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Analysis of the principles of reasonableness and proportionality in regulating the minimum stock of Anhydrous Ethanol

Written by Corporate
Published 29/06/2024 às 17:04
minimum reserve
Analysis of the principles of reasonableness and proportionality in the regulation of anhydrous ethanol stocks'. – PHOTO: ©2024|Larissa Passos/b>

Minimum stock limits of anhydrous ethanol analyzed under principles of reasonableness and proportionality by the ANP, considering administrative sanctions and sustainable development.

The limits of minimum stock of anhydrous ethanol These are central themes investigated based on the principles of reasonableness and proportionality by the ANP. The National Agency for Petroleum, Natural Gas and Biofuels plays a vital role in regulating and monitoring this critical energy segment in Brazil.

In addition to establishing minimum stock limits for anhydrous ethanol, the ANP also evaluates other factors related to sustainability and supervision. The maintenance of a minimum reserve It is essential to ensure consistency in supply and mitigate potential risks of shortages. The ANP strictly monitors these reserves to ensure market stability and promote sustainable development in the sector.

Origin and role of the ANP in sustainable development

Established in 1997, the National Petroleum, Natural Gas and Biofuels Agency (ANP) established itself as an autonomous institution, responsible for promoting sustainable development of the oil industry, in addition to ensuring efficiency and safety in operations linked to oil, natural gas and biofuels. When we talk about biofuels, the ANP has a crucial role na supervision e standardization of activities, ensuring product quality, market equity and compliance with regulations current.

The importance of a minimum stock of anhydrous ethanol

Specifically, this article addresses the issue of the minimum stock of anhydrous fuel ethanol, stipulated by article 10 of ANP Resolution No. 67/2011, analyzing its compliance with the principles of reasonableness and proportionality. In this context, effectiveness and equity in regulations applicable to biofuels are guaranteed. We will evaluate a unique case where a company was fined for not maintaining the required minimum stock of anhydrous ethanol, as evidenced through the ANP's Product Movement Information System (SIMP). The company only had 1.86 m³ of anhydrous ethanol available in March 2020, when it should have had 1.836 m³.

Obligations and infractions in the biofuels sector

ANP Resolution No. 67/2011, in its article 10, establishes that 'the producer of anhydrous ethanol, the cooperative of ethanol producers or the marketing company must maintain, on January 31st and March 31st of each subsequent year, a minimum stock compatible with at least 25% and 8%, respectively, of its ethanol sales in the previous year'. The aforementioned company was fined for failing to respect the requirement to maintain a minimum stock of anhydrous ethanol, as provided for in Law No. 9.847/1999. After analysis, it was found that in March 2020 the stock was only 1.586 m³, well below the required 1.836 m³.

Legal foundations and company defense

The administrative decision declared that failure to comply with legal requirements constitutes a infringement, as established by item IX of art. 3° of Law 9.847/99. The agency highlighted that the company's motives are irrelevant given the clear non-compliance. Defending itself, the company claimed that the non-compliance was not intentional, but a small slip in relation to the period required by the standard. This sale occurred two days before the annual inventory containment date, reflected in 31/03/2018.

The importance of reasonableness and proportionality

However, the legal basis for the infraction notice reinforces the adoption of administrative sanctions, in accordance with Law No. 9.847/1999, defending the need for the ANP to follow the fundamental principles of national energy policy. Legal rigor must be balanced through a case-by-case analysis, aligned with the constitutional principles of reasonableness and proportionality. Reasonableness demands that decisions be based on logic and common sense, while proportionality seeks to balance the penalties with the seriousness of the infraction and the objectives of the legislation.

Adaptation of regulations and balanced application

The application of reasonableness avoids excessively punitive measures, considering the size of the deviation, the company's history and possible corrective measures. Proportionality ensures that sanctions are not disproportionate to the impacts generated by the infraction. The ANP, when adopting these multiple approaches, may grant discounts or payment facilities, as long as this does not compromise the effectiveness of the penalties imposed. Such measures contribute to fairer regulation, avoiding excessive penalties that could harm companies economically.

Complexity of case-by-case analysis

Each case presents different nuances that influence the interpretation of the rules and the application of penalties. The ANP, when carrying out a detailed analysis of each situation, may consider aspects such as the nature of the infraction, the conduct of the offending company and the existence of prior records. This personalized assessment results in fairer and more contextualized decisions, promoting a regulated sector in a more efficient and balanced way. Such action contributes to sustainable development in the Brazilian energy sector, ensuring compliance without compromising the competitiveness of the companies involved.

Dilemmas and challenges in regulating the minimum stock of anhydrous ethanol

Despite the allegations presented by the company, the assessment was maintained, on the basis that any question about proportionality must be referred to the mens legis, opting for a severe penalty, not to the judge of the case, who decided on the sanction in light of the evidence. The analysis of the minimum stock of anhydrous ethanol, according to article 10 of ANP Resolution No. 67/2011, highlights the importance of a balanced and fair regulatory approach.

Conclusion and final reflections

ANP's actions are essential to ensure compliance with pre-established standards, promoting safety in the production chain. Understanding the need for a case-by-case analysis, supported by the principles of reasonableness and proportionality, is essential to achieve effective regulation. Flexibility and adaptation to the particularities of the biofuels scenario strengthen the legitimacy of the ANP's actions.

Considering the strict compliance with legislation and the challenges in regulating the minimum stock of anhydrous ethanol, it is crucial that the ANP adopts a proactive stance. This direction will help promote sustainability, innovation and competitiveness in the sector. Janssen Murayama is a founding partner of Murayama, Affonso Ferreira e Mota Advogados, graduated in Law and Accounting from UERJ, specialist and master in Tax Law. *Mariana Valença is a lawyer at the same firm, with a law degree from IBMEC and a postgraduate degree from Fundação Getúlio Vargas.

Source: Larissa Passos

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