4.- That by order issued at nine thirty-eight hours on January nineteenth, two thousand twelve (folio 217 of the judicial file), the Processing Judge resolved: a) To deem the claim answered in a timely and proper manner by the State and the exception of lack of right as filed; b) To grant a hearing for counter-evidence to the plaintiff for a period of three days; c) To summon the parties to a preliminary hearing -given that the State's representative waived conciliation-, a proceeding scheduled for thirteen thirty hours on February second, two thousand twelve.
5.- That the preliminary hearing was held at thirteen thirty-four hours on February second, two thousand twelve, which, was recorded in the corresponding electronic system and is added to the file in a special bundle. That during this hearing, the Processing Judge adjusted the claims raised by the plaintiff, in the terms indicated in the first result of this judgment; established the contested and uncontested facts, transcendental for the case and therefore, subject to evidence; and admitted the documentary evidence offered by the parties. Consequently, as there was no testimonial, confessional, or expert evidence to be produced and in accordance with the provisions of Article 98.2 of the same Code, she declared this matter to be one of pure law and the parties rendered their conclusions orally (see folios 338 and 339 of the judicial file and the digital record of the preliminary hearing).
6.- That this matter was referred to the Presiding Judge of the Sixth Section of the Tribunal Contencioso Administrativo, on April twenty-seventh, two thousand twelve (folio 339 verso of the judicial file). In the proceedings before this Tribunal, no nullities have been observed that must be remedied or that generate defenselessness and the judgment is rendered within the period established in Article 98, subsection 2) of the Código Procesal Contencioso Administrativo, in relation to subsection 4) of Article 82 of the Reglamento Autónomo de Organización y Servicio of this Jurisdiction.-
Drafted by Judge Álvarez Molina, with the affirmative vote of Judges Hernández Gutiérrez and Hess Araya; and,
CONSIDERANDO:
Io.- PROVEN FACTS: The following facts relevant to this process are deemed duly accredited: 1) That on April sixteenth, two thousand eight, the Instituto Costarricense de Electricidad and the company awarded Licitación Pública No. 2006LI-000043-PROV, promoted by said entity, for the purpose of purchasing hydroelectric blocks of up to 50 MW, published in La Gaceta No. 194 on October 10, two thousand six, executed a Letter of Commitment, whose article 1, referring to the Conditions for signing the contract, establishes that: “…By virtue of the signing of this “Letter,” the parties expressly bind themselves to sign the contract under the terms and conditions stipulated in the Tender, the Offer, and the Final Award Act, once the ENEL- IELESA Consortium has satisfactorily fulfilled the following conditions: (…) 4. Present a copy of the concession granted by MINAE for the use of water power in electricity generation…” (folios 233 to 236 of the judicial file); 2) That on June thirtieth, two thousand nine; February sixteenth and June eighteenth, these last two of two thousand ten, the Instituto Costarricense de Electricidad and the company awarded Licitación Pública No. 2006LI-000043-PROV, executed addenda to the Letter of Commitment, given that said company had not been able to fulfill the requirement of presenting a copy of the concession granted by MINAE for the use of water power in electricity generation, and for this purpose, the term of validity of the Letter of Commitment was extended, so that the awarded company could demonstrate compliance with all commitments and proceed with the signing of the contract (folios 224 to 232 of the judicial file); 3) That on December thirtieth, two thousand nine, the plaintiff company filed before the Water Resources Directorate (Dirección de Recursos Hídricos) of the Ministry of Environment, Energy and Telecommunications (MINAET), an application for a concession of hydraulic force for hydroelectric generation, at the Chucás plant, in accordance with the terms of the international public bidding number 2006LI-000043-PROV, promoted by ICE for the purchase of hydroelectric energy blocks, B.O.T. modality of up to 50 MW, in order to take a flow of 74,800 liters per second from the Río Grande de Tárcoles, with the powerhouse located on the property registered under registration number Placa27170, located in the district of Piagagres, canton of Mora, province of San José. That in the form submitted for this purpose, the following is established regarding the payment of the fee for water use (canon por concepto de aprovechamiento de aguas): “...IMPORTANT NOTES (...) The concession implies the payment of a periodic fee... According to article 169 of the Ley de Aguas “if the indicated fee is not paid during one semester, it may be paid during the following one with a 25% surcharge or during the third with a 50% surcharge. If 3 semesters elapse without making the payments, the concession shall expire with the character of a legal mortgage (...) COMMITMENTS ACQUIRED UPON SIGNING THIS APPLICATION (...) Obtaining the concession implies the payment of a periodic fee, under the legal conditions indicated in the “Important Notes” section on the cover of this application...” (folios 1 to 8 of the administrative file); 4) That by resolution number R-0701-2010-AGUA-MINAET, issued at thirteen forty-seven hours on August twelfth, two thousand ten, the Water Directorate (Dirección de Aguas) of the Ministry of Environment, Energy and Telecommunications, decided to grant the plaintiff company a concession for the use of water for hydraulic force for hydroelectric generation, for a period of twenty years to “... use the following monthly flow and under the conditions to be indicated below, the breach of which will result in the cancellation of the concession: I. Source: Río Grande de Tárcoles (...) II. MAXIMUM THEORETICAL POWER TO BE OBTAINED: 36983.70 Kw. III. ESTIMATED EFFICIENCY IN THE TURBOGENERATOR: 86% V. IT WILL BE CAPTURED ON PROPERTY OF THE APPLICANT. VI. IT MUST guarantee that a bypass flow of 7,480.00 liters per second runs off at the intake. VII. CALIBRATING STRUCTURE: It must submit to the Water Directorate, within a period of two months from notification of this resolution, the design with calculation report and the respective plans of the civil structure that guarantees the bypass flow, for its evaluation and approval by the Water Directorate. VIII. It must install an energy dissipating structure at the discharge point of the generation flow. IX. Cartographic location: INTAKE POINT: Río Grande de Tárcoles, 3345-IV- Río Grande (...) DISCHARGE POINT: Río Grande de Tárcoles, Direction17020- ...” (folios 158 to 162 of the administrative file); 5) That on September thirteenth, two thousand ten, the plaintiff company filed a request for addition and clarification, regarding ruling number R-0701-2010-AGUA-MINAET, issued at thirteen forty-seven hours on August twelfth, two thousand ten, by the Water Directorate of the Ministry of Environment, Energy and Telecommunications (folios 167 to 170 of the administrative file); 6) That by resolution number R-1024-2010-AGUA-MINAET, issued at eleven sixteen hours on November twenty-sixth, two thousand ten, the Water Directorate of the Ministry of Environment, Energy and Telecommunications, decided: “…To accept the remedy filed in accordance with the technical analysis set forth in official communication AT-0434-2009 dated November 8, 2010 