Aneel contested the sale of the dealership, claiming that the contract was signed when the provisional measure was no longer valid
This Friday (November 8, 2024), the Federal Court recognized the legality of the transfer of the group, the Batista brothers, in the energy sector. The term authorized the transfer signed on the last day of the MP (provisional measure) that authorized the operation. Some signatures were recorded on the document minutes after the deadline. Here is the decision (PDF – 40 kB).
Due to the late signatures, the (National Electric Energy Agency) questioned the validity of the document in court. The agency can appeal the decision. Read Aneel’s response presented in October (PDF – 160 kB).
In the decision, federal judge Jaiza Maria Pinto Fraxe wrote that the regulatory agency included the document on its digital portal at 11:58:37 pm on September 10, and then began to require that the document be signed electronically by all interested parties before midnight. night. Therefore, the judge understood that it was impracticable.
Furthermore, the judge noted that on several occasions Aneel tried to postpone the signing of the transfer “avoiding or delaying compliance with court decisions” which determined the completion of the operation for the benefit of Âmbar Energia.
“It turns out that the document was made available with less than 1min and 30sec left, making it technologically impossible for everyone to access, read and sign in less than 2 minutes. It might even be laughable if it weren’t such a serious public document with profound consequences for the population of Amazonas, which has already suffered from energy poverty for many decades.”the judge wrote.
The judge also highlighted that Aneel’s role in the operation should be investigated in the future. “Another episode that deserves to be investigated from the perspective of probity and criminal norms, as all actions and omissions by public figures must be permeated with morality and the absence of intent or guilt”.
After Aneel’s statement that the operation should be invalidated due to late signatures, Âmbar said that all parties signed the term of transfer of share control of Amazonas Energia. In a statement, the company said that the regulatory agency acted accordingly “bad faith” to obstruct and subsequently cancel the transfer.
Read the full note from Âmbar Energia:
“All parties signed the term of transfer of share control of Amazonas Energia within the validity period of Provisional Measure 1,232/2024. The MP was valid until October 11, 2024, according to the Federal Constitution, which provides 120 days from the date of publication (June 13, 2024).
“Even if the correct deadline was October 10th, the signature of the authority responsible for approval, the National Electric Energy Agency (Aneel), which occurred at 23:59:01, would prevail.
“Furthermore, Aneel made the document available for signature at 23:58:37 on October 10th. If the agency’s thesis were correct, Aneel itself would also be in bad faith, making it impossible for all parties to sign until midnight. It should be noted that we do not believe in bad faith, but that it is a mere mismatch of information between the general management that signed the contract and the agency’s attorneys.”
Understand the case of Amazonas Energia
Amazonas Energia is the distribution concessionaire in the Northern State. Before its sale, in 2018, to Oliveira Energia, it already had a high level of debt and default on sectoral obligations. In November 2023, Aneel recommended to the government the extinction (expiry) of the concession.
Amazonas Energia’s unsustainable situation has lasted for decades, accumulating losses of more than R$30 billion in 20 years. Just with the Eletrobras Eletronorte thermal plants that supplied the distributor – and which were also supplied –, the debt exceeds R$ 10 billion.
In addition to the distributor’s long-standing problems, Amazonas faces a serious problem with energy theft. As shown by the Poder360the rate of non-technical losses, the so-called “gatos”, for the entire low voltage market in the State.
When it was privatized in 2018, the government gave Amazonas’ new management 5 years to get the concession up and running. During this period, the main regulatory targets required of the distributor were made more flexible, avoiding penalties and guaranteeing the operation. However, the deadline ended in May this year and the situation, instead of improving, got worse.
The transfer of control, at a symbolic price and with more flexible rules, was the most viable alternative found by the federal government to save the energy distribution service in Amazonas. The alternatives, which would be the expiration of the concession or intervention in the company, would bring high costs to public coffers and electricity bills.
On June 13, the government issued MP 1,232 of 2024. It stipulated the possibility of transferring share control as an alternative to the expiry (revocation) of the distributor’s concession, recommended by Aneel in 2023. As the MP was not voted on by Congress, it lost its validity on October 11th.
