The Federal Court of the 1st Region granted, this week, a seems favorable to a request for writ of mandamus against ANEEL (National Electric Energy Agency).
The decision obliges the entity to grant the benefits of REIDI (Special Incentive Regime for Infrastructure Development) for five distributed minigeneration photovoltaic projects, as provided for by Brazilian legislation.
The decision came about because the Law 14.300 / 2022 allowed distributed minigeneration projects could obtain the benefit of REIDI.
In the solar energy sector, the The initiative has as its main advantage the suspension of PIS/COFINS payment in the implementation of plants, generating a 9,25% reduction in CAPEX and increasing the rate of return on investments by around 2%.
To guarantee the benefit, the MME (Ministry of Mines and Energy) published the Normative Ordinance No. 78 in June informing what the procedures would be to access REIDI.
However, within this ordinance, it is described that the step by step process first starts at the distributor, then moves on to the ANEEL and then to the MME and the IRS.
However, to start the process the investor had to fill out a form To be made available by ANEEL.
The problem is that the Agency has not yet issued such a document, even with the requirements of current law, Normative Ordinance No. 78 and even a Union decree.
In this sense, the lack of this form created an obstacle to enjoy this right by distributed minigeneration projects.
Because of this, the Court ruled that the ANEEL evaluate the five projects within 30 days and, if they present the necessary characteristics of distributed minigeneration, the Agency will be obliged to issue the REIDI classification ordinance and grant REIDI benefits to these plants.
That was the first injunction granted by the justice body on the subject in the country, which may open the possibility for new determinations to also occur. The writ of mandamus granted by the court was filed by the office Bao Ribeiro Advogados.
According to Thiago Bao Ribeiro, a tax lawyer specializing in renewable energy and a partner at the firm, the absence of the form ANEEL, “despite all the published rules that establish the benefit, it prevents the entrepreneur from taking advantage of the savings provided by REIDI. Therefore, it was necessary to seek the entrepreneur's rights in court”, he said.
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