from the Water Directorate, therefore the concessionaire company Nombre23998. may divert the maximum flows up to where the design allows and the minimum monthly instantaneous flows according to the hydrograph based on the average monthly flows. Given the theoretical power for each month, because it is a project that has a reservoir, it allows generating net powers higher than up to 50000.00 KW at certain times with a generation flow of 125000.00 liters per second. The estimated energy in kilowatt-hours is corrected as the correct figure is 224,552,000.00 and not as indicated in point III of the Por Tanto…” (folios 201 to 204 of the administrative file); 7) That by invoice number 140680, the Water Department of the National Meteorological Institute (IMN) of MINAET, charged the plaintiff company the sum of ¢Placa27171 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two cents) for the water use fee, corresponding to the fourth quarter of the year two thousand ten, which was paid by the plaintiff company on January eighteenth, two thousand eleven (folios 57; 62 front and back of the judicial file); 8) That at thirteen hours on February 3, two thousand eleven, the Instituto Costarricense de Electricidad and the plaintiff company executed the Energy Purchase Contract P.H. Chucás S.A. number 201100001, which is based on Licitación Pública No. 2006LI-000043-PROV, promoted by ICE, for the purpose of purchasing hydroelectric power blocks of up to 50 MW, published in La Gaceta No. 194 on October 10, two thousand six. Said contract was the subject of an addendum, through a document executed by the Instituto Costarricense de Electricidad and the plaintiff company, at fourteen hours on May ninth, two thousand eleven. That in accordance with article 2.1, the object of that contract consists of determining “... the conditions under which the Contractor will supply to ICE, on the date established in the Official Work Schedule indicated in article 4.3.1. i) (hereinafter the “Guaranteed Commercial Operation Start Date”), exclusively, the electrical energy generated at the Plant with a nominal power of fi fty thousand kilowatts (50.00 kW), corresponding to two units of twenty-five thousand kilowatts (25,000 kW) each, which it commits to finance, design, build entirely with new parts, inspect, operate and transfer at no cost to ICE at the end of the Contract Term, in accordance with the provisions of the Tender and its clarifications, the Offer, the Connection Contract and this Contract...”. Regarding the Construction of the Plant, article 4.1.1. of the contract indicates -as relevant- that: “...The Contractor shall have a maximum term of three (3) years to complete construction, a term that shall run from the business day following ICE's notification to the Contractor of the Start Order. Within six months following notification of the Start Order, the Contractor must deliver the Official Work Schedule clearly indicating the date on which the Plant will enter commercial operation (Guaranteed Commercial Operation Start Date)...”. In turn, regarding the authorizations for the Start of Commercial Operation, articles 6.4.1, 6.4.2, and 6.4.3 provide -as relevant- the following: “... The Coordinating Committee will agree on the Commercial Operation Start Date once the following requirements are met (...) ICE will issue a written notification ratifying the approval date established in the previous article, with which the Plant's operation stage begins, corresponding to the carrying out of commercial transactions between the Contractor and ICE for the supply of energy (...) The official authorization for the start of commercial operation will be granted by ICE for the Plant...” (folios 16 to 55 of the judicial file); 9) That by invoice number 144455, the Water Department of the National Meteorological Institute of MINAET, charged the plaintiff company the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two cents) for the water use fee, corresponding to the first quarter of the year two thousand eleven, which was paid by the plaintiff company on March fifteenth, two thousand eleven (folios 58; 63 front and back of the judicial file); 10) That by invoice number 148262, the Water Department of the National Meteorological Institute of MINAET, charged the plaintiff company the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two cents) for the water use fee, corresponding to the second quarter of the year two thousand eleven (folios 61 front and back of the judicial file); 11) That by official communication number DCA-1953 of July twenty-ninth, two thousand eleven, the Administrative Contracting Division of the Contraloría General de la República, informed the Bidding Coordinator of the Procurement Directorate of the Instituto Costarricense de Electricidad, that “...a conditional approval is granted to the contract and addenda 1 and 2 executed between the Instituto Costarricense de Electricidad (ICE) and P.H. Chucás S.A., purchase of energy from hydroelectric power blocks up to 50 MW, according to Licitación Pública Internacional 2006LI-000043-PROV...” (folios 271 to 278 of the judicial file); 12) That by invoice number 152005, the Water Department of the National Meteorological Institute of MINAET, charged the plaintiff company the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two cents) for the water use fee, corresponding to the third quarter of the year two thousand eleven, which was paid by the plaintiff company on September thirteenth, two thousand eleven (folio 281 front and back of the judicial file); 13) That by official communication number 510-1217-2001 of September nineteenth, two thousand eleven, the Electricity Manager of ICE notified the representative of the plaintiff company of the Start Order that governs as of September 15, two thousand eleven. Likewise, it indicated that “...in accordance with the provisions of article 4.1.1. of Contract P.H. Chucás S.A., you will have a maximum term of three (3) years to complete construction, a term that shall run from the business day following notification of this Start Order...”. Said communication was received by the plaintiff company on September 26, 2011 (folios 279 and 280 of the judicial file); 14) That by invoice number 155863, the Water Department of the National Meteorological Institute of MINAET, charged the plaintiff company the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two cents) for the water use fee, corresponding to the fourth quarter of the year two thousand eleven, which was paid by the plaintiff company on December eighth, two thousand eleven (folio 282 front and back of the judicial file).
IIo.- FACTS NOT PROVEN. Of relevance to the present process, the following are deemed not proven: a) That to date, the plaintiff company –with ICE's authorization– has commenced the commercial operation of the Chucás hydroelectric plant and, consequently, is using the hydraulic force of the public domain waters of the Río Grande de Tárcoles to generate hydroelectric energy, in accordance with the terms of the Energy Purchase Contract P.H. Chucás S.A. number 201100001, which is based on Licitación Pública No. 2006LI-000043-PROV (said circumstance is not evident from the document visible on folio 279 to 280 of the judicial file); b) That the plaintiff company has paid the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two cents), for the water use fee, corresponding to the second quarter of the year two thousand eleven, which was charged by the Water Department of the National Meteorological Institute of MINAET, through invoice number 148262 (there is no evidence in the file).
