The retail commercialization of electricity has undergone a significant transformation, especially following the changes introduced by ANEEL’s Normative Resolution No. 1.081, dated December 12, 2023, which altered various aspects of Normative Resolution No. 1.011/2022, and the expectations created by the opening of the free market to Group A consumers (high voltage). These changes have established a new paradigm in the representation of energy consumers and producers, introducing greater flexibility and opening doors to a more dynamic and competitive market. However, there are specific risks tied to retail commercialization and its requirements, as well as others linked to the market, which demand more attention from entrepreneurs.
To provide clarity, the aim of this article is to analyze the key regulations covered by Normative Resolutions No. 1.081/2023 and No. 1.011/2022, bringing forward the provisions whose concepts and assumptions are crucial for understanding retail commercialization. In this text, we will focus on the most important and practical aspects of the regulations set by ANEEL and CCEE, ranging from the basic requirements of retail commercialization, its characterization and relevance, to the criteria for accountability of the respective agents.
The idea is to delve “into the details” of the relevant norms and reflect on the risks involved in the operation of a retail marketer—an issue that has gained traction due to the opening of the free market in early 2024.
Let’s start with the basics: we know that the activity of electricity commercialization encompasses the buying and selling of energy within the National Interconnected System (SIN). Market agents can be classified in two ways: i) Type 1, which are marketers with no limitation on registering sale amounts in the CCEE’s Accounting and Settlement System; and ii) Type 2, which are marketers subject to a limit of 30 MW (average) in total monthly sale amounts within the system (Article 2 of RN 1.011/2022, amended by RN 1.014/2022). In other words, Type 1 marketers can negotiate energy volumes without quantity restrictions within the system.
It should be noted that the exclusive provision of services such as training, diagnostics, solution formulation, consulting, advising, or similar services is not considered an activity of commercialization (sole paragraph of Article 2 of RN 1.011/2022).
Moving on, the activity of electricity commercialization “may only be exercised after obtaining authorization from ANEEL and subsequent membership in the Electricity Commercialization Chamber – CCEE” (Article 3 of RN 1.011/2022).
What are the basic requirements for obtaining this authorization from ANEEL?
We can classify these requirements into two main blocks: i) general requirements; and ii) specific requirements, depending on the level of demand and potential challenges faced by the requesting entrepreneur. For better understanding, we outline the requirements in the table below and highlight their key points:
| General requirements | Specific requirements |
| The legal entity’s corporate purpose must present a specific designation to carry out such activity | Paid-up share capital of at least R$2,000,000.00 (two million reais), monetarily updated. (RN No. 1,014/2022). Currently, for 2024, according to the CCEE Commercialization Procedures, the value of the minimum paid-up share capital is R$2,122,320.80 . The update index used by CCEE is the IPCA. |
| The registered office of the legal entity must be located at a commercial address, duly proven by means of a lease agreement or valid document for the same purpose (RN No. 1,014/2022) | CCEE’s opinion, indicative, conclusive and non-binding to ANEEL , with technical and legal analysis of the potential trading company. The opinion includes the assessment of the applicants in relation to their participation in other trading companies and any debts of agents or former agents that are part of the same economic group as the applicants. (RN No. 1,014/2022). Furthermore, CCEE may point out other details that, if not met, may be considered detrimental to the trading activity and as unfulfilled requirements for obtaining authorization . The issuance of the opinion is subject to the settlement or collateralization of all debts left by another company that is directly or indirectly linked to the new applicant. Deadline : the opinion must be sent by CCEE to ANEEL and to the candidate agent within 10 days after receiving all necessary documents , with a minimum validity of 20 more days, without prejudice to additional analyses by CCEE during the adhesion process (RN No. 1,014/2022) |
| The company name cannot be likely to cause confusion or association with that of another agent already authorized and that is not part of the same economic group. In this case, the rules governing the Public Registry of Commercial Companies (RN No. 1,014/2022) apply subsidiarily. | Proof of aptitude to perform marketing activities, which includes proof of adequate and available Technical-Operational, Commercial and Financial Structure (inventory of assets) , as well as the qualification of each member of the technical team who will be responsible for the work (RN No. 1,014/2022) |
