BRAZIL Law and Practice Contributed by: Débora Yanasse, Bruno Salzano, Luisa Tortolano Barreto and Julia Braga, Tauil & Chequer Advogados in association with Mayer Brown
sion companies is 7.89% (after taxes), as defined by ANEEL. The RAP is adjusted annually and revised peri- odically, as applicable, according to the conces- sion agreement. In general terms, in the periodic tariff review, ANEEL covers the recalculation of the cost of capital, efficiency gains in the operation and maintenance of the facilities, and the partial or total deduction of revenues arising from other activities (so-called “other revenues”). The tar- iff review process follows a procedure of public hearing, where the company, consumers and any other party may submit contributions to ANEEL prior to definition of the new tariffs. The RAP is supported by revenues arising from payments of the transmission tariff (“TUST”) by users of the transmission grid in accordance with Transmission System Use Agreements ( Contratos de Uso do Sistema de Transmissão or CUST) entered into by and between the ONS and such users. Concessionaires collect their allowed share of the TUST from each user of the national transmission grid, despite the loca- tion of their assets. The TUST is calculated on a monthly basis by the ONS according to a nodal methodology and applicable regulations that dif- ferentiate consumers from generators, and also observing the rights of certain generators that participated in auctions with stabilised TUSTs. Law No 9,074/1995, Decree No 2,655/1998 and ANEEL Resolution No 281/1999, as amended, provide open-access rights to all power trans- mission facilities on a non-discriminatory basis for any power generator, distributor, or consum- er, subject to payment of the applicable trans- 4.7 Open-Access and Non- Discriminatory Transmission
mission charges. Nonetheless, access can be subject to technical restrictions and to the per- formance of studies and works by the accessing party, as determined by the ONS in each case. The transmission charges are divided into: • connection charges that cover the costs incurred by the local transmission conces- sionaire in the construction and operation of the connection point of the user; and • usage charges to be paid to all transmission concessionaires and the ONS (TUST) accord- ing to the capacity contracted by the user. The ONS is responsible for the procedure of access to transmission facilities and it issues the access opinion required for the execution of the Transmission Usage and Connection Agree- ments (CUST and Contrato de Conexão ao Sis- tema de Transmissão or CCT). Pursuant to Law No 9,074/1995 and the Con- cession Renewal Law, the construction and operation rights of power distribution facilities may be granted through concessions or permis- sions. The concessions and permissions have a 30-year term. Environmental licences at state level are also required for the construction and operation of power distribution facilities, as well as certain construction and operation permits at local level. Power distribution facilities are composed of distribution lines, substations, and other equip- ment with voltages lower than 230 kV. Certain 5. Distribution 5.1 Constructing and Operating Electricity Distribution Facilities
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