IIIo.- OBJECT OF THE PROCESS. The plaintiff considers that in accordance with the provisions of articles 1 and 2, subsection h of Decreto Ejecutivo number 32868, the granting of the concession for the use of the hydraulic forces of public domain waters to generate hydroelectric energy does not constitute the triggering event for the water use fee; rather, this occurs when the water is usefully employed, for example: to generate energy. It considers that in the present case and in accordance with the provisions of articles 2.1 and 6.4 of the Energy Purchase Contract P.H. Chucás S.A. number 201100001, executed between ICE and the plaintiff company –which is based on Licitación Pública No. 2006LI-000043-PROV–, the use of the water resource granted in concession will take place at the time the Chucás hydroelectric dam is built and ICE grants the authorization to start the commercial operation of said plant. It alleges that during the pre-operational and construction period of the hydroelectric plant, the plaintiff company is not in conditions to generate energy and therefore it is materially impossible for it to carry out the use of water for hydroelectric energy generation, which ultimately depends on ICE issuing the order for the start of its commercial operation. On the grounds of the foregoing, it considers the defendant's charging, through invoices number 140680, 144455, 148262, 152005, and 155863, of the water use fee for hydroelectric energy generation, corresponding to the 4th quarter of 2010 and the four quarters of 2011, to be improper, even though the triggering event for the same has not yet occurred, given that it is not possible to use the water for hydraulic force if the hydroelectric plant is not yet built and, therefore, ICE has not issued the order for the start of commercial operation. Consequently, it considers the charges for this concept to be illegitimate and that although it is true that it already paid invoices 140680, 144455, 152005, and 155863 under protest, it is also true that it did so in order to avoid having the granted concession declared expired. For its part, the representative of the State maintains that: a) Both in the “Important Notes” and “Commitments Acquired” sections contained in the application for a concession of hydraulic force for hydroelectric energy generation, it is indicated that “...obtaining the concession implies the payment of a periodic fee...”, which must be paid semi-annually in accordance with the provisions of article 169 of the Ley de Aguas. In this regard, it alleges that the plaintiff company not only knew, but also committed itself, from the time it filed the concession application, to the payment of the fee it now challenges, so much so that in none of the procedures carried out by the plaintiff did it indicate to the Administration its refusal to pay the fee that the legal system imposes on water concessionaires, until the Instituto Costarricense de Electricidad decided to issue the start order for the works that the plaintiff committed to carry out for the latter; b) It maintains that in accordance with the provisions of articles 178 subsection g), 180, and 181 of the Ley de Aguas, the commitment to pay the fee constitutes a sine qua non requirement to initiate the concession procedure and that once it is approved, the corresponding amount will be fixed to proceed with its collection.
\n\nIn that regard, it considers that the obligation to pay the fee arises from the moment the concession is granted and the right to use or exploit the resource emerges, since from that moment the concessionaire can enjoy the water resource, without the alleged fact that the plaintiff does not use it due to conduct attributable to a third party—for example: that ICE issues the order to begin the supposed bidding process—being able to distort the duty to pay the fee that is the subject of this proceeding; c) It insists that the taxable event that obligates payment of the fee is the possibility of using or exploiting the water resource and not the exploitation itself, as the plaintiff wrongly attempts to make it seem, which is why, upon granting the exploitation concessions, the concessionaire is obligated to pay a fee and failure to do so results in the expiration of what was granted, assertions that—in its view—clearly arise from the provisions of article 169 of the Ley de Aguas and what was considered by the Constitutional Chamber of the Supreme Court of Justice, in judgment number 2006-9170 of sixteen hours thirty-six minutes of June twenty-eighth, two thousand six; d) It concludes that the duty to cancel the fee does not arise as a result of the enjoyment of the approval granted by the Administration for the use of the water resource, but on the contrary, arises once the private party holds the possibility of exploiting the public domain asset, they must cancel the amount charged for it, without it being possible to think that, due to their decision not to exploit their concession, the duty to pay disappears.\n\n**IVo.- REGARDING THE LEGAL REGIME APPLICABLE TO CONCESSIONS FOR THE EXPLOITATION OF THE HYDRAULIC FORCES OF WATER FOR HYDROELECTRIC POWER GENERATION.** In the first instance, it is necessary to indicate that the regulation of concessions aimed at the exploitation of the hydraulic forces of water for electric power generation has been subject to a framework law that regulates in detail the assumptions under which it is possible to grant and operate the concession, the rights and obligations of the concessionaires—including the payment of the fee—, the purpose of the contract, and the term of the concession. The foregoing, without prejudice to the application of other complementary regulations such as the Ley de Aguas, the Ley Orgánica del Ambiente, the Ley de Biodiversidad, the Ley que Autoriza la generación Eléctrica Autónoma o Paralela, the Ley de la Autoridad Reguladora de los Servicios Públicos, and any other applicable regulation on the matter, such as, for example: Decree number 32868 (Fee for the Concept of Water Exploitation). In that sense, articles 46 and 170 of the Ley de Aguas establish that: *\"...Concessions for the exploitation of public waters for the development of hydraulic and hydroelectric forces for public and private services, shall be governed by the provisions contained in Law No. 258 of August 18, 1941, and in the Regulation that the Executive Branch shall issue on the matter. **However, the provisions of the present law shall also be applicable to them, as long as these do not contradict the precepts of the referred Law number 258...**\" // \"...Concessions for water exploitation for the development of hydraulic and electrical forces shall pay the taxes determined in article 57 of Law number 258 of August 18, 1941, but if the waters are used for purposes other than the development of force, they must additionally pay the tax referred to in the article before the previous one...\".