The Bahia Court responded to a request for a collective writ of mandamus from ABahia Solar (Bahia Photovoltaic Solar Energy Association) against the distributor Coelba (Electricity Company of the State of Bahia).
The ruling suspends the obligation of consumer units with photovoltaic systems in the state to comply with the criteria set forth in § 3 of Art. 292 of the Resolution 1.059/2023 da ANEEL (National Electric Energy Agency).
As a result, all ABahia Solar’s B Optante consumers will no longer be required by the distributor to pay for the contracted demand to compensate for their energy surpluses.
Published in February 2023, Normative Resolution 1.059/2023 was responsible for regulating Law 14.300. However, some interventions made by ANEEL in the text generated dissatisfaction in the solar energy sector.
One of them was the obligation for B Optantes consumers, who compensated their surpluses for consumer units remotely, to have to pay for the contracted demand.
The Optante B consumer is one who, although served at medium or high voltage (Group A), can choose to be billed in the same way as Group B consumers, who do not have a demand contract with the energy distributor, as long as they follow some specific rules.
In this sense, such consumers would be exempt from paying for the contracted demand, having to pay only the conventional electricity tariff. With the measure of ANEEL, many distributors felt free to start charging this type of fee to B Optantes.
Thiago Bao Ribeiro, lawyer specializing in DG (distributed generation) and CEO of Bao Ribeiro Advogados, explains that the publication of Law 14.300, in January 2022, brought specific criteria so that consumers, with distributed generation, could opt for Group B billing, or that is, B opting, as local generation and having a 112 KVA transformer. The existing condition before Law 14.300 was only to have a 112KVA transformer.
However, with the publication of Resolution 1059/2023, in addition to the requirement for local generation and 112 KVA traffic, it was determined that consumers B Opting from receiving and sending credits were banned. An innovation brought by the regulation, not foreseen in the law.
“So, what did distributors start to do? They started to cancel the billing by Group B of the companies that had the remote plant and that made this compensation. So, what happened to this market? The companies returned to Group A revenue or remained in Group B, but, in the latter case, without being able to use the energy from the installed plant, unless it was in the location where it is being consumed”, explained the lawyer.
The intervention of some distributors, as was the case with Coelba, was what motivated ABahia Solar to file a request for a security mandate to ensure that what was stipulated in Law 14.300 was complied with.
“All contracts signed in the past with distributors must be respected based on the legislation on the date they were signed. Contracts that were signed in January 2022 (after Law 14.300) onwards cannot be prohibited from sending or receiving credit, because this prohibition took place in February 2023 (with Resolution 1.059)”, explained Bao Ribeiro.
“So, the core of this discussion is compliance with the contract that the customer signed when he opted for Group B billing, according to the law in force on the date he signed the contract. That’s the point,” he stressed.
The decision in favor of the solar energy sector was handed down by federal judge Ávio Mozar, from the 12th Federal Civil Court of the Judiciary Section of Bahia. This is a first instance ruling, which means that Coelba can still appeal.
Despite this, Boa Ribeiro says he believes that the magistrate's decision is unlikely to be reversed.
“In my opinion, the decision was very well founded by the judge, with strong jurisprudential precedents that determine compliance with administrative contracts signed by distribution concessionaires or any other public service, under the auspices of the legislation in force at the date of signing the contract” , pointed out the lawyer.
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An answer
We have a plant in the city of Alagoinhas/BAHIA and we are classified as B OPTANTES and therefore we are unable to share the surplus that the plant produces. How can we have access to this benefit that was won in court?