the license.
Depending on the crime in question, the penalties come from one to 25 years of imprisonment and fines from 2,000 to 25.000 days of minimum wage effective in the Federal District. Mention must be made that if the perpetrator is or was employee or service provider of the assignees, contractors, licensees or distributors or public servant in the oil industry or police institutions, the penalties are increased by up to half more in accordance with the penalty stipulated under this Act, regardless of sanctions fixed in the Federal Law of Administrative Responsibilities of Public Servants.
On the other hand, if the perpetrator of the crime is a franchisee, assignee, contractor, licensee or distributor, the sanction to be additionally imposed shall be the revoking of the license involved, and if applicable, the dissolution and liquidation of the company.
Among the behaviors stipulated as crimes in this Act, are:
a) The disposal and exploitation of hydrocarbons, petroleum, petrochemical products, movable property linked to oil industry
operation, without the authorization and consent of those authorized to dispose of them.
b) The acquisition, selling, receipt, commercialization, storage, transportation, possession, distribution, alteration or
adulteration of hydrocarbons, petroleum, petrochemical products, without authorization and consent of those authorized to
dispose of them.
c) The transportation and commercialization of hydrocarbons, petroleum or petrochemicals when such products do not
contain markers or specifications that the competent authority requires for said purposes.
d) To commercialize or supply gasoline or diesel when such sale or supply is done being aware that the amount supplied is less
than 1.5 percent of the amount shown in the pampering metering device. In the case of LPG and natural gas, the measure
specified is 3 percent.
e) Provide, receive or collect, directly or indirectly, economic funds or any other kind of resources, to be used for committing any
crime/offense stipulated in this Act.
f) Not to denounce to the competent authorities, the commission of any crime stipulated in this Act, when such crime is known.
It is worth mentioning that this Act contains some inconsistencies and contradictions, besides the fact that due to the structure of some crime classifications and sanctions provided therein, it is essential that the entities involved in the oil industry are aware of them. Should you have any question or comment in this regard, the partners of the criminal area of the Firm are at your orders.
|Francisco Tiburcio Celorio
|Alejandro Catala Guerrero
|Gilberto Valle Zulbaran
Mexico City, January 15th, 2016.