A ANEEL (National Electric Energy Agency) responded, through Official Letter 20/2024, Official Letter 11129/2024-TCU/Seproc of Minister Antonio Anastasia, which deals specifically with the TCU (Federal Court of Auditors) deliberating on determinations to the Agency regarding improvements in supervision and regulation of the “subscription energy".
The subject has recently gained prominence again because ANEEL expired at the end of September.
Within the 90-day deadline imposed by the TCU, the ANEEL should have presented a action schedule and an inspection plan with a scope aimed at ing the procedure adopted by the districtsriverside companies in cases of irregular receipt of benefits associated with the SCEE (Electric energy compensation system).
This action should have been instituted by ANEEL, through a guidance manual with the provision of a inspection to be started in 2025 by the regulatory body.
In the case of clear evidence of non-compliance with art. 28 of Law 14.300/2022, characterized by alleged marketing of electricity credits within the scope of GD, may result in the granting of undue subsidies to certain specific groups of consumers and in the increase of tariffs for the rest, distorting one of the fundamental principles of the DG public policy, which is the production of electrical energy for own consumption and not for commercialization.
In conversation with the STD (Superintendence of Regulation of Electric Energy Transmission and Distribution Services) of ANEEL this Thursday (3), the STD superintendent clarified that after the consolidation of the contributions received in the Grant Grant 18/2023, it will be possible to conclude the diagnosis of the topic and conclude on the need for improvements in the normative devices that are related to Art. 28 of Law 14.300.
He also informed that, if there is a need for improvements, the ANEEL will include an activity in regulatory agenda 2025-2026 to address this issue. He also clarified that the Agency has already been adopting measures that may lead to addressing points raised by the Court, even before Minister Antônio Anastasia received the report.
However, it is also essential to recognize that the new and recent provision in the Law, by explicitly making eligible “consortium, cooperative, voluntary civil or building condominium or any other form of civil association, established for this purpose, composed of individuals or legal entities that have a consumer unit with microgeneration or distributed minigeneration”.
This measure made it possible to creation of new business models that use the modality of shared generation, making the scenario more complex for a possible characterization and prevention of possible distortions of GD.
The solution to this issue may be linked to the objective of Subsidy Inquiry 18, which, ultimately, seems to align with what the technical area of the TCU seeks: to identify and characterize the commercial strategies adopted by consortia and associations.
Once this universe has been characterized, there are elements to identify, within the competences of the ANEEL, the gaps in the regulation in order to improve it, including to establish the parameters and guidelines for inspection by the Agency.
Specifically, the Court of Auditors points out that “energy subscription” offers were identified in which access to the cooperative/consortium is limited to consumers with higher consumption.
Furthermore, it was pointed out that this limitation contradicts the Cooperative Right of free access to all interested parties. However, the growth in the number of consumers participating in the shared generation modality did not escape the Agency's agenda.
It was in this sense that the technical team of ANEEL must comply with a determination of the Board of Directors in the approval of REN 1.059/2023.
Companies that are part of business groups and also operate in energy distribution are under analysis by the TCU for a possible conflict of interest.
This is because distributors are responsible for ensuring that SCEE benefits are received correctly, in accordance with article 655-F of Normative Resolution 1000/2021 of the ANEEL.
A ANEEL monitors these companies in two ways: through technical inspection and economic, financial and market inspection, to ensure compliance and regularity in the sector.
Within the scope of technical inspection, as already mentioned, ANEEL has a specific procedure on the subject of distributed generation, where the conduct of distributors regarding the fulfillment of requests for DG connections is currently being verified. If there is evidence of regulatory non-compliance, the conduct of distribution agents is verified on a case-by-case basis.
Which existing situations in the market can be classified as energy sales in the SCEE?
Currently, the only situation that could be classified as energy trading in the SCEE is related to the hypothesis in which an agent signs Lease agreement ou lease where the rental value ou lease é stipulated in reais per unit of electrical energy (R$/kWh).
Considering the previous statements of ANEEL, and in accordance with current legislation and regulations, it is worth highlighting that the Regulatory Agency does not have the authority to establish new criteria for defining the concept of energy commercialization in the SCEE.
Entities comment on the TCU’s action and defend the legality of shared generation
Such conduct would compromise the legal security of the distributed generation sector, discourage significant investments in this segment and conflict with several statements, not only from the board of directors of ANEEL, but also from its Attorney's Office and technical areas.
What elements could characterize or indicate energy trading in the SCEE?
In accordance with current legislation and regulations, as well as with the positions officially established by ANEEL, only two concrete and objective elements are identified that can characterize the commercialization of energy in the SCEE:
- The formalization of a property rental or lease agreement, where the rental or lease value is expressed in reais per unit of electrical energy (R$/kWh);
- Use of DG credits by a consumer unit not linked to the shared generation project at the time the credits were generated.
Such elements are clearly outlined in Law No. 14.300/2022, in REN 1.000/2021, in Circular Letter No. 0010/2017-SRD/ANEEL and in Opinion no. 542/2015/PFANEEL/PGF/AGU, which is why there are no reasons or justifications for revisiting or reassessing this rule that has already been consolidated over the years, especially because it would only generate legal uncertainty in the GD segment.
Finally, it is important to emphasize that, for projects structured in the shared generation modality, according to the DG Law and REN No. 1.000/2021, it is necessary to prove the participation of the in the consortium, cooperative or association, allowing the energy distributor to have sufficient information to avoid the use of remaining distributed generation credits by a consumer unit that was not originally linked to the initial shared generation project when the credits were generated. This should be the line of action of the regulatory body.
Read more articles by Marina Meyer Falcão
The opinions and information expressed are the sole responsibility of the author and do not necessarily represent the official position of the author. Canal Solar.
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