Evaluating Brazilian Electricity Regulation for Legitimacy, Independence and Accountability

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1 Evaluating Brazilian Electricity Regulation for Legitimacy, Independence and Accountability Workshop: Regulation and Finance of Infrastructure in Latin America: Experience on Case Development São Paulo, 14, 15 and 16 August 2005 Universidade de São Paulo Faculdade de Economia, Administração e Contabilidade Ashley Brown Executive Director, Harvard Electricity Policy Group John F. Kennedy School of Government Harvard University Of Counsel, LeBoeuf, Lamb, Greene and MacRae,, LLP

2 Introduction: Rationale No International Standards Currently Exist Cultural Norms Vary, But Capital Flows Are Global Defense of Both Investor Rights and National Sovereignty 2

3 Introduction: Two Contexts for Legitimacy Consistent with Accepted Practice in Country Consistent with Reasonable Expectations of Fairness from International Investors 3

4 Introduction: Elements of Legitimacy Legal Forms and Structure Fairness and Balance Balance Between Independence and Accountability Ethics Transparency Competence/Intellect Sensitivity 4

5 Regulatory Frameworks, Processes, Procedures and Ethics Legal Framework Legal Powers Property and Contract Rights Clarity of Roles in Regulation and Policy Clarity and Comprehension of Regulatory Decisions Predictability and Flexibility Consumer Rights Financing of Regulatory Agencies Regulatory Independence Regulatory Accountability Regulatory Processes and Transparency Public Participation Appellate Review of Regulatory Decisions Ethics 5

6 Legal Framework The regulatory agency should be created in a law Jurisdictional authority Brazil - yes Powers, duties and responsibilities Brazil lack of clarity 6

7 Legal Framework (con( Basic regulatory principles, practices, procedures and policies articulated in law Brazil - partially All laws enacted on regulatory matters should be prospective in nature and none should have retrospective application Brazil generally yes 7

8 Legal Powers of Agency Authority to make final decisions within its statutory domain without having to obtain approval of any other agency of government Brazil - yes Approve tariffs at reasonable levels both for consumers and regulated entities Brazil regulatory discretion Set binding standards in such appropriate areas as technical and commercial service quality Brazil generally yes 8

9 Legal Powers of Agency (con( Make rules and subsidiary policy for the sector as long as such policies and rules are within its legal authority, reasonably necessary for carrying out its duties and not inconsistent with the policies and principles articulated in applicable law Brazil - perhaps 9

10 Legal Powers of Agency (con( Perform such routine functions as the agency may need to do in order to operate, such as: Making personnel decisions Brazil - limited Spending money appropriately within its budgetary authorization Brazil - no Taking relevant administrative decisions and actions Brazil generally yes 10

11 Legal Powers of Agency (con( Fully enforce its decisions, standards and rules, as well as relevant public policy Brazil generally yes Range of remedies (including penalties) appropriate to the severity of violations that it is likely to meet Brazil unclear 11

12 Legal Powers of Agency (con( Compel the production and provision of the information as may be necessary to carry out the regulatory functions and serve the interests of transparency Brazil generally yes Adopt appropriate accounting standards and practices as may reasonably be required for regulatory purposes Brazil uncertain 12

13 Legal Powers of Agency (con( Adopt appropriate procedures for carrying out its duties Brazil generally yes Adjudicate statutorily designated disputes between regulated entities and between regulated entities and consumers Brazil unclear (judicial constraints) 13

14 Legal Powers of Agency (con( Prevent the abuse of monopoly/market power Promote competition where appropriate and feasible Brazil split powers with CADE Adequately protect consumers from unfair or abusive practices Brazil generally yes 14

15 Legal Powers of Agency (con( Prevent undue discrimination in the provision and terms and conditions of services Brazil generally yes Monitor the performance of regulated entities, the functioning of the market and the maintenance of supply Brazil yes in theory 15

16 Property and Contract Rights The property rights of all persons and entities should be respected Contracts between parties shall be afforded the full respect to which they are entitled under applicable law Brazil generally yes 16

