A Federal Law No. 9.427/1996, in its art. 2nd, it attributes to the ANEEL (National Electric Energy Agency) regulation e supervision production, transmission, distribution and commercialization of electrical energy, in accordance with the policies and guidelines previously established by the Federal government.
In this regard, it is important to highlight that regulation has among its objectives, exactly, render os cool commands feasible, easily understanding e application, for the most peaceful relationship possible between sectoral agents. This occurs through the publication of stable regulatory provisions that result in legal security for those involved, in order to avoid unfair and unequal treatment, which, in turn, triggers administrative and judicial appeals, consequently degrading the relationships that should be harmonize.
The competence conferred on the ANEEL for the publication of regulations affecting the electricity sector, necessarily based on policies and guidelines previously established by the Federal Government, is justified in view of the need from maintain os objectives, in its essence, to be achieved by regulations, avoiding disproportionate or unreasonable commands, which deviate from the purpose originally foreseen by the standard.
It is found that it is up to the ANEEL regulate sectoral activities with a view to simplicity, avoiding potential conflicts and ensuring full access to electricity services.
Based on all legal commands and in accordance with the power to act in accordance with the principle of legality, it is important to highlight that, under the terms of Memorandum No. 41/2024-ASD/ANEEL, of February 28, 2024, as presented by ABRADEE (Brazilian Association of Electric Energy Distributors) in view of its appeal to Order 3.438/2023 of the ANEEL, that it could never have been alleged in the said document that a superintendence of ANEEL would have exceeded its power as a supervisory and regulatory body for the electricity sector – since in this regard, it is important to emphasize that regulation has among its objectives, precisely, to make legal commands feasible, easy to understand and apply, for the most peaceful relationship possible between sector agents.
This occurs through the publication of stable regulatory provisions that result in legal security for those involved, in order to avoid unfair and unequal treatment, which, in turn, triggers administrative and judicial appeals, consequently degrading the relationships that should harmonize.
It is the duty of ANEEL, as a regulatory agency for the electricity sector, as established in the Brazilian Federal Constitution, as an indirect public administration body, ensuring legality, impartiality and morality in all its decisions (Art. 37 of the CFB).
The aforementioned device, provided for in the caput of art. 37 of the Federal Constitution, as one of the principles that govern administrative activity, alongside impersonality, morality, publicity and efficiency, consists of a specific development of the principle provided for in art. 5th, item II, of the Federal Constitution, aimed especially at conforming the actions of public administrators to the law.
And, regarding the evolution of the principle of administrative legality, the majority doctrine asserts that since the 1934 Constitution, the positive binding of the principle of legality has remained enshrined, limiting the administration's actions to current legislation:
From the 1934 Constitution onwards, it was possible to speak of the Social State of Law, a service-providing State, which expanded its activities to cover the economic and social areas, with the consequent strengthening of the Executive Power. The principle of legality was expanded to cover normative acts issued by the Executive Branch, with the force of law, and extended to the entire scope of administrative action. The principle of legality came to mean that the Administration can only do what the law allows (principle of positive binding). (DI PIETRO, 2013, p. 29).
In this sense, it is not enough for the aforementioned Association (ABRADEE) to respect the law in the strict sense, it is necessary to observe other types of normative acts, including the regulations issued by this Regulatory Agency – ANEEL – therefore highlighting that legality no longer means just the need to not violate the law and has also come to represent the need for the action to be provided for by law in order to be legitimate.
In this way, we also suggest, in addition to the National Electric Energy Agency continuing to fulfill its role as a supervisory and regulatory body for the electricity sector, that the creation of a Brazilian Consumer Protection and free competition body by the National Congress be analyzed by Brazilian parliamentarians, associations and companies in the energy sector, after all, we can never accept an intervention in the powers of a regulatory agency by any association.
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