* Consequently, the Framework Law that regulated the assumptions under which it was possible to grant and operate the concession, the rights and obligations of the concessionaires—including the payment of the fee—, the purpose of the contract, and the term of the concession for the exploitation of the hydraulic forces of water for hydroelectric power generation was Law number 258 (Law Creating the National Electricity Service). However, by Law number 7503 of August 9, 1996, \"LEY DE LA AUTORIDAD REGULADORA DE LOS SERVICIOS PÚBLICOS,\" the SNE was transformed into an autonomous institution called the Autoridad Reguladora de los Servicios Públicos. Article 68 of this Law ordered the repeal \"of Law No. 258 of August 18, 1941, and its amendments,\" and Transitory Provision V, second paragraph, indicated that whenever the SNE is mentioned, including its relationship with national waters, it shall be read as the Ministry of Environment and Energy. Said repeal caused a legal vacuum, since from the repeal of Law number 258, the legal operator lacked clear and concrete regulations on the concession to be granted for the exploitation of the hydraulic forces of water for hydroelectric power generation. At this point, it is worth highlighting the criterion expressed in this regard by the Constitutional Chamber of the Supreme Court of Justice, in judgment number 2010-12299 of fourteen hours forty-five minutes of July twenty-first, two thousand ten (reiterated in judgment number 2011-2698 of fifteen hours five minutes of March second, two thousand eleven), when considering: *\"...ARESEP, according to its current law, has jurisdiction in relation to the supply of electric energy in the stages of generation, transmission, distribution, and commercialization\" (art. 5), that is, its law regulates everything related to the public service of electric energy from any source. The Ley de Aguas (article 176), as of the reform to Transitory Provision V of Law 7593 of August 9, 1996, certainly attributed jurisdiction to MINAE to grant concessions intended to exploit public waters in the production of electric energy. **However, the mere assignment of jurisdiction cannot be equated to a regulatory framework law for the concession granting process** (requirements for the concessionaire, obligations, impacts, etc.), much less when assets that cannot be disaffected even by ordinary law are involved. **A liberal interpretation of the regime regulating this matter could lead to a \"de facto\" disaffectation of the Nation's assets, which is clearly unsustainable. The Chamber estimates that with the repeal of Law 258, everything regarding water concessions for energy exploitation was left without a framework law, precisely the scenario addressed by subsection 14) of article 121 of the Political Constitution.** The framework law that this Chamber has indicated as possible in this matter must have clear, concrete regulations on the concession to be granted, as it involves the exploitation of the Nation's assets; it is not by chance that the constituent established that the law must address \"conditions and stipulations,\" which are nothing other than a **detailed normative framework** due to the asset involved. It is important, for the purposes of this judgment, to indicate that the concept of a framework law is consistent with Constitutional Law....\"* Now, this regulatory vacuum was filled by the enactment of Law No. 8723 of April 22, 2009, called “Ley Marco de Concesión para el Aprovechamiento de las Fuerzas Hidráulicas para la Generación Hidroeléctrica” (published in Gazette No. 87 of May 7, 2009), a regulation that shall apply over any other regulation on matters of concessions for the exploitation of hydraulic forces for hydroelectric generation, thus repealing any other that contradicts it (article 16 of Law 8723), without prejudice to the application of other complementary regulations such as the Ley de Aguas, the Ley Orgánica del Ambiente, the Ley de Biodiversidad, the Ley que Autoriza la Generación Eléctrica Autónoma o Paralela, the Ley de la Autoridad Reguladora de los Servicios Públicos, and any other applicable regulation on the matter (article 7 of Law 8723), such as, for example: Decree number 32868 (Fee for the Concept of Water Exploitation). Consequently, the regulation that regulates in detail the assumptions under which it is possible to grant and operate the concession, the rights and obligations of the concessionaires—including the payment of the fee—, the purpose of the contract, and the term of the concession, is the Ley Marco de Concesión para el Aprovechamiento de las Fuerzas Hidráulicas para la Generación Hidroeléctrica (Law number 8723), and while it is true that some provisions of the Ley de Aguas may be applied to this type of concession, it is also true that this shall be conditional on them not contradicting the Framework Law number 8723, in accordance with the provisions of articles 46 and 170 of the Ley de Aguas, given the special connotations that said concession has. Consequently, it is based on this regulatory delimitation that this Court shall conduct the analysis set forth below.\n\n**Vo.- GENERAL ASPECTS REGARDING THE CONCESSION FOR THE EXPLOITATION OF THE HYDRAULIC FORCES OF WATERS FOR HYDROELECTRIC POWER GENERATION, WHICH IMPACT THE SUBJECT MATTER OF THIS PROCEEDING.** In the first instance, it is necessary to indicate that in the case of projects that develop the hydraulic forces of waters in the generation of hydroelectric power, **the exploitation consists of the non-consumptive use of public domain waters**, for the de facto situations contained in articles 5 and 20 of the Ley que Autoriza la Generación Eléctrica Autónoma o Paralela (Law number 7200), that is, the generation of up to twenty thousand kilowatts (20,000 Kw) and up to fifteen percent (15%) of the total power of the set of electrical plants that comprise the National Electric System, and the generation of up to fifty thousand kilowatts (50,000 Kw) and up to fifteen percent (15%) of the total power of the set of electrical plants that comprise the National Electric System, in addition to the foregoing (articles 4, 14 of Law 8723; 2 subsection a of Executive Decree number 32868). Given that the exploitation in this type of concession consists of the non-consumptive use of public domain waters for the generation of hydroelectric power, **the term of the concessions granted by MINAET for this purpose shall be up to twenty-five years, a term that shall begin to run from the start of the commercial operation of the hydroelectric plant** **(article 5 of Law 8723)**. In that sense, the concessionaire shall have up to five years from the moment the concession is granted, to begin the operation of the project. If, for reasons not attributable to the concessionaire, the established five-year term to begin the operation of the project is not met, it may be extended once only, for up to one year (article 5 of Law 8723). Now, article 14 of Law 8723 establishes that *\"...Minaet shall be in charge of setting the fees associated with the exploitation of hydraulic forces for hydroelectric generation, that the concessionaires must pay in favor of the Administration **for the use of the public domain**.\"* For its part, subsection h) in fine of article 2 of Executive Decree number 32868, establishes that: *\"...For the purposes of collection management, uses shall be grouped into the following main categories, namely: (...) h. **Hydraulic Force**: Exploitation of water in the generation of electricity or the development of mechanical force. **For the purposes of charging the fee for** agroindustrial use, non-consumptive use of water shall be understood as those processes of cooling, vacuum production, among others, in which the resource, once exploited, is returned to the channel of the original source in the same or better quantity and quality without the need for a treatment system, and this is carried out almost immediately after its diversion, without inter-basin transfer to another watershed or micro-watershed, nor competition for its use with other water demands. **In the case of projects that develop the hydraulic forces of waters in the generation of electricity or mechanical force, these are exploitations classified as non-consumptive use of the water resource...**\".* It should be added that article 170 of the Ley de Aguas refers, in the case of concessions for the exploitation of the hydraulic forces of public domain waters, to the provisions of article 57 of Law number 258 of August 18, 1941, which was the framework law regulating this matter, but was repealed with the enactment of the ARESEP Creation Law, therefore, said reference must currently be understood to refer to Law 8723 and Executive Decree number 32868. Based on the foregoing and in accordance with numerals 14 of Law 8723 and 2 subsection h of Executive Decree number 32868, **the event generating the payment of the fee** that concessionaires must pay in favor of the Administration, specifically associated with the exploitation of the hydraulic forces of public domain waters for hydroelectric power generation, **is the generation of hydroelectric power, through the exploitation and development of the hydraulic forces of public domain waters (non-consumptive use of the public domain), by means of hydroelectric projects to generate electricity, and not the mere granting of the concession for the exploitation thereof for hydroelectric power generation; so much so, that the effective term of this concession, shall begin to run only when the concessionaire is able to start the commercial operation of the plant.