CHAPTER I GENERAL PROVISIONS
ARTICLE 1 (Definitions) For the purpose of this Act, it is hereby considered:
1. Commercialization of electric power: the sale of electric power to a consumer for his own use or for resale to third parties.
2. Concession: the authorization handed out by the competent entity for the production, transport, distribution and commercialization, including the import and export of electric power, as well as the construction, operation and management of electric facilities, jointly or separately, by public or private entities, under the terms of this Act and its Regulation.
3. Concessionaire: the holder of a concession issued under the terms of this Act.
4. Consumer: a person or entity to whom the electric power is supplied for domestic, industrial or commercial purposes.
5. Concession contract: an administrative agreement in which all applicable terms and conditions are defined for the joint or separate execution of the activities relative to the supply of electric power.
6. Distribution of electric power: the transmission of electric power with a tension of less than 66 KV from the substations, the transformation posts or the sectioning posts to the facilities that receive or transmit the electrical current to consumers.
7. Force majeure: any unpredictable event or any event considered out of the control of the affected party, not caused by him and which caused prejudice, harm or damages; including, namely floods, storms, seaquakes, earthquakes, fire, acts of war, insurrections, public riots, labour strikes or riots.
8. Supply of electric power: the activities relative to the supply of the electric power to consumers, including, jointly or separately, the production, transport, distribution and commercialization, as well as the import and export of the electric power.
9. Electric facilities: the equipment and infrastructures allocated for the supply of the electric power up to the consumer’s electric board meter.
10. Licence to establish: the document issued by the competent entity, certifying that the electrical facility could be established within a determined deadline.
11. Licence of activity: the document issued by the competent entity, certifying that the electrical facility were inspected and found to be in conformity with requirements and authorized to operate.
12. Production of electric power: the conversion of the electric power in any other form of power or energy, and from any origin whatsoever.
13. National electric power network: a set of public service facilities for the sole purpose of producing, transporting and distributing the electric power.
14. National network for the transportation of electric power: a set of systems used for transporting the electric power between regions, within the country or to other countries, in order to supply subsidiary networks; and which includes connection systems between networks, between power stations or between networks and power stations. It is equivalent to the national transport network.
15. Fair and reasonable tariffs/ fares: the tariffs/ fares for the use, consumption and transit of electric power are considered fair and reasonable when they are fixed in line with the following criteria, and that cumulatively: a) assure the minimum possible cost for the consumers and that are compatible with the quality of the services rendered; b) amortize the costs of the capital and of the operation throughout time; c) provide compatible return over the invested capital in the respective facility. 16.Electric power transport: the transmission of the electric power with a tension equal to or above a tension of 66 KV, covering the stage that goes from the set of transformers in the elevated substations connected to the power station generators up to the lower substations connected to distribution.
ARTICLE 2 (Scope) 1.The present Act is applicable to the production, transport, distribution and commercialization of the electric power in the Republic of Mozambique, as well as its import and export to or from the national territory. 2.The use and exploitation of energy sources for different purposes other than the production of the electric power shall be the object of a specific legislation.
ARTICLE 3 (Objectives) The present Act, as regards to the electric power, aims at defining:
a) the general policy for the organization of the sector and the management for the supply of electric power;
b) the general legal regime for the activities related to the production, transport, distribution and the commercialization of the electric power in the territory of the Republic of Mozambique, as well as the import and export to or from the national territory, and the concession regime for such activities.
ARTICLE 4 (Role of the Government) 1. The Government, its institutions and all other entities with public rights have a relevant and determining role in the promotion of the values for the existing potentials in order to allow for a broader access to the advantages of the electric power and contribute for the socio-economic development of the country and the region. 2. The Government guarantees/ assures the participation of the private initiative for the public service of supplying the electric power through concessions that guarantee the right for the use and exploitation of energy resources, safeguarding the upmost interests of the State.
ARTICLE 5 (Organizational and management policy) 1.The general organizational policy of the sector and the electric power supply management, aim at:
a) developing the existing resources and potentials, and participate in the social and economic development process of the country and the region;
b) promoting the extension and expansion of the national electric power network to the whole national territory in order to provide the access to the advantages of electric power to populations and entities that are not linked or connected to the national electric power network;
c) guaranteeing the supply of efficient and good quality electric power to consumers, in fair and competitive terms;
§ 1 developing the national electric power capacity and the electric power network in order to promote socio-economic development and guarantee the supply of electric power to attend to the needs of consumers, but at the same time, guarantee the ecological balance, the conservation and preservation of the environment;
§ 2 searching for technological alternatives to the supply of electric power;
§ 3 supplying the electric power as a public service;
§ 4 guaranteeing the participation of the public sector in the exercise of public services with vocation for supplying electric power;
§ 5 creating the necessary and propitious conditions for the participation of the private sector in the exercise of public services supplying electric power.
