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The Public Ministry (MP) admits compensation to consumers for excessive compensation with the CMEC of EDP Produção, which has already resulted in a fine of 48 million euros by the Competition Authority (AdC), according to opinion.
In the document, the conclusions of which were published in the Diário da República, the MP said that the Secretary of State for Energy requested the Advisory Council of the Attorney General’s Office to “urgently pronounce on the possibility of putting them into practice other consequences. , in addition to the administrative offense, in a situation in which EDP – Gestão da Produção de Energia, SA, maintained, between 2009 and 2013, a practice of abuse of a dominant position, in violation of the competition rules ”.
The MP recalls that the AdC, “by resolution of September 17, 2019, sanctioned EDP Produção with a fine of 48 million euros, for infringement of the competition rules, for abuse of a dominant position”, due to the CMEC – Costs of maintaining contractual balance.
In the opinion, the MP alleges that the “weighting of the value of the economic benefit obtained with the practice of the infringing offense” with respect to the “measurement of the fine measure”, may “influence the amount of the pecuniary penalty, but not it translates into a loss of that benefit “, guaranteeing that” the imposition of the fine only has a warning effect “.
“The eventual loss of this benefit does not have a sanctioning character, it is limited to reestablishing the legal-patrimonial order adulterated by anticompetitive conduct”, defends the MP, indicating that, in this way, “the application of the fine to EDP Produção, despite having considered the economic benefit received by the target with sanctioned illicit conduct, it does not in any way prevent the adoption of measures “for the” elimination of the financial advantages obtained illegally “and the” reparation of the damages caused by this conduct ” .
In this context, “given that the interests of consumers are subject to selective protection of the rule whose violation has been detected, there is no obstacle for these damages to be compensable, and the so-called popular actions can assume, in these situations, a special role ”.
Likewise, the Advisory Council points out that “the viability of recognizing the right to compensation for damages caused to consumers does not prevent the State from being able, in another way, to compensate them for some of the damages that have resulted from the illicit conduct EDP Produção ”.
The MP recalls that “the restriction of teleregulation capacity under the CMEC regime, by EDP Produção, as mentioned in the foundations of the Competition Authority annual review, for the years 2009 to 2013” and establishes that “the Abatement of said overcompensation may be made in any of the subsequent annual adjustments that have not yet been expressly or tacitly approved ”.
The MP also pointed out that “the final review operation, in determining the value of CMEC for the next ten years, does not seem to include the possibility of allowing a financial return”, relative to these years.
According to the organization’s conclusions, “once the amount of the CMEC overcompensation, which took place in the years 2009 to 2013, is reduced, this operation will have an impact on the reduction of future tariffs to be paid by consumers, therefore The consequent reduction of the CMEC component in the UGS rate should be considered, in the event that consumers claim compensation for the losses suffered as a result of the previous CMEC overcompensation, in order to avoid the occurrence of a compensatory duplication of the same loss ”.
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