With contributions from Yasmin Yazigi
On March 30th of this year, the São Paulo City Council approved Law No. 17.336 of March 30, 2020, authored by Councilor Camilo Cristófaro (PSB). The new law mandates the inclusion of electric vehicle charging systems in new residential and commercial building projects registered with the São Paulo City Hall since March 31st. This requirement does not apply to existing buildings, ongoing projects, or housing programs subsidized by public funds.
Despite the incentive effect on the purchase of electric cars that contribute to reducing environmental impacts, as already explained in report from Canal Solar, the discussion that arises is about the legality of the aforementioned institute in relation to the right of intervention in private property by the Municipality of São Paulo.
It is known that there is a prerogative of the Public Power regarding the limitation of the right to individual property in function of the collective interest, which is enshrined in the principle of the social function of property, as well as in the principle of the supremacy of the public interest over the private, provided for, respectively, in article 5, item XXIII and article 37 of the Federal Constitution.
It turns out that, following the premise that State intervention in private property is justified only when linked to the collective interest, we question the effectiveness of this “social well-being” intended by Law No. 17.336/2020, due to the fact that it transfers the burden of electric mobility directly to the private civil construction initiative and, consequently, to the buyers of these projects, without a counterpart from the Public Authorities being presented.
Adherence to solar energy has grown intensely and is becoming an efficient way for real estate projects to reduce consumption costs, in addition to advancing sustainability.
The advantages of generating one's own energy have already been perceived by companies in various real estate segments, but what is being questioned is the imposition of the Municipality on the private initiative to acquire the recharge system. electric vehicles, without the Public Power itself creating similar mechanisms in its structure.
Thus, as it is a burden transferred from the Public to the Private Power, the cost of the supply structure will have a greater impact as the buyers of these projects have lower purchasing power, at the risk of even ineffectiveness of the effects intended by the Law for a portion considerable part of the population of São Paulo.
This is because facilitating the supply structure in condominiums does not make the purchase of electric cars affordable, considering that the prices of these vehicles still vary from R$130 to R$195 in Brazil, according to information from the automobile market.
Would it then be the most effective measure that starts with encouraging the supply structure, instead of encouraging, with tax reductions, the feasibility of purchasing these vehicles in the first place? Shouldn't there be joint measures to reduce the costs of electric vehicles? Or even start the infrastructure in the public buildings themselves?
Furthermore, regarding the strict competence of the Municipality of São Paulo to edit the standard, we emphasize that only the Union has the competence to intervene materially in property rights, by virtue of articles 22, item II, and 170, item III of the Federal Constitution , so that the State and Municipal Powers only exercise administrative policing and regulation of the use of property.
In any case, we believe that the entire legislative procedure that led to the approval of the standard could have been enriched with the participation of agents from the real estate market and the energy sector, through public hearings, something that did not happen.
Through the aforementioned mechanism of popular participation, the premise that the obstacles to the use of electricity in vehicles reside solely in the lack of supply infrastructure could have been questioned and discussed, or even whether other public incentive measures could achieve better results, which would not directly burden the private sector and, consequently, the consumers themselves.
Finally, we remind you that there is already a specific standard published by ANEEL (Normative Resolution ANEEL No. 819/2018) which regulated the recharging of electric vehicles by parties interested in providing this service (distributors, gas stations, shopping centers, entrepreneurs, etc.), published since June 19, 2018, but there has been little progress in our perception so far in the development of the infrastructure necessary for the still incipient fleet of electric vehicles in the country.
