EN 
PT_BR 
There has frequently been a refusal by concessionaires of the public electricity distribution service to exchange the ownership of access opinions for connections to distribution systems before the completion of the connection processes.
The concessionaires claim, in these cases, that a new access request must be opened, which may lead to inclusion in the new cost model, as per the proposal to change the REN 482 (Normative Resolution 482//2012), in which case alternative 5 will apply, which represents a reduction in the proposed period for maintaining the compensation criteria until 2030, greatly impacting the economy of the projects.
The concessionaires' basis arises from the guidance, now outdated, issued through letter no. 0194/2019 of the SRD (Superintendence for the Regulation of Distribution Services) of ANEEL (National Electric Energy Agency), through which it was determined that the connection processes of distributed micro and minigeneration be interrupted in the event of a change of ownership that previously occurred completion of the connection with the local distributor.
Also according to the letter, priority in service is granted through the order in which access requests are entered, and any replacement of the holder before the connection is made means that the process has not been completed and a new access process must be initiated. .
However, this restart not only represents a delay in connection, with higher costs as a result of the probable application of the new standard, but also an eventual impossibility of connection, if another interested party connects to the same network - in practice, it is equivalent to saying that the request was refused.
In view of the arguments presented by users, the regulatory agency re-examined the matter, as per the understanding expressed, for example, through letter no. 0364/2019- SRD/ANEEL, dated 12/09/2019, in which it expressed support for the transfer of ownership of mini-generation plants, in accordance with the decision of the SRD, which stated that it saw no obstacles to carrying out the transfer in the requested manner.
On that occasion, SRD justified its decision as follows:
(…) 2. Initially, it is highlighted that the content of Official Letter no. 194/2019-SRD/ANEEL is restricted only to the specific case dealt with therein, and cannot be generally used in addition to current regulations, even in cases of presumed insufficient regulatory clarity.
3. Regarding the case at hand, this is a request to transfer ownership of a mini-generator that will operate in the Shared Generation modality, to the consortium that will operate the generation after its connection. This way, there is no obstacle to carrying out the transfer in the form requested in the document in question.
4. Finally, it is important to remember that the rules applicable to distributed micro and mini generation, including the issue addressed in the case at hand, are under debate with society through Public Consultation No. 25/2019.
It is noted that the aforementioned position was also adopted in several letters subsequent to number 0364/2019-SRD/ANEEL, as can be seen, for example, in the recent letter no. 0228/2020-SRD/ANEEL, dated 06/03/2020, through which the agency found no difficulty in transferring ownership of a mini-generator to the agent who will operate the generation after its connection, with the observation that the content of respective offices is restricted to each specific case.
Regarding the loss of service priority in the case of a change of ownership, there is no regulatory provision in item 2.4.1 of section 3.7 of PRODIST, which provides for service priority in accordance with the chronological order of the protocol, regarding loss of priority in the event of a change of ownership, highlighting that this regulatory agency must ensure regulatory stability, including avoiding deliberations by official letters, without due provision in legal or regulatory provisions.
It is worth highlighting the principles that should guide actions in the electricity sector, registered during public consultation no. 32, 2017, which deals with the review of the sectoral model. These principles were listed in the ordinance of the Ministry of Mines and Energy no. 86/GM, dated 03/13/2018, and are based on efficiency, equity and sustainability of government actions, among which the following stand out: (i) respect for property rights, respect for contracts and minimum intervention; (ii) predictability and conformity of the acts performed and; (iii) meritocracy, economy, innovation and efficiency (productive and allocative, from the short to the long term) and socio-environmental responsibility.
It is imperative to comply with such principles in relation to the exercise of a contractual position assignment, embodied in the aforementioned legal instruments (access opinion / CUSD / CCER), documents that are part of the feasibility processes for adhering to the energy compensation system in the scope of distributed generation, as highlighted.
In this case, there is a transfer of the contractual position, supported by doctrine and jurisprudence, mainly based on Portuguese legislation, which expressly provides for the institute.
The doctrinal and jurisprudential basis also uses the interpretation of two other institutes that deal with the transmission of obligations: the assignment of credit and the assumption of debt, which ultimately represent the assignment of the contractual position, simultaneously covering rights and duties.
What must be observed, as corroborated by jurisprudence, is the obligation of the transferee's consent in the assignment of contractual position, verbis:
TJ-MA Civil Appeal AC 00123808720098100001 MA 0121302019 (TJ-MA) – Publication date 07/12/2019 ASSIGNMENT OF CONTRACTUAL POSITION. AGREEMENT OF THE ASSIGNMENT. VALIDITY OF THE BUSINESS. 1. According to the assertion theory, the action condition relating to passive legitimacy is considered fulfilled whenever the author makes a claim against the defendant. 2. If the case is in conditions for immediate judgment, the Court must immediately proceed to the judgment of the dispute... 3. If the instrument of assignment of contractual position contains the express consent of the assignee, there is no space for recognizing the nullity nor ineffectiveness of the juridic business. 4. As the assignment of a contractual position transmits all future rights and obligations, any loss caused by the assignee cannot be attributed to the assignor. 5. Appeal known and partially granted. Unanimity. (TJ-MA Civil Appeal AC 00123808720098100001 MA 0121302019 (TJ-MA) – Publication date 07/12/2019)
Thus, applicable to the species, the norm relating to Civil Law is inferred, subsidiarily to the Administrative Law relations that govern the matter. In this regard, it should also be noted that discretionary measures relating to the refusal to change ownership imply an affront to constitutional principles that govern relations between the public administration and those administered, which is contrary to the Democratic Rule of Law.
Mauro Maia Lellis Lawyer and Founding Partner of LTSC Sociedade de Advogados. PhD in Legal and Social Sciences from UMSA (Universidad Del Museo Social Argentino). Master in Energy Engineering from UNIFEI, with specialization in Energy and Gas Regulation from USP/UNIFEI/UNICAMP, in Regulatory Law from CEDIN/IAED and in Regulation from FGV. He worked as a Lawyer and Manager in the area of Regulatory, Tax and Commercial Law at CEMIG (Companhia Energética de Minas Gerais).
Clarice Horst Dutra Coutinho Lawyer and Founding Partner of LTSC Sociedade de Advogados. Postgraduate in Business Law from Faculdade Milton Campos/MG. MBA in Electricity Sector Management from FGV (Fundação Getúlio Vargas). Graduated in Law from Newton Paiva. Member of the OAB/MG Energy Law Commission.