| Proof of intra-sector compliance by direct or indirect controlling partners and shareholders (RN No. 1,014/2022). Compliance with this requirement is verified by means of an official consultation of ANEEL’s information systems. | To be classified as a type 1 trader: presentation to the CCEE of net equity of at least R$10,000,000.00 (ten million reais) (RN No. 1,014/2022). Currently, for 2024, according to the CCEE Trading Procedures, the updated minimum net equity value to be met by agents is R$10,611,604.00 . The update index used by the CCEE is the IPCA. ATTENTION: members already qualified as retail traders must submit a balance sheet proving compatible equity by April 30, 2024, in order to maintain their qualification . |
| Proof of legal regularity, tax regularity and economic and financial suitability (RN No. 1,014/2022). Among the analysis criteria and documents necessary to comply with this requirement, we highlight the need to present: i) criminal records of direct partners who are individuals; ii) a certificate issued by CCEE, attesting that the legal entity and its respective partners and/or shareholders do not have direct or indirect participation in a CCEE agent who is being monitored due to anomalous behavior or in the process of being dismissed; iii) statements and documents demonstrating that the members of the controlling group have knowledge of the business line and the segment in which the applicant intends to operate, including aspects related to market dynamics, sources of operational resources, management and risks associated with the operation. |
Regarding the specific requirement for proving legal, fiscal, and financial soundness, it is important to list the additional documents that must be submitted by the applicant:
i) authenticated copy of the current bylaws or social contract, duly registered with the competent authority;
ii) authenticated copy of any shareholders’ or partners’ agreement and other legal documents affecting corporate control;
iii) diagram of the economic group, which includes:
iii.a) indication of the percentages of shareholding of subsidiaries, parent companies, affiliated companies, and simple participations, along with the names of the companies involved in direct, intermediary, and indirect control;
iii.b) presentation of direct and indirect shareholding in the capital stock, up to the last level, including minority shares;
iii.c) exemption from presenting shares below 5%, unless part of the controlling group;
iii.d) identification of natural and legal persons that make up the economic group, including those that may exert direct or indirect influence over the applicant’s business (RN No. 1.014/2022);
iv) certificate issued by the CCEE confirming that the requesting legal entity and its respective partners and/or shareholders, both natural or legal persons, as well as direct or indirect partners and/or shareholders in its respective economic group, do not have any outstanding debts with CCEE at the time of the request;
v) simple copy of the National Register of Legal Entities (CNPJ) card; the state tax identification card; and the municipal taxpayer identification card, if applicable;
vi) certificates proving fiscal regularity at the federal, state, and municipal levels (RN No. 1.014/2022);
vii) negative certificate of bankruptcy, judicial and extrajudicial recovery of the requesting legal entity and its direct and indirect partners and shareholders, as well as a civil insolvency certificate, if a natural person is a partner or shareholder (RN No. 1.014/2022);
viii) audited balance sheet by a recognized auditing firm, when applicable, and financial statements since the legal entity’s creation, limited to the last three fiscal years (RN No. 1.014/2022);
ix) criminal record certificate for the direct natural person partners (RN No. 1.014/2022).
It is important to emphasize that ANEEL may, at any time and “in the public interest,” require other documents not listed in RN No. 1.011/2022. Given the extensive list of documents and requirements that a company must fulfill to become an energy marketer, it is clear that ANEEL would need—at times—to be creative in requiring additional demands.
The marketer that obtains the authorization must, within 90 days, join CCEE and remain a member while the authorization is valid. Furthermore, they must comply with sector regulations and instructions or determinations issued by ANEEL or the Granting Authority. Normative Resolution No. 1.011/2022 also lists three circumstances that could lead to the revocation of the authorization:
i) simulation of the commercialization activity;
ii) impossibility of the agent to trade electricity;
iii) use of the authorization exclusively for purposes other than commercialization.
Another highly relevant point is that the agent must establish financial guarantees of at least 10 times the operational limit during the first 6 months after joining CCEE. This means the marketer must be able to provide 10 times the amount of R$ 1,610,904.00 (the minimum operational limit for 2024), which is adjusted for inflation by the IPCA. This becomes another requirement for maintaining the authorization and, consequently, for continuing commercialization activities. The Commercialization Procedures (PdC) stipulate that, regardless of the reason, if the constituted operational limit falls below the minimum limit, CCEE will inform the agent, who must restore the balance within five business days. If the agent fails to do so within the indicated period, the compulsory disqualification process will begin.
