Federal Secretariat of Energy (Argentina)

Secretaría de Energía de la Nación

Country

Location

Regulated area

Argentina

Buenos Aires

Energy & natural resources

Useful pages on the regulator website

Key individuals

  • Matías Kulfas: Minister of Productive Development
  • Sergio Lanziani: Secretary of Energy
  • Juan José Carbajales: Undersecretary of Hydrocarbons
  • Osvaldo Arrúa: Undersecretary of Electricity
  • Guillermo Martín: Director of Renewable Energy

Regulatory oversight

The Secretariat of Energy is a centralised dependency within the Federal Ministry of Productive Development, and it is the primary regulator of the energy industry in Argentina – including hydrocarbons and electricity – in charge of the development and implementation of the national energy policy. The Secretariat is organised into three main undersecretariats, each covering a very distinct regulatory function within the broad spectrum of the energy industry: the Undersecretariat of Hydrocarbons (Subsecretaría de Hidrocarburos), the Undersecretariat of Electricity (Subsecretaría de Energía Eléctrica), and the Undersecretariat of Energy Planning (Subsecretaría de Planeamiento Energético).

The Undersecretariat of Hydrocarbons assists the Secretariat in exercising its capacity as the implementing authority of the gas regulatory framework (Law No. 24,076 et al.) and the legal regime for hydrocarbons in general (Law No. 17,319 et al.), and in exercising its powers that correspond to the rights derived from the shares owned by the federal government in hydrocarbon companies. For this purpose, the Undersecretariat of Hydrocarbons assists the Secretariat in the design, execution, monitoring and control of the national hydrocarbons policy and industry standards with regard to the promotion and regulation of exploration, exploitation, transport and distribution activities.

This body is also in charge of formulating the tariff policy with respect to public services in transportation and distribution of gas, regulating the commercialisation of hydrocarbons and its by-products, and intervening in the approval of the terms and conditions for calls for tenders. In respect of federal hydrocarbon resources, it is in charge of conducting the bidding processes, and granting, inter alia, the corresponding surface recognition permits, exploration permits and exploitation and transport concessions – as well as supervising compliance with the obligations therein assumed by awardees, including the payment of royalties and surface fees.

Furthermore, the Undersecretariat of Hydrocarbons oversees compliance with environment and safety standards in the oil and gas industry at all stages, directly intervening in the design, control and inspection of regulations concerning hydrocarbon activities at all levels, as well as regarding the quality of hydrocarbon by-products. It is also in charge of managing the databases corresponding to liquefied gas, safety of installations, existing reserves, and refining and marketing activities, as well as the information systems relating to exploration, production, transport, refining and marketing activities of hydrocarbons and other fuels.

The Undersecretariat of Electricity oversees policies regarding electricity tariffs, and the generation, transmission and distribution of electricity, assisting the Secretariat in the exercise of its powers as the implementing authority of the electricity regulatory framework (Law No. 24,065 et al.). It oversees the generation, supply and demand of electricity from fossil fuels, hydroelectric, nuclear and renewable energies, imports and exports of electricity, and the introduction of new technologies.

The Undersecretariat of Electricity is also in charge of designing, implementing and controlling the national policy on renewable resources, through a specialist body, the Federal Directorate of Renewable Energy (Dirección Nacional de Energías Renovables), with the goal of providing adequate technical and economic conditions for the inclusion of renewable energies in the national matrix, including projects linked to the development of autonomous renewable generation in populations that are dispersed or distant from energy distribution networks.

It also assists the Secretariat in the design of the tariff policy with respect to the public services for electricity transmission and distribution, and its relations with public electricity utilities and their controlling agencies, in the definition of the projects, procedures and financing of the expansion of the transmission grid, and in the management of the wholesale electricity market, including the regulation of the access, operation and contracting modalities within that market. It also assists the Secretariat in exercising its powers that correspond to the rights derived from the shares owned by the federal government in electricity companies.

Finally, the Undersecretariat of Energy Planning is in charge of managing information on energy infrastructure work and the development of the country’s energy balance, including schemas and projections of supply and demand, as an input for public and private planning for the use of energy resources.

Please note that oil and gas resources currently belong to the provinces, where the hydrocarbons resources are located (except for offshore deposits extending beyond 12 nautical miles, which belong to the state). Unlike other federal countries with abundant hydrocarbon resources (such as Australia or Canada), the Argentine government has the exclusive authority to regulate the oil and gas legal framework, but the provinces are the authorities that enforce most of these regulations within their relevant jurisdictions – for example, provincial authorities are in charge of granting new exploration permits and production concessions over the hydrocarbons located within their territories – and are primarily responsible for issuing and enforcing environmental regulations. The federal government has retained all rights in relation to offshore blocks beyond 12 nautical miles, and the exclusive authority to design and enforce national energy policies, and other powers corresponding to its federal jurisdiction.

