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Starting a business in Mexico is a great opportunity, especially in booming sectors such as tourism, construction, and vacation rentals
In a landmark decision, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) has ruled the unconstitutionality of the requirement imposed on companies seeking registration in the REPSE, which obligated them to demonstrate the specialized nature of the services they provide. This requirement, established by the Ministry of Labor through regulations, has been declared contrary to the law by the Second Chamber.
In its ruling, the Second Chamber emphasized that the Ministry of Labor only has the authority to regulate the procedure for registration in the REPSE; however, it cannot impose additional requirements beyond those provided by law to obtain the subcontracting company registration.
It is important to note that, according to the SCJN ruling, companies providing specialized services are not obliged to prove such a character, but it is the responsibility of the recipient company of subcontracting services to demonstrate that these are specialized and do not form part of its main economic activity or its corporate purpose.
Consequently, the requirements established in the Ministry of Labor regulations that compel subcontracting companies to demonstrate the specialized nature of their services, present evidence of certifications and permits, as well as include specialized services or works they wish to register in their corporate purpose, are considered unconstitutional. The Ministry of Labor cannot deny registration under these circumstances.
The origin of this resolution dates back to an indirect amparo trial filed by an individual, challenging, among other general provisions, the Agreement for the Registration of Persons Providing Specialized Services or Performing Specialized Works, published in the Official Gazette of the Federation on May 24, 2021. In particular, the articles establishing requirements for subcontractor registration were questioned, arguing that they exceeded the powers of the Ministry of Labor and Social Welfare.
The Second Chamber of the SCJN concluded that the contested articles of the aforementioned agreement were unconstitutional, as they exceeded the powers of the Ministry of Labor by requiring subcontractors to demonstrate the specialized nature of their services, provide detailed information, and prove that such services were included in their corporate purpose.
In conclusion, the ruling issued by the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) regarding the unconstitutionality of the requirement to demonstrate the specialized nature of services for registration in the REPSE marks a significant milestone in the fiscal and labor sphere in Mexico. This determination provides clarity and legal certainty by establishing that the Ministry of Labor does not have the authority to impose additional requirements beyond those provided by law to obtain registration for subcontracting companies.
The SCJN based its ruling on the grounds that the imposed requirements exceeded the powers of the Ministry of Labor and were contrary to the law, while emphasizing the nature of the registry and roster as instruments to identify registered subcontractors and subcontracted activities, without empowering the administrative authority to authorize or enable such activities.
This decision offers protection to companies providing specialized services by not obligating them to demonstrate such a nature, shifting the responsibility to prove the specialization of services to the recipient companies. Additionally, it sets an important precedent regarding the delineation of regulatory competencies of the administrative authority, ensuring that these strictly adhere to what is provided by law.
Consequently, this resolution contributes to the stability and transparency of the business environment by providing a clear and coherent regulatory framework for the registration of subcontracting companies, thereby strengthening the rule of law and legal certainty in the country.
Starting a business in Mexico is a great opportunity, especially in booming sectors such as tourism, construction, and vacation rentals
The Accounts Payable process refers to a company’s short-term obligations to pay suppliers and service providers for purchases made on
