Aneel has determined that CCEE penalties are contractual in nature, establishing a ten-year statute of limitations for fines related to lack of energy backing, a move that impacts various sector proceedings.
The National Electric Energy Agency (Aneel) has reaffirmed its authority by upholding R$ 16.9 million in fines imposed on UTE Maracanaú, owned by Bolognesi. The decision settles a significant legal debate regarding the statute of limitations for penalties in the electric power sector: the period for collecting fines applied by the Electric Energy Commercialization Chamber (CCEE) is ten years, in accordance with the Civil Code, rather than the five years argued by the companies.
This ruling does not affect Bolognesi alone; it serves as a precedent for a series of other appeals that were pending at the CCEE. By treating the case as representative, the regulatory agency sets a guideline that will apply to similar disputes, such as that of Central Energética Palmeiras (Cepal), ensuring legal certainty in the collection of penalties for breaches of contractual obligations within the National Interconnected System (SIN).
Contractual nature of penalties
The defense for Maracanaú argued that, because the fines stem from state punitive power, the statute of limitations should be five years. However, the Federal Attorney’s Office attached to Aneel maintained—and the board accepted—that CCEE fines are associative and contractual in nature, arising from the relationship between the agent and the chamber.
“The requirement applies to all electricity selling agents, regardless of their classification.”
Beyond the timeline issue, Aneel was firm regarding the obligation of energy backing. According to the agency, the unavailability of generating units or potential financial difficulties of an agent do not exempt the company from the responsibility of maintaining full coverage for its sales contracts. The regulator considers managing operational risks and guaranteeing supply to be duties inherent to the generation activity.
Market impacts and next steps
The decision reinforces that insufficient backing is an objective failure. The company’s argument that there was a surplus of energy in the SIN, which supposedly would not affect system security, was dismissed. Aneel highlighted that every agent has an individual commitment to the market, and the macroscopic supply scenario is irrelevant to the validity of the fines.
With this understanding now consolidated, the CCEE is expected to resume the analysis of cases that had been suspended. While this does not mean the automatic application of sanctions in every case, the jurisprudence established by Aneel eliminates any room for maneuvering based on the five-year statute of limitations thesis, signaling a period of stricter enforcement for contractual breaches across the entire Brazilian power generation fleet.