With respect to the electricity sector, however, although the provinces have retained the power to regulate their provincial grid and provincial utilities (such as local distributors), the industry is primarily regulated and managed at the federal level.

Reporting and disclosure obligations

Energy-related activities in Argentina are heavily regulated and subject to strict registration and reporting obligations. Given that the Secretariat of Energy either manages or is at least involved in the process of tens of mandatory registries with respect to the electricity and hydrocarbons industries, the following is intended as a mere overview, given the scope of this report. In any case, before entering the energy business in Argentina, legal counsel should be sought to properly enrol with all required registries and ensure compliance with periodic reporting obligations.

With respect to the electricity sector, most registries and data collection functions have been delegated – some completely and others only in part – in the Federal Electricity Regulator (Ente Nacional Regulador de la Electricidad (ENRE)) and the Wholesale Electricity Market Regulator (Compañía Administradora del Mercado Mayorista Eléctrico SA (CAMMESA)). The most important function that is still held by the Secretariat of Energy in that regard is that of granting admissions to new agents who request access to the wholesale electricity market, but even these decisions are heavily influenced by the preliminary assessments carried out by ENRE and CAMMESA.

With respect to the hydrocarbons industry, while many functions regarding compliance with Natural Gas Law No. 24,076 have been delegated to the Federal Gas Regulator (Ente Nacional Regulador del Gas (ENARGAS)), most registries are managed within the Secretariat of Energy, including:

  • Upstream Companies Registry (Registro de Empresas Petroleras);
  • Fuel Dispensers Register (Registro de Bocas de Expendio de Combustibles);
  • National LPG Industry Registry (Registro Nacional de la Industria del GLP);
  • Registry of companies that manufacture and/or market fuels and other by-products (Registro de empresas elaboradoras y/o comercializadoras de combustibles y derivados de hidrocarburos);
  • Registry of Intermediate Products (Registro de Productos Intermedios); and
  • Audits Register (Registro de Auditorías).

Each of these registries – and any others that may apply depending on the specific activity in which a particular company is involved within the hydrocarbons industry – require their own reporting and disclosure obligations, as well as observance of certain reporting requirements. Some registries can be quite exhaustive, requiring information not only about the company but also about its shareholders (and in some cases the entire corporate structure up to a specific level of ownership), and requiring compliance with certain financial requirements.

There are also registries that apply to specific activities, which require a specific filing each time the company engages in a particular activity. This is the case, for example, with the Registry of Crude Oil Export, which requires the registration of, inter alia, the crude oil export agreements pursuant to which each specific export transaction is requested.

Finally, other tangential participants, such as auditors and certifiers, are also required to register with specific registries within the Secretariat of Energy, and to observe certain reporting requirements.

Most information and reports that companies are required to file in compliance with the above registries and continuing reporting requirements are filed via a new digital platform called TAD (Trámites a Distancia), which has its own server, but may be accessed through the Secretariat’s website.

Monetary sanctions and recent behaviour

As enforcement authority of all segments of the energy industry, the Secretariat of Energy has broad and comprehensive sanctioning powers and may apply administrative sanctions as provided in most energy regulations, including as a result of a company’s violation, breach or failure to comply with specific provisions thereunder.

Prior to applying any sanctions, the Secretariat of Energy must bring administrative proceedings against the breaching company, based either on its own records or investigations or on information or charges brought by third parties.

Monetary sanctions consist mostly of fines, which differ substantially from one industry to the next, and between the various regulations within each industry. Regulations usually establish a range of amounts within which the Secretariat must remain when establishing fines, so that the specific amount payable by the breaching party may be proportionate to the severity of its violation. This determination is mostly discretional and may only be successfully questioned if the fine is significantly disproportionate.

Finally, certain sanctioning powers have been delegated to decentralised regulators (such as ENRE and ENARGAS) or provincial authorities, in each case, within the scope of their jurisdiction. In many such cases, the Secretariat has retained jurisdiction to review challenges brought against the decisions of the delegated authorities.

Non-Monetary sanctions and recent behaviour

As in the case of monetary sanctions, the jurisdiction to impose non-monetary sanctions within the electricity sector has been mostly delegated to the ENRE, with the Secretariat of Energy operating as a final administrative instance in some cases.

With respect to the hydrocarbons industry, non-monetary sanctions that may be imposed by the Secretariat of Energy include (i) warnings, (ii) the removal or suspension of a breaching company from a registry, which results in the company being prohibited from continuing any activity that requires its registration, and (iii) the complete or partial closure of a company’s facilities. While the removal or suspension of a company from a registry may result from a breach by the company of its reporting obligations under the specific regulations applicable to the corresponding registry, this sanction is also commonly established in the regulations that relate to the activities ruled by that registry.