What are the requirements to act as a retail energy commercialization agent? (representation)
Continuing, we know that retail electricity commercialization within the scope of the SIN is characterized by the representation, by CCEE (Chamber of Electric Energy Commercialization) agents, of individuals or legal entities that may choose not to directly join the CCEE (art. 10 of RN No. 1011/2022). In other words, the representative has the prerogative to manage the buying and selling of energy on behalf of the represented party, acting as an intermediary.
To carry out representation, marketers or generators participating in CCEE must meet the requirements established in Resolution No. 1011/2022. Likewise, those being represented must adhere to the various requirements set by the same regulation. For better understanding, the table below outlines the necessary requirements to occupy both sides of the representation in retail electricity commercialization.
| Agents Representatives | Represented Agents |
| There must be approval from the CCEE Administrative Council (CAd), which is subject to the applicant, interested in exercising representation, demonstrating that it has regular operations in the market and that its activities respect the principles of probity and good faith. | Only the following may be represented: i) consumers with consumer units eligible for the acquisition of electricity in the Free Contracting Environment (ACL); and ii) holders of concession, authorization or generation registration with installed capacity of less than 50 MW, not committed to CCEAR, CER or Quotas. |
| The demonstration that conditions the approval of the Board of Directors includes: i) all partners or shareholders; ii) the indirect corporate controllers and intermediaries of the proponent and the partners or shareholders of these controllers; iii) the subsidiaries, affiliates and single participation companies of the proponent, with their respective partners and shareholders; and iv) administrators, directors, advisors and other employees of the proponent. | Holders of concessions or authorizations for generation with an installed capacity equal to or greater than 50 MW, not committed to CCEAR, CER or Quotas, may opt for representation. However, they must be agents of CCEE, and are jointly and severally liable for the results resulting from the management of their representative. All relationships with CCEE will be exercised by the retailer on behalf of the represented party, and adherence to the Retail Marketing Agreement is inapplicable. |
| The proposing agent must declare to the CCEE, where applicable, the existence of marriage, stable union and consanguineous kinship between the partners, shareholders, administrators, directors, advisors and other representatives of the proponent, with other agents of the electricity sector. | It must meet the criteria established in articles 15 and 16 of Law No. 9,427, of December 26, 1996, regarding the amount of contracted use related to the consumer unit to be modeled in the name of the representative agent. |
| In the 12 months prior to the request to the CAd until the approval of your qualification, you must not have committed any breach of obligation within the scope of the CCEE. | |
| If the agents do not have a minimum operating history in the CCEE of twelve months, or if they have but have not traded the minimum annual amount of 10 MW average, it should be observed whether the direct and indirect corporate control has not incurred any breach of obligation within the scope of the CCEE, in the last 12 months. If this is not applicable, it should be observed whether the intermediate corporate controllers and all the subsidiaries have not breached the aforementioned obligations. | |
| The agent must provide detailed proof that he/she has an adequate technical-operational, commercial and financial structure, observing the PdC criteria. |
Regarding the representative agents, we add that if there is a judicial action or arbitration procedure dealing with the enforceability of debts owed within the scope of CCEE, involving parties from the proposing agent, such as partners, shareholders, intermediaries, or administrators (art. 11, § 3 of RN No. 1011/2022), it is necessary to prove the full judicial deposit of the amount in a bank account opened specifically for this purpose.
It is important to highlight that the approval of the CAd, as well as the maintenance of the qualification for retail commercialization and the expansion of the represented market, are conditioned on meeting minimum indices, calculated through accounting statements approved by a corporate body based on a report issued by an independent audit, minimum result parameters related to energy balances also conducted by independent audits, and other corporate, commercial, or competition obligations established by the PdC.
There is the possibility that proposing agents may not need to comply with the criteria outlined in the table above, but this is conditioned upon the following points: i) the desired representation is only for the same corporate group, with a minimum 5% share, or the same industrial or commercial complex; ii) an express waiver is made regarding the exercise of retail commercialization for any represented party that does not belong to the previously mentioned groups; and iii) the represented parties explicitly acknowledge their responsibility, both proportionally and jointly, for the financial results incurred by the representative in operations within the CCEE framework.
