B Should opting for solar energy pay the contracted demand?

Since ANEEL (National Electric Energy Agency) published the Normative Resolution No. 1,059/2023, which amended Resolution 1,000/2021, B Opting Consumers that compensate their surpluses for consumer units remotely have been notified by the concessionaires about the obligation to pay the contracted demand.

With the receipt of these notifications, consumers and solar energy companies have been wondering how to proceed in this regard.

B Opting

Before answering the questions, it is necessary to understand what B Optante is and what changes ANEEL Resolution 1,059/2023 brought to these consumers.

Opting consumer B is one who, although served at medium or high voltage, that is, Group A, can choose to be billed in the same way as consumers in Group B, who do not have a demand contract with the energy distributor. To be eligible for this situation, some requirements, according to Resolution 1,000/2021, must be met, namely:

• The total rated power of the transformers is equal to or less than 112.5 kVA;
• The total nominal power of the transformers is equal to or less than 750 kVA, if classified in the rural electrification cooperative subclass;
• The consumer unit is located in a vacation or tourism area whose activity is the operation of hotel or inn services, regardless of the total nominal power of the transformers; or
• When, in permanent installations for the practice of sporting activities or agricultural exhibition parks, the installed load of the reflectors used to illuminate the locations is equal to or greater than 2/3 (two thirds) of the total installed load.

Changes brought by Resolution 1,059/2023

What draws the most attention is that the change impacts consumers B Opting in these situations who already had solar energy before the rule change.

These projects were carried out based on previous rules, and the new rules determined by ANEEL will have a negative financial impact on these consumers.

In the opinion of a lawyer specializing in the electrical energy sector Einar Tribuci, legal and tax director of ABGD (Brazilian Association of Distributed Generation), this determination by ANEEL harms the business models already in place and slows down the expansion of this modality.

“The ultimate objective of this standard has as its background the intention of making it impossible or costly enough to disincentivize the Opting B to participate in the SCEE and save with the generation of its own energy, when it receives energy credits or transfers surplus energy. energy, remotely – that is not generated and consumed locally”, he assesses.

The lawyer explains that if the consumer who is a B Optante does not allocate or receive surplus energy from another consumer unit, he will not need to pay the contracted demand.

Therefore, an alternative to avoid payment of demand in these cases is remove consumer units remote from the surplus credits allocation list.

Based on these questions, lawyers Einar Tribuci and Agnon Ericon Cavaeiro prepared a Technical Note, together with ABGD, which provides clarification on the topic. Click here to access the document.

Judicialization

Regarding the possibility of judicialization, Tribuci explains that as the Law 14,300/2022 is superior to Resolutions 1,000/2021 and 1,059/2023, it will be up to the Judiciary to decide on this contradiction.

“ANEEL's attitude is even more surprising, which, even when dealing with ongoing legal relations, bringing insecurity and legal instability, violating acquired rights on the part of consumers, not only regulates, but obliges distributors to carry out these charges at the drop of a hat. , catching everyone off guard”, says Tribuci.

The lawyer also points out that for consumers who have distributed generation systems installed, it could be argued that ANEEL's extensive interpretation brings insecurity and legal instability, violating consumers' acquired rights.

Regarding whether judicialization should be for the concessionaires or for ANEEL, Tribuci clarifies that in this situation The person who will have to take legal action will be the distributor, since she is the one who does the billing.

“As part of this process, it is understood that the distributor may be the defendant in the demand, as it is the one who would benefit from this illicit act, by mistakenly applying the legal rule against the microgenerator classified as B Optante”, he explains.

Regarding what the merits of the case should be, Tribuci says that it should be an action to declare the non-existence of debt, which is a legal measure available to consumers in the face of undue charges.

Asked about the scope of this action will be judged and whether consumers can mobilize to create an action together, Tribuci clarifies that, in this case, “the competence to judge these actions would lie with the Common Court, and as it is a consumer relationship, It is up to the plaintiff to file the action in the forum that is most convenient to him, whether that be the distributor's domicile or the consumer's own.”

“It is also worth highlighting that said action may be proposed by a shared generation vehicle, be it a Consortium, Cooperative, Association and/or Voluntary Condominium”, he adds.

Customer care

Regarding the situation, that consumers are being notified by concessionaires, lawyer Tribuci advises that integrators inform the situation to their customers who have not yet been notified.

In this communication it must be very clear that the rule has changed and that the concessionaires' actions are new for the entire sector. “We made a technical note on behalf of ABGD to help our associates explain this situation to their customers, transmitting technical content that allows them to combat these illegalities”, comments Tribuci.

He also highlights that this communication is necessary to ensure good relationships with customers, who often do not see emails. For this, Tribuci says that the Technical Note prepared by him and lawyer Agnon Ericon Cavaeiro.