Osinergmin declares Luz del Sur's claim regarding tariff deduction inadmissible

The Board of Directors of Osinergmin declared inadmissible, in all its parts, the request for ex officio nullity filed by Luz del Sur S.A.A. against numeral 6.8.1.3 of the Terms of Reference for the Distribution Value Added (TDR of the VAD) for the periods 2026-2030 and 2027-2031. The decision is contained in Board Resolution No. 182-2026-OS/CD, dated in Lima on October 9, 2026, and published in the official newspaper El Peruano on Monday, October 12, 2026, in the Legal Norms section.

The challenged regulation orders the deduction from the operation and maintenance costs recognized for electricity distributors of the income they obtain from the leasing of electrical infrastructure—poles—to telecommunications operators. The rule was incorporated by Resolution No. 174-2025-OS/CD, published on December 19, 2025, which approved the TDR of the VAD for the periods from November 2026 to October 2030 and from November 2027 to October 2031.

Luz del Sur filed a motion for reconsideration against that resolution on January 15, 2026, which was resolved through Resolution No. 028-2026-OS/CD. The final text of the TDR was contained in Annex 1 of Technical Report No. 113-2026-GRT/OS of Resolution No. 033-2026-OS/CD, published on March 2, 2026. On August 27, 2026, the company requested the Board of Directors to declare the ex officio nullity of the deduction and, subsidiarily, its revocation.

The distributor’s arguments

Luz del Sur argued that the deduction is null by law because Osinergmin lacks the material competence to regulate the economic exploitation of electrical infrastructure, an exclusive attribution of the Ministry of Energy and Mines (MINEM). It added that the measure contravenes Decree Law No. 25844, the Electricity Concessions Law, by altering the efficient cost regulation model and generating an effect similar to a subsidy not provided for by law.

The company also alleged that the deduction interferes with the infrastructure sharing regime for the provision of public telecommunications services, the governance of which corresponds to the Ministry of Transport and Communications (MTC) pursuant to Law No. 28295 and Law No. 29904, and that it violates its property rights, freedom of enterprise, and due process.

Inadmissibility due to exhausted administrative channels

Osinergmin processed the request as a motion for reconsideration against Resolution 174 and declared it inadmissible. It pointed out that, according to articles 11.1, 206.1, 214, and 218.2 of the Single Ordered Text of Law No. 27444, Law of General Administrative Procedure, approved by Supreme Decree No. 006-2026-JUS, ex officio nullity is an attribution of the Public Administration and not a mechanism for administered parties to reopen expired deadlines or substitute ordinary appeals.

The Board of Directors recalled that Resolution No. 028-2026-OS/CD became final and exhausted the administrative route, therefore it can only be challenged before the Judiciary through a contentious-administrative process. It added that the company’s claims had already been analyzed in that resolution and in reports No. 097-2026-GRT and No. 111-2026-GRT.

Pending judicial processes

The organization specified that Luz del Sur maintains two judicial processes linked to the same matter:

• A contentious-administrative process requesting the nullity of Resolution No. 028-2026-OS/CD and Resolution No. 174-2025-OS/CD, as well as Resolution No. 033-2026-OS/CD regarding the part that modifies numeral 6.8.1.3 of the VAD Terms of Reference (TDR).
• A writ of amparo alleging a threat to property rights and freedom of enterprise, and to the principles of legitimate expectation and legal certainty.

For this reason, it invoked article 139.2 of the Political Constitution of Peru and article 4 of the Single Ordered Text of the Organic Law of the Judiciary, approved by Supreme Decree No. 017-93-JUS, which prohibit any authority from taking cognizance of cases pending before the jurisdictional body. It also cited Cassation No. 26968-2022-Madre de Dios of the Supreme Court.

Decision and publication

The resolution, adopted in Session No. 34-2026 on October 9, 2026, and signed by the president of the Board of Directors, Omar Chambergo Rodríguez, provides for:

• Qualifying the request for ex officio nullity as a motion for reconsideration against Resolution No. 174-2025-OS/CD.
• Declaring said motion inadmissible in all its parts.
• Incorporating Legal Report No. 587-2026-GRT/OS as an integral part of the resolution.
• Publishing the act in El Peruano and on the institutional portal of Osinergmin.

The decision maintains the deduction of pole rental income within the calculation of the Distribution Added Value (VAD), a factor that directly affects the electricity tariffs paid by users and the revenues recognized for distribution companies during the next tariff periods.

Source: El Peruano, No. 2026-10-12, Legal Norms (Regulatory Bodies), p. 9 (official reference: 2563257-1).