** As a consequence of the foregoing, the **collection of the fee shall be implemented gradually over a period of seven years**, according to the following parameters and percentages: 20% of the total value in the first year; increasing by 30% cumulatively in year three and by another 30% in year five, finally increasing by the remaining 30% to reach 100% of the fee in year seven (article 10 of Executive Decree 32868). The competent body to collect the fee for the exploitation of the hydraulic forces of public domain waters for hydroelectric power generation is the Department of Waters of MINAET, **which shall collect it on a quarterly basis in advance and shall apply, in the event of non-payment of the fee, the surcharges of 25% for the second quarter and 50% for the third quarter, established in the final paragraph of article 169 of the Ley de Aguas** (article 20 of Executive Decree number 32868). This is because **articles 14 of Law 8723, 46 of the Ley de Aguas, and 20 of Executive Decree number 32868 refer, in the event of non-payment of the fee for the exploitation of public waters for hydroelectric power generation, to the surcharges of 25% for the second quarter and 50% for the third quarter, established in the final paragraph of article 169 of the Ley de Aguas** (article 20 of Executive Decree number 32868). **However, said reference to the Ley de Aguas does not imply per se that in the scenario at hand—exploitation of public domain waters for hydroelectric generation—the fee must be paid from the very moment the concession is granted,** since in accordance with the special rules regulating this type of concession, the collection and respective payment of the fee for the exploitation of waters for this purpose shall occur from the generation of hydroelectric power through the exploitation of the waters of the public domain, that is, at the start of the commercial operation of the hydroelectric plant and not before, given that article 5 paragraph 2 of Law 8723 itself establishes that the concessionaire shall have up to five years from the moment the concession is granted, to begin the operation of the project, which is why the collection of said fee for the exploitation of waters for electric generation could not be charged in the period between the granting of the concession for this purpose, and the start date of the commercial operation of the hydroelectric power generating plant. Now then, **the non-payment of three quarters of the fee plus its corresponding fines** shall cause the expiration of the concession, in accordance with the provisions of articles 11 subsection e) of Law 8723, 20 of Executive Decree number 32868, and 169 last paragraph of the Ley de Aguas. At this point, it is worth emphasizing that the effective term for which the concession for the exploitation of the hydraulic forces of public domain waters for hydroelectric power generation was granted **shall begin to run only when the concessionaire is able to start the commercial operation of the plant; consequently, the staggered collection of the fee for that exploitation during the first seven years of the concession's validity** shall become effective from the moment the term for which the concession was granted begins to be counted. On the other hand, it should be added that **contrary to what subsection g) of article 178 of the Ley de Aguas establishes, numeral 4 of Law number 8723 does not establish as a requirement to submit the application for a concession** for the exploitation of the hydraulic forces of public domain waters for hydroelectric power generation, that the applicant attach the promise to pay the fee that is set for them in due course, this is because the event generating the payment of the fee that concessionaires must pay in favor of the Administration for this concept **is the generation of hydroelectric power, through the exploitation of the hydraulic forces of public domain waters (non-consumptive use of the public domain), by means of hydroelectric projects to generate electricity, and not the mere granting of the concession for the exploitation thereof for hydroelectric power generation; so much so, that the effective term of this concession, shall begin to run only when the concessionaire is able to start the commercial operation of the plant.** In any case, **even if subsection g) of article 178 of the Ley de Aguas were applicable to the scenario at hand,** this does not imply that the collection of the fee for the exploitation of public domain waters for hydroelectric power generation **must be paid for the mere granting of the concession, since in this case the exploitation of the waters occurs from an effective use of the public domain, that is, once the commercial operation of the hydroelectric plant has begun, through which electric energy shall be generated.**\n\nFinally, the fact that Article 181, subsection IV of the Water Law (Ley de Aguas) establishes that in the act whereby the Water Directorate of MINAET grants the concession for the use of public waters, it must set the fee (canon) to be paid by the concessionaire, does not per se imply that in the case before us regarding the use of public domain waters for hydroelectric generation, the fee must be paid from the very moment the concession is granted, given that in accordance with the special rules governing this type of concession, the charging and respective payment of the fee for the use of waters for this purpose will occur upon the generation of hydroelectric energy, through the non-consumptive use of public domain waters, that is, when the commercial operation of the hydroelectric plant begins and not before, since Article 5, paragraph 2 of Law 8723 itself establishes that the concessionaire shall have up to five years from the moment the concession is granted to begin operation of the project, which is why the charging of said fee for the use of waters for electric generation could not be charged in the period between the granting of the concession for this purpose and the date of commencement of commercial operation of the hydroelectric power plant. For all the foregoing reasons, this Tribunal declares that: i) The use in this type of concession consists of the non-consumptive use of public domain waters for the generation of hydroelectric energy; ii) The term of validity of the concession shall be counted from the commencement of commercial operation of the plant, that is, from when the concessionaire is able to begin operation of the project and generate hydroelectric energy, through the use of the hydraulic forces of public domain waters; iii) The event that triggers the payment of the fee that concessionaires must pay to the Administration, specifically associated with the use of hydraulic forces of public domain waters for hydroelectric energy generation, is the generation of hydroelectric energy, through the use and exploitation of the hydraulic forces of public domain waters (non-consumptive use of the public domain), through hydroelectric projects to generate electricity, and not the mere granting of the concession for the use of the same for hydroelectric energy generation; so much so, that the term of validity of this concession will begin to count only when the concessionaire is able to commence commercial operation of the plant; iv) The concessionaire shall have up to five years from the moment the concession is granted to begin operation of the project, which is why the charging of said fee for the use of waters for electric generation could not be charged in the period between the granting of the concession for this purpose and the date of commencement of commercial operation of the hydroelectric power plant; v) The staggered charging of the fee for this use during the first seven years of validity of the concession shall be effective from when the term for which the concession was granted begins to be computed, and not from its granting.