While companies have normally received warnings, the Secretariat of Energy has historically been reluctant to remove companies from the applicable registries or to shut down a company’s facilities, because of the economic consequences that could be brought by these sanctions, and the public interest involved in hydrocarbons activities.

The Secretariat of Energy may also refer cases for further investigation by other regulators. For example, the Argentine Antitrust Authority may be asked to look into potential antitrust behaviour by energy companies, or the relevant environmental authorities may be called on to assess environmental damage within the scope of their jurisdiction.

Recent and upcoming developments

Between 2003 and 2015, the Secretariat of Energy operated within the framework of the Ministry of Federal Planning, Public Investment and Services (Ministerio de Planificación Federal, Inversión Pública y Servicios). In December 2015, upon taking office, the administration of President Mauricio Macri awarded ministerial status to the energy regulator and transformed the Secretariat into the Ministry of Energy and Mining (Ministerio de Energía y Minería de la Nación). In June 2018, the Secretariat of Mining was transferred to the Ministry of Development, and the former was renamed the Ministry of Energy (Ministerio de Energía de la Nación). In September 2018, the Ministry of Energy was downgraded back to secretariat status and transformed into the Secretariat of Energy Government (Secretaria de Gobierno de Energía), within the framework of the Ministry of Finance (Ministerio de Hacienda de la Nación). After taking office in December 2019, the administration of President Alberto Fernández gave back the Secretariat of Energy its original name (Secretaría de Energía de la Nación) and transferred its dependency to the Ministry of Productive Development (Ministerio de Desarrollo Productivo de la Nación).

In the past few years, the Secretariat of Energy has become more approachable, and communications with its ground-level employees for guidance on the status of processes, interpretation of laws and regulations, and compliance with reporting and disclosure requirements, has been more accessible. In some rule-making processes (such as the design of the bidding terms for renewable energy tenders, and other industry regulations), the Secretariat submitted an initial draft requesting input by the public prior to its adoption. However, considering the modus operandi of the previous administration of President Fernandez’s party, it is unlikely that the Secretariat of Energy will continue with this open position in the coming years – for example, after the current administration took office, the Secretariat of Energy suspended publication of the financial statements of the Renewable Energy Trust Fund (Fondo para el Desarrollo de Energías Renovables (FODER)), and the FODER administrator (Banco de Inversión y de Comercio Interior) informed that it was instructed not to provide specific information about available funds.

President Macri’s administration also adopted a more hands-off market-friendly approach to foster development within the industry, which resulted in an initial boost in private investment, primarily in the renewable energy sector (thanks to the RenovAr Program (Argentina’s renewable energy auction programme, by means of which the federal government, as off-taker, awarded several renewable power purchase agreements to independent power producers), and in Vaca Muerta (thanks to a framework agreement between industry players, such as the federal government, the governments of hydrocarbon-producing provinces, unions and upstream companies).

The administration of President Fernandez, however, has demonstrated a more hands-on interventionist approach, starting with a ‘Solidarity Act’, imposing heavy taxes and intervening in several aspects of companies’ operations. This intervention has intensified as a means to counteract the economic consequences of the quarantine imposed to cope with the covid-19 pandemic, and the plummeting crude oil prices as a result of a sudden drop in demand. For the time being, however, the most important decisions in that respect concerning the energy industry have been taken at the presidential or ministerial level, with little to no visible intervention by the Secretariat of Energy. The Secretariat has been fairly inactive at the managerial level ever since it was restructured into its current form and has only recently issued some worrisome communications regarding the RenovAr Program.

It is unclear whether the new administration will insist in its interventionist approach after the covid-19 pandemic is finally a thing of the past, but most indicators (including some statements by governing party members) seem to suggest that old habits die hard.

Challenges

The most significant challenge currently facing the energy industry is probably the plummeting crude oil prices as a result of a sudden drop in demand owing to policies adopted in several countries to cope with the covid-19 pandemic.

In that regard, the Argentine government issued Decree No. 488/2020, by means of which it established, inter alia, a fixed price on crude oil sales in the domestic market, a prohibition on crude oil imports, and an obligation for upstream companies to maintain the same levels of employment and overall activity as in 2019. Although this regulation is fairly new, it has already been heavily criticised by most industry players, with many claiming that the Decree was only intended to help hydrocarbon-producing provinces collect larger royalties. In any case, it is unlikely that the Decree will bring any relief to the upstream sector, and some of the obligations imposed on upstream companies may actually end up being counterproductive.

Another challenge has been the difficulties faced by independent power producers as a result of the economic crisis that struck the country towards the end of 2019 (as acknowledged by law by the new administration), who were unable to source financing for their renewable energy projects after being awarded either a power purchase agreement under the RenovAr Program or priority to dispatch their energy sales under a private power purchase agreement.