ARTICLE 6 (Competences) It is the Council of Ministers’ responsibility to:
§ 6 approve new undertakings or projects for the supply of electric power with an initial installed power equal or superior to 100 MVA;
§ 7 define the competences when granting rights for the supply of electric power at different levels;
§ 8 exercise all other rights and duties that were assigned to it by this Act and all other applicable legislation whatsoever.
CHAPTER II NATIONAL COUNCIL FOR ELECTRICITY
Article 1 (National Council for Electricity) 1. The National Council for Electricity, also known as CNELEC, has been created and is endowed with sufficient legal rights, an administrative and financial autonomy, acts as a consultative body in order to defend public interest as well as serve as an advisory council for resolving relevant matters on the national policy for electric power and the application of the provisions of this Act and its regulations. 2. CNELEC has the duty to conciliate, mediate and arbitrate on dispute matters relative to issues arising between different concessionaires or between concessionaires and their consumers in the following fields:
§ 9 right to electric power supply, including the refusal or the interruption of the supply;
§ 10 quality and regularity of the electric power supply services;
§ 11 conditions and tariffs for the sale of the electric power, and transit rates;
§ 12 setting-in and running of measurement apparatus and electrical boards;
§ 13 adequacy of the concessionaire’s equipment;
§ 14 refusal or delay of electric power supply by the concessionaire;
§ 15 access to the national transport network for transit purposes, including transport facilities of a particular concessionaire;
§ 16 any other aspect whatsoever for which the concessionaire or any of his consumers may request the intervention of CNELEC as the mediator or arbitrator. 3. CNELEC is made up of five to seven effective members, selected among reliable individuals with acknowledged experience and skills in tariffs, economy, technological and legal aspects of electric power supply systems. 4.CNELEC members are selected by the Government, by the associations representing the productive sector, by associations representing consumers, by scientific research institutions, by the entity in charge of the national electric power transport network and by the concessionaires. 5.The president of the CNELEC is appointed by the Government among its representatives.
Article 2 (Competences of the CNELEC) Without prejudice to all other competences granted by this Act and all other legislations whatsoever, it is the CNELEC’s duty to:
§ 17 express its opinion on the policy and objectives of electric power supply;
§ 18 issue opinions on expropriation proposals and public use statements relative to new projects for the construction of electrical facilities;
§ 19 express its opinion on and propose regulations projects for the electric power supply and all other pertinent matters as regards to the national electric power network;
§ 20 issue opinions and statements on new project proposals and requests for the concession of electric power supply, as well as the respective proposals on tariffs and their revision formulae, and the conditions for the sale of electric power to be practiced by the concessionaire;
§ 21 draft proposals on the promotion and adoption of new technologies and programmes for the expansion of the geographical coverage of the national electric power network, and carry out national evaluations on their execution;
§ 22 participate in the supervision and assessment of national and international public bids to be granted concessions for the supply of electric power;
§ 23 carry out studies and researches that could be necessary and appropriate for the execution of all other competences and tasks assigned to the CNELEC.
CHAPTER III CONCESSION
ARTICLE 9 (Concession requirements) 1. The production, transport, distribution and commercialization, including import and export of electric power, as well as the construction, management and operating electric power facilities by individuals or companies, with public or private rights, require prior grant of a concession that could cover one or more of the operations described under this number. 2.In granting concessions, it should be observed that:
§ 24 the advantages to be obtained through the concession should be superior to the resulting inconveniences, in economic, social and environmental terms;
§ 25 the coverage over costs and damages that the concession could cause to third parties or to the environment should be assured;
§ 26 the applicable tariffs and conditions for the supply should be fair and reasonable;
§ 27 the supply of electric power should fit in the existing and in the planned national and/or regional electric power network;
§ 28 the duration of the concession should be established and fixed;
§ 29 relatively to new constructions for the supply of electric power, the balance between supply and demand, the evolution of future demand, alternative means of supply, coverage of demand and the balance between costs and benefits for saving the consumption of energy in his facilities and the electrics of the consumers; should be taken into account, among other things;
§ 30 the reliability and the technical and financial capacity of the concession applicant should be approved. 3. The execution of technical studies and other researches linked, direct or indirectly, to a project of electric power supply require a prior authorization.