Furthermore, regarding obtaining the qualification to act as a retailer, the PdC defines that the application must be made exclusively through a specific system, located in the logged-in area of the CCEE website, where the applicant must fill in the required information, provide the required documents in the specified file formats, and meet the deadlines. The applicant commits to and assumes responsibility for the validity and regularity of the data provided to CCEE, including the powers of the signatory(ies) of the documents, as their signature will bind them to the obligations within the CCEE framework. It is important to emphasize that the legal representative must have the authority to represent the agent before the CCEE. If this requirement is not observed, it may incur civil, criminal, and/or administrative liability.
CCEE is not responsible for any registration errors or failure to update information in the system. According to the PdC, the applicant must assume responsibility for the validity of all qualification documentation by the deadline established for regularizing any pending issues. CCEE must disclose the conclusion of the analysis within 5 business days of receiving the registration and documents, and may request additional documentation, which must also be analyzed within 5 business days after the submission of the supplement by the applicant.
As we can observe, the requirements are diverse. Both to obtain authorization for electricity commercialization and to qualify as a representative in the retail sector, there are numerous rules and procedures that must be carefully followed to carry out the respective activities.
What are the criteria for maintaining retail energy commercialization activity?
The RN n. 1011/2022 not only defines the requirements for obtaining authorization but also outlines the points of observance by the agent for the maintenance and validity of electricity commercialization activities.
It is important to highlight that the activities encompassed by commercialization are defined in the Commercialization Procedures (PcD), established by the CCEE. These documents not only complement the rules, procedures, and requirements established in the regulations but also add a series of criteria that must be observed to ensure that Retail Commercialization is carried out as intended. As we examine the provisions of the PdC, it should be clear that the current device is undergoing an adaptation process to RN n. 1.081/2023, and the changes proposed by the CCEE are in the public consultation phase at ANEEL.
There are also other criteria specific to the retail commercialization activity itself that make up the extensive list that entrepreneurs must be attentive to in order to ensure the continuity of retail commercialization activity. Let’s examine them.
The CCEE’s Commercialization Procedures define that the process of maintaining retail authorization must occur annually: i) in the month in which the retail authorization of the agent was approved; and ii) in the month in which the agent’s adherence to the CCEE was approved. It is the responsibility of the agent to fulfill this obligation in a timely manner for CCEE’s analysis; failure to do so may result in regulatory sanctions.
In this regard, as mentioned earlier, the ANEEL Normative Resolution n. 1081/2023 made several changes to the retail commercialization regulations, updating RN n. 1011/2022 and seeking new and necessary perspectives for the niche. Now, we will list the criteria for retail commercialization within the scope of the CCEE and signal the transformations promoted by the new Resolution, highlighting the points that require special attention from retail agents.
The following must be observed: i) the modeling of measurement assets is done under a specific accounting profile created for each type of generation or consumption; ii) the accounting of the represented parties is carried out according to the accounting profiles, as mentioned above, and the submarket; iii) the financial settlement of operations is carried out in a unified manner, in the name of the representative agent; iv) energy can be contracted from any generation source for supplying consumer units under the provisions of articles 15 or 16 of Law n. 9.074/1995; v) only conventional and special incentivized energy can be contracted for supplying consumer units exclusively under § 5 of article 26 of Law n. 9.427/1996; vi) partial energy acquisition from the local distributor is only possible if previously agreed with the corresponding retailer; vii) any discounts associated with the use of transmission and distribution electrical systems’ tariffs are applied uniformly to all consumer units modeled under the same accounting profile; viii) the determination of the representative agent’s energy guarantee and the establishment of financial guarantees follow applicable rules; ix) the representative agent must comply with all obligations related to the represented parties and their measurement assets; x) commercial relationships subject to free negotiation, regardless of the form and instrument used by the representative and the represented party—prior to changes, these relationships should have an indefinite duration concurrent with the Retail Commercialization Contract; and xi) they must be disclosed on the retail agent’s electronic portal, with detailed descriptions, contract models, prices, and general conditions for a reference product, according to the Commercialization Procedure— the change made by the new RN defines that the CCEE’s PdC should be followed and alters the terminology of “standardized products” to “reference products.”