These awards were conditional on producers providing a liquid guarantee (in the form of either a stand-by letter of credit, a surety bond or a bank guarantee) to secure their obligation to develop their projects in a timely manner. As a result of the lack of available sources of financing, the producers are exposed to large penalties, without having received any satisfactory response from the Secretariat of Energy. The situation was made even worse by the fact that, despite having taken office in December 2019, the Secretary did not appoint a Director of Renewable Energy until mid April 2020.

The situation has become substantially more pronounced for producers since the covid-19 outbreak. In fact, even though the construction of energy projects was excluded from the quarantine restrictions, producers still find it hard to access any financing, and some contractors are still affected by either quarantine measures or the effects of the virus in their own countries.

Even though the Secretariat has recently issued a notice intended to suspend the terms under the power purchase agreements, thus postponing the imposition of penalties on producers, the actual content of this notice is vague enough to allow many different interpretations, thus failing to relieve the current state of uncertainty in the renewables industry.

Interacting with the regulator

Interactions with government authorities in Argentina are usually informal, particularly when authorities are engaged by Argentine residents. Although most communications with the Secretariat of Energy are held over the phone or by email, government officials may be willing to arrange meetings with parties who are able to show a reasonable interest in making investments in Argentina. Even though some officials might require a formal request to arrange a meeting, this has become rather unusual.

In the event of sanctions or other decisions by the Secretariat of Energy that may require companies to intervene in defence of their rights, legal counsel should be sought in advance since there are strict terms to file any relevant defences or adequate claims against such decisions.

Notes for foreign investors

There are few specific restrictions under the current energy laws and regulations applicable to foreign investors and their activities in Argentina. Therefore, foreign companies are mostly subject to the same limitations and restrictions that apply to any foreign investor in Argentina.

One specific restriction consists in a prohibition set forth by Law No. 26,659, which prevents any company doing business in Argentina (and its direct and indirect shareholders) from holding any direct or indirect interest in licences in the Malvinas offshore areas that are granted by authorities other than the competent authorities of Argentina, or in companies that provide petroleum services to companies that operate in those blocks, or that supply technical, logistic or commercial support. While not specifically targeted at foreign investors, in practice, this prohibition may prevent foreign hydrocarbons companies previously involved in such activities from doing business in Argentina. In that connection, pursuant to Disposition SE No. 337/2019, companies requesting to enrol with the Upstream Companies Registry are required to submit an affidavit stating that they are not in breach of this prohibition.

Furthermore, pursuant to the Federal Hydrocarbons Law, foreign legal entities governed by public law and acting in that capacity shall not be included in the above-mentioned registry mentioned and, therefore, are not authorised to submit offers seeking permits or concessions governed by this Law.

Notwithstanding the foregoing, foreign energy companies must also pay attention to certain general regulations that, despite not being industry-specific, may nonetheless prevent them from exercising certain rights in Argentina, or qualifying for tenders or other authorisations before the Secretariat of Energy.

Most importantly, from a corporate perspective, foreign investors that become shareholders in an Argentine company or parties to a joint venture in Argentina must register as foreign shareholders with the Public Registry of Commerce of the relevant jurisdiction.

Foreign investors are also required to obtain a special authorisation from the Directorate of Border Zone Security to access land rights within certain areas near Argentina’s international borders. Any land rights secured before obtaining this authorisation shall be null and void.

Other regulators it works closely with

Ente Nacional Regulador de la Electricidad
ENRE
Federal Electricity Regulator (Argentina)

ENRE is an independent body operating within the framework of the Secretariat of Energy, which is in charge of regulating activities within the electricity sector and ensuring that companies within the industry (generators, carriers and distributors) comply with their obligations under the regulatory framework and in their concession contracts. ENRE’s activities are largely intertwined with those of the Undersecretariat of Electricity.

Ente Nacional Regulador del Gas
ENARGAS
Federal Gas Regulator (Argentina)

ENARGAS is an independent body operating within the framework of the Secretariat of Energy, which is in charge of regulating the public service of gas transport and distribution.

Compañía Administradora del Mercado Mayorista Eléctrico SA
CAMMESA
Wholesale Electricity Market Regulator (Argentina)

CAMMESA’s main functions include the coordination of dispatch operations, the responsibility for setting wholesale prices and the administration of economic transactions carried out within the wholesale electricity market. It has a significant role in the admission of new agents into the market. It is a privately managed company with a public function. The majority of CAMMESA's stock (80%) is held by agents of the wholesale electrical market (generators, carriers, distributors and large users, in equal parts). The remaining 20% is held by the Public Prosecutor’s Office, the intention being that it represents the interests of the general public.

Get unlimited access to all Latin Lawyer content