ARTICLE 10 (Exemption of a concession) 1. The production of electric power for personal use and consumption and that is not meant for supply to third parties, is exempt from any concession whatsoever. 2. Without prejudice to the provisions stated under the previous number, any electric power facilities whatsoever shall require a license to establish and a license of activity, under terms to be regulated.
ARTICLE 11 (Request for concession) 1. The request of a concession for the production, transport, distribution and commercialization of electric power, as well as the request for import and export shall be directed to a competent entity, which shall include an identification of the applicant as well as a description of the objectives of the request and duration period for the concession. 2. The competent entity shall authorize or deny the request within a deadline of one hundred and eighty days as from the date of its reception. 3. The requirements of the request for a concession are established and fiexd under regulations. 4. The concession and its extension are granted through a public bid, under terms to be regulated. 5. The concession requests as well as extension and transmission requests are subject to public publications and auditions, under terms to be regulated.
ARTICLE 12 (Concession period and content) 1.Concessions are granted through an administrative contract, for periods established therein, and under any case whatsoever shall the duration of the period exceed the initial maximum period of fifty years, which is susceptible to renewal. 2. The renewal of the concession shall be awarded provided that the following requirements are cumulatively observed:
§ 31 the concessionaire has fulfilled all his obligations in conformity to the terms of the concession agreement;
§ 32 the concessionaire presents an exploration programme and technical and economic studies which guarantee the best conditions for his operations. 3. The renewal period for the concession should be consistent with the amortization period for additional investments and with the needs to provide used resources for other purposes that shall guarantee better socio-economic benefits.
ARTICLE 13 (Transfer of concession) 1. The partial or total transfer of the rights contemplated by the concession is subject to prior approval by the competent entity, observing however, for this fact, the procedures indicated under article 10 of this Act, with all necessary adaptations. 2. The transfer referred to in this article is subject to the provisions stated under no 3 of article 24 of this Act.
ARTICLE 14 (Management of the national network for the transportation of electric power) 1. The management of the national network for the transportation of electric power is granted to a public entity that has sufficient technical capacities to guarantee the operations, feasibility and expansion of public services for the supply of electric power. 2. The designation of the entity referred to in the previous number and the terms and conditions applicable are established by decree of the Council of Ministers. 3.A private capital could participate in the development of the national network for the transportation of electric power, under terms to be regulated.
CHAPTER IV OBLIGATIONS, DUTIES AND RIGHTS OF THE CONCESSIONAIRE
ARTICLE 15 (Goods enrolled by the concessionaire) The concessionaire shall enroll goods and property to the activity which shall not be part of the concession, but deemed adequate and necessary for the good management and exercise of the services granted, even though such goods shall not directly participate in the supply of electric power; namely cars, equipment, utensils, stock of raw materials, commodities and measurement apparatus.
ARTICLE 16 (Specific obligations of the concessionaire) 1. The concessionaire shall, among other obligations, specifically:
§ 33 (I) run the concession in accordance with standards of a prudent and reasonable operator, in search of executing his obligations in good faith and with the level of expertise, diligence, cautiousness and preparedness expected from an expert and experienced operator, with sufficient financial means, and in conformity with the current laws, regulations, concession agreement and network codes; (II) any references to the standards of a prudent and reasonable operator shall be considered a reference to the levels of skills and expertise, diligence, cautiousness and preparedness described herein;
§ 34 provide adequate maintenance to all goods enrolled for the concession, up until the end of the concession;
§ 35 pay all indemnities due by right or goods expropriated, inform with a thirty-days-notice the bearer of the referred rights or goods, as well as inform on the start of such operation as deforestation or felling of trees and bushes, and the removal of soil or land;
§ 36 broadly speaking, abstain form all limitation of property rights;
§ 37 restore the waters used in supplying electric power to their initial conditions of purity, temperature and salubrity, in accordance with the data registered as when they were captured;
§ 38 proceed with the reestablishment of communication routes and circuits that were interrupted, reduced or diverted by the execution of electric power facilities construction, maintenance, improvement and repair works and undertakings;
§ 39 observe the legislation on waters and fisheries and their regulations, where applicable;
§ 40 observe the pertinent legislation on environmental issues;
§ 41 give access to the guardianship ministry as well as to all other persons or entities duly accredited by the same ministry to proceed with the inspection of the facilities, equipment, accountings files and any other documentation whatsoever in connection with the activities for which the concession was granted;
§ 42 provide data and information deemed relevant for the control of concession activities to the guardianship ministry, upon periodical request by same, under the protection of the concession granted. 2. The concessionaire further undertakes to render the electric power supply services in such a way as to better serve the interests and needs of consumers and contribute to the socio-economic development of the country. 3.The obligations set out in the previous numbers as well as all other specific obligations that should fall under the concessionaire are the object of regulations.
