Comercialização de energia elétrica no ambiente de contratação livre e no ambiente de contratação regulada e o direito contratual

Abstract

The present work has as its scope the study of the relationship between Contractual Law and commercialization of electric energy in Brazil, specifically in the free contracting environment and in the regulated contracting environment. Such scope is restricted, in its turn, to the analysis of the contractual aspects of the relations established between buyers and sellers, arising from the purchase and sale of energy carried out in said environments and the legislation related to these contracts. The study also aims to distinguish the relationship stablished between buyer and seller at the free contracting environment from the relationship established between distributors and captive consumers, originated from the physical supply of electric energy and the pass through of the costs of its acquisition. Thus, starting with the definition of electric energy as a physical phenomenon and as an object of the Law, along with a contextualization about the current conception of the Brazilian electric sector, it is sought to clarify the existence of distinct commercialization environments and rules in each one of these markets. Following, in view of what is provided by legislation regarding contracts in general and the specific regulation of the Brazilian electricity sector, it is intended to analyze the contracts entered at the time of the formalization of these commercialization operations. This analysis intends to explore the general and specific contractual characteristics of each contract, with the purpose of establishing a comparison between them and, thus, highlight their main similarities and differences. More precisely, the purpose is to elucidate, above all, the differences regarding the applicable legislation and the implications, from the contractual/ obligational perspective, of the applicability of the Brazilian Consumer Defense Code only to relations established between distributors and captive consumers. Finally, it intends to evaluate the bills pending approval by the Brazilian Legislative Authority, and the proposal analyzed during the Public Consultation No. 33 of 2017, carried out by the Brazilian Ministry of Mines and Energy, aiming the gradual opening of the energy market for free commercialization. This final evaluation aims to verify the possible consequences of this opening for the parties involved in the commercialization of energy, especially those arising from the potential migration of captive consumers to the free contracting environment and consequent possibility of extinction of the captive market