17 Property and Contract Rights ( No such action which affects property or contract rights shall be undertaken without first affording all affected parties proper notice of the action(s) ) being contemplated and afforded full opportunity to be heard Brazil yes in practice No regulated entity should be held to account for any activity unless standards or expectations with which they are expected to comply are formally in place and public Brazil unclear 17

18 Clarity of Roles in Regulation and Policy-Making The law should also provide for clear and comprehensive provisions concerning the allocation and demarcation of responsibilities, powers and duties between the regulatory agency, governmental bodies and all other agencies (e.g., market administrators) Brazil generally yes 18

19 Clarity of Roles in Regulation and Policy-Making (con( Basic policy for the regulated sector should be formally set out in law and made prospectively binding on the regulatory agency Brazil unclear (role of CNPE?) The regulatory agency should implement and enforce all public policy as consistent with other legal obligations. To do so, it should be able to make subsidiary determinations on policy issues to fulfill its obligations Brazil not clear 19

20 Clarity of Roles in Regulation and Policy-Making (con( Regulatory agencies cannot be required to adhere to government policies that are not publicly articulated in advance of decisions Brazil unclear Ministers and government agencies seeking to influence regulatory decisions should be able to do so but only in a fully transparent and open manner Brazil no 20

21 Clarity and Comprehensiveness of Regulatory Decisions The key principles and methodologies on which major regulatory decisions will be made should be set out clearly in advance in appropriate legal documents (e.g., tariff setting, compliance matters) Brazil yes in practice The rules should, to the extent possible, be thorough, complete and clear as to the rights, responsibilities, expectations and consequences that all stakeholders enjoy or face Brazil not clear 21

22 Predictability and Flexibility Regulatory decisions should, to the extent reasonable and feasible, be consistent with previous decisions Brazil not necessarily When deviation from previous practice is necessary, it should be undertaken by regulators only after first providing public notice of such a possibility and providing all interested parties with a meaningful opportunity to be heard on the matter Brazil not consistently 22

23 Predictability and Flexibility ( Any fundamental change in regulatory practice or policy should, to the extent feasible, be undertaken on a gradual basis and applied prospectively Brazil generally not 23

24 Consumer Rights The central purpose of regulation is to protect consumers in the short and long term, including future consumers Brazil - unclear Adopt a consumer statement of rights, that at a minimum, should include: Quality of service standards to which customer is entitled to expect Process for handing complaints Remedies to which customer is entitled in case of breach Access to the regulatory agency to seek redress of grievances Brazil generally yes 24

25 Financing of Regulatory Agencies The level of funding of the agency should be adequate to allow it to meet all of its responsibilities competently, professionally and in a timely manner Brazil - no A minimum level of funding, expressed in terms of a percent of regulated revenues (not profits) should be set out in law Brazil yes in theory; no in practice 25

26 Financing of Regulatory Agencies ( Agency funding should be obtained from a levy assessed on regulated entities and not from the general treasury except where the government requires a specific project which is beyond the scope of normal regulatory functions, or possibly for an initial period after the agency s creation Brazil yes in theory; no in practice Regulated entities should be able to pass through funds collected for the levy to their customers in their tariffs Brazil - yes 26

27 Financing of Regulatory Agencies, con t Funds collected from the levy should be held in a special account and earmarked for the exclusive use of the regulatory agency, and any other use should be expressly prohibited Brazil no The ordinary fiscal controls, auditing policies and practices and budgetary controls of the government should apply to the regulatory agency Brazil - yes The overall spending authority of the agency should be subject to government approval Brazil - yes 27

28 Financing of Regulatory Agencies, con t Should government approval not be obtained in timely fashion, the agency should be allowed a budget authorization (in real terms) equal to its budget in the previous fiscal period Brazil - no The regulatory agency should, where circumstances warrant, and without regard to agency spending authorization, be able to retain the services of a consultant to perform specified tasks, and to require payment for the specific costs of that engagement from the regulated entities affected Brazil - perhaps 28