Article 17 (Electric power supply obligations) 1. The concessionaire shall, under the terms set out in the concession, supply electric power within his concession area to all applicants who wish to become consumers and who have the conditions to guarantee payments for their consumptions, installation and extension line or derivation costs, as well as the costs for the necessary extension works. 2. In case of refusal, reduction or unjustified delay to supply electric power to an applicant or consumer, he or she could appeal to CNELEC or any other competent entity, who shall decide whether the concessionaire should carry out the supply, and shall determine the conditions in which these shall take place. 3. Electric power consumers living within a concession area could obtain electric power supply from any concessionaire whosoever. 4. The concessionaire shall cooperate in the coordination and articulation with other electric power suppliers as regards to the national and regional electric power supply plans.
Article 18 (Regularity of the supply) 1. The concessionaire shall guarantee regular and good quality electric power supply services in order to avoid damages and prejudice to consumers’ economic activities, apparatus and equipment. 2. The awarded services could momentarily or partially be suspended or interrupted so that the concessionaire may assure the conservation or repair of installations and equipment, and proceed with works deemed necessary. 3. The concessionaire undertakes to reduce the number and duration of interruptions to the minimum, as well as limit these numbers and durations to seasons and hours during which the interruptions are susceptible of causing the least constraints possible to consumers. 4. The concessionaire shall, through prior public notice, inform consumers on the dates and hours of these interruptions. 5. Provided that unpredictable and out of control circumstances require urgent interventions, the concessionaire could, exceptionally, take immediate and necessary measures in order to fix and/or repair installations or equipment, or even suspend the services awarded.
Article 19 (Reduction or termination of supply) The concessionaire shall not reduce or terminate the supply of electric power, except if:
§ 43 the consumer is declared in a state of insolvency or bankruptcy, and subject to the terms and procedures of applicable laws;
§ 44 the consumer does not promptly pay agreed charges;
§ 45 the consumer fails to respect conditions previously set out and, having been warned or informed by written notice by the concessionaire for the verified failure, does not resolve the mentioned failure within thirty days after receipt of notice;
§ 46 there were force majeure events, as stated under the terms defined in this Act.
Article 20 (Transit of electric power) 1. The concessionaire of electric power transport, with technical availability, shall not refuse or deny the transit of electric power in his facilities to another concessionaire or consumer. 2. The concessionaire of electric power transport shall award, without any discrimination whatsoever, transit to other concessionaires or consumers under comparable conditions, in quality and price, of the service of electric power transport that he directly receives. 3. The transit of electric power through the installations of a third party is carried out upon payment of a transit tariff. The transit tariff is set or fixed in accordance with the costs of running the referred facility, reflecting the charges over the net, the length of the plan as well as other costs under terms to be regulated. 4. Any of the parties involved could request the revision of tariffs by the competent entity, in conformity with the provisions set out in no 4 of article 22. 5. Upon approval by the competent entity, the electric power transit, the respective conditions and tariffs, in a given region, could be the object of a regional transport agreement between the respective concessionaires or consumers operating in the aforementioned region. 6. The authorization of a concession for transport and/or distribution of electric power could be subject to the increase of in the capacity of the proposed facility, in order to allow other consumers and/or concessionaires to have access to electric power transit.
Article 21 (Access to facilities by the concessionaire) 1. The concessionaire, or the staff or entities expressly authorized by him, have access rights to locations that receive or have received electric power supplied by the concessionaire, in order to carry out works or inspect works, lines, measurement devices and other technical equipment that pertain to the concessionaire, and verify the awarded electricity bill or remove equipment pertaining to him when there is no longer supply of electric power. 2. The right to access referred to in the previous number should be exercise during normal working periods, provided that special circumstances in connection with the consumer or concessionaire justify that the access should be carried out in a different period. 3. The concessionaire is obliged to repair the damages caused while undertaking or executing the rights referred to in no 1.
Article 22 (Application of tariffs by the concessionaire) 1. The tariffs for the use, consumption and transit of electric power are set and fixed in the respective concession. 2. The tariffs for the use and consumption of electric power should be fair and reasonable. Those of transit are safeguarded by the provisions set out in no 2 and 3 of article 20. 3. The concessionaire shall not charge consumers any other fees or tariffs that were not set or stipulated in the concession. 4. The approved tariffs could be revised upon request by the concessionaire, who shall provide all necessary information for this matter and follow, with all due adaptations, the procedures for the award of a concession.
