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On September 28, 2017, the National Electric Power Agency (“ANEEL”) published Resolution No. 783/2017 (“REN No. 783/2017”), which established the criteria and procedures for controlling the electric power sale contracts.
REN No. 783/2017 will apply to the following contracts:
(i) Electric Power Trade Contract from Public Bidding – CCE500LP;
(ii) Electric Power Trade Contract prior to 2003 – CCE2003;
(iii) Electric Power Trade Contract with Supply Agent – CCE500SUP;
(iv) Proinfa Electric Power Trade Contract – CCEproinfa;
(v) Electric Power Trade Contract in the Isolated System – CCESI;
(vi) Electric Power Trade Contract in the Free Contracting Environment – CCEAL;
(vii) Electric Power Trade Contract in the Regulated Environment – CCEAR;
(viii) Electric Power Trade Contract in the Isolated System prior to 2009 – CCESI2009;
(ix) Reserve Electric Power Trade Contract – CER;
(x) Distributed Generation Contract – CGD;
(xi) Electric Power Import or Export Contract – CIE;
(xii) Adjustment Auction Contract – CLA;
(xiii) Contract for Retail Sale – CCV; and
(xiv) Term of Assignment in MCSD (Mechanism of Offset and Deficit Compensation) – TCmcsd.
Pursuant to ANEEL’s regulation, depending on the type of contract, the following procedures will be applied: (i) provision of information; (ii) registration; (iii) ratification; and (iv) approval.
The contracts whose purpose is not aimed at third-party service through transfer of costs by means of tariff, charge or other funds of the same nature will be subject to provision of information. The CCEAL and the CCV are included in this case.
On the other hand, the contracts necessary for the accounting process carried out by the Electric Power Trade Chamber (“CCEE”) must be submitted to the Chamber. This is the case of: (i) CCEAL; (ii) CCV; (iii) CCEAR; (iv) CER; (v) CLA; and (vi) TCmcsd. The CCEproinfa, however, must be registered with ANEEL.
The ratification will occur for those contracts, with the exception of CCEproinfa, whose drafting is not made by ANEEL, CCEE, or the Ministry of Mines and Energy (“MME”) and whose contractual conditions are exhaustively regulated. This is the case of: (i) CCESI; (ii) CIE; and (iii) CCE500SUP.
The approval procedure will be applied to contracts which are not regulated in an exhaustive manner. These are: (i) CCE500LP; (ii) CGD; (iii) Amendment to CCESI2009; and (iv) Amendment to CCE2003.
Furthermore, all contracts, regardless of the applicable procedure, must be sent to ANEEL when requested by the Regulatory Agency, even if there is a provision to the contrary in the act of grant, subject to penalty.
ANEEL also regulated the disclosure of information related to the contracts.
The CCEE shall make available on its website the entire content of the contracts subject to the approval, ratification or registration procedures by ANEEL, within 30 days of receipt or signature by the contracting parties. The latter hypothesis applies to contracts subject to registration.
Eletrobrás – Centrais Elétricas Brasileiras S.A shall make available on its website the amendments to the CCEproinfa, within a period of 30 days counted from their execution. And the company must also disclose the Proinfa Annual Plan and the updated statement of the CCEproinfa results.
For contracts that are already signed, CCEE and Eletrobras will have a period of 60 days to disclose them, counted as from the effective date of REN No. 783/2017 (thirty days after its publication).
REN No. 783/2017 will apply to all contracts, including those already filed with ANEEL or drafted by CCEE, but still pending registration, ratification or approval.
Finally, for contracts entered into between related parties[1], the provisions of REN No. 699/2016 shall be observed, where applicable.
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[1] Art. 2, item IV of REN ANEEL No. 699/2016: Art. 2 For the purposes of the provisions of this Resolution, it is considered:
IV – Related parties to the Agent of the Electric Sector are:
a) its controllers, its subsidiaries and affiliates, as well as the subsidiaries and affiliates of common controllers;
b) its directors and executive officers, when the subject matter of the business is outside the competencies and statutory duties inherent to the position;
c) legal entities that have common directors or managers, appointed by the controlling shareholders, when the latter represent the majority of the voting capital in each company; and
d) legal entities that have common directors or administrators with the Permittee.
For further clarification on the contents of this memorandum, contact:
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Rosi Costa Barros
rosi.barros@nbfa.com.br
(11) 3707-8370
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William de Figueiredo Lins Junior
william.lins@nbfa.com.br
(11) 3707-8370
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Luisa Tortolano Barreto
luisa.barreto@nbfa.com.br
(11) 3707-8370
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