Since ANEEL (National Electric Energy Agency) published Normative Resolution No. 1.059/2023, which amended Resolution 1.000/2021, Optant B consumers who compensate their surpluses to consumer units remotely have been notified by concessionaires about the obligation to pay the contracted demand.
With the receipt of these notifications, consumers and solar energy companies have been wondering how to proceed in this regard.
B Opting
Before answering the questions, it is necessary to understand what B Optante is and what changes Resolution 1.059/2023 of the ANEEL brought to these consumers.
Opting consumer B is one who, although served at medium or high voltage, that is, Group A, can choose to be billed in the same way as consumers in Group B, who do not have a demand contract with the energy distributor. To be eligible for this situation, some requirements, according to Resolution 1.000/2021, must be met, namely:
- The total rated power of the transformers is equal to or less than 112,5 kVA;
- The total nominal power of the transformers is equal to or less than 750 kVA, if classified in the rural electrification cooperative subclass;
- The consumer unit is located in a vacation or tourism area whose activity is the operation of hotel or inn services, regardless of the total nominal power of the transformers; or
- When, in permanent installations for the practice of sporting activities or agricultural exhibition parks, the installed load of the reflectors used to illuminate the locations is equal to or greater than 2/3 (two thirds) of the total installed load.
Changes brought by Resolution 1.059/2023
What is most striking is that the change impacts B Optantes consumers in these situations who already had solar energy before the rule change.
These projects were carried out based on the previous rules, and the new rules determined by ANEEL will have a negative financial impact on these consumers.
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Source: Resolution 1.000/2021
In the evaluation of a lawyer specializing in the electrical energy sector Einar Tribuci, legal and tax director of ABGD (Brazilian Association of Distributed Generation), this determination of ANEEL It harms existing business models and slows down the expansion of this modality.
“The ultimate objective of this standard has as its background the intention of making it impossible or costly enough to disincentivize the Opting B to participate in the SCEE and save with the generation of its own energy, when it receives energy credits or transfers surplus energy. energy, remotely – that is not generated and consumed locally”, he assesses.
The lawyer explains that if the consumer who is a B Optante does not allocate or receive surplus energy from another consumer unit, he will not need to pay the contracted demand.
Therefore, an alternative to avoid payment of demand in these cases is to remove remote consumer units from the surplus credit allocation list.
Based on these questions, lawyers Einar Tribuci and Agnon Ericon Cavaeiro prepared a Technical Note, together with ABGD, which provides clarifications on the topic. Click here to access the document.
Judicialization
Regarding the possibility of judicialization, Tribuci explains that as Law 14.300/2022 is superior to Resolutions 1.000/2021 and 1.059/2023, it will be up to the Judiciary to decide on this contradiction.
“The attitude of the ANEEL, which even when dealing with ongoing legal relationships, bringing legal uncertainty and instability, violating acquired rights of consumers, not only regulates, but requires distributors to carry out these charges at the drop of a hat, catching everyone off guard”, says Tribuci.
The lawyer also points out that for consumers who have distributed generation systems installed, it could be argued that the extensive interpretation of the ANEEL brings insecurity and legal instability, violating acquired rights of consumers.
On whether the judicialization should be for the concessionaires or for the ANEEL, Tribuci clarifies that in this situation, the distributor will be the one to be taken to court, since it is the one who makes the collection.
“As part of this process, it is understood that the distributor may be the defendant in the demand, as it is the one who would benefit from this illicit act, by mistakenly applying the legal rule against the microgenerator classified as B Optante”, he explains.
Regarding what the merits of the case should be, Tribuci says that it should be an action to declare the non-existence of debt, which is a legal measure available to consumers in the face of undue charges.
Asked about the scope of this action will be judged and whether consumers can mobilize to create an action together, Tribuci clarifies that, in this case, “the competence to judge these actions would lie with the Common Court, and as it is a consumer relationship, It is up to the plaintiff to file the action in the forum that is most convenient to him, whether that be the distributor's domicile or the consumer's own.”
“It is also worth highlighting that said action may be proposed by a shared generation vehicle, be it a Consortium, Cooperative, Association and/or Voluntary Condominium”, he adds.
Customer care
Regarding the situation, that consumers are being notified by concessionaires, lawyer Tribuci advises that integrators inform the situation to their customers who have not yet been notified.
In this communication it must be very clear that the rule has changed and that the concessionaires' actions are new for the entire sector. “We made a technical note on behalf of ABGD to help our associates explain this situation to their customers, transmitting technical content that allows them to combat these illegalities”, comments Tribuci.
He also emphasizes that this communication is necessary to ensure a good relationship with the client, who often does not see e-mail. To this end, Tribuci says that the Technical Note prepared by him and attorney Agnon Ericon Cavaeiro can be used.
An answer
The comment above is very appropriate, but it has not yet been fully clarified and we are therefore scheduling a face-to-face meeting with ENERGISA to clarify some points, for example:
(1) Will the CONCESSIONAIRE make a contract for GENERATION DEMAND and LOAD DEMAND in the GENERATING unit? If we have a system with a 110 KW INVERTER, what will be the LOAD demand (IF ANY) if there is no LOAD??/ (3) In the unit that receives credit and has always been classified as B OPTIONAL, will it also have to contract the LOAD DEMAND, since it receives such credits? The customer in this last item is being thought about twice. Have you paid attention to this??? (2) If the meters are not prepared, how will they charge???