Article 23 (Termination of a concession) 1.The concession shall expire if:
§ 47 the duration of the concession expires without occurring any renewal whatsoever;
§ 48 it is terminated under the terms set out in the following numbers;
§ 49 it is terminated by the concessionaire under the terms set out in no 5 of this article. 2. The awarding entity may terminate the concession, which is subject to prior notice and in line with all other procedures to be regulated, in the event of one of the following facts:
§ 50 deviation from the object of the concession;
§ 51 suspension of the activities, considered object of the concession, which do not derive from a fact considered as an event of force majeure;
§ 52 repeated refusal to allow the execution of due inspection and control;
§ 53 refusal to carry out the adequate preservation and repair of the electric power facilities and goods contained therein;
§ 54 charge fraudulent tariffs, in amounts greater than those fixed in the concession;
§ 56 transfer of the concession or another unauthorized transfer;
§ 57 committing a material breach of any of the clauses of the concession contract or the provisions of this Act and its regulations. 3. The awarding entity shall not terminate the concession if the concessionaire undertakes to fully carry out his obligations and corrects or repairs the facts that originated the termination notice referred to in the previous number, within the period established in the aforementioned notice. 4. The concession contract could anticipate a notice to the main creditors of the concessionaire, within a deadline determined to them, in order to propose a solution that could hinder termination. 5. The concessionaire could terminate the concession contract against a 12 months prior notice, based on facts relative to the State’s failure to respect its obligations; and if from these facts resulted disruptions and /or damages that undermined the duly exercise of the activities object of the concession and the execution of the respective obligations as regard to electric power supply. 6. In the event of a termination of concession under the terms set out in the previous numbers, the competent authority could, based on criteria and procedures applicable to the award of a concession, determine:
§ 58 to revert the facilities and equipment, subject to provisions stated in article 24, in favour of the State or another third entity with adequate capacity to operate and carry out direct activities;
§ 59 to remove or destroy electric installations and/or the goods enrolled. 7. Without prejudice to provisions set out in the previous numbers, twelve months prior to the termination of concession, the competent entity shall take all measures deemed necessary and useful in order to guarantee the continuity of the awarded public service supply of electric power and its transition to new regime of activities. 8. The entity that shall operate the facilities, under the terms of this article, should make an inventory of the exiting property, for which he shall be liable.
Article 24 (Indemnity) 1.After termination of the concession and the reversion of the facilities and goods enrolled, the concessionaire is indemnified under the terms set out in article 25, for the audited amount of the investment capital, free from any taxes or charges and without prejudice to the right of reversion to the State over the concessionaire, for the prejudice and damages caused and for the obligations assumed by her and that were contradictory to the law or to the concession contract. 2.For the purpose of indemnity calculations, the depreciation of goods verified as of the date of transfer shall be considered, as well as their preservation state and effective usefulness, namely any deterioration due to lack of maintenance or repair as well as their adequacy to the objectives of the facility. For the calculations of indemnity, however, the fact that it is an administrative reversion shall not be taken into account, nor shall potential gains or ceasing revenues of the facility. 3. In the event of transfer of the facilities to a third party, the person or entity representing the third party to whom the facilities and respective concession are awarded, shall be liable to indemnify the initial concessionaire for the amount of his goods, under the terms stated in the previous numbers. 4. If the costs of the goods were already, partially or totally, amortized by the revenues of the tariffs, such a fact shall be taken into consideration in order to guarantee that the covered consumers shall only be responsible for amortizations of the parts that were not yet amortized, under the terms of tariffs to be applied. 5. The amount of the indemnities shall be approved by the competent authority that authorized the respective concession, under the terms of article 11 of this Act. 6.For the decisions taken on indemnity matters, these shall be up to competent legal or administrative entities.
Article 25 (Reversion of goods and rights) In the case of a concession involving electric power facilities that were constructed with funds deriving from public funds or that were not the result of the concessionaire’s equities, the concession contract could provide that, at the date established for the termination of concession and not having occurred any renewal of the concession, all goods and property enrolled in the concession shall revert, freely and without any charges whatsoever, to the State or to the entity of his choice, and also proceeding under the same terms, transfer all concessionaire’s rights.