29 Regulatory Independence Regulatory agencies should be created by law (or constitution), rather than by decree or other subsidiary legislation Brazil yes Under the law, regulatory agencies should have the following powers and characteristics: Regulatory decisions should, if possible, be taken by a board of 3, 5 or 7 commissioners; regulatory agencies headed by a single person are, in general, not recommended except for either an initial period during which the agency is being established, and/or in countries with major resource constraints Brazil - yes 29

30 Regulatory Independence (con( Stable and reliable source of revenue for its operations Brazil yes in theory; no in practice Offer staff competitive compensation packages and viable career opportunities, as well as appropriate training and education Brazil not competitive Establish the management structure within the agency and make all relevant personnel decisions Brazil yes and no 30

31 Regulatory Independence (con( To set such rules and policies as it may need to carry out its responsibilities Brazil generally yes To promulgate a code of ethics applicable to agency personnel and to those who conduct business at the agency Brazil - yes Should be encouraged to join/participate in relevant professional, research and educational groupings as well as in regional/international co-operative operative regulatory organizations Brazil - yes 31

32 Regulatory Independence (con( Regulatory agency directors or commissioners satisfy the following terms: Be appointed to fixed terms of office Brazil - yes Terms of directors/commissioners should not be coincident with the terms of governments and legislatures Brazil - yes 32

33 Regulatory Independence (con( Appointments of single-person agency directors, commission chairs and other commissioners and board members should be made by the head of government or head of state, with possible legislative approval Brazil yes in theory, but not necessarily in practice In the case of collegial bodies, the terms of the directors/commissioners should be staggered to assure continuity Brazil - yes 33

34 Regulatory Independence (con( Directors/commissioners should only be removed for good cause as defined in the law (i.e., proven, non-trivial legal and ethical misbehavior or non- performance of their duties) as found by an independent complaint investigation Brazil - yes Terms and conditions of employment of any regulatory commissioner/director should not be altered during the course of a term (except where there are predetermined automatic adjustments not subject to administrative discretion) Brazil - yes 34

35 Regulatory Independence (con( Directors/commissioners should come from diverse professional backgrounds and training (e.g., economics, law, engineering, accounting) Brazil Brazil not required by law 35

36 Regulatory Accountability/Legitimacy Legislative committees and/or relevant ministries and executive task forces should periodically conduct hearings reviewing the performance of regulatory agencies. Brazil yes and no 36

37 Regulatory Accountability/Legitimacy (con( The government or legislative authorities should periodically engage the services of a panel of financially disinterested outside experts (e.g., including international experts and regulatory staff from neighboring or similar countries) to prepare a report on the overall performance of the agency, or on specific areas of interest Brazil - yes Regulatory agencies should be required, at least on an annual basis, to submit a report on their activities to legislative and/or executive authorities and the report should be a public document Brazil - yes 37

38 Regulatory Processes and Transparency/Legitimacy Except for defined emergency circumstances, no decision should be taken by a regulatory agency until the following have occurred: Proper legal notice has been given notifying all parties that a matter is under formal consideration The public notice should identify the matter being considered, the initiator of the action being contemplated and a full schedule for the consideration of the matter All parties who wish to do so have been afforded a meaningful opportunity to provide input to the agency Brazil - yes 38

39 Regulatory Processes and Transparency/Legitimacy (con( No decision should be taken by a regulatory agency without being set down in a publicly available, written document that includes: A clear statement of the decision A description and analysis of all evidence taken into consideration A summary of the views offered by participants to the proceeding A full discussion of the underlying rationale for the decision Brazil yes in practice 39

40 Regulatory Processes and Transparency/Legitimacy: Formal Decision-Making Multi-member regulatory agencies normally make decisions by: Majority vote, or Consensual, non-voting methods Brazil - yes 40

41 Regulatory Processes and Transparency/Legitimacy: Formal Decision-Making (con( If a multi-member member regulatory agency uses a formal voting process, the result of the vote should be made publicly available at or soon after the date of the decision, and the agency should proceed as follows: All decisions should be taken at a meeting at which or following which the votes of all board members should be made public Members voting no should have the option to file formal opinions expressing the rationale for their votes Members who concur in the result but do so for different reasons set forth in the decision, should have the option to file concurring opinions expressing the rationale for their decisions Brazil - yes 41

