Concessionaires set up judicial offensive for precatories – 04/07/2023 – Market

The main law firms in the country have already filed a package of lawsuits against the government in defense of the right of concessionaires to use precatorios in the payment of grants for the exploitation of public services.

Precatorios are federal government debt securities that, after being discussed in court, have final judgments for the payment of the debt.

The use of these papers was guaranteed by a constitutional amendment at the end of 2021, during the government of Jair Bolsonaro (PL), but is suspended by the AGU (Advocacia-Geral da União), which recommended that federal public administration bodies not accept them. until there is a kind of pacification on how to receive them.

This situation created, according to concessionaires, a legal limbo. This is because the AGU did not formally cancel the receipt of precatories and delegated decision-making power to regulatory agencies. There was, however, a recommendation to wait for their new instructions.

In practice, agencies receive precatories, but discharge does not progress. In other words, the processes are blocked.

At this moment, three airport concessionaires want to pay BRL 2 billion of their annual installments of grants with precatories. GRU Airport has R$ 1.5 billion in payment for the right to operate the airport in Guarulhos (SP); CCR Aeroportos, R$ 110.8 million for Confins (MG); and Inframérica, R$ 279.5 million for the Brasília airport (DF).

Although the invoice expires at the end of the year, everyone is worried because they believe that the issue of precatories will not be resolved by then. This is because the AGU predicts that the initial four-month period will be renewed – which would take this impasse until the beginning of next year.

So far, the Spanish group Aena has also not received a response to the writs it handed over to Anac (Agência de Aviação Civil) as part of the payment for the initial grant of R$ 2.45 billion for the 11 airports it won in the auction of the 7^The round at the end of last year. Congonhas airport is the flagship of this block.

The concession contract was signed, but the impasse over titles persists.

For this reason, the law firms surveyed by the Sheet intend to go to court requesting preventive injunctions, as did Rumo, a railway concessionaire.

Rumo asked the Court to freeze administrative deadlines provided for in the Malha Paulista concession contract until the imbroglio is resolved.

The Justice accepted and the obligations that would have to be fulfilled by the company will only count when the ANTT (National Land Transport Agency) takes a position, which has not occurred so far.

“Going on as it is, everything should generate excessive judicialization. In addition to not receiving the grants, the government may have to deal with challenges and successive visits to the Judiciary to make feasible the infrastructure projects it plans”, said Saulo Puttini, former legal director of the BNDES and today a partner at the law firm Levy & Salomão.

“The lack of definition about the procedures for concessionaires and other entrepreneurs to use precatorios to pay their commitments to the Union generates insecurity precisely for those who need a stable environment in the long term to invest.”

The Federal Council of the OAB (Brazilian Bar Association) is already considering appealing to the Federal Supreme Court.

According to the entity, the Special Commission for Precatories evaluates the “proposition of judicial measures, with a request to suspend the effects of the AGU act that tries to make the receipt of precatories in concessions unfeasible”.

On another front, the OAB intends to attack the inclusion of the payment of precatories within the spending ceiling (law that defined the federal government’s spending limit) as it considers that the measure violates the Constitution.

Snowball

Behind this imbroglio, there is a snowball of debts that the government still cannot control.

The constitutional amendment was proposed by the team of former Minister of Economy of Jair Bolsonaro, Paulo Guedes, as a way to reduce the public debt and stimulate the economy —through the use of writs not only to reduce debts with the Union, but also in the payment of concessions.

After the PEC, the Union created a queue predicting, on average, the discharge of R$ 100 billion per year in precatories. However, less than 20% have actually been paid.

The difference in values ​​was used in other current expenses of the Jair Bolsonaro government, which needed to make fiscal space for electoral expenses.

This effect will only take these “remainders to be paid” to something around 1.6% of GDP in 2026, according to bank projections.

Treasury Secretary Rogério Ceron has already publicly stated that the government recognizes this problem and is seeking a way out.

Behind the scenes, Treasury attorneys study rules so that these securities can be used, as provided by law, but without causing damage to the treasury.

At the Ministry of Finance, the understanding is that there are no restrictions for reducing debts. This is because there would be a purely accounting operation: the taxpayer’s debt would be offset by the Union’s debt.

At the other end, however, failing to receive grants could jeopardize the fiscal scenario that requires increased revenues —the mainstay of the new fiscal anchor.

Through its advisory, Anac said that it will follow what the AGU recommends in a new ordinance on precatories.

Sought, the National Treasury did not respond until the publication of this report. The AGU reported that the ordinance with the new rules for the use of precatories should be published within six months.