O TCU (Federal Audit Court) determined the opening an investigation before alleged signs of illegal commercialization of energy credits electricity within the scope of segment of distributed micro and minigeneration.
A decision was taken after AudElétrica (Specialized Audit Unit for Electrical and Nuclear Energy), file a representation against the ANEEL (National Electric Energy Agency), aiming to implement supervisory actions and improve regulation on energy subscriptions.
According to AudElétrica's preliminary understanding, the current “subscription” models, in which the generating plant is leased, present “a characteristic analogous to commercialization within the captive market”.
“This is not a simple representation. O AudElétrica document contains 35 pages, is very well-founded and includes an examination of specific cases of companies that operate in this market, offering discounts on energy bills”, highlights Thiago Bao Ribeiro, lawyer specializing in GD (distributed generation) and CEO of the firm Bao Ribeiro Advogados.
According to a the representation of AudElectricaThe analyzed companies offer “energy signature”, whose business models point to a irregular sale of electricity in the CESG (Electrical Energy Compensation System).
“The arguments presented for attracting customers suggest a covert sale of energy/energy credits/surplus energy”, highlights the representation.
O document also did not spare distributors that operate in this segment. Advertising and contracts with consumers from the main energy distributors that operate in distributed micro and minigeneration were analyzed.
According to the TCU, the role of distributors in this market has potential conflict of interest.
“Add to this a systematic interpretation and the topographic structure of Law 14.300/2022, which invariably place concessionaires and SCEE participants on opposite sides.”
As possible causes of this situation, the TCU listed failures in the inspection of ANEEL, regulatory failures, high tariffs, ease of creating and changing associations and cooperatives, with characteristics of illegality in the arrangements created, ease of changing the ownership of consumer units to use the remote self-consumption or distributed generation modality, among others.
O TCU minister, Antonio Anastasia, welcomed the representation, determining (in short) that ANEEL:
● Be heard within 15 days regarding signs of irregularity;
● Develop, within 60 days, an inspection plan to identify and eventually sanction cases of commercialization, even if indirectly, of energy, credits or surplus electricity from MMGD;
● Prepare, within 80 days, an action plan to regulate the matter;
● Include in the aforementioned action plan actions regarding the situation of projects already classified as micro and mini distributed generation.
According to Bao Ribeiro, the TCU’s decision introduces a “unnecessary legal uncertainty, calling into question arrangements already established and recognized by the Regulatory Agency, which are also supported by federal legislation (Law 14.300/2022), responsible for establishing the legal framework for distributed generation in the country,” he said.
Due to this representation, the lawyer highlights that more than ever it is “urgent” that DG entrepreneurs review their contracts so as not to be excluded from the GD. “It is possible that the contracts are within the four lines of current regulations”, he highlighted.
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