\n\nVIo.- REGARDING THE ILLEGITIMATE CHARGING IN THE SPECIFIC CASE OF THE FEE FOR THE USE OF HYDRAULIC FORCES OF PUBLIC DOMAIN WATERS FOR HYDROELECTRIC ENERGY GENERATION. In accordance with the analysis in the preceding section, this Tribunal considers that the charging to the plaintiff company of the fee for the use of hydraulic forces of public domain waters for hydroelectric energy generation, corresponding to the 4th quarter of 2010 and the four quarters of 2011, from the moment the concession was granted for this purpose, is contrary to law, for the reasons set forth below: a) By resolution number R-0701-2010-AGUA-MINAET, issued at thirteen hours forty-seven minutes on August twelfth, two thousand ten, the Water Directorate of the Ministry of Environment, Energy and Telecommunications ordered the granting to the plaintiff company of a concession for the use of hydraulic force waters for hydroelectric generation, for a term of twenty years (folios 158 to 162 of the administrative file). Said ruling was clarified and supplemented by resolution number R-1024-2010-AGUA-MINAET, issued at eleven hours sixteen minutes on November twenty-sixth, two thousand ten, by the Water Directorate of the Ministry of Environment, Energy and Telecommunications (folios 201 and 204 of the administrative file); b) The granting of said concession constituted a sine qua non requirement for the plaintiff company and ICE to sign the Energy Purchase Agreement P.H. Chucás S.A. number 201100001, which is based on Public Tender No. 2006LI-000043-PROV, promoted by ICE, with the purpose of purchasing hydroelectric power blocks of up to 50 MW, which was published in La Gaceta No. 194 of October 10, two thousand six (folios 224 to 236 of the judicial file). This contract was signed by the plaintiff company and ICE at thirteen hours on February 3, two thousand eleven and was subject to an addendum, by means of a document signed by the Instituto Costarricense de Electricidad and the plaintiff company at fourteen hours on May ninth, two thousand eleven (folios 16 to 55 of the judicial file). Furthermore, by official letter number DCA-1953 of July twenty-ninth, two thousand eleven, the Administrative Procurement Division of the Comptroller General of the Republic informed the Tender Coordinator of the Procurement Directorate of the Instituto Costarricense de Electricidad that \"...conditional approval is granted to the contract and addenda 1 and 2 signed between the Instituto Costarricense de Electricidad (ICE) and Nombre23998. S.A., purchase of energy from hydroelectric power blocks up to 50 MW, according to International Public Tender 2006LI-000043-PROV...\" (folios 271 to 278 of the judicial file). Finally, by official letter number 510-1217-2001 of September nineteenth, two thousand eleven, the Electricity Manager of ICE communicated to the representative of the plaintiff company the Commencement Order effective as of September 15, two thousand eleven. He also indicated that \"...as established in article 4.1.1. of the Agreement P.H. Chucás S.A., you shall have a maximum term of three (3) years to complete construction, a term that shall run from the business day following notification of this Commencement Order...\" (folios 279 and 280 of the judicial file); c) From the foregoing relation of facts, it does not appear that to date, the plaintiff company—with the authorization of ICE—has commenced the commercial operation of the Chucás hydroelectric plant and consequently, is using the hydraulic force of the public domain waters of the Río Grande de Tárcoles to generate hydroelectric energy, in accordance with the terms of the Energy Purchase Agreement P.H. Chucás S.A. number 201100001, which is based on Public Tender No. 2006LI-000043-PROV (section relating to considerando II of this judgment); given that the commencement order for the Energy Purchase Agreement P.H. Chucás S.A. number 201100001, which is based on Public Tender No. 2006LI-000043-PROV, was given as of September 15, 2011; d) By reason of the foregoing, the twenty-year term for which the plaintiff company was granted the concession for the use of hydraulic forces of public domain waters for hydroelectric energy generation shall begin to run from the commencement of commercial operation of the Chucás hydroelectric plant, which, eventually and in accordance with the provisions of articles 4.1.1., 6.4.1, 6.4.2. and 6.4.3 of the Energy Purchase Agreement P.H. Chucás S.A. number 201100001, will occur three years from the commencement order given by ICE, that is, from September 15, 2011 (folios 20, 25 verso, 26, 31 verso, 32 and 279 of the judicial file). In any case, and in accordance with Article 5 of Law 8723, the plaintiff company shall have up to five years from the moment of the granting of the concession to begin the commercial operation of the project and therefore, to begin the non-consumptive use of the waters of the Río Grande de Tárcoles, under the terms in which the concession was granted; e) As a consequence of the foregoing and in accordance with the provisions of Articles 2, 4, 5, 14 and 16 of Law 8723; 46 and 170 of the Water Law; 2 subsection h), 10 and 11 of Decreto Ejecutivo number 32868, the event that triggers the payment of the fee for the use of waters for hydroelectric energy generation by the plaintiff company shall be the generation of hydroelectric energy, through the use and exploitation of the hydraulic forces of public domain waters (non-consumptive use of the public domain), by means of hydroelectric projects to generate electricity, and not the mere granting of the concession for the use of the same for hydroelectric energy generation, given that the term of validity of the latter shall begin to be counted from the commencement of commercial operation of said plant, within a maximum period of five years—according to Article 5 of Law 8723—or 3 years—according to articles 4.1.1., 6.4.1, 6.4.2. and 6.4.3 of the Energy Purchase Agreement P.H. Chucás S.A. number 201100001—, counted from its granting; f) As a result of the foregoing, the fact that in the form submitted by the plaintiff company to request the concession for the use of hydraulic forces for hydroelectric energy generation, it is established regarding the payment of the fee for water use that: \"...IMPORTANT NOTES (...) The concession implies the payment of a periodic fee (...) COMMITMENTS ACQUIRED UPON SIGNING THIS APPLICATION (...) Obtaining the concession implies the payment of a periodic fee, under the legal conditions indicated in the 'Important Notes' section on the cover of this application...