Lula está gastando R$ 5 bi para segurar a conta de luz. O TCU foi e voltou

The Minister of the Superior Court of Justice, Antonio Anastasia, has recently overturned a protective order he had issued the previous days, suspending the use of approximately R$5 billion in public funds to curb energy tariff increases, primarily in the Northern and Northeastern regions. The injunction lasted less than 72 hours, causing a stir both in Brasília and among electricity sector experts.

The government and Congress were caught off guard after months of preparing to use the funds to alleviate electricity bills in more disadvantaged areas during an election year. However, the decision also sparked concern in the private sector, as the transfer of funds to energy distributors had already been approved by the National Electric Energy Agency (Aneel) and incorporated into recent tariff adjustment processes.

If the injunction had remained in place, Aneel would have needed to review its decisions on tariff rates for certain companies, a source close to the regulatory body told Brazil Journal. Anastasia explained that he received a call the previous evening from ministers of Planning and Mines and Energy, as well as feedback from Aneel.

Meanwhile, Minister Benjamin Zymler reported being approached by the Brazilian Association of Energy Distributors (Abradee), representing concession companies that were "in a frenzy." The R$5 billion in play stems from a law on electricity sector reform approved the previous year, allowing hydropower operators to pre-empt payments owed to the government as Use of Public Benefit (UBP), with the revenue then being used to reduce tariffs in the South American and South electric grids.

This mechanism was not part of the original proposal sent by the Planalto, known as Provisional Measure 1300. It was incorporated during the legislative process and later received official support from the Ministry of Mines and Energy. While the merits of the proposal are debatable - from the UBP discount to the use of the funds (with clear electoral implications) - experts expressed concern over the lack of coordination between the Powers over a matter involving billions of reais and numerous companies.

"There was a law that guaranteed the transfer. You can debate it conceptually, but by suspending it and not allowing execution, we start to have a scenario of institutional insecurity, regulatory instability," said Lefosse Advogados energy partner Pedro Dante to Brazil Journal. Anastasia agreed. "Several beneficiary companies had already anticipated these discounts in the first half of the year.

So in fact, the injunction could create a climate of legal uncertainty at this moment." The TCU Plenary, however, will still need to evaluate the merits of using public funds for the relief of tariffs as provided for in the law. UBP is a royalty paid by hydropower plants, and the law allowed the antecedent collection to be directly used to compensate the Development Energy Account (CDE), which is then passed on to distributor tariffs.

Anastasia understood that the UBP funds "are the Union's patrimonial revenue," and that directing them to the CDE or distributors without going through the Union's General Budget "subtracts the funds from the reach of fiscal rules, such as the primary appropriation limit and the primary result target." He recalled recent discussions about using private funds to finance the Mid-Year Student Program without going through the Unified Treasury Account, a process the TCU characterized as "underequipping."

After an impasse with the accounts court, the government ultimately included all program expenses in the budget, requiring reassignments of funds in the Ministry of Education. Now, the TCU wants to scrutinize the electric sector resources when it resumes its analysis of the UBP, CDE, and tariff case. "Undoubtedly, in the merits, we will deliberate adequately amidst this tug-of-war that has erupted in various proceedings on the underequipping," said Minister Zymler.

Beneficiary companies with the targeted resources include Equatorial distributors in Maranhão, Amapá, Alagoas, Piauí, and Pará; Energisa in Acre, Rondônia, Sergipe, and Tocantins; Neoenergia in Pernambuco, Bahia, and Rio Grande do Norte, among others. According to Aneel, the use of UBP funds will limit tariff increases to up to 6.5%, avoiding the two-digit increases previously forecasted for this year.

Companies such as Engie, CBA, and Aliança Geração have already benefited from the law to pay UBP debts with a discount.