BRAZIL Law and Practice Contributed by: Débora Yanasse, Bruno Salzano and Luisa Tortolano Barreto, Tauil & Chequer Advogados in association with Mayer Brown
4.7 Open-Access and Non-Discriminatory Transmission 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 transmission facilities on a non-discriminatory basis for any power genera- tor, distributor, or consumer, subject to payment of the applicable transmission charges. Nonetheless, access can be subject to technical restrictions and to the performance of studies and works by the access- ing 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 concessionaire in the construction and operation of the connection point of the user; and • usage charges to be paid to all transmission con- cessionaires and the ONS (TUST) according 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 Agreements (CUST and Contrato de Conexão ao Sistema de Transmissão or CCT). 5. Distribution 5.1 Constructing and Operating Electricity Distribution Facilities Pursuant to Law No 9,074/1995 and the Concession Renewal Law, the construction and operation rights of power distribution facilities may be granted through concessions or permissions. The concessions and permissions have a 30-year term. Environmental licences at state level are also required for the construction and operation of power distri- bution facilities, as well as certain construction and operation permits at local level. Power distribution facilities are composed of distri- bution lines, substations, and other equipment with voltages lower than 230 kV. Certain equipment over 230 kV is maintained by power distribution companies
and called “Other Transmission Facilities” ( Demais Instalações de Transmissão or DITs). There are 105 distribution companies in Brazil, composed of 53 con- cessionaires and 52 permissionaires. The permissionaires are mainly power distribution co-operatives in rural areas. Of the concessionaires, 48 out of 53 are controlled by private capital and the remaining five are controlled by states and municipali- ties. In 2016, CELG D was privatised and sold to Enel, and in 2018, Eletrobras’s six distribution concession- aires in the north and north-east regions were also privatised and sold to Energisa, Equatorial, Oliveira Energia and Atem. In 2020, CEB and CEEE-D were privatised and sold to Neoenergia and Equatorial, respectively. In 2021, CEA and CELG D (currently EDP Goiás) were privatised and sold to Equatorial and EDP, respectively. In 2023, COPEL was privatised by public offer of its shares. The existing concessionaires and permissionaires have monopoly rights over the totality of the geo- graphical territory of Brazil, and they have the right and the obligation to construct and operate distribu- tion facilities within their concession or permission areas. 5.3 Terms and Conditions Imposed in Approvals to Construct and Operate Electric Distribution Facilities Concession and permission agreements provide several obligations for concessionaires and permis- sionaires regarding the regularity, continuity, safety, efficiency and quality of the public services provided, as well as the universalisation or accessibility rights of consumers, and the affordability of tariffs. Power distribution concessionaires and permission- aires are subject to regulations established by ANEEL. The quality and continuity of the services are regu- lated by the Procedures for Distribution of Electricity in the National Electrical System ( Procedimentos de Distribuição de Energia Elétrica no Sistema Elétrico Nacional or “PRODIST”) approved by ANEEL Nor- mative Resolution No 956/2021. Interruptions in the 5.2 Regulatory Process for Obtaining Approvals to Construct and Operate Electricity Distribution Facilities
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