15/09/2023 – 22:13
The Ministry of Mines and Energy (MME) signaled that it must tighten rules for distributors that do not meet quality indicators in service provision. Among the rules for the process that have been discussed, the government predicts that concessionaires that do not follow the parameters will have “automatically” rejected concession renewal requests, with the only option to avoid losing the concession being the transfer of control.
The rule is contained in the technical note with the guidelines for the renewal of distribution concessions that will expire between 2025 and 2031, representing more than 60% of the market, which was sent for analysis by the Federal Audit Court (TCU). The government must await the analysis of the supervisory body, which conducts a technical audit on the topic, to publish a decree, which will be the basis for the preparation of new contracts by the National Electric Energy Agency (Aneel).
“A failure and transgression recovery plan, to be approved by Aneel, does not ensure the effective implementation or substantial resolution of the problems identified”, argued the Department, which decided to maintain the assessment based on the DEC indicators (Equivalent Duration of Interruption per Consumer Unit) and FEC (Equivalent Interruption Frequency per Consumer Unit).
In the document, the MME states that although it received a series of contributions, during a public consultation on the topic, to change the criteria, it understood that, for the extension of the concession, “the average compliance with the quality criteria in service provision is adequate, and regulation must act so that the quality of the service provided is as uniform as possible in the concession area”.
The rigidity, according to the Ministry, will also be extended in case of non-compliance with the economic-financial management indicator. On this front, it considers that it will consider “exceptional cases, in which the repositioning of regulatory references (losses, for example) may be permitted, as long as there are counterparts, such as capital contributions”.
In the opinion of lawyer Ana Karina E. de Souza, partner at Machado Meyer Advogados, the note demonstrates “a hardening in relation to this topic” in light of the decision not to make technical indicators more flexible, leaving only the transfer of control as an option.
Modernization
On the other hand, she highlights that the document brings, in several points, a “concern” in accounting for the modernization process, even though some more controversial points, such as separation of wire and energy, have been left out. The text provides, for example, the provision of a flexibility clause for changing the services provided by distributors and their separation.
The draft presented in June by the government already opened space for distributors to offer, at their own risk, new services to consumers. However, after analyzing the contributions received throughout the public consultation, the MME recognized the need to design an attractive incentive scheme.
This is because, explains the MME, the authorization for the concessionaire to opt for the offer would be subject to the regulator’s analysis, which could authorize greater or lesser transfers, depending on the quality of the service, “creating a situation of legal and business uncertainty that could limit the desire of dealers to expand this list of new business models”.
The proposal that will be analyzed by the TCU also brings the possibility for Aneel to develop different tariff structures for agents who want different qualities and types of energy supplies. “The rates approved by Aneel may be differentiated based on technical, locational, quality and geographic criteria.” The measure, according to the government, allows the particularities of each concession to be considered, making tariffs fairer.
For the vice-president of the energy commission of the Bar Association (OAB), Gustavo De Marchi, the note will allow “customizing the design for the respective concession areas”.
“Each one has its own peculiarities, so the ruler used to measure it needs to be different. … A concession that today may be healthy, in five, six years, may go through a process of degradation”, he added, citing as an example the escalation of violence that has been observed in Bahia and could influence, from an electrical point of view, the performance combating losses in the region, especially Salvador.
The various mentions of the possibility of flexibility and the provision of a risk allocation clause between the Granting Authority and the concessionaires make up this package inspired by legislation applied in other sectors.
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