42 Regulatory Processes and Transparency/Legitimacy: Formal Decision-Making (con( All regulatory agencies should have clearly defined, published procedures under which they take, announce and publish regulatory decisions and their justifications Brazil yes in practice 42

43 Regulatory Processes and Transparency/Legitimacy: Formal Decision-Making (con( All documents in the possession of a regulatory agency, particularly those being relied upon in making decisions, should be presumed to be available for public inspection, unless the regulator rules otherwise (e.g., on the grounds of commercial confidentiality) No document should be treated as confidential unless the regulator finds that the document or some part of it falls specifically into a category that the law or binding articulated policy deems legitimately confidential (e.g., personnel matters, verifiable trade secrets, draft decisions not yet finalized or documents related to pending litigation). Confidentiality issues, it must be noted, involve only the question of how the regulator treats the document. Claims of confidentiality never constitute grounds for a party to withhold a document from the regulator. 43 Brazil - unclear

44 Regulatory Processes and Transparency/Legitimacy: Public Participation There must be ample opportunity for all affected parties who wish to participate meaningfully in regulatory proceedings Brazil generally yes Regulatory agencies should take all reasonable steps to facilitate and encourage public participation Brazil yes, except for lack of consumer advocate 44

45 Appellate Review of Regulatory Decisions/Legitimacy All appeals from a regulatory agency decision should be directed to a single, independent appellate forum, the decision of which would be final The appellate forum should either be: A specifically designated court, or A specialized appellate tribunal with the authority to review the decisions of one or more infrastructure regulatory agency/agencies In either case, the appellate forum should possess relevant expertise in regulatory matters Brazil - no 45

46 Appellate Review of Regulatory Decisions/Legitimacy (con( Any party believing that it is adversely affected by an agency decision should have the right to take an appeal from that decision within a reasonable period of time after that decision has been taken (e.g., 30 days) Brazil - yes The right should only belong to a party that formally participated in the agency proceedings on the matter in question, and raised the issue in the regulatory proceeding (including any rehearing process) Brazil - no 46

47 Appellate Review of Regulatory Decisions/Legitimacy (con( No interested party should be able to put forward new issues or new evidence on appeal which was not first raised in the proceedings at the agency (including any rehearing) Brazil - no 47

48 Appellate Review of Regulatory Decisions/Legitimacy (con( Regulatory agency decisions should be affirmed on appeal unless the agency: Acted unlawfully or exceeded its lawful authority Failed to follow the required process/processes in making its decision, or Made decisions that were clearly contrary to the evidence Brazil generally yes 48

49 Appellate Review of Regulatory Decisions/Legitimacy (con( The decision of the regulatory agency should remain in effect for the duration of the appeal, unless the agency or the appeals tribunal decides otherwise; Such a delay should not be granted without a demonstration of irreparable harm to the appellant and a likelihood that the appeal will succeed Brazil - yes 49

50 Appellate Review of Regulatory Decisions/Legitimacy (con( If the appellate forum reverses or changes the decision of the regulatory agency: The preferable course is for the matter to be sent back to the regulatory agency to conclude a remedy consistent with the decision of the appellate forum Brazil generally yes 50

51 Ethics/Legitimacy To the extent not already covered by applicable law, regulatory agencies should promulgate a binding code of ethics applicable to all agency personnel, including directors/commissioners that at a minimum includes: Prohibitions on gratuities, favors or other gifts from parties having any business involving the agency Limitations on subsequent employment with parties doing business with the agency 51

52 Ethics/Legitimacy (con( Prohibitions on actual or apparent financial or other conflicts of interest involving themselves or their immediate family Prohibitions on conduct giving rise to an appearance of favoritism or ethical compromise Appropriate financial disclosure Prohibitions of employment or other work by agency personnel (or their close family) in companies or areas of work covered by the agency for a reasonable period of time after leaving the agency Brazil yes in practice on some of these 52

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