Regarding the electronic portal, the PdC already establishes that agents must have their own domain or a website within the group’s domain, with a name similar to the company name. Additionally, the controlled, controlling, affiliated companies, and common controllers involved in the electric sector must also be indicated. One of the updates provided for the PdC, which is currently in public consultation with ANEEL, addresses the requirement for the electronic portal to include detailed descriptions of contract models, prices, and general conditions for a reference product, including the following information: a) constant prices during the term; b) seasonal and uniform modulation; c) contract term (annual, biannual); d) submarket; e) type of energy (conventional or special); f) bilateral guarantee period; g) payment date; h) charges (if included in the price); and i) flexibility limits.
RN n. 1.081/2023 also designated the CCEE as the manager of the measurement data for consumer units and the information regarding retail commercialization, being responsible for receiving the data and allocating them to the consumption asset of the respective representative agents. These data must be provided to the CCEE by distribution and transmission agents, who carry out energy measurements for the consumer units. However, it is important to note that the collection of measurement data from these consumer units and commercialization information by the CCEE must be carried out according to the forms set out in the PdC.
Another relevant change concerns the modeling of consumer or generating units. Now, in addition to complying with the obligations set forth by the other applicable rules, the representative agent must be in good standing and submit their request to the CCEE with all the necessary documents as defined by the PdC. Before granting permission for the operationalization of the representation, the CCEE may require the registration of a purchase contract for a quantity compatible with the load of the consumer unit for which modeling is being requested. RN n. 1.081/2023 amended the provisions of the previous Resolution regarding documentation, as the required documents were previously: i) Retail Commercialization Contract; ii) current System Use Contract; and iii) other required documents as set forth by the PdC.
If the same representative agent is modeling a new consumer unit for an agent already represented by them, or if there are any updates to the registration data, the changes must be sent to the CCEE, following the PdC. Regarding this, both the represented party and, according to RN n. 1.081/2023, the representative must comply with all CCEE requests for information and documentation on retail commercialization or as provided in other sectoral regulations. It is important to emphasize that if these requests are not fulfilled within the fixed timeframe, administrative penalties may be applied by ANEEL.
The system used to manage these information must allow access for representatives, distributors, and those to whom consumers have granted access authorization.
Furthermore, regarding the update of registration data, RN n. 1.011/2021 defined that this update was the responsibility of the represented party before the CCEE. In the current Resolution, the represented party must maintain their data updated with the representative, who is responsible for updating their represented parties’ data before the CCEE.
Another important change introduced by RN n. 1.081/2023 addresses the assignment of the PROINFA (Incentive Program for Alternative Energy Sources) energy quota to the represented unit, via the representative. Resolution n. 1.011/2022 defined that during the modeling process of the consumer unit, the CCEE should consider the consumer unit’s consumption history to calculate the PROINFA energy quota to be assigned to the consumer. While this requirement is no longer necessary, it is crucial to emphasize that the representative agent is still responsible for considering the PROINFA energy quota in the billing process for the represented consumers.
How does the termination of retail commercialization occur?
Now let’s discuss the possibilities for the termination of retail commercialization—failure to comply with certain regulatory provisions can lead to liability for both the retail agent and their represented parties.
Firstly, RN No. 1081/2023 reformed the hypotheses for the termination of retail commercialization, which must be provided for in the Retail Commercialization Contract. It specifies that termination or rescission should occur through: i) contractual default; ii) initiative of one party (unilateral); or iii) initiative of both parties (mutual agreement). The notice for the termination of the Retail Commercialization Contract must be sent to the retailer or represented party, as well as to the CCEE. An update to the changes suggested by the CCEE to the PdC, currently under public consultation, is that in cases of mutual rescission, the notice for contract termination could be waived.
Regarding termination due to contractual default or unilateral rescission, the notifications must be made at least fifteen days in advance in cases of resolution (default), or ninety days in cases of unilateral rescission, from the intended termination date, in accordance with the provisions in the PdC and the contract itself.