Article 26 (Concessionaire liabilities) 1. The concessionaire is the sole person responsible for running the services object of the concession; he exclusively manages and runs the services at his own risk. 2. All responsibilities derived from running and/or operating the services awarded are exclusively the concessionaire’s. 3.The responsibilities referred to under no 1 of this article simultaneously include:
§ 60 criminal responsibility that he may incur for failing to respect the laws and regulations in force;
§ 61 civil responsibility for the prejudice and damages caused, under the terms of the laws in force. 4.All civil and criminal responsibility is safeguarded:
§ 63 in cases of dully justified fault or negligence by the aggrieved party;
§ 64 in cases where the incident may be imputable to third parties;
§ 65 in connection to prejudice, damages or disasters resulting from the conditions of the facility itself. 5. When the damages or prejudice result from different inter-independent facilities, the concessionaires of each one of the facilities are responsible solitarily, thus the indemnities shall be equally divided among them, except when the responsibility of one of them is sufficient without the other. In this case the indemnities are divided by those responsible, in a just and equitable manner. 6. Concessionaires of electric power facilities are responsible for acts and damages committed by their employees.
CHAPTER V FISCAL REGIME AND TAXES
ARTICLE 27 (Concession taxes) 1. The concessionaire shall annually pay concession taxes charged over net revenues of the concession entity, as a result of electric power supply. 2. The tax as well as the terms and conditions applicable are established by the Council of Ministers.
ARTICLE 28 (Fiscal regime) Concessionaires are subject to the general fiscal regime established in the legislation in force, but the Council of Ministers has the right of establishing a fiscal regime applicable to electric power supply activities by setting appropriate forms of taxation and incentives for investments carried out in this field.
CHAPTER VI USE OF LAND AND EXPROPRIATION
ARTICLE 29 (Right for use of land and protection zone) 1. The concession for electric power supply implies an authorization for access and use, under approved terms, of land necessary for the execution of undertakings and proper exploitation of the concession, through the payment of taxes and indemnities which are appropriate and subject to the fulfillment of procedures required under the terms of the Act on land, its Regulations and all other legislations applicable to the award for the right for use and exploitation of land, as well as expropriations under the terms of the following article. 2. The concessionaire undertakes, under applicable laws, to obtain the constitution and demarcation of the respective protection zone relative to the electric power facilities. 3. Without prejudice to provisions set out in the previous numbers, the concessionaire could give instructions to destroy plantations and constructions which could undermine power lines or his activities.
ARTICLE 30 (Expropriations) 1. When for reasons of necessity, utility or public interest, the production, transport or distribution of electric power implies the use, occupation, damage or destruction of properties and rights over the same or the limitation or imposition of taxes over their existing rights, the award of concession is liable to prior expropriation and liquidation of just indemnity, to be carried out under legal terms. 2. The expropriation mentioned in the previous number is subject to the fulfillment of the following requirements, that:
§ 66 the concessionaire or applicant for a concession had already undertaken legal steps in order to acquire the right for the use and exploitation of land or other properties involved, through an agreement with the holder of the said right or owner of the properties;
§ 67 the acquisition of the property or right relative to property is of public use or necessary for the execution of the electric power supply project;
§ 68 the right or property expropriated will not be used for a different purpose than the one that determined the expropriation;
§ 69 a statement of public use is issued, under the terms of this article. 3. In the event that the property or right relative to the same is not used for the purpose for which is was expropriated, the same shall revert to the user or original owner, without he being obliged to reimburse the indemnity paid. 4. It is the Council of Ministers’ duty to issue, upon expropriation proposals, the statement for public use with regard to new projects for the construction of electric power facilities by private entities, in accordance with the provisions in this article and all other procedures of applicable laws.
CHAPTER VII ENVIRONMENT SECURITY AND PROTECTION DIRECTIVES
ARTICLE 31 (Environment and heritage security and protection) 1. The supply of electric power should respect security directives in force as well as the rules of good technical conduct in the electric power industry. Electric power facilities should be established in such a way as to eliminate all predictable danger to populations and avoid damages to goods and properties; their establishment should not disturb free and regular circulation and traffic in public or private roads, affect security, undermine other power or telecommunication lines or cause damages to water or other pipelines. 2. On establishing electric power facilities, the undertakings should choose the most convenient location taking into consideration environmental and landscape concerns and the existing ecological systems. 3. The historical and cultural heritage of the country as well as all other locations with scientific, ecological, landscape or architectural significance and value should be respected and deserve special protection measures to avoid damages, when these are located in areas chosen for the establishment of electric power facilities. Necessary measures should equally be taken to reduce the number of cut trees to the minimum.
