Federal Court accepts MPF request and suspends 44% adjustment for electricity in Amapá – News of Brazil
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Accepting a request from the Federal Public Ministry (MPF), the Federal Court suspended, on a preliminary basis, the 44.41% increase in the electricity tariff proposed by Companhia de Eletricidade do Amapá – CEA Equatorial. Scheduled to come into force on Wednesday (13), the new value is the result of the energy company’s Extraordinary Tariff Review (RTE) and is the target of public civil action by the MPF. According to the decision of the 6th Federal Civil Court, the suspension of the RTE will take effect until the merits of the action are judged and a fine of R$200,000 will be imposed per day of non-compliance.
In the action against the National Electric Energy Agency (Aneel) and CEA Equatorial, the MPF requests that the clause in the concession contract for the exploitation of the public electricity distribution service in Amapá that allows the tariff review without demonstrating the occurrence of an imbalance economic-financial contract is declared abusive. For Public Prosecutor Sarah Teresa Cavalcanti de Britto, responsible for the case, this rule is in disagreement with Aneel Normative Resolution 1.003/2022, which defines tariff regulation procedures and provides for the procedure for extraordinary review, establishing, as a minimum requirement of admissibility, the demonstration of contractual economic-financial imbalance.
In this sense, the MPF points out that CEA Equatorial did not demonstrate, in the request for extraordinary review, facts generating contractual economic-financial imbalance, not related to business inefficiency. Therefore, the MPF understands that there is no causal relationship between the tariff increase and the need to continue providing the service in the concession area.
The Public Prosecutor explains that reading the questioned clause leads to the understanding that any contractual provision that relates to the extraordinary review is subject to the verification of a possible contractual economic-financial imbalance. “The imposition of a clause that allows the use of extraordinary review, aiming solely to transfer the costs of the concession to the consumer, shows a true abuse of the right”, points.
In another part of the action, Sarah Teresa Cavalcanti de Britto highlights that the extraordinary review intended by CEA Equatorial constitutes a practice prohibited by the Consumer Protection Code (CDC), as it seeks a review without the occurrence of extraordinary events that involves other elements in addition to recompositions annually. For the Public Prosecutor, the adjustment is abusive, as it transfers the risk of the concessionaire’s activity to the end consumer.
The MPF representative also highlights the electricity situation in the state of Amapá, which faced a blackout in 2020, followed by an average tariff adjustment of 36% on the energy bill. According to her, “it can be seen, due to a lack of planning by the agents involved in the electricity sector, in the state of Amapá, that low tariffs have been treated as a mere consequence, direct and indirect, of the application of market mechanisms and regulatory rules” .
The Public Prosecutor also warns that the increase in CEA Equatorial tariffs, in the percentages suggested by Aneel, leads the population of Amapá, especially the most needy, to not have adequate access to electricity, corresponding to a serious violation of their right and the others that are implemented from it. “The situation portrayed, in which people protest for access to electricity during the 2020 blackout, will be the reality of many people in Amapá, who, without access to energy, will be outside the minimum civilizational standards. This is the direct consequence of treating electrical energy only as a commodity, intended exclusively for those who can bear its costs, instead of treating it as what it actually is: an essential material condition for access to all human rights. After all, without energy, there is no supply of drinking water, there is no access to education, there is no public health”, highlights.
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