With contribution from Renato Edelstein and Rafael Machado*
Ten years after its first regulation through REN 482 (Normative Resolution ANEEL No. 482/2012), DG (distributed generation) is today a consolidated modality in the Brazilian electricity sector that adds the possibility of significantly reducing energy costs for consumers in the Regulated Market (ACR) with the economic exploitation of plants by generators and investors.
According to data from ANEEL (National Electric Energy Agency), Brazil currently has more than 9,538 GW of installed power dedicated to DG, having practically doubled the 5 GW capacity existing a year ago.
In total, there are more than 866 thousand generating plants injecting energy into the distribution network and 1.112.705 consumer units ed to receive credits.
The rapid growth of the business has increased in recent years due to several factors, and the advent of Law No. 14.300 / 2022, called the “GD Legal Framework”, raised GD to a level of providing greater legal certainty for the implementation of new projects, mitigating the effects that any changes in regulatory understanding could cause to the model.
Despite advances from a legal point of view, the main potential of DG continues to be the ability to democratize the electrical energy market, leading to different consumer profiles (group B), from large corporations to small homes/businesses, freedom of choice to meet its energy demand by means other than the traditional and costly regulated contracting with local distributors.
At the end of the day, what really drives consumer interest in DG and, consequently, entrepreneurs and investors, is the unique balance between risk and return that it offers, including the possibility of reducing energy costs with energy models. business (shared generation) that do not require the contribution of resources by consumers.
The rules are simpler than the traditional Mercado Livre (ACL) models, which also facilitates all negotiation and entry of consumers into retail structures by g adhesion instruments, facilitating the expansion of GD as a model that can serve millions of energy consumers who do not have mechanisms to reduce the cost of energy with service still exclusively provided by the captive market (ACR).
In this context of constant growth, some of the changes implemented by the Legal Framework deserve to be highlighted as they expand the accepted ways of meeting consumers who wish to use the generation modality.
In legal , these are the forms of “Shared Generation” listed in section X of art. 1st of the Law: consortium, cooperative, voluntary civil condominium or building or any other form of civil association established for the purpose of implementing the GD model.
Shared generation through a consortium is well known in the market. This is where different CNPJs come together to offset energy credits generated by the same DG plant. Despite the procedures involved with ing the associative contract with the Commercial Board, consortiums are the main format adopted by companies that wish to meet their demand through a structure that allocates full management of the energy asset to the generator.
It turns out that the term “consortium” refers to more than one legal regime in Brazil, varying, among others, from the Consortium of Companies, governed by the Law of Corporations (Law No. 6.404/76), to the Consortium for financing consumption of goods and services, stipulated by Law No. 11.795/2008. Over the years, Aneel consolidated the understanding that the consortium to which the Distributed Generation standards referred is the Consortium of Companies, imposing compliance with the SA Law by interested parties.
The immediate consequence of Aneel's understanding was the impossibility of bringing together individual consumers in a consortium to take advantage of the DG rules, leaving only the meeting in the Cooperative format as an option to access DG through shared generation.
The possibility of bringing together individual consumers around the Cooperative remains under the recent validity of the Legal Framework, but it is at the point of the consortium that the new law brought innovation: for the first time there is provision for the formation of a consortium of electricity consumers through the meeting of individuals and/or legal entities (art. 1, III, of Law No. 14.300/2022).
The other already known figure is that of the Cooperative, in relation to which there are no relevant innovations brought by the Legal Framework. Cooperatives are aimed mainly at individuals, with only legal entities whose purpose is the same or related economic activities as individuals or non-profit entities being allowed to participate, remaining as a form of gathering of individual consumers to take advantage of DG as a type of shared generation.
In addition to the Consortium and the Cooperative, a third way to benefit from DG through a meeting of agents is “other forms of civil association”. The new forecast categorically indicates the greater flexibility in modeling contractual and economic structures brought by the Legal Framework. The Associations it the participation of individuals and legal entities, without distinction, and their acts are ed with the competent Civil Registry Office of Legal Entities.
What may prove to be a point of attention for agents who opt for the Association model is the need to observe a procedure that ensures the member's right to defense and appeal in the event of exclusion, and such exclusion must also be for “just cause ”.
“Just cause” can, of course, be regulated in the entity’s Bylaws, resembling a motivated termination clause in a common contract, but the procedure with the right of defense and appeal must be well tied so as not to hinder the possibilities reaction against a defaulting consumer.
Finally, the figure of Condominiums brings more complexity from a legal point of view, especially because it is linked to a property relationship between condominium owners. Depending on the rules given in the Condominium Contract, in the case of the Voluntary Condominium, or in the Condominium Convention, in the case of the Building, the mechanism for removing defaulting consumers can be quite blocked and complex since legally a sale or assignment would be necessary. of the ideal fraction of the property on the part of the condominium owner.
Furthermore, specifically regarding Building Condominiums, what is currently observed in the market is the difficulty in understanding the business by the Property Registry Office, which sometimes results in increased costs for implementing the model.
In addition to all the legally permitted and foreseen arrangements, the market has witnessed the growth of a new way of developing large DG projects: the so-called “partnership model”. This business model brings together energy generators and large companies from other areas of the market with a significant customer base for your brand who are also energy consumers and can benefit from a new product.
The connection between an agent with a generation plant ready or under implementation and a player outside the energy sector with a large presence among potential consumers of the DG model (high prospecting capacity) creates synergy between the businesses, resulting in a partnership model in which the GD is offered to customers already attracted by major brands (gas stations, food sector, telecommunications, financial institutions, etc.).
The consideration for funding is, in general, addressed to the funding company for a percentage of the business's remuneration. In addition to reducing energy costs, sustainability and brand loyalty are gains considered and sought after by agents in this partnership model.
Whatever the business model chosen by agents, the fact is that Distributed Generation remains with strong growth potential, especially considering the current transition period created by the Legal Framework, in which the credit compensation rule provided for in REN 482 applies. .
Alongside the strong growth experienced in recent years, the Legal Framework came to strengthen legal certainty, putting an end to regulatory discussions that caused noise in the market and created negatively valued uncertainties. The winner, at the end of the day, is the Brazilian electricity sector as a whole, in realizing the long-awaited democratization of the market.
This dreamed and expected democratization of energy access will come, in our perception, with GD, before the opening of Mercado Livre (ACL) discussed within the scope of PL 414/01 (modernization of the energy sector), which is still awaiting a vote in Congress National.
*Renato Edelstein and Rafael Machado are associates in the energy area at Lefosse Advogados.
