AGU bars the use of precatorios as payment currency – 05/10/2023 – Panel SA

The Attorney General of the Union, Jorge Messias, ordered all federal government bodies, including regulatory agencies, not to proceed with requests from concessionaires for the use of precatories in the payment of grants of public concessions and also for other purposes.

Precatorios are Union debt securities with final court judgments.

The measure adopted by the head of the AGU is controversial, because the use of these papers as currency in the federal public administration is provided for in the Constitution, which says it is self-applicable. It was introduced by amendments enacted by Congress in 2021.

The new order represents a reversal of positions adopted so far by the government. Last Friday (5th), ANAC had endorsed a request from the concessionaire that won the bid for the airports of Belém (PA) and Macapá (AP) to pay part of the grant due with precatorios. The endorsement occurred because the AGU had released it.

The analysis of this case was even passed by the PGFN (Attorney General of the National Treasury), which attested to the validity of the presented titles.

The situation at Congonhas airport, in São Paulo, was also under analysis. The Spanish company Aena, which won the terminal at an auction last year, together with ten other airports, indicated to Anac that it wanted to pay the value of the initial authorization to start the concession with precatorios.

The AGU order came after an understanding adopted by the General Consultancy of the Union, which considered, in a dispatch also last Friday, that there were divergent interpretations within the government regarding the use of precatories.

“It is clear that the analysis of precatories processes under the terms of art. 100, § 11, is absolutely reckless [da Constituição] within the bodies of the Attorney General’s Office and even in other bodies and entities of the Union. The quadrature presented, without the regulation and solution of legal controversies, can give rise, and will certainly occur, actions with different legal bases and through non-uniform procedures, facts that can cause damage to the Union and to the administered”, says the reasoning that supported the Messiah’s decision.

With the new imposition on the bodies, the AGU goes up a notch in the restrictions on the use of precatories. In February, it revoked an ordinance from last December that defined the procedures to be adopted for the analysis of these requests from concessionaires and other companies.

But he said at the time that the agencies could continue to analyze the cases, even without a defined general rule.

Now, the situation of legal uncertainty increases and any request for the use of precatories is vetoed from being analyzed by any body.

This suspension is valid until the AGU concludes the process of elaborating a new ordinance that regulates the issue – which does not have a set date to happen.

The decision by the government’s main legal body comes amid a lack of definition by the federal government on what to do in practice with the determination included in the Constitution through amendments enacted in 2021 by Congress.

One of the main points of this constitutional change was the possibility that infrastructure concessionaires, instead of using money to settle their commitments with the government, could use precatorios.

The solution adopted by the parliamentarians was an attempt to reduce the government’s growing stock of legal debts and improve public accounts.

For companies, negotiations of this type are advantageous because the securities are acquired from the original creditors in the market, at a discount.

In a note, the AGU said that it created a working group with the purpose of preparing a new ordinance to discipline the formal requirements, the necessary documentation, the possibility of demanding the provision of guarantees and the procedure to be observed by public bodies and entities in the face of prepayment offers. The forecast is that within 15 days a text proposal will be submitted for public consultation.

“The order approved by the Attorney General of the Union, Jorge Messias, determined, in a precautionary manner, the legal advisory services of ministries, the Attorney General’s Office of the National Treasury and the Federal Attorney General’s Office (which provides legal advice to municipalities and foundations) the suspension of the analysis of any precatory offer until the completion of the group’s work, in order to prevent the units from adopting divergent legal understandings while the new regulation is not completed”, said the AGU.

With Diego Felix

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