Comercialização de energia elétrica: a (In)constitucionalidade das barreiras de entrada no mercado livre brasileiro

Abstract

This thesis examines the unconstitutionality of the obstacles that small producers face in accessing the free electricity market in Brazil. The study begins with a historical overview of the use of electricity in contemporary societies, contextualizing the current transition scenario to renewable energy sources. In the development section, it initially addresses the Brazilian regulatory system, emphasizing the Federal Constitution of 1988 and the laws governing electricity. Next, the commercialization of energy is discussed, distinguishing the regulated market from the free market, as well as the institutional structure of the sector, listing the acting agencies and their respective competencies, highlighting the Normative Resolutions of the National Electric Energy Agency (ANEEL) that govern the sector. Subsequently, the article discusses distributed generation and the Electric Energy Compensation System (SCEE), with an emphasis on micro and mini generation, explaining the procedures to obtain network access authorization. Furthermore, fiscal and credit incentives for the installation of sustainable generators are studied. At the end of the first part of the development, the study examines whether the current regulatory structure of the sector is reconcilable with constitutional principles, including the objectives of the Federative Republic of Brazil, free enterprise, free competition, equality, the right to sustainable development, and the prohibition of social regression. In the second part of the development, an overview of the topic from the perspective of economic science is presented, highlighting some fundamental concepts such as inflation, state intervention, environmental, social, and governance (ESG) principles, as well as the theory of competitive advantages. The analysis continues addressing topics related to Energy Law, such as the Right to Development and Competition Law, examining how the special treatment given to micro and small enterprises (MSEs) by Brazilian law can inspire the reformulation of the criteria for joining the free energy market. Approaching the final part, it analyzes a real case in which a consumer from the state of Ceará, classified under mini-generation, is unable to commercialize their accumulated energy credits and the practical impacts of this prohibition. Finally, international models of electricity commercialization by small producers are analyzed. It concludes that the minimum requirements for entering the Brazilian free electricity market contradict the constitutional principles of free competition and free enterprise, besides discouraging sustainable development, making legislative reform necessary to promote the expansion of installed energy generation capacity in Brazil and the democratization of access to low-cost and renewable energy. The methodology used in this study was bibliographic research in relevant sources within the fields of Law and Economics, through qualitative synthesis, aiming to analyze the impacts of entry barriers in the Brazilian free energy market on the emergence of new energy business models and on the price of this essential commodity, and to what extent these barriers are compatible with the constitutional principles outlined previously.