Regarding the notice, the PdC also stipulates that the represented consumer must be informed so that they can take action to ensure the continuity of their commercial operation before the contractual term ends. If the represented party intends to continue their activities, they must organize the continuity of their operations before the contract terminates. Below, we list the options for continuation and how the represented agents should proceed in each case, in accordance with the Commercialization Procedures.
| Retailer Replacement | Adhesion of the Defendant to CCEE | Return of the consumer unit to captive service |
| Hire another representative agent. | Join the CCEE in your own name, if the current regulation does not require representation by a retail agent. | As a consumer, contract your full or partial service with the local distributor. |
| 1 – Sending notification of termination of the Contract. | 1 – You must follow the CCEE membership procedures, already mentioned in this article. | 1 – The consumer must send the retailer notification to terminate the Contract. |
| 2 – The new retailer that intends to carry out representation must forward to CCEE: the documents of the represented party, the notification for termination of the Contract sent to the previous retailer and the respective proof of receipt. | 2 – The retailer must request the deletion of the active registration, and the measurement agent must also request the deactivation of the corresponding measurement points. |
However, the represented party can only proceed in the ways previously outlined if there is proof of the absence of outstanding debts, through a declaration from the retail agent who previously represented them. Failure to comply with these guidelines results in the de-modeling of the represented assets, following the conditions established by the PdC, related to the suspension of supply due to the absence of a consumption relationship, for consumer units under the ownership of the consumer who takes no action regarding the termination of the contractual relationship or the treatment of any generated energy.
A key point is that the representative agent remains responsible for the loads of consumers until the suspension of supply to all consumer units is carried out. This does not apply only if the represented party takes one of the options for continuing their operations during the de-modeling process or if the deadline for suspension of supply by the distributor/transmission operator has passed and it is no longer possible to suspend the supply.
In the event of the initiation of a procedure to disconnect the representative agent from the CCEE due to noncompliance or disqualification for retail commercialization, as well as an administrative process with ANEEL to revoke the authorization and, consequently, cause the compulsory disconnection of the agent, the CCEE must notify the represented parties, in accordance with the PdC, about the effects of noncompliance by the represented party with one of the three actions outlined in the table.
The CCEE is also required to inform which compliant agents are eligible for representation and clarify the effects of the disconnection or disqualification of the representative. Furthermore, the represented agent must be made aware that they can adopt any of the options listed in the table to continue their operations and that any contractual penalty stipulation related to the exercise of one of these options is null and void. When the CCEE decides on the disconnection or disqualification of the representative agent, a new notification must be sent via postal mail or electronically.
In RN No. 1.011/2022, a deadline was established for the represented parties to decide how they wished to proceed (i) by hiring another representative agent; ii) joining the CCEE in their own name, if current regulations do not require representation by a retail agent; or iii) if a consumer, contracting full service with the local distributor. However, the 2023 Resolution revoked these provisions.
During the process of disconnection or disqualification of the representative agent, the termination condition of the retail commercialization contract applies to each measurement point when: i) there is a modeling of the measurement point under the profile of the agent previously represented, in cases where legislation does not require representation by a retail agent; ii) the modeling under the profile of a new representative; or iii) when the consumer unit contracts directly with the local distributor.
Noncompliance with the criteria and requirements for obtaining and maintaining retail commercialization authorization, established in this regulation and in the PdC, will naturally result in disqualification for retail commercialization.
Final Considerations
We conclude, therefore, that retail electricity commercialization in Brazil is currently in a period of transition and adaptation, reflecting the recent regulatory changes and the opening of the free market. Normative Resolutions No. 1.081/2023 and No. 1.011/2022 have highlighted the need for greater attention to the requirements and procedures for obtaining and maintaining the qualification of retail commercializers. As a result, industry entrepreneurs must stay alert to specific requirements and the ongoing updates promoted by ANEEL and CCEE.
Moreover, it is crucial that both representative agents and represented entities fully understand their responsibilities and the risks involved in operating in the retail market. Compliance with the established procedures and regulations is key to ensuring the continuity and efficiency of operations, while minimizing potential sanctions and penalties.
Finally, the advancement of the retail electricity commercialization sector represents a significant opportunity for new businesses and innovation. However, success in this endeavor requires an in-depth understanding of regulatory standards, a robust operational structure, and efficient risk management. The future of retail commercialization looks promising, as long as the agents involved are adequately prepared and well-informed.
