Electric Power Concessionaires

The crossroads of supply in irregular subdivisions.

The issue of electricity supply in irregular settlements has been a controversial and frequent topic in the Brazilian Judiciary, placing energy concessionaires in a complicated dilemma. They find themselves at an impasse between the rigorous requirements imposed by the National Electric Energy Agency (ANEEL) and judicial rulings, which frequently oblige them to supply energy in regions without land regularization.

ANEEL’s Normative Resolution No. 1,000/2021, which is the regulatory framework for the sector, establishes clear and mandatory requirements for the connection and supply of electricity. Among these requirements, the presentation of valid environmental licenses, verification of property ownership (through a registered public deed or equivalent document) or, if this option does not exist, proof of legitimate possession through a purchase and sale agreement, assignment of rights, or other appropriate legal instrument stand out.

However, residents of irregular subdivisions, often unable to fully meet these documentary requirements, resort to the Judiciary to guarantee access to the fundamental service of electricity.

This is because Article 40 of Law No. 6,766/1979 grants the municipality discretionary authority to regularize unauthorized subdivisions or those carried out without conformity to the determinations of the administrative act. Precisely for this reason, the Superior Court of Justice (STJ) has issued decisions (e.g., ARESP 2100390/RJ and ARESP 2034509/SP) indicating the primary responsibility of municipalities in the regularization of these subdivisions, imposing on them the obligation to develop basic infrastructure and territorial planning, in accordance with Articles 23, IX; 30, VIII; 182 of the Federal Constitution; and Article 2 of Law 10,257/2001.

Although there is guidance from the Superior Court of Justice (STJ), many different State Courts have adopted a contrary position, prioritizing the fundamental right to access electricity, the principle of human dignity, and the social function of property.

This discrepancy in jurisprudence places concessionaires in a paradoxical and highly vulnerable position from a legal standpoint. On the one hand, they are obliged to comply with court orders requiring the supply of energy, under penalty of committing the crime of disobedience and facing administrative penalties. On the other hand, by complying with these court orders, they risk facing penalties for supplying energy in irregular regions, in violation of ANEEL’s regulatory standards and environmental laws. This circumstance creates a conflict of responsibilities that hinders the operation of concessionaires and affects the legal security of the sector.

Concessionaires have faced considerable losses, both financial and operational, due to the legal uncertainty arising from this scenario. They are forced to invest in infrastructure to meet the demands of irregular areas, often without certainty of financial return, since land regularization requires complex and lengthy actions by the public authorities. Furthermore, concessionaires risk being held liable for environmental or urban planning damages in regions whose regularization is not their responsibility, which can result in significant judicial and administrative liabilities.

In short, it is essential that judicial decisions are in line with legal norms to ensure the necessary legal security for concessionaires, without violating the fundamental rights of consumers. The objective liability of the Municipality must be recognized and applied consistently, ensuring that concessionaires operate in accordance with the law and without unnecessary risks.