ARTICLE 32 (Security measures) 1. The undertakings of any work whatsoever that could endanger or put in risk the security of the people executing them, due to the proximity to the electric power facilities, or endanger or cause disturbances to the same facilities, should only start after the interested entities take the necessary cautions in common agreement. 2. Security and protection measures that should be adopted to prevent damages to electric power facilities and, namely, those considered important to the national electric power network shall be the object of regulations.
CHAPTER VIII WORKS AND CONSTRUCTIONS
ARTICLE 33 (Execution of works and constructions) 1. It is allowed to persons, concession entities or persons who are contracted to render services by them, to carry out works and constructions in the scope of the concessions awarded for the production, transport and distribution of electric power provided they respect legal and regulation provisions applicable. 2. The works and constructions could imply the temporary alteration of the configuration for locations of public use, such as communication routes or pavements, in order to place or replace aerial or underground cables, install or remove poles, boards, electric boards or others. 3. The concessionaire undertakes, during and at the end of executing the works and constructions, to:
§ 70 respect, as much as possible, the original planning and the material previously used;
§ 71 carry out adequate fencing and signposting in the locations affected;
§ 72 remove any waste material and debris created by the works;
§ 73 repair and restore the locations affected by the works and constructions.
CHAPTER IX USE OF HYDROGRAPHIC CURRENTS
ARTICLE 34 (Access to hydrographic currents) 1.Without prejudice to the provisions of competent legislation and observing provisions set out in no 2 of article 9 of this Act, for the purpose of producing electric power, the concessionaire has guaranteed access to:
§ 74 use a defined or determined quantity of a torrent of a course of water;
§ 75 remove, capture or store a defined or determined quantity of a course of water, within and outside of its river bed. 2. Concessionaires who were authorized to have access to hydrographic currents in order to produce hydroelectric power under the terms of this Act, are exempted to pay any taxes whatsoever for the use of water, under the terms stated in no 2 of article 43 of Act 16/91, dated 3rd of August. 3. Concessionaires referred to in the previous number are allowed, under the terms of the Land Act and its respective regulation, to obtain the right for the use and exploitation of the areas necessary to carry out works and install services necessary for using waters.
CHAPTER X CRIMES, PENALTIES AND SANCTIONS
ARTICLE 35 (Robbery) 1.Shall be punished as the perpetrator of a robbery crime:
§ 76 any individual who shall fraudulently subtract or steal electric power or fraudulently deviate electrical circuits;
§ 77 any individual that shall use any fraudulent means whatsoever to influence the electric board or permit using electric power without dully being charged for it. 2. Shall also be punished as the perpetrator of a robbery crime:
§ 78 the possessor or holder of cables made up of copper, aluminium or other material, as well as components of any parts whatsoever of an electric facility, including but not limited to, apparatus, equipment, parts and accessories used for the supply of electric power, who could not prove their illicit origin.
§ 79 the possessor of products or items made up of copper, aluminium, galvanized iron and all other tools, accessories and material used for supplying electric power and for which he could not prove their illicit origin. 3.Shall be considered a concealer of a robbery crime as stated in paragraph a) of no 2 of this article, those who purchase, pawn or by any other means acquire, receive or hide for their own benefit, anything they know is the result of crime, or those who help the criminal to take advantage of the same product, or influence third parties to acquire, receive or hide. 4.The sentence applied to the perpetrators of the aforementioned crime shall also apply to concealers or accomplices. 5.For the cases mentioned in no 2 and 3 of this article, the applied prison sentences shall not be suspended in their execution or substituted by penalties.
ARTICLE 36 (Damages) Those who for any reason whatsoever interfere or voluntarily disturb, partially or totally, electric power facilities in order to stop the production of public utility, shall be considered perpetrators of a damage crime and such, be punishable under the terms indicated in the Penal Code and all other legislation in force; and their prison sentence shall not be of less than one year.
ARTICLE 37 (Proof of proceedings) During the proceedings by authority or concession agents with public rights, for the crimes referred to in this chapter, witnesses are exempted. These proceedings shall be simple, either at the hearings or at the trial, until proven contrary be it which ever process applicable.
ARTICLE 38 (Qualified disobedience) Any individual, being the user of lands under which transmission power lines are set, who shall do, consent or preserve plantations or construction on them that may harm and damage the same lines or their exploitation, and who after warning does not destroy the referred plantations or constructions, shall be punishable under the terms of the Penal Code as the perpetrator of a qualified disobedience crime.
ARTICLE 39 (Other violations) 1. Without prejudice to criminal proceedings that may occur and safeguarded by the provisions in articles 35, 36 and 38, the following violations are punishable under terms to be regulated:
§ 80 the supply of electric power without the necessary concession;
§ 81 the establishment and/or exploitation of an electric power facility without the respective licence;
§ 82 failing to respect the obligations imposed on the holders of a licence and/or concession;
§ 83 failing to observe the provisions set out in this Act and all other approved regulations. 2.Consumers should not be opposed that concessionaires undertake, through their duly identified and accredited staff, the supervision for the implementation of this Act and its regulations; otherwise they shall incur electric power supply interruption and penalties to be set under terms to be regulated.
ARTICLE 40 (Procedures in case of fraud) 1. If the electric power supply concessionaire discovers or presumes the existence of a fraud, he should inform competent authorities, but firstly verify, through their agents, the electrics in order to justify fraud. 2. If after verification, the concessionaire finds fraud, he could suspend the supply of electric power.
ARTICLE 41 (Sanctions) 1.The amount of the penalties to be applied for the crimes stated in articles 35, 36 and 38 of this Act are the following:
§ 84 3 500 000,00 Mt or 40 500 000,00 MT, for the crime stated in paragraph a) of no 1 of article 35, based on low or medium tension facilities, respectively;
§ 85 500 000,00 MT or 11 500 000,00 MT per KVA installed, for the crime stated in paragraph b) of no 1 of article 35, based on low, medium or high tension facilities, respectively; incremented by electricity bills based on the consumer’s normal consumption;
§ 86 45 000 000,00 MT or 168 000 000,00 MT pre kilometer, or fraction of a kilometer, of cables or wires found in his possession, based on low, medium or high tension, respectively; and in connection to other parts of the electric power facility, the triple amount of the cost of restoring or repairing the same, for the crime stated under paragraph a) of no 2 of article 35;
§ 87 the quadruple of the market price for the products or items found in his possession, for the crime stated under paragraph b) of no 2 of article 35;
§ 88 the triple amount of the cost for restoring or repairing the equipment or apparatus, for the crime stated under article 36;
§ 89 the sum of the fees incurred by the concessionaire by removing or destroying the plants or constructions, for the crime stated under article 36. 2.The applicable penalty shall be doubled in the case of a second offence. The second offence shall be dealt with under the terms of the Penal Code in force. 3.It is the Council Of Ministers’ duty to update the penalties mentioned hereunder whenever necessary.
CHAPTER XI FINAL AND TRANSITORY PROVISIONS
ARTICLE 42 (Regulations) It is the Council of Ministers’ obligation to regulate the legal regime established in this Act.
ARTICLE 43 (Signing agreements with third parties) No provision of this Act shall be interpreted as an impediment so that the concessionaire may sign agreements or contracts with third parties in order to carry out works, install equipment, provide technical assistance, management, operate part or whole of the facilities; maintaining, however, the responsibilities of the concessionaire under the terms authorized in the concession.
ARTICLE 44 (Acquired Rights) 1. For the supply of electric power, the existing concessionaires, as from the date of entry in force of this Act, maintain the rights and obligations recorded in their respective concession contracts and the goods and properties affected therein. 2. The rights acquired under an existing concession are recognized upon presentation, by the holder, of the documentation proving the existence and validity of the same, twelve months from the date of entry in force of this Act. 3.This Act safeguards the rights acquired with regards to electric power supply, under the previous legislation, provided that no cause of termination was verified meanwhile, namely, the abandon for more than a year, as the exercise of such rights is subject to terms and conditions applicable to similar concessions, under the terms of the provisions of this Act and its regulation. 4.The recognition of acquired rights under previous legislation should be claimed within a twelve months period as from the date of entry in force of this Act; requiring the necessary information and the clarifications from those interested. 5. Without prejudice to the provisions in the previous numbers, individuals or entities that are currently supplying electric power without concession or operating an electric power facility under the terms of article 8, have a twelve months deadline as from the date of the entry in force of this Act, to submit the respective request for concession and/or licences to establish or operate, depending on the cases. 6. It is up to competent authorities that award concession, under the terms of article 7 or issue the referred licences under article 10 of this Act, to recognize the rights acquired under the terms stated in the previous numbers.
ARTICLE 45 (Reserve of internationally signed obligations) The provisions of this Act do not tarnish obligations resulting from commitments signed internationally with the State or foreign entities, under the terms of agreements, conventions or contracts signed regularly.
ARTICLE 46 (International cooperation) The Republic of Mozambique participate in international organizations and events in field of electric power and develop initiatives for participating in investments of regional interest, in view of promoting national energy resources.
ARTICLE 47 (Revoking the previous legislation) The previous legislation which is contrary to this Act is hereby revoked, safeguarding, however, the provisions in its article 44.
