BRAZIL Trends and Developments Contributed by: Márcio Pina, André Serrão, Thiago Furtado and Gustavo Oliveira, Advocacia Bettiol
to be agreed upon. After all, the agreement signed between the parties will be the pillar of more than two decades of legal relations. It is imperative that clear and objective provisions be established, with the necessary publicity, so that in an environment of equality and predict- ability all risks are clear and duly distributed; this way, possible imbroglios in the inevitable rene- gotiations that will follow are avoided. One of the secrets of good execution in a concession contract lies precisely in the clarity of the dis- tribution of risks and the objectivity of the con- tractual commands. In this case, there must be the necessary legal security for the agreement”. No burden can be attributed to generators when their operation does not imply risk to the trans- mission system. Decisions by ANEEL or the ONS, or any subsequent change in regulatory rules, cannot transfer risks to the generator that are not allocated in its original legal relationship with the federal government. Agents who have the right to use the transmission system without restrictions The Declaration of Compliance with Final Grid Procedures (DAPR/D) and Access Authorization Without Restrictions, or those where restric- tions have been overcome, constitute formal documents that certify to the power plants the absence of voltage or overload problems. With these documents in hand, the operation of a given generator does not imply insecurity to the system. Therefore, it is legally unfeasible to allocate systemic reliability risk to generators connected to the Brazilian interconnected trans- mission system equipped with DAPR/D and/or Access Authorization Without Restrictions. Likewise, authorisations on unrestricted access are equivalent to those where restrictions were overcome by entry into commercial operation
of sufficient transmission facilities or by meet- ing deadlines for facilities capable of overcoming restrictions. Events involving access restrictions can be attributed to new users or to old users with access authorisation subject to restrictions. On this subject, it is worth mentioning the Opinion of ANEEL’s Reporting Director in Administrative Proceeding No 48500.001945/2025-09: “44. Still on this topic, attention is drawn to the argument that highlights the obtaining of a Dec- laration of Compliance with Network Procedures – Final Operation (DAPR-D) and the lack of dis- tinction in treatment with respect to subsequent entrants who, differently, produced impacts on the network. In effect, obtaining a DAPR/D and/ or an Access Authorization Without Restrictions and/or those where restrictions have been over- come implies that the presence of the individual accessor did not cause an overload on the basic network or compromise its reliability, and it is obviously not possible for any future restrictions to be considered in isolation in the risk matrix. 45. In this sense, it is necessary to admit some impropriety in attributing such risk to the Agent. As argued, at that time a legal and economic- financial position was consolidated, based on facts and compatibility with the risk that was intended to be assumed – such risk that must be preserved. 46. Therefore, I tend to agree with the Claimant’s argument, considering that the existence of a rule of precedence in relation to the cut is appro- priate if there are different legal situations. In the present case, the Agent received an Acces- sAuthorization Without Restrictions and holds a DAPR/D, so that, if it is necessary for ONS to impose restrictions, these should be imposed
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