\" (folios 1 to 8 of the administrative file), does not have the virtue of modifying or disapplying the provisions of Articles 2, 4, 5, 14 and 16 of Law 8723; 46 and 170 of the Water Law; 2 subsection h), 10 and 11 of Decreto Ejecutivo number 32868, which is why it is not valid to support the argument that the event that triggers the payment of the fee for the use of waters for hydroelectric energy generation is the granting of the concession, given that this is substantially contrary to the provisions of the aforementioned norms. It must be reiterated that the regulations that govern in detail the assumptions under which it is possible to grant and exploit the concession, the rights and obligations of the concessionaires—including the payment of the fee—, the object of the contract and the term of the concession, is the Framework Law for Concession for the Use of Hydraulic Forces for Hydroelectric Generation (Ley Marco de Concesión para el Aprovechamiento de las Fuerzas Hidráulicas para la Generación Hidroeléctrica, Law number 8723), and although it is true that for this type of concession some of the provisions of the Water Law may be applied, it is also true that this will be conditioned on them not conflicting with Framework Law number 8723, in accordance with the provisions of Articles 46 and 170 of the Water Law, given the special features of said concession; f) At this point, it is necessary to highlight that although it is true that the form for requesting the concession for the use of hydraulic forces for hydroelectric energy generation indicates that \"...According to Article 169 of the Water Law, 'if the indicated fee is not paid during one semester, it may be paid during the following semester with a 25% surcharge or during the third with a 50% surcharge. If 3 semesters elapse without making the payments, the concession shall expire with the status of a legal mortgage (...) COMMITMENTS ACQUIRED UPON SIGNING THIS APPLICATION (...)' (folios 1 to 8 of the administrative file), this occurs as a consequence of the fact that Articles 14 of Law 8723, 46 of the Water Law and 20 of Decreto Ejecutivo number 32868, refer, in case of non-payment of the fee for the use of public waters for hydroelectric energy generation, to the surcharges of 25% for the second quarter and 50% for the third quarter, established in the final paragraph of Article 169 of the Water Law (Article 20 of Decreto Ejecutivo number 32868). However, it is reiterated that said referral to the Water Law does not per se imply that in the case before us—use of public domain waters for hydroelectric generation—, the fee must be paid from the very moment the concession is granted, given that in accordance with the special rules governing this type of concession, the charging and respective payment of the fee for the use of waters for this purpose will occur upon the generation of hydroelectric energy through the use of public domain waters, that is, when the commercial operation of the hydroelectric plant begins and not before, since Article 5, paragraph 2 of Law 8723 itself establishes that the concessionaire shall have up to five years from the moment the concession is granted to begin operation of the project, which is why the charging of said fee for the use of waters for electric generation could not be charged in the period between the granting of the concession for this purpose and the date of commencement of commercial operation of the hydroelectric power plant; g) Finally, judgment number 2006-9170 issued by the Constitutional Chamber (Sala Constitucional) at sixteen hours thirty-six minutes on June twenty-eighth, two thousand six, is also not applicable to this specific case, not only because the object of this proceeding is not centered on determining the difference between a tax and a fee, but also because that resolution was issued to resolve whether the Regulation for the Creation of the Fee (Decreto Ejecutivo number 311756-MINAE) was or was not contrary to Constitutional Law. It should be recalled that the object of this proceeding is centered on determining when the Administration must charge the fee for the use of hydraulic forces of public domain waters for hydroelectric energy generation, which is governed by special regulations framed by Law number 8723, which is why the decision of the Constitutional Chamber in the aforementioned judgment bears no relation to the legal aspect being questioned in this proceeding. For all the reasons set forth, this Tribunal considers that the charging of the fee for the use of waters for hydroelectric energy generation—corresponding to the 4th quarter of 2010 and the four quarters of 2011—, carried out by the Water Department of MINAE against the plaintiff company, from the moment it was granted the concession for the use of hydraulic forces of public domain waters for hydroelectric energy generation, is substantially contrary to the provisions of Articles 2, 4, 5, 14 and 16 of Law 8723; 46 and 170 of the Water Law; 2 subsection h), 10 and 11 of Decreto Ejecutivo number 32868. Consequently, the State must return the amounts paid by the plaintiff company for the fee for the use of waters for hydroelectric energy generation, with the exception of the amount corresponding to the second quarter of 2011, given that it was not proven that the plaintiff company paid the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos) for the water use fee corresponding to the second quarter of the year two thousand eleven, which was charged by the Water Department of the Instituto Meteorológico Nacional of MINAET through invoice number 148262 (see point b of considerando II of this judgment). The foregoing according to the following breakdown: i) Invoice number 140680, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the fourth quarter of the year two thousand ten; ii) Invoice number 144455, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the first quarter of the year two thousand eleven; iii) Invoice number 152005, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the third quarter of the year two thousand eleven; iv) Invoice number 155863, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos) for the water use fee, corresponding to the fourth quarter of the year two thousand eleven, which was paid by the plaintiff company on December fifth, two thousand eleven. Likewise, the payment of legal interest is appropriate on the amounts indicated above, which shall be calculated based on the passive interest rate for six-month certificates of the Banco Nacional de Costa Rica, according to the currency involved, as provided in Article 1163 of the Civil Code, from the following dates on which the plaintiff paid the respective fee corresponding to each of the aforementioned quarters, namely: i) From January eighteenth, 2011, the date of payment of the fee for the 4th quarter of 2010; ii) From March fifteenth, 2011, the date of payment for the 1st quarter of 2011; iii) From September 13, 2011, the date of payment for the 3rd quarter of 2011; iv) From December 8, 2011, the date of payment for the 4th quarter of 2011. This is until its effective payment, which must be calculated in the judgment execution phase before this same tribunal. Such recognition of interest indirectly entails the adjustment of the economic value of the amounts granted for the effects of Article 123 of the Code of Contentious Administrative Procedure.\n\nVIIo.- ON THE SUBSTANTIVE DEFENSES. This Tribunal reaches the conclusion that the company P.H. Chucás S.A. has sufficient standing to sue (legitimación activa) to participate in this proceeding in accordance with Article 10, subsection a) of the Code of Contentious Administrative Procedure, as it is the entity from which the fee for the use of hydraulic forces of public domain waters for hydroelectric energy generation has been charged, from the moment the concession was granted for this purpose. Furthermore, the action is correctly directed against the State, as provided in Article 12, subsection 1) of said Code, since the Water Directorate of the Ministry of Environment and Energy is the entity that proceeded to charge the fee for the use of waters for hydroelectric energy generation, from the moment the plaintiff company was granted the concession for this purpose. Moreover, the interest remains current, insofar as the conduct subject to the proceeding continues to have effects on the legal sphere of the plaintiff and requires a jurisdictional resolution to resolve it. Finally, this collegiate body finds that for all the reasons set forth in considerandos IV, V and VI of this judgment, the defense of lack of right (excepción de falta de derecho) filed by the State must be rejected, and consequently, the claim filed by Nombre23998 is declared with merit.\n\nagainst the State, in the following terms, with any matter not expressly indicated herein being understood as denied: 1) It is declared that, in accordance with the provisions of numerals 2, 4, 5, 14, and 16 of Law 8723; 46 and 170 of the Water Law (Ley de Aguas); 2 subsection h), 10, and 11 of Executive Decree number 32868, the event that gives rise to the obligation to pay the fee (canon) that the concessionaires must pay to the Administration, specifically associated with the use of the hydraulic forces of public-domain waters for hydroelectric power generation, is the generation of hydroelectric energy, through the use and exploitation of the hydraulic forces of public-domain waters (non-consumptive use of the public domain), via hydroelectric projects to generate electricity, and not the mere granting of the concession for the use of the same for hydroelectric power generation. This is so much the case that the term of this concession shall begin to run only when the concessionaire is in a position to begin commercial operation of the plant; 2) That the collection of the fee for water use (canon por aprovechamiento de aguas) for hydroelectric power generation, carried out by the Water Department (Departamento de Aguas) of MINAE against the plaintiff company, corresponding to the 4th quarter of 2010 and the four quarters of 2011, is substantially contrary to the provisions of articles 2, 4, 5, 14, and 16 of Law 8723; 46 and 170 of the Water Law (Ley de Aguas); 2 subsection h), 10, and 11 of Executive Decree number 32868; 3) That, consequently, the State must return the amounts paid by the plaintiff company for the items related to the fee for water use for hydroelectric power generation, with the exception of that corresponding to the second quarter of 2011, according to the following breakdown: i) Invoice number 140680, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the fourth quarter of the year two thousand ten; ii) Invoice number 144455, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the first quarter of the year two thousand eleven; iii) Invoice number 152005, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the third quarter of the year two thousand eleven; iv) Invoice number 155863, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos) for the water use fee item, corresponding to the fourth quarter of the year two thousand eleven, which was paid by the plaintiff company on the fifth of December, two thousand eleven; 4) The payment of legal interest on the amounts previously indicated is appropriate, which shall be calculated based on the passive interest rate for six-month certificates of the Banco Nacional de Costa Rica, according to the currency involved, as provided in article 1163 of the Civil Code (Código Civil), starting from the date the plaintiff paid the fee corresponding to each of the previously indicated quarters and until its effective payment, according to the following breakdown of dates: i) From the eighteenth of January, 2011, the payment date of the fee for the 4th quarter of 2010; ii) From the fifteenth of March, 2011, the payment date of the 1st quarter of 2011; iii) From the 13th of September, 2001, the payment date of the 3rd quarter of 2011; iv) From the 08th of December, 2011, the payment date of the 4th quarter of 2011. These amounts must be calculated in the sentence enforcement phase before this same court. Such recognition of interest implies, indirectly, the adjustment of the economic value of the amounts awarded for the purposes of article 123 of the Contentious-Administrative Procedural Code (Código Procesal Contencioso Administrativo).\n\nVIII o.- REGARDING COSTS (SOBRE COSTAS). In accordance with numeral 193 of the Contentious-Administrative Procedural Code (Código Procesal Contencioso Administrativo), procedural and personal costs constitute a burden imposed on the losing party by virtue of being so. The waiver of this award is only viable when, in the Tribunal's judgment, there was sufficient reason to litigate, or when the judgment is handed down based on evidence whose existence was unknown to the opposing party. In this case, this collegiate body finds no reason to apply the exceptions established by the applicable regulations and to break the principle of awarding costs against the losing party. Therefore, both costs are imposed on the defendant, which amounts shall be liquidated in the sentence enforcement phase.\n\nPOR TANTO.\n\nThe defense of lack of right (excepción de falta de derecho) raised by the State's representation is rejected, and consequently, the claim filed by Nombre23998 is declared with merit (con lugar). against the State, in the following terms, with any matter not expressly indicated herein being understood as denied: 1) That the event that gives rise to the obligation to pay the fee (canon) that the concessionaires must pay to the Administration for the use of the hydraulic forces of public-domain waters for hydroelectric power generation is the generation of hydroelectric energy, through the use and exploitation of the hydraulic forces of public-domain waters (non-consumptive use of the public domain), via hydroelectric projects to generate electricity, and not the mere granting of the concession for the use of the same for such purpose. This is so much the case that the term of this concession shall begin to run only when the concessionaire is in a position to begin commercial operation of the plant; 2) That the collection of the fee for water use (canon por aprovechamiento de aguas) for hydroelectric power generation, carried out by the Water Department (Departamento de Aguas) of MINAE against the plaintiff company, corresponding to the 4th quarter of 2010 and the four quarters of 2011, is substantially contrary to the provisions of articles 2, 4, 5, 14, and 16 of Law 8723; 46 and 170 of the Water Law (Ley de Aguas); 2 subsection h), 10, and 11 of Executive Decree number 32868; 3) That, consequently, the State is ordered to return the amounts paid by the plaintiff company for the items related to the fee for water use for hydroelectric power generation, with the exception of that corresponding to the second quarter of 2011, according to the following breakdown: i) Invoice number 140680, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the fourth quarter of the year two thousand ten; ii) Invoice number 144455, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the first quarter of the year two thousand eleven; iii) Invoice number 152005, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos), corresponding to the third quarter of the year two thousand eleven; iv) Invoice number 155863, for the sum of ¢44,213,713.92 (forty-four million two hundred thirteen thousand seven hundred thirteen colones and ninety-two céntimos) for the water use fee item, corresponding to the fourth quarter of the year two thousand eleven, which was paid by the plaintiff company on the fifth of December, two thousand eleven; 4) The payment of legal interest on the amounts previously indicated is appropriate, which shall be calculated based on the passive interest rate for six-month certificates of the Banco Nacional de Costa Rica, according to the currency involved, as provided in article 1163 of the Civil Code (Código Civil), starting from the date the plaintiff paid the fee corresponding to each of the previously indicated quarters and until its effective payment, according to the following breakdown of dates: i) From the eighteenth of January, 2011, the payment date of the fee for the 4th quarter of 2010; ii) From the fifteenth of March, 2011, the payment date of the 1st quarter of 2011; iii) From the 13th of September, 2001, the payment date of the 3rd quarter of 2011; iv) From the 08th of December, 2011, the payment date of the 4th quarter of 2011. These amounts must be calculated in the sentence enforcement phase before this same court. Such recognition of interest implies, indirectly, the adjustment of the economic value of the amounts awarded for the purposes of article 123 of the Contentious-Administrative Procedural Code (Código Procesal Contencioso Administrativo). 5) Both costs of this process are imposed on the defendant, an amount to be liquidated in the sentence enforcement phase.\n\nMarianella Álvarez Molina\n\nJosé Paulino Hernández Gutiérrez Christian Hess Araya\n\nEXPEDIENTE: 11-003707-1027-CA\nPROCESO DE CONOCIMIENTO DECLARADO DE PURO DERECHO\nACTOR: P.H.\n\nCHUCÁS SOCIEDAD ANÓNIMADEFENDANT: THE STATE