EN 
PT_BR 
In a decision of their Plenary, on November 18, the ministers of the TCU (Federal Audit Court) rejected representation (Representation TC 037.642/2019-7) from the Public Ministry of Accounts, which alleges a possible offense against the Principles of Legal Security, of Legitimate Confidence and Good Faith in CP 25/2019 (Public Consultation No. 25/2019) of ANEEL (National Electric Energy Agency). As the market already knows, within the scope of the aforementioned consultation, the proposal to amend REN 482 and 414 (ANEEL Normative Resolutions no. 482/2012 and no. 414/2010), as well as Module 3, is being debated. of PRODIST (Electric Energy Distribution Procedures in the National Electric System), all of which are regulations applicable to distributed micro and mini generation of electricity in Brazil. The TCU ministers objectively understood that there is no violation of the aforementioned principles, as the change proposed by ANEEL in the public consultation is not abrupt or new, as it has already been signaled by ANEEL since 2015. The TCU also did not observe any character defects procedure in CP 25/2019 that could give rise to its invalidation. Since 2010, the entire history of DG (distributed generation) regulation in Brazil has been duly documented and publicized in a broad and unrestricted manner, through various means, including on the ANEEL website. The TCU also considered that the proposed new rule discussed in CP 25/2019 is legal and attempts to correct “side effects and negative externalities” of the subsidy rules for micro and minigeneration that were in force. However, he pointed out that “any policy to encourage distributed generation that involves tariff subsidies must be established by formal law, in accordance with art. 175, sole paragraph, III, of the Magna Carta, making it clear who pays for and who benefits from this policy”. The decision was that ANEEL cannot decide on subsidies. The Court gave the agency 90 days to present a concrete plan to eliminate the supposed cross-subsidy existing in GD, which occurs due to the tariff model existing in Brazil that needs to be changed and is under discussion in the process of “modernization” of the energy sector. In the same sense, the TCU recommended to the Ministry of Mines and Energy that, in view of the guidelines for micro and mini DG to be issued by the CNPE (National Council for Energy Policies), it formulates a model of new public policy, replacing the compensation system currently provided for in REN 482, to be submitted for evaluation by the National Congress. The issue and the urgency on the matter determined by the TCU gain special relevance considering the new review process of REN 482 that is underway and which will culminate in the change of the Energy Compensation system currently in force, with the sector's expectation that this review be completed in the first half of 2021. Said review process aims to improve the standard in order to verify the adequacy of the methodology for calculating the benefits currently received by the consumer in contrast to any “cross subsidy” that would be burdening those who do not have distributed generation, therefore there is a discussion about the economic aspect of the standard. The review of the energy compensation system is an important aspect for energy distribution concessionaires, who claim loss of revenue due to market reduction. Another argument used to justify such a review is that consumers who do not adhere to or do not benefit from the option of generating their own energy end up paying for energy transportation costs, charges and losses, which today “distributed generation” is exempt from under the rules. and current legislation. In parallel to the discussions within the scope of ANEEL, the Legislative Branch has indicated that it will forward bills to regulate the GD legal framework with different points defended by the Regulatory Agency. In the Bills, the issue of cross-subsidization is addressed and must be addressed by the legislative branch. In this sense, PL 2215 (Bill no. 2,215/2020), by federal deputy Beto Pereira, stands out, which proposes very different criteria in relation to those proposed by ANEEL for DG pricing, based on energy triggers. injected into the grid in comparison to the distributor's load (and not in relation to the installed power of DG plants, as in ANEEL's proposal). The so-called pure remote generation (in which generation occurs in an unloaded unit, for example in shared generation or remote self-consumption) would suffer immediate impacts with the approval of the PL, without a transition period, breaking with the transition logic established by ANEEL and impacting the projects already implemented with medium and long-term arrangements, under the logic of REN 482. The media has also reported that another bill should be presented by federal deputy Lafayette de Andrada, with rules also different from the ANEEL proposal and the PL presented by parliamentarian Beto Pereira, it is not possible to specify or compare which normative text will eventually be approved in the National Congress. According to the deputy's recent position: (…) “I have not yet filed the bill that proposes a new regulation for GD because we think it is much more feasible and feasible to present it as a replacement amendment in a PL that is already being processed in the House. That's what we agreed with the President of the Chamber. Furthermore, the Legislature is prioritizing the progress of projects that are directly related to the Covid-19 crisis”, explained Andrada”. Within the proposals for inclusion in the legislation, there is an address to the controversial point regarding the impact of the indirect subsidy of DG, with an express provision that CDE will assume the impact of the cross-subsidization of distributed generation, with charging within the system already foreseen in the Market Regulated (those who do not have a GD will bear the indirect increase in the CDE, as already happens in practice), putting an end to the entire controversial discussion in our view. Part of the sector has the expectation that this bill will “replace” REN ANEEL 482, being integrated into the CBEE (Brazilian Electric Energy Code), which is being created and would fulfill the role that today belongs to ANEEL through a Normative Resolution. In practice, the DG segment, as it has restrictions in relation to ANEEL's proposals, is working with a legal framework to bring greater legal certainty to the segment, especially on the issue of transitioning the rules of new energy compensation regimes. Finally, it is worth noting that the TCU recommended that the changes to REN ANEEL 482 regarding the “cross subsidy” should preserve the acts constituted based on current legislation and should operate for the future, establishing a transition period with a view to mitigating the burden or losses of those administered, preventing them from being abnormal or excessive. The TCU pointed out that the transition rules must be defined by ANEEL itself, which was well received by the segment that awaits a more serene position from the regulatory agency on the topic than what occurred with the end of the last Public Consultation on the topic, being indisputable that ANEEL has the attribution and technical competence to review the standard that made the segment viable in the country. The big point of uncertainty is that it is not possible to specify what will happen first. The amendment of REN 482 within the scope of ANEEL, or the promulgation of a specific Law that will regulate the institute of distributed generation in the country, which could generate contradictions between the provisions of the two institutes if there is no alignment between the institutions in the sector of energy and the National Congress. In the view of the energy team at the law firm Demarest, the concrete definition of the direction and future of distributed generation in Brazil is fundamental to creating an attractive environment for investments in DG, with a dynamic, sustainable market and, mainly, that can operate within the deepest legal certainty. There is a window of opportunity for structuring projects within the current energy compensation system, and necessary precautions must be taken to mitigate risks due to the lack of definition of the topic, which is still open and should be completed in the first half of next year .
This is an opinion article and does not necessarily reflect the opinion of Canal Solar. Its publication aims to stimulate debate on